U.S. GOVERNMENT PRINTING OFFICE

51–600 u WASHINGTON : 1998

NATIONAL MARINE FISHERIES SERVICE’S IMPLEMENTATION OF THE ENDANGERED SPECIES

ACT

FIELD HEARINGS

BEFORE THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

SECOND SESSION

SEPTEMBER 2, 1998, PASCO, WASHINGTON, AND SEPTEMBER 3, 1998,

BOISE, IDAHO

Serial No. 105–111

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

or

Committee address: http://www.house.gov/resources
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

JOHN SHADEGG, Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MICHAEL D. CRAPO, Idaho

GEORGE MILLER, California

EDWARD J. MARKEY, Massachusetts

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

MAURICE D. HINCHEY, New York

ROBERT A. UNDERWOOD, Guam

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

WILLIAM D. DELAHUNT, Massachusetts

CHRIS JOHN, Louisiana

DONNA CHRISTIAN-GREEN, Virgin Islands

RON KIND, Wisconsin

LLOYD DOGGETT, Texas

LLOYD A. JONES, Chief of Staff

ELIZABETH MEGGINSON, Chief Counsel

CHRISTINE KENNEDY, Chief Clerk/Administrator

JOHN LAWRENCE, Democratic Staff Director
(III)

C O N T E N T S

Page

Hearing held in Pasco, Washington, September 2, 1998 ...................................... 1

Statement of Members:

Chenoweth, Hon. Helen, a Representative in Congress from the State

of Idaho .......................................................................................................... 8

Hastings, Hon. Doc, a Representative in Congress from the State of

Washington .................................................................................................... 4

Nethercutt, Hon. George, a Representative in Congress from the State

of Washington ............................................................................................... 7

Romero-Barcelo ́, Hon. Carlos A., a Delegate in Congress from the Commonwealth of Puerto Rico ............................................................................ 2

Smith, Hon. Linda, a Representative in Congress from the State of Washington ............................................................................................................. 6

Smith, Hon. Robert F. (Bob), a Representative in Congress from the

State of Oregon, prepared statement of ...................................................... 75

Statement of Witnesses:

Anderson, James D., Ph.D., Associate Professor, School of Fisheries, University of Washington, Seattle, Washington ............................................... 18

Prepared statement of ............................................................................... 79

Baker, Jim, Northwest Salmon Campaign Coordinator, Sierra Club, Pullman, Washington .......................................................................................... 53

Prepared statement of ............................................................................... 171

Baker, Jim, Northwest Salmon Campaign Coordinator, Sierra Club,

Pullman, Washington ............................................................................ 53

Prepared statement of ............................................................................... 105

Response to questions from members ...................................................... 106

Ballard, Clyde, Speaker of the House, Washington State Legislature ........ 10

Prepared statement of ............................................................................... 146

Curtis, Jeff, Western Conservation Director, Trout Unlimited, Portland,

Oregon ............................................................................................................ 35

Prepared statement of ............................................................................... 86

Erickson, Richard, Secretary/Manager, East Columbia Basin Irrigation

District, Othello, Washington ...................................................................... 57

Prepared statement of ............................................................................... 101

Ferrioli, Ted, Oregon State Senate ................................................................. 16

Prepared statement of ............................................................................... 77

Givens, John, Executive Director, Port of Kennewick, Kennewick, Washington ............................................................................................................. 38

Prepared statement of ............................................................................... 87

Hale, Bob, Hale Farms, Hermiston, Oregon .................................................. 40

Prepared statement of ............................................................................... 89

Kilbury, Charles D., Mayor, City of Pasco, Washington ............................... 9

Prepared statement of ............................................................................... 144

Lundquist, Lynn, Speaker of the House, Oregon State Legislature ............ 12

Prepared statement of ............................................................................... 76

Mastin, Dave, Chairman, House-Senate Executive Branch Task Force

on Salmon Recovery, Washington State Legislature ................................. 14

Olsen, Darryll, Ph.D., The Pacific Northwest Project, Kennewick, Washington ............................................................................................................. 36

Prepared statement of ............................................................................... 148

Phillips, Rob, Director, Northwest Sport Fishing Industry Association,

Oregon City, Oregon ..................................................................................... 59

Prepared statement of ............................................................................... 104

Stelle, Jr., William, Regional Administrator, National Marine Fisheries

Service, Seattle, Washington ....................................................................... 31
Page

IV

Statement of Witnesses—Continued

Stelle, Jr., William, Regional Administrator, National Marine Fisheries

Service, Seattle, Washington—Continued

Prepared statement of ............................................................................... 81

Response to questions from Committee ................................................... 85

Ziari, Fred, Chairman, Eastern Oregon Irrigation Association, Hermiston,

Oregon ............................................................................................................ 35

Prepared statement of ............................................................................... 96

Communications submitted:

Bowman, Leo M., Chairman, Board of County Commissioners, prepared

statement of ................................................................................................... 131

Christensen, Shirley D., President, Sunset Orchards & Farms, Inc.,

Othello, Washington, prepared statement of .............................................. 121

Fancher, Helen, President, Washington State Assoc. of Counties, Tacoma,

Washington, resolutions passed by .............................................................. 133

Johnson, Linda M., Director, Government Relations, Washington State

Farm Bureau, Olympia, Washington, prepared statement of ................... 100

Lonn, Robert D., Consultant/Planner, NW Council of Governments &

Associates, Soap Lake, Washington, prepared statement of ..................... 114

McCleary, Edward, Tacoma, Washington, prepared statement of ............... 123

McGregor, Alex, State President, Washington Association of Wheat Growers, prepared statement of ........................................................................... 97

Meissner, Louis, Chairman, Governmental Affairs, Greater Pasco Area,

Chamber of Commerce, Pasco, Washington, prepared statement of ........ 124

Norris, Charles R. ‘‘Chuck,’’ Hermiston, Oregon, prepared statement of .... 109

Perleberg, Columbia Basin Nursery, L.L.C., prepared statement of ........... 122

Puzey, Kim B., Ph.D., General Manager, Port of Umatilla, Umatilla,

Oregon, prepared statement of .................................................................... 135

Riley, Susan, Secretary/Treasurer, Columbia Basin Environmental Council, Soap Lake, Washington, prepared statement of .................................. 117

Riley, William, Director, Big Bend Economic Development Council, Moses

Lake, Washington, prepared statement of .................................................. 116

Stueckle, David J., LaCrosse, Washington, letter to the Committee ........... 98

Sullivan, Suzanne, Burbank, Washington, prepared statement of .............. 118

West Coast Seafood Processors Association, Portland, Oregon, letter submitted to Hon. Don Young ........................................................................... 99

Hearing held in Boise, Idaho, September 3, 1998 ................................................. 203

Statement of Members:

Chenoweth, Hon. Helen, a Representative in Congress from the State

of Idaho, prepared statement of ................................................................... 207

Kempthorne, Hon. Dirk, a Senator in Congress from the State of Idaho,

prepared statement of ................................................................................... 204

Statement of Witnesses:

Batt, Philip E., Governor, State of Idaho ....................................................... 211

Prepared statement of ............................................................................... 213

Cantrell, Shawn, Northwest Regional Director, Friends of the Earth ......... 253

Prepared statement of ............................................................................... 291

Doeringsfeld, David, Manager, Port of Lewiston ........................................... 226

Prepared statement of ............................................................................... 282

James, Olivia, President, The River Company .............................................. 221

Prepared statement of ............................................................................... 302

Kerr, Thomas, Commissioner, Valley County, Idaho .................................... 219

Prepared statement of ............................................................................... 271

Klemm, Jerry, President, Pulp and Paperworkers Resource Council .......... 240

Prepared statement of ............................................................................... 282

Limbaugh, Mark, Executive Director, Payette River Water Users Association, Inc. ......................................................................................................... 224

Prepared statement of ............................................................................... 276

Little, Jim, Idaho Cattle Association .............................................................. 255

Prepared statement of ............................................................................... 292

Maynard, Robert A., Perkins Coie, LLP ......................................................... 222

Prepared statement of ............................................................................... 312

Pollot, Mark, Foundation for Constitutional Law .......................................... 238

Raybould, Dell, Chairman, Committee of Nine, Water District 1 ................ 242

Prepared statement of ............................................................................... 283
Page

V

Statement of Witnesses—Continued

Sanchotena, Mitch, Executive Director, Idaho Steelhead and Salmon Unlimited ............................................................................................................ 258

Prepared statement of ............................................................................... 293

Stelle, Will, National Marine Fisheries Service ............................................. 251

Stuart, Tom, Board President, Idaho Rivers United ..................................... 235

Additional material supplied:

Chapman, Sherl L., Executive Director, Idaho Water Users Association,

prepared statement of ................................................................................... 272

Darm, Donna, Regional Administrator for Protected Resources, National

Marine Fisheries Service, Northwest Region, prepared statement of ...... 297

Moss, DeWitt, on behalf of Northside Canal Company, Twin Falls Canal

Company, and Committee of Nine, Water District 1, prepared statement of ........................................................................................................... 295
(1)

FIELD HEARING ON NATIONAL MARINE FISHERIES SERVICE’S IMPLEMENTATION OF

THE ENDANGERED SPECIES ACT

WEDNESDAY, SEPTEMBER 2, 1998

HOUSE OF REPRESENTATIVES,

COMMITTEE ON RESOURCES,

Pasco, Washington.

The Committee met, pursuant to notice, at 10 a.m. in the Columbia Basin College, Workforce Training Center, Pasco, Washington,

Hon. Richard W. Pombo presiding.

Mr. POMBO [presiding.] Before we get started, I would like to announce that there is an overflow room. It is room 130 and 131.

There is, I am told, a live video and audio in the other room.

So everybody could either try to come into the room, or there is

an overflow room that I am told is comfortable and has live audio

and video in it so you can see the hearing. But we’d like to get everybody in if possible.

Good morning. Thank you for the opportunity to bring the House

of Representatives Committee on Resources to the state of Washington and the Tri-Cities area. We look forward to this hearing

today to learn more from you about how the Endangered Species

Act is being implemented and enforced in this Northwestern region

of the country by the National Marine Fisheries Service.

The Chairman of the Committee, Congressman Don Young, the

Congressman from the state of Alaska, sends his best regards and

his regrets that he cannot be here with you today. He has asked

me to chair this field hearing for him.

In 1995 when the Republicans became the majority party in Congress we all had great hopes that we would be able to amend the

Endangered Species Act and implement common sense approaches

to species protection, similar to those that the 1973 Congress envisioned when they originally adopted this law.

Congress believed that this law would be used to prevent the extinction of species, but never dreamed that it would turn into a tool

to be used by a small minority of people to impose Federal land

and water use controls on the majority of people.

They also never envisioned the widespread injunctions and economic and social dislocations that many of you are now familiar

with.

For the last 4 years many of the members here present and others in Congress have worked to bring about a common sense approach that protects both species and the rights of our citizens.
2

Unfortunately, instead of sitting down with Congress to discuss

the future of protecting the nation’s species, the Clinton Administration has chosen to stand in the way of genuine efforts that

would have brought about change. Changes that would have protected the right of our farmers and landowners while still ensuring

the protection of wildlife.

The ESA has been law since 1973. Currently there are over 1100

domestic species protected under that law. Time is long over-due

for the administration to work cooperatively with Congress to fix

the ESA. It is outdated and it is broken. It is broken for people and

it is broken for wildlife.

As many of you in this room today can attest to, it punishes

those who do the most to provide habitat for wildlife.

Today this hearing will focus on the role that the National Marine Fisheries Service, or NMFS, plays in enforcing the ESA. The

ESA gives NMFS the authority to perform all the duties required

by the ESA when they involve ocean dwelling species and marine

mammals.

The Fish and Wildlife Service enforces the law and performs all

of the duties required by the ESA for all other species. However,

when land based activities are affected by the ESA, both Federal

agencies are involved in regulating those activities.

If you have endangered species on your property in this region

of the country, you may be required to obtain two Federal permits

under the ESA for the same activity.

It seems to me that there is no need for two Federal agencies to

perform exactly the same duties and regulate the exact same activities.

The House Resources Committee is here today to hear from you.

We are here to listen to your ideas on what we, as your elected representatives, can do to improve the implementation of the Endangered Species Act.

I strongly believe that as our country begins to enter the 21st

century we must and can find a more friendly and fair way to accomplish the goals of this outdated species protection act.

Surely we can reduce the regulatory burdens on average citizens,

small businesses and state and local governments, while still protecting our natural resources. I hope today’s hearing will help you

find a way to make improvements in this law in ways that work

for both species and for people.

I would like at this time to recognize the Ranking Democrat, Mr.

Romero-Barcelo ́.

STATEMENT OF HON. CARLOS A. ROMERO-BARCELO ́ , A DELEGATE IN CONGRESS FROM THE COMMONWEALTH OF PUERTO RICO

Mr. ROMERO-BARCELO ́. Thank you, Mr. Chairman. And I congratulate you for holding this hearing today.

Since this legislation that is the subject of the hearing will require a complete reorganization of at least two government agencies at a considerable expense to the American taxpayers, I sympathize with the need to hear from witnesses more knowledgeable

on this subject and the issues than most of us in Congress.
3

I appreciate the chairman’s concerns for the Endangered Species

Act and the idea that we must be looking for ways to improve our

endangered species recovery efforts.

But I have reservations that the Bill that would strip the National Marine Fisheries Service from its authority to implement the

Endangered Species Act is the best solution.

The National Marine Fisheries Service has spent decades gaining

the expertise to address endangered species problems related to

marine fisheries and species, while the Fish and Wildlife Service

has focused its expertise on terrestrial species.

I feel that a transfer of authority at this time could slow the recovery process for salmon and other marine species at a time when

many of these species are in trouble and can ill-afford a delay.

For an island like Puerto Rico it has proven that officials to have

just one agency making management decisions for both marine species and commercially valuable marine fisheries, to divide responsibility between two different agencies with two different cabinet

heads has a potential of a real quagmire, creating twice the bureaucracies and taking twice the time to make management decisions.

In fact, the Committee has already heard from representatives of

the West Coast fishing industry who are opposed to the legislation

for this very reason.

If there are problems with the implementation of the Endangered

Species Act, we need to address those fundamental issues.

One of the more serious issues is funding. In the past decade the

National Marine Fisheries Service’s responsibility with respect to

endangered species has grown dramatically, but their budget has

not followed suit.

This year the administration requested a $10,000,000 million increase in the Endangered Species Act, but the appropriators only

provided level funding.

As a result of delays in the development of recovery plans, consultations and other activities that cause people to complain that

the National Marine Fisheries Service is not doing its job will continue.

This bill does nothing to address that problem.

In addition, fundamental changes are needed in the law itself to

streamline many of the processes that people find so frustrating,

regardless of whether it is the National Marine Fisheries Service

or Fish and Wildlife Service implementing the law.

If we want to do something to really resolve the Endangered Species Act conflict, we must provide the agencies with the financial

and legislative resources to do their job in a timely fashion.

It is clear that the majority of Americans support the protection

of endangered species and the law is not going away, and whether

moving our problems from one agency to another is the solution,

I don’t know. But let us work together to reauthorize the law in

a way that makes it better for both the species and the people.

Thank you, Mr. Chairman.

Mr. POMBO. Thank you. I would like to recognize Congressman

Hastings at this point for his opening statement.
4

STATEMENT OF HON. DOC HASTINGS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF WASHINGTON

Mr. HASTINGS. Mr. Chairman, I really appreciate you and my colleagues for coming here to the Tri-Cities and Central Washington

for this field hearing.

Clearly, the Endangered Species Act and its implementation has

impacted those of us in Central Washington.

And let me just give you my observation on how the ESA has

worked here.

Using the Endangered Species Act, I believe that Federal regulators have squeezed their way into every aspect of our lives. From

water usage, commercial and sportfishing, irrigation diversions, hydroelectric production, and even flood control, an assortment of

Federal agencies end up making decisions for our region, oftentimes circumventing the state and local decisionmaking process.

While we have a variety of different species protected under the

ESA here in the Columbia Basin, by far the most sensitive, and important I might add, is the issue of saving and restoring our historic salmon runs. The history and culture of our entire region is

at risk in this debate.

The ability of the Federal Government to deal with the decline

of salmon runs will test the ESA’s efficacy in addressing difficult

and complex regional issues.

Locally the Federal Government has already declared the Snake

River steelhead, Snake River Sockeye, the Snake River Chinook

and the Upper Columbia River steelhead as endangered. That’s

just essentially in Washington State. Adding Oregon and Idaho,

the list becomes even larger.

Clearly the role of the Federal protection agencies is going to

grow if more and more populations are listed.

As you well know, the Endangered Species Act does not protect

species. Let me repeat that, because I believe it is one of the largest misunderstandings of the ESA. It protects distinct population

segments.

This is a regional classification that ignores the strength and

health of the species in other regions. A specie may not be in danger of extinction at all, and in fact there are many that are not

even close to being extinct.

But the ESA specifically provides for the protection of distinct

population segments of species, and therefore the protection of

Sockeye salmon of the Snake River or Chinook salmon of the upper

Columbia can be federally protected under the ESA.

Even the controversial Northern Spotted Owl has never been in

danger of becoming extinct, just locally extinct.

I would conclude that there is a big difference.

I share the belief that regional populations of distinct species

should be preserved as best as possible.

To accomplish this, however, we must look at the entire life cycle

of a protected population. This is where preserving and restoring

salmon populations become very, very difficult.

We are committing regional resources, and in some cases national and international resources, to the preservation of a local resource. And we know so little about the conditions that each salm-
5

on stock prefer. Therefore, making necessary adjustments become

very costly, with a very limited likelihood of complete success.

Let me give you an example. Why can the Sockeye return to the

Okanogan River through nine dams and through hundreds of

miles, and still be a viable specie, while the Upper Columbia River

steelhead, who goes through exactly the same dams, the same hundreds of miles, is listed as endangered?

The question is, is it ocean conditions, the timing of the harvests,

their path through the Northern Pacific, the temperature of the

water, the depth of the migration that protects them from predators, or something else entirely?

I think we need to find out, and that’s the coordination that I

think needs to be looked at.

Unfortunately, our Federal fishery managers and their supervisors, right up to the Department—to the Secretary of Interior,

have so consistently blamed the dams for the decline of all the

salmon runs that they have become the targets of the most dramatic adjustments for the sake of the region’s salmon.

Deep drawdowns below the minimum operating pools, reducing

irrigation diversion below Federal contract levels, eliminating timber harvests near streams, delaying grazing permits for cattle, and

outright removal of dams, all of these options have been studied,

considered, or mandated in our region, with no certainty of recovery, or even making the sustainability of salmon, and I think this

issue must change.

What has yet to be comprehensively addressed in my view is the

commercial harvest of salmon in the open ocean.

I don’t understand how our fisheries managers can continue to

allow the harvest, and I am not referring to incidental catches in

this case, I am speaking of harvesting endangered salmon stocks

by commercial fishermen. I think we can all remember that when

the spotted owl was listed in the 1980’s, that the threat of removing one tree within their owl circle was considered a take under the

ESA.

Now, because the Sockeye salmon from the Snake River is not

visually distinct from Sockeye salmon from Alaska or Canada, commercial fishermen continue to harvest millions of pounds of Sockeye each year.

I will be very interested to hear why the National Marine Fisheries Service has not required each commercial fisherman to be

issued an incidental take permit for every endangered salmon

caught or killed.

I would like to know why our region has committed billions of

dollars to recovery efforts when commercial harvests continue

unabated.

I will just make this, quickly four recommendations that I think

need to be a part of any ESA reform.

First, we need a comprehensive approach that doesn’t leave predator control to nature. If we are to protect the region’s salmon runs,

we must protect them from their natural predators, as well. For example, the Caspian Tern population at the mouth of the Columbia

is now one of the largest in the world. There has been a recent report that the Caspian Tern has consumed over 11 million smolts.
6

I might add that that is more smolts than we barge down the Columbia River.

So we need to look at it, have a comprehensive approach to the

predator problem.

Second, we need an approach that doesn’t put commercial fishing

and tribal fishing under different Federal jurisdictions.

And third, we need to have the BPA and the Northwest Power

Planning Council working with the Federal agencies, not at the

mercy of them.

I would like to see a program implemented, in conjunction with

the Power Planning Council and BPA, that would voluntarily offer

to compensate fishermen for setting aside a portion of their salmon

harvest.

This is very similar to what we do with land as far as habitat

under the Conservation Reserve Program.

And, finally, I would argue that most importantly, local citizens

need to be at the table, making decisions for themselves.

We had a case of that in the upper Mid-Columbia with the MidColumbia PUDs agreeing to a habitat conservation plan that will

last for some 50 years if it is implemented.

But the bottom line of that whole plan is that local people will

be at the table. That’s the approach we need to pursue.

So, in closing, I would just like to say that once again, Mr. Chairman, thank you for bringing this hearing, and I am looking forward

to all the testimony from those that are affected, either pro or con,

perceived or not, as to how the ESA is being implemented by

NMFS.

And with that I will give back my time.

Mr. POMBO. Thank you. Congressman Smith—Congresswoman

Smith.

STATEMENT OF HON. LINDA SMITH, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF WASHINGTON

Mrs. SMITH. Thank you, Mr. Chairman, and thank you for coming. You could have stayed home with that new baby. All of a sudden that baby isn’t that new anymore.

The Committee as it sits today is a committee of very diverse

people from around the West. And what we find for you here from

home is that there’s quite a different opinion of who should control

our destiny in our state.

And they have come up with some false choices that I want to

hear addressed today by those testifying that if we are to work to

recover salmon and to preserve our environment and the endangered species, then we automatically have to give up our other

rights, like property rights.

And I think what I want to just lay as a base of the philosophy

that I would like to hear spoken to, do we believe that that assumption is accurate?

And I am going to say that I don’t. And I guess I set that up a

little bit. I don’t think we have to have the choice of recovery and

protection of species or protection of our property rights.

I do believe that water is a property right. And if you deny water

as a property right, held to the States, controlled by the Federal
7

Government, then you give property rights to the Federal Government to control the moment that they control the water.

And what we’re seeing around the Nation here, and that’s why

it’s important we have this hearing here, is the Federal Government moving to control water levels which then control water

rights, whether they take them or not.

Because if they change our water levels, they’ve got our water

rights.

So, this is an important thing today that is happening.

I am very, very grateful for the Chairman of this Committee. We

have several Subcommittees. We happen to be on this, Representative Pombo and myself, but we have several Subcommittees, and

most folks take August off. They go home. They get some rest, to

go back in September.

So, for this Committee to take their time and Representative

Chenoweth and Representative Romero-Barcelo ́, to come here,

means a whole lot for our region, and I do want to thank them for

coming to our state.

I want to make a statement about your representative. Doc

Hastings probably knows this issue better than anyone in Congress. And he really fought to get this hearing here. Our Committee didn’t have much ability to hold hearings. We’re just about

to the end of the 2 year period. And so for him to advocate the way

he did, you have to know, you’ve really got a champion for you from

this district.

And I look forward to hearing the testimony.

Mr. POMBO. Congressman Nethercutt.

STATEMENT OF HON. GEORGE NETHERCUTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON

Mr. NETHERCUTT. Thank you, Mr. Chairman.

Ladies and gentlemen, thank you for allowing me to participate

in this panel. I am not a member of the Resources Committee in

Congress. I am a member of the Appropriations Committee, which

has jurisdiction over the Interior agencies and the Agriculture Department, those land management agencies that affect farmers and

ranchers.

So I have a particular interest in this issue because of the subcommittees on which I serve have to pay the bill for these activities

that the Federal Government engages itself in relative to our natural resources.

I want to thank Congressman Doc Hastings and Congressman

Pombo and the rest of the panel for being here today to chair this

very important hearing and listen to the citizens of our region.

Doc and I represent more than half of the entire geographical

area of the state of Washington. And the two primary interests

that are affected in our respective districts are agriculture and the

timber industry, or natural resource based industries.

From an economic standpoint, agriculture and timber play a tremendous interest, as part of our state’s economy and our region’s

economy.

So, what the Federal Government does to us in those industries

has a tremendous impact and a reverberating effect on corresponding industries that rely on agriculture and timber.
8

My bias has been, since I was elected to this job, was to be sure

that the people who work and live in the Fifth Congressional District, north in the timber areas and south in the agriculture areas,

are able to continue their way of life, that they are able to continue

to farm and ranch and live the lifestyle they have lived over generations.

And to the extent that the Endangered Species Act has an impact on that way of life, it has a very great impact on the way I

look at the actions of the Federal Government.

The bottom line for me is to try to listen here today, and frankly

I am very pleased to see so many citizens here who have a stake

in the decisions that are made by the Federal Government, the

NMFS, and all the other land management agencies, as it relates

to the Endangered Species Act.

So I welcome you here as a nonmember of this Subcommittee or

Committee, but as a very interested part of the equation of paying

for those things and trying to make good judgments about how, you

as taxpayers, pay for the activities that these government agencies

decide are in our best interests.

Beyond the very severe impacts of the ESA on private property

rights and the two industries that I mention, decisions relative to

breaching dams and locking up our forests under the name of protecting species will have a terrible effect on our agriculture and

timber industries and have a terrible effect on our economy.

So my hope is that we can resist that at every instance, because

I think it’s wrong headed, and to the extent that government agencies have a desire to do that, you’ll find everyone on this panel I

predict fighting against those kinds of actions.

So, thank you for coming. Thank you, Chairman, for recognizing

me, and I look forward to a good hearing.

Mr. POMBO. Congresswoman Chenoweth.

STATEMENT OF HON. HELEN CHENOWETH, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO

Mrs. CHENOWETH. Thank you, Mr. Chairman. I just want to say

I am very pleased to be here. I am a member of the Resources

Committee and I am a member of the task force on the Endangered

Species Act. And so this subject holds a great deal of interest for

me.

It’s great to be here in Doc Hastings’s district. I see, Mr. Chairman, that we have great witnesses in the three panels, and I am

looking forward, as I know we all are, to hearing from those witnesses.

And I just want to say I very much identify with the comments

of my colleagues. Thank you very much.

Mr. POMBO. Just to start off, there’s one member that’s out here

that I would specifically like to thank for being here.

Congresswoman Chenoweth in the 25 odd hearings that I have

chaired on the Endangered Species Act, has been at every single

one of them, whether it was in New Orleans or South Carolina or

California or where it was, she showed up at every single one of

them. And I appreciate her diligence in representing the people

that she’s elected to represent.
9

To start off, I would like to call up the Mayor of Pasco, Mayor

Kilbury, and he has a brief statement he would like to make.

Please join us.

Thank you very much for being here. I realize that you have a

written statement on the specifics of the hearing. That will be included in the record. I wanted to give you an opportunity to welcome everybody to your fine city. Mayor?

STATEMENT OF CHARLES D. KILBURY, MAYOR, CITY OF

PASCO, WASHINGTON

Mr. KILBURY. Well, first I’d like to welcome everyone to my fine

city. It is a fine city. We are glad to have you. It gives us an opportunity to speak on this matter.

I am Charles D. Kilbury, Mayor of the city of Pasco, and I am

reporting action by the City Council of the city of Pasco.

Some few weeks ago the City Council passed a resolution in direct opposition to an action requiring breaching or lowering the

pools behind the dams on the Snake or Columbia Rivers.

For any Federal agency to advocate breaching of any or several

of the Federal dams, with the idea of increasing the number of

anadromous fish returning to the upriver spawning grounds, when

no evidence has been taken to prove that only rivers with dams

have reduced runs of salmon, when the fact is, that rivers with no

dams have already had their spawning runs decimated, makes little sense, and cries out for the NMFS to be investigated for their

lack of scientific study of the Columbia River basin.

Why has there been no attempt made to restrict the destruction

of the salmon in the ocean?

Why has there been no attempt to restrict over-catching of the

salmon in their passage up the river?

Why has there been an increase in the Yakima River Chinook

run even with only the supplementation of the wild run having

taken place, when that run has come through four dams in the

Lower Columbia?

What has been done to eliminate the massive increase in predators at the mouth of the Columbia River?

Nor has the NMFS considered the enormous cost of removing irrigation, barge traffic and recreation from the river.

We do feel action by the NMFS will affect the city of Pasco’s

water rights.

At this time I call on Congress to call a halt to this bureaucratic

bungling immediately.

I am presenting also a resolution passed by the City Council of

the city of Pasco.

Thank you, Mr. Chairman, for allowing me to testify.

[The prepared statement of Mr. Kilbury may be found at end of

hearing.]

Mr. POMBO. Thank you, Mr. Mayor.

I would like to call up our first panel of witnesses. Speaker Clyde

Ballard, Speaker of the House of Washington State; Speaker Lynn

Lundquist, Speaker of the House, Oregon State; Representative

Dave Mastin; Senator Ted Ferrioli; and Dr. James Anderson, if you

would join us at the witness table.
10

Just so you understand how it works, you’ve got little lights in

front of you. We try to limit the testimony, the oral testimony, to

5 minutes.

I am sure most of you are familiar with this. The lights work

similar to traffic lights. Green means go, yellow means hurry up,

and red means stop. That’s what it means in California.

Your entire written statement will be included in the record, but

if you could summarize those written statements to within the 5

minutes, I would appreciate that.

Speaker Ballard, you are recognized first. If you are prepared,

you may begin, Mr. Ballard.

STATEMENT OF CLYDE BALLARD, SPEAKER OF THE HOUSE,

WASHINGTON STATE LEGISLATURE

Mr. BALLARD. Mr. Chairman, members of the Committee, my

name is Clyde Ballard. I am Speaker of the Washington State Legislature.

And first, I would like to express my thanks to the Committee

for bringing forward a public hearing to provide for oversight regarding the actions being conducted by the National Marine Fisheries Service in the Pacific Northwest.

My views are those of an elected official who is directly responsible to the citizens of Washington State, the people who provide

for the economics and social well-being of our communities, the

people who are directly affected by NMFS’ actions to implement

salmon recovery measures, and influence river system governance.

I want to be direct with you in my comments. I believe that you

are here today because the National Marine Fisheries Service has

sought to engage in actions that exceed its rightful authority, because it has nurtured the development of a self-serving salmon recovery industry, and because it has failed to offer the region a

workable pragmatic salmon recovery plan for the Columbia-Snake

River Basin.

My first remarks focus on NMFS’ attempts to control water management.

The NMFS has put forth a water policy for the Columbia River

drainage area, a policy it refers to as zero net water loss policy.

The end effect of this policy is to eliminate future water withdrawals from the Columbia-Snake River mainstem, tributaries to

the mainstem, and related groundwater sources, including the protection of existing water rights as well as review existing water

withdrawals to assess impacts to salmon. Basically, all Basin water

resources are affected.

This policy challenges the authority of the States to review and

grant water rights from municipal, industrial and irrigation purposes and directs all future water use for one purpose and one purpose only, fish protection.

This water policy not only attempts to abrogate state authority

over existing and future water rights, but it presents an absurd resource management policy for the State with the only real objective

of transferring control of water management over to NMFS, not

creating more fish.

The NMFS is primarily interested in resource control and breaking the back of western and state water law. To suggest that this
11

policy is being a driven resource by prudent managers with the sole

objective to enhance salmon is disingenuous.

The state of Washington is willing to work to address the salmon

recovery of the region, but the state will aggressively resist attempts by NMFS to control our water.

Unfortunately, the most effective action of NMFS to date is to

enhance what is being called a salmon recovery industry, not improving salmon runs. The salmon recovery industry, an army of

state, Federal and tribal bureaucrats and their consultants, have

simply sought greater political and operational control over the resources and funding. Their objectives are totally self- serving. More

control and funding has not created more fish in the river.

In 8 years, NMFS and the salmon recovery industry have neither

produced more abundant salmon runs nor even developed a recovery plan that a majority of the region is willing to accept.

The NMFS and the salmon recovery industry cannot even quantify the number of salmon it has supposedly saved while spending

literally billions of dollars. NMFS and the salmon recovery industry have advanced an almost total disenfranchisement of the river

system’s key economic stakeholders and the people who are directly

affected by management actions.

There is never room at the decisionmaking table for the stakeholders, nor does there appear to be room for the region’s elected

officials.

Let me give you a personal experience. The state of Washington

put a moratorium on removing any additional water from the Columbia River. That meant cities could not build houses, they could

not build medical facilities, they could not have any agriculture,

nothing could happen.

And this past week Speaker Hastings and myself had the privilege of taking Speaker Gingrich, Congressman Dan Miller and Congressman Clay Shaw, along with a number of other speakers from

the Western States, on a tour of the Columbia River.

And as we went up the river, I asked them to look at the vastness of this Columbia River. Remember, that agriculture takes less

than 3 percent of this water supply, and that is above the Columbia—above the dam, the first dam on the river, which I just forgot

the name of, to be able to service all of the ag industry.

When the state put on the moratorium, there was no scientific

data, none.

In 1997 the legislature passed legislation that declared void the

moratorium, and further directed the Department of Ecology committees to consult with the standing committees of the state of

Washington in the future.

I met with the Director of the Department of Ecology following

the session to talk about the legislation. He indicated that there

was a major problem with giving any more permits because NMFS

had declared the Columbia River to be overallocated.

Mr. Chairman, members of the Committee, without water, along

with the threat to remove existing water rights, will guaranty that

a large part of the state of Washington will be an economic disaster

along with the stealing of property values due to threats from

NMFS.
12

Please send a message to the agency, that we not only have the

ability to make the right decisions on water, but it is our right, not

that of a Federal agency.

Thank you for your commitment.

[The prepared statement of Mr. Ballard may be found at end of

hearing.]

Mr. POMBO. Speaker Lundquist.

STATEMENT OF LYNN LUNDQUIST, SPEAKER OF THE HOUSE,

OREGON STATE LEGISLATURE

Mr. LUNDQUIST. Mr. Chairman, members of the Committee,

thank you very much for the opportunity to let us speak to you

today. I am from the central part of Oregon.

Certainly, we’re a state like Washington, where natural resources literally drive our economic engine.

I want to make three points today.

First, I want to make a statement, that a flawed law cannot be

administered as good public policy.

The Endangered Species Act does not provide effective mechanisms for species recovery as we have already heard. And I think

there is one main reason for that. And that is it is not based on

science but rather it is too much based on politics.

I just came last week from a central coast town called Coos Bay

that is timber dependent and fish dependent. And there is a story

that goes around town like this. What do you get when you cross

a spotted owl with a coho salmon? 100 percent unemployment in

Coos Bay.

And that’s not a very funny story. It’s reality that hits home.

Let me tell you a little about what’s happened to Oregon’s effort

to recover the coho salmon.

As you probably know, we put forth an Oregon Plan, a very inclusive, very comprehensive kind of plan, with hundreds of measures that are already being implemented by state agencies, a lot

of them prior to the plan.

We put in $32 million, a public/private partnership, the first time

it had ever been done.

Where was the money from NMFS that helped in that process?

I would like to ask that question.

When we put together that public/private partnership, however,

it was almost for naught in many regards, because after the species

was not listed, there was a court challenge, and as most of you will

probably realize, our coho salmon has been listed, effective October

9th.

What that says to me is that the state does not have the right

to have its own destiny in its own hands, because of a law. If in

fact that’s true, something’s wrong with the law.

The second point I would like to make is simply this: That agencies can make a flawed law even worse. Not all the disappointment

in the Endangered Species Act is because of the Act itself.

I believe that the NMFS has created considerable frustration

among legislators, state agencies and citizens.

What it has done is force Federal mandates upon our local communities and say we can’t do it ourselves.
13

Let me give you some specific examples that I think are leading

to the frustration that we find in Oregon.

No. 1. There have been a number of Memorandums of Agreement

developed with the state at different times. These Memorandums

of Agreement, and particularly the one that deals with the Oregon

Plan, were like having a gun at your head. That’s frustrating.

Point No. 2. After we already had the Oregon Plan in and it had

passed the legislation, NMFS came forward with a draft proposal,

I want to emphasize that, a draft proposal to the Oregon Board of

Forestry that I believe was blatantly regulatory and hammer oriented.

Let me give you some examples.

Where we have fish bearing streams, they were saying in the riparian management zone, that up to 200 feet wide on each side

would have to be set aside for an 80 to 200 year old stand, and that

during that time no more than two entries per 50 year timeframe

could be entered into those areas for timber management.

But that’s not even in my opinion as absurd as this next one, and

that is that on non-fish bearing streams, that are seasonal streams,

OK, non-fish bearing streams that are seasonal streams, that there

has to be up to 100 foot width on each side.

Now, you visualize in Western Oregon how many streams flow

in the wintertime that don’t flow in the summertime, with that

kind. Let me give you the economic impact.

It has been estimated that if this would have gone forward, and

we simply said, have at it, we’re not going along with this one, but

if this were to be in place, it would reduce the value by 41 percent

on our timberlands.

There was a Southern Oregon county there that had a proposed

sale that was to bring in $1.5 million into their county coffers

under the normal Forest Practices Act that we have in Oregon.

With this plan they would have brought in $75,000.

Now, that’s probably more extreme than normal. But that’s the

kind of economic impact it makes.

I would simply like to emphasize what the prior speaker has also

said in regard to my third point, and that is it is imperative that

the National Marine Fisheries Service and other Federal agencies

do not infringe upon western water law and the state’s sovereignty

over the allocation of that resource.

I could tell you in Oregon we will fight that to the bitter end.

Mr. Chairman, and fellow Congressmen, Congresswomen, my request is simply this: We need a change in the Endangered Species

Act to allow for local solutions and direct the agency or agencies

to be a partner, not a stumbling block, to the process, and stay

away from infringing on our state waterways.

Thank you for the opportunity.

[The prepared statement of Mr. Lundquist may be found at end

of hearing.]

Mr. POMBO. Representative Mastin.
14

STATEMENT OF DAVE MASTIN, CHAIRMAN, HOUSE-SENATE

EXECUTIVE BRANCH TASK FORCE ON SALMON RECOVERY,

WASHINGTON STATE LEGISLATURE

Mr. MASTIN. Thank you, Mr. Chairman, members of the Committee.

I appreciate the opportunity to talk to you today. My name is

Dave Mastin. I am a State Representative from the 16th District

in the state of Washington.

If you take the state of Connecticut and plop it into the southeast

corner of the state, that’s my home.

I have served in the legislature for 6 years, and in the past year

I was the Chairman of the Legislative Salmon Restoration Task

Force.

I am deeply committed and deeply involved with restoring salmon habitat in the state of Washington. You already heard some testimony and we have a room full of people. These people come from

this area, and some of them will be testifying today.

They live here. They work here. They raise their families here.

They pay taxes here. These people are not anti-salmon, and they

are not anti-environment.

What I think you will hear today with all the different testimony

is one value that the people in this room hold to be true. Fish are

important. But people should count, too.

Many of the people in this room have already begun to do salmon

habitat restoration. We have several tributaries off the Columbia

Basin system that have spent millions of Federal dollars, millions

of state dollars, and hundreds of thousands of private dollars, individual landowners giving up their time, giving up their land, and

giving up their incomes to help restore habitat. That’s the silent

work that is going on right now in the state of Washington.

I took the opportunity to ask these people, how is NMFS doing?

National Marine Fisheries Service is in charge of restoring salmon

habitat. These people are on the front line. These are farmers

across the Snake River, agricultural folks on the front line, and

they have taken that mission of restoring salmon habitat. And I

asked them that simple question, how is NMFS doing.

And to a person, they have told me that NMFS has been a major

impediment at restoring salmon habitat. They have been a bureaucratic roadblock at restoring salmon habitat in the tributaries off

the Snake River.

I will give you two examples.

Two tributaries that in the past 5 years we had the finest watershed assessment team in the Northwest, bar none, come to this

area and do river segment by river segment assessment to find out

what fish needed in that area.

And then with local government, with landowners, with state

and Federal agencies working together, they developed fish habitat

projects. Willing landowners, willing to give up some of their land,

to give up some of their time and effort, and we have the projects

ready to implement.

And then the permitting begins. Of these two tributaries in the

last year, there were about 60 projects. For those 60 projects you

need a hydraulic permit. BPA requires a NEPA checklist. NRCS re-
15

quires an environmental evaluation. And some of them need county

shoreline permits, as well.

All of those permits and all of those agencies combined require

about 60 pages of work for those projects.

Then we have to go to NMFS. The NMFS requirement is about

230 pages, different pages, not the same information, 230 pages.

And so they take these projects that everyone else has agreed is

going to help salmon, these are salmon restoration, habitat restoration projects, and NMFS takes 3 to 6 months, 3 to 6 months to tell

us that in fact these salmon habitat restoration projects will not

jeopardize salmon. Will not jeopardize salmon.

Some people wonder why it takes so long. And I am sure you will

hear that there’s questions about agency priority and agency funding.

But I think that’s the wrong question. I think the right question

is, why? Why do we delay restoration efforts 1 minute, let alone 6

months, so that it can go through one more step to get the support

of the National Marine Fisheries Service.

And if the reason is, because the ESA, so they’re doing what the

statute tells them to do, then how come they haven’t been in here

kicking and screaming to you folks to change the ESA so that when

we step forward in the state of Washington, which I could guaranty

you we are, and try to improve and will improve the restoration of

the salmon habitat, when we are taking that strong step, how come

they’re not helping us?

They should be helping us, not only with financial support, but

they should be coming to you and telling you that we need to

change this ESA so we can do what’s going to help salmon, and remember that people count, too.

I see I am about out of time, so I would like to conclude with two

thoughts.

If the example that I have given you is more than an isolated occurrence within this agency, then this is an agency that has a lot

of problems, has a lot of difficulties, and I believe it is your job respectfully to look into that sincerely and do what it takes in Congress to make sure that they don’t stop us as we try to restore

habitat. And that as we do restore habitat, we will do it in a way

that it helps fish, but also works with people instead of against

them.

One of the men that I talked to from my district wrote me a

quick note, and he said landowners are receptive to tree planting

and habitat enhancement projects, but we cannot afford to let these

positive projects get held up in political areas or all the grassroots

work will be lost due to uncertainty and lack of trust and lack of

credibility.

Many of us have a lot of concerns with National Marine Fisheries

Service. I have mentioned but one. Even when we are stepping up

to the plate, as these people behind me want to, to restore salmon

habitat, it seems to be an impediment rather than a helping hand.

We urge you to take serious consideration of our concerns.

Mr. POMBO. Senator Ferrioli.
16

STATEMENT OF TED FERRIOLI, OREGON STATE SENATE

Mr. FERRIOLI. Thank you, Mr. Chairman. Again, my name is

State Senator Ted Ferrioli. I represent State Senate District 28 in

Oregon. Senate district 28 starts about 25 miles out of the Portland

metropolitan, right across the river from the Sandy River, it continues eastward to the state of Idaho, including all or parts of 11

counties, about 17,500 square miles. Population density .17 persons

per square mile. I am very happy to see this large crowd appear

today.

Mr. Chairman, I will try to cram 2 years of frustration into 5

minutes of testimony. You have already identified the duplication

of efforts between the U.S. Fish and Wildlife Service in developing

guidelines for every aspect of natural resource management associated with riparian areas, and that of the National Marine Fisheries

Service, which essentially does the same thing, affecting grazing,

upland management, timber harvest, water withdrawals for irrigation, vegetation management, fishing and all other aspects of that

habitat management. So I won’t belabor that point.

But let me give you at least a couple of examples of how that affects people living in rural communities.

We had a fire in Grant County, it was called the Summit Fire,

it was started by lightening August 13th, 1996. It burned 38,000

acres. About 300 million board feet of timber was killed.

The day after the fire was put out, that timber at $400 a thousand was worth $120 million to the Federal treasury.

We began fire recovery planning, and that planning included two

complete Environmental Impact Statements, primarily because we

had the listing of bull trout, and the salmon issues to consider during the planning processes.

It took until July 12th, 1998 for a Record of Decision finally to

be issued, and that called for the salvage and restoration, rehabilitation of approximately 6600 acres out of the 38,000 that burned.

And the proposal was for harvesting of about 50 million board feet

of timber.

Let’s just do the math. The fire cost $25,400,000 to put out. Planning for the project cost $1.2 million for the original Environmental

Impact Statement, and about $50,000 for the Supplemental Impact

Statement, which included first informal conferences with NMFS,

and the U.S. Fish and Wildlife Service, and finally formal conference also with both agencies, in the development of a water

quality management plan for each of the listed species, with both

the different agencies.

Finally the project has been awarded and sold, the timber sales

have produced approximately $2 million of revenue for the Federal

treasury. When you do the math, my friends, the math simply is

nonsensical.

But those delays and expenses caused by this duplication of effort between the agencies on the Summit Fire might be the least

costly aspect of dual administration of the Endangered Species Act.

Undoubtedly you have heard of the Oregon Plan for the restoration of salmon, and now the supplemental restoration of species.

Our plan, like Washington’s plan, goes far beyond what the Endangered Species Act, which is avoidance of the take.
17

Our plan is designed to restore aquatic habitat and to restore

salmon and steelhead by involving forestland owners, irrigators,

cattle producers, dairymen, farmers and municipal watershed managers in a cooperative effort.

In that process we entered into a Memorandum of Agreement

with the National Marine Fisheries Service. Their draft proposal

for a complete rewriting of the Oregon Forest Practices Act includes some proposals that I think are patently ridiculous, so much

so that I have to read one of them to you. I hope you will indulge

me. The issue is on culverts. The section is titled, Hydraulic Conditions Required for Adult Fish Passage culvert design is detailed:

‘‘Where culvert lengths exceed 150 feet, a bridge installation

should be strongly considered. Generally, culverts smaller than six

feet in diameter are not adequate for fish passage and should not

be used. Culverts less than 10 feet in diameter require lighting

within the culvert barrel, provided by a vertical riser above the

road surface or by artificial lighting every 75 feet.’’

In addition, the proposal contains admonitions against wet

weather in Oregon. In wet weather conditions, typically two inches

of precipitation in 24 hours, especially during the period of October

1st to April 30th. Hauling or skidding should not resume for 48

hours after precipitation ends or until road surfaces and ditches

are not flowing with water.

Members of the Committee, Oregon is famed for many things,

one of them is prodigious rainfall. We have places in Western Oregon where we log 200 inches of rainfall a year.

And to prohibit any management operations there when rain exceeds two inches is patently ridiculous and shows a particular disconnect from the real Oregon climatological condition.

An analysis was done of the NMFS proposal by the Small Woodlands Association and the Oregon Forest Industries Council, and

my colleague from the Oregon House is absolutely correct, 41 percent of our total forested land base would be rendered unusable or

unmanageable because of NMFS’ proposals, and that converts into

3.3 million acres of forest land out of the timber base, and that converts to a total lost value of approximately $25.4 billion in foregone

economic opportunities for the State of Oregon.

This $25 billion comes directly out of the pockets of our small

woodland owners, who have submitted maps to show how NMFS

proposals would affect their properties, and in some cases it’s up

to 75 percent of their land base would be involved in riparian management areas and therefore rendered impossible to manage for

timber production.

I simply submit to you that this agency is out of control.

An attempt to consolidate the agency’s management under H.R.

4335 will help bring some sensibility and sense of proportion to the

management of natural resources in all of the State of Oregon and

all of the United States, and I urge you to continue your inquiry

along these lines.

One thing that you will not hear, and this is particularly for Congressman Nethercutt, you will not hear NMFS come to your Committee and ask for appropriations for management of salmon and

the services to provide to Oregon and Washington. They are asking

us to go lobby for that money.
18

So I urge you to pass H.R. 4335. Thank you, Mr. Chairman.

[The prepared statement of Mr. Ferrioli may be found at end of

hearing.]

Mr. POMBO. Dr. Anderson.

STATEMENT OF JAMES D. ANDERSON, PH.D., ASSOCIATE PROFESSOR, SCHOOL OF FISHERIES, UNIVERSITY OF WASHINGTON, SEATTLE, WASHINGTON

Mr. ANDERSON. Mr. Pombo, thank you for this opportunity to

talk in front of your hearing. This is a great opportunity again to

try to compress 10 years of research into 5 minutes. I have failed

in other attempts.

What I really wanted to discuss is NMFS flow and water policies,

and I want to discuss that in terms of what it’s done for how

science is used.

Simply put, what NMFS has done, is try to justify benefits in a

qualitative sense, without putting numbers on the benefits.

And I think that what this does is produce an unrealistic expectation for some of the actions.

It’s critical that we put numbers on things so we know the cost

and the benefits. And I want to use the flow as an example of how

we have been misled inadvertently in many cases.

A decade ago, when the dams were put in, or several decades

ago, it was felt that because the fish decreased, if we just increased

the flows back to the pre-dam levels, that the fish would come

back.

That simply is not true. The research that we now have shows

that instead of having the thousand percent increase that would be

needed to return the runs, we get about a 1 percent increase by increasing the flows.

So there is—the idea of a strong flow relationship simply don’t

exist; a strong relationship between survival and throw. There was

not, this type of information has not been used in developing the

flow objectives and the flow targets.

It needs to be really considered, and the flow targets need to be

assessed for really their inability to improve fish survival.

In terms of this, this was for the spring Chinook.

The fall Chinook, where there has been a relationship observed

between flow and survival down to the first dam, this is a complex

matter, which is not necessarily related to the flow.

Temperature changes with flow, it also depends on when the fish

move through the system, and some of the newest work we have

done shows a relationship between fish size and the survival of fish

down through the system.

If it is fish size which is the operative variable, then increasing

flow which could decrease the temperature and move the fish sooner through the system could actually have a negative impact on the

fish.

The point being, we really don’t know how flow is affecting the

fall Chinook, and we find no relationship in the river passage between spring Chinook and flow.

And these issues and these numbers need to be brought forward

so that people have realistic expectations for the impacts of flow.
19

My second point is on the water withdrawals, or the moratorium

on having new water withdrawals. These are blanket moratorium.

If you remove water anyplace in the system, it is assumed to have

the same impact on fish.

And this simply isn’t true. Up in the tributaries, water can have

a significant impact on their survival.

You get down into the mainstem, and we have no evidence that

water withdrawals have a significant or measurable impact on fish

or on their recovery. And there again, these withdrawals and the

justifications for them were put in a qualitative sense that we can

imagine they’re good for fish, so we should implement these regulations.

My point being, that that leads to unrealistic expectations for

what we can gain from these actions. And I think that whatever

management goes on at the ESA, we need to put the numbers onto

the fish so people are really grounded in the success of these different actions.

And that concludes my comments. Thank you.

[The prepared statement of Dr. Anderson may be found at end

of hearing.]

Mr. POMBO. Thank you. I thank the panel for your testimony.

Dr. Anderson, you’ve—the research that you talk about, is this

research that you have done yourself in terms of flow, or that

you’ve supervised?

Dr. ANDERSON. Most of the research that I am discussing right

here has been conducted by the National Marine Fisheries Service,

and peer reviewed and analyzed by fisheries biologists throughout

the region. One of which is me.

Mr. POMBO. You helped to peer review it?

Dr. ANDERSON. I’ve analyzed the data, and part of what’s called

the plan for analyzing and testing the hypotheses, where we are

going with a fine tooth comb through each and every hypothesis

that we have on the fish.

I am one of the members of that panel, and very much involved

in these analyses, yes.

Mr. POMBO. But you talk about the flow impacts and the moratorium on diverting additional water as if they have little effect on

the recovery of the species.

Dr. ANDERSON. That’s right. That’s what the science is showing

us right now.

Mr. POMBO. Then why is National Marine Fisheries taking the

actions that they have?

Dr. ANDERSON. There are at least two cultures at NMFS. There

is a management culture and a science culture.

And I think there are another reasons why NMFS has taken its

particular actions.

Mr. POMBO. Political reasons?

Dr. ANDERSON. Some political reasons. And I think that they

need to readdress these and stand behind the science more strongly.

I think that that would help in grounding people’s expectations.

Mr. POMBO. Do you think, and I realize that you are a scientist,

but do you think that the political decisions that have to be made,

and that’s those of us sitting up here are the ones that have to
20

make those political decisions, would be easier if it was based upon

good science?

Dr. ANDERSON. Oh, of course.

Mr. POMBO. One of the frustrations I have with the implementation of this Act is that we have people who come in and testify that

what the Federal Government is doing just doesn’t make sense.

And then we have the scientists who come in and testify and

question the scientific decisions that are being made.

And it puts us in a political conflict.

It would seem much easier to be able to make a decision and to

go to all of these people and to say, here is the science, back up

the decision, and if it’s good science, I think they can look at it and

say, well, all right, we might not like it, but it makes sense, it

leads to the recovery of the species, and we will go along with it.

The problem comes when they look at it and say, this just doesn’t

make sense, why are you doing this to us?

And that’s the conflict that we have heard all over the country

with this particular Act. That gives me a real problem.

Speaker Ballard, you mentioned in your testimony resource control. That you felt that a lot of the actions that were being taken

had little to do with science or the recovery, but had more to do

with wanting to control the resource.

Can you expand on that?

Mr. BALLARD. Well, we have been working hard in the state of

Washington to be able to do something productive.

And what we have found is there is an industry who includes the

ones I mentioned that I believe simply have nothing to do with the

salmon recovery, but more have to do with establishing control,

and with a political agenda.

I wish there was some way I could say that they had done something productive. Their production has been in spending large

amounts of money of the government, in spending and controlling

large numbers of citizens who virtually are being shut out of their

own property, and I think it is simply something that in the end

will result in not only the failure to improve any salmon recovery

but will also literally decimate people’s property rights and communities throughout this whole region.

Mr. POMBO. I will recognize Congresswoman Chenoweth.

Mrs. CHENOWETH. Thank you, Mr. Chairman.

I wanted to address my questions to Dr. Anderson.

You know, first let me say, Mr. Chairman, we have been on a

lot of these hearings, and we have heard hundreds of people give

testimony to us.

But I think that this, the panel that we have in front of us, has

been one of the most instructive and startling pieces of testimony

that we have heard. Thank you so very much. Very, very good.

Dr. Anderson, I wanted to ask you, have you ever heard of Jim

Bugal, an author of the book The Great Salmon Hoax, an Eye Witness Account of the Collapse of Science and Law and the Triumph

of Politics in Salmon Recovery?

Dr. ANDERSON. Yes. I know James quite well.

Mrs. CHENOWETH. Do you? I would recommend that everybody

read this, most especially the Federal agencies. Shame on them.
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You know, Mr. Bugal, by the way, is a major in physics, and he’s

an environmental lawyer, and I am not real fond of environmental

lawyers. But I really like this book.

But, you know, he points out the fact that the overwhelming bias

of the fisheries agencies are against the dams, and yet to my

knowledge, and I am asking you, have they ever produced defining

documents establishing any of the other causes for what they perceive to be a decline in the fisheries, such as what are the threats

of the major explosions of the terns and the sea lions and the

squaw fish and the walleye and the young steelhead and the mackerel and the northern sea lions and California sea lions and so

forth, have there ever really been any defining documents that

really address this?

Dr. ANDERSON. In the PATH process, where we are trying to pull

apart all the pieces, we have gone through the first stage of looking

at some of the basic things.

What we have found was there’s a huge amount of mortality in

these fish that we don’t have a good explanation for where it’s come

from. It seems to have—to have occurred about the time the dams

went in.

But if you look closely at the data, you find that there were high

fish runs when the Snake River dams were being put in. A lot of

us believe that the climate is a very important factor, and it certainly is. We’re now, in this analysis process, beginning to look at

these other factors. The terns, the sea lions, the impacts of hatcheries, also the impacts of the hydro systems, and putting all of

these things together in what we call a multiple hypothesis.

The trouble we have in doing this is that all of these things kind

of happened at the same time, so we are having a hard time giving—pulling the pieces apart. The old statement comes up with

when every scientist, we need more data to be able to give you a

definite answer, is true in this case.

And so it is going to continue to be a political issue until we can

resolve some of these things.

Mrs. CHENOWETH. Thank you, Dr. Anderson. Thank you, Mr.

Chairman.

Mr. POMBO. Congresswoman Smith.

Mrs. SMITH. Thank you, Mr. Chairman, and gentleman, you represent your states very well. Very articulate.

And I know some of the things you’ve done in both states to restore salmon runs. And I would trust you more than any Federal

agency in just what you have done.

I would like to address a question to Dr. Anderson. I am going

to ask you to answer it pretty direct.

Are poor ocean conditions the major factor currently affecting

salmon recovery?

Dr. ANDERSON. I think they are one of the major factors. And I

don’t think we know all of the major factors.

Just to put things in context, we’re in a period that is poor fish

conditions and dry weather conditions that’s one of the longest periods in probably the last 500 years. So we have unusual conditions

right now.

It just so happens that these flipped into the state about the time

the dams went in. It could be that that’s a major cause.
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But we can’t really give a definite answer.

Mrs. SMITH. Give me about the time the dams went in, so you

say it is a fairly prolonged change.

Dr. ANDERSON. In 1977, the ocean changed. The last dam was

put in in 1976. The hatcheries increased, we controlled the flows

with the new storage reservoirs.

Everything happened at that time. But ocean is clearly a factor

because stocks are going down all over the West Coast.

But there is a ray of hope in that, that it looks like, and there’s

a lot of close scrutiny of this right now, that some of these conditions may be flipping right now, and that’s demonstrated by the decrease in the returns in Alaska and some small increases in runs

on the West Coast.

So I think just a lot of the issues might be, will resolve themselves if the ocean does really turn around and the runs come back

on their own.

Mrs. SMITH. I would like to followup a little bit on your participation in the flow augmentation program and your review.

Do you believe that the program is producing meaningful results,

will it contribute significantly toward fish protection or recovery,

and I guess go on to just tell me, do you think it should be continued at all, and would you modify the program if you think it should

be continued?

Dr. ANDERSON. The analysis we have done on the flow and the

impacts on survival indicate that it has very little impact on the

fish.

So that’s what the science is telling me, so that’s what I would

have to go with.

I think that there’s better ways to spend our limited resources

than putting water through the system in the spring.

In particular, with the transportation program where there are

so few fish that are actually moving down through the system.

Most of the fish right now are going down the system in barges.

Mrs. SMITH. Thank you. And in summary, if you could, and I

know you have way much—way too much information to really do

this, but if you could be God for a day, and don’t take this as sacrilege, what would you do? What would you do today, if you had

all the money, all the time, you could just do it without bureaucracy?

Dr. ANDERSON. I would evaluate which programs are working,

and I would then spend time trying to educate better the public on

what works and what doesn’t.

Mrs. SMITH. And what do you think works now, if you just think,

I mean, give us that benefit.

Dr. ANDERSON. Transportation program works fairly well.

Mrs. SMITH. Barging?

Dr. ANDERSON. Barging. And it is partly responsible for the

stocks not going extinct during this bad period. I also think there

have been some great improvements at the dams.

And those would be two of the main things.

What I get out of most of the things we have done is it appears

like a lot of it is out of our control right now.
23

We have made some incremental changes and we will probably

continue to do that. I don’t see any magic bullet that’s going to save

the fish.

Mrs. SMITH. Thank you, Doctor. Thank you, gentlemen.

Mr. POMBO. Congressman Romero-Barcelo ́?

Mr. ROMERO-BARCELO ́. Thank you, Mr. Chairman.

I also want to congratulate the panel. I think the testimony here

today has been extraordinary, and I certainly have learned a lot.

I am here to learn. I am not here to tell you anything. But I

would like to hear a little bit about the plans that Washington

State and Oregon have developed to restore the salmon habitat.

I mean, what I would like to address your answers to, what is—

what are the obstacles to implementing these plans and can they

be identified, and if so, how do you suggest that they can be overcome so that those plans can be put into practice?

Mr. LUNDQUIST. I will start with Oregon’s situation.

First of all, let me say that in response to some of the comments

here about science, we have what can be called a multidisciplinary

scientific team as one of the core of our Oregon Plan, as one of the

core elements.

And again I think that is one of the things that will help us restore the salmon.

The doctor down here I think is saying, we don’t really know,

and so why go out and spend billions when we don’t really know.

So point No. 1, that’s what’s happened in Oregon.

Second, it was very comprehensive. It really boils down to improving the quantity and quality of water. That’s really what it’s

all boiled down to.

The impediment that we have in Oregon, since we had it approved, we put the money forth, with the legislature and the private industry, and then the courts came along and said, no, this

doesn’t meet the ESA standards.

And so that right now is our major impediment.

I will tell you in Oregon, we are going ahead anyway. We will

probably do some revising of the plan in the next session. But we

are going to go ahead.

And so the impediment is not with the landowners. The impediment is from the Federal regulations that apparently do not allow

this to function.

Mr. ROMERO-BARCELO ́. Is that the Federal Court or the State

Court?

Mr. LUNDQUIST. Federal Court.

Mr. ROMERO-BARCELO ́. Federal Court. And the NMFS has approved the plan?

Mr. LUNDQUIST. Yes. The National Marine Fisheries Service did

not list the Coho on the central Oregon coast, and the northern

coast, and then after that happened, then that’s when the courts

came in. There are some groups obviously that filed a court case

against us.

Mr. ROMERO-BARCELO ́. Thank you.

Mr. MASTIN. The legislation we passed last year received 100

percent support in the legislature. The governor signed it without

vetoing any section. And the Governor in our state is known for

vetoing sections. So that’s significant itself.
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I am not trying to be humorous. That’s true.

Probably the biggest impediment that we face, two, basically.

No. 1, our approach is based on science, and it’s based on the

specific river-based science, site-specific science. And then it’s based

on working with landowners instead of working against them.

Being a partner, collaborating with them.

We have stepped up to the plate. We have spent over—about a

hundred million, with some Federal dollars, we have appropriated

through our state budgets on this plan to work with the landowners to improve the habitat.

These are the challenges we are facing right now.

If we start to move into a regulatory enforcement legalistic mode,

which is what I’ve been hearing is happening not only at the Federal level but actually within our state administration, then we will

undo all the work that we have begun to do to restore the habitat.

So I think the regulatory bureaucratic enforcement mode is the

biggest impediment we have.

Point No. 2. Just take the example of a buffer zone. In the

Touchet River, right outside my home town of Walla Walla, they

have over 26 miles, over 26 miles of landowners who are willing

to put in buffer zones of a hundred foot. A hundred feet. Twenty

six miles.

There’s been rumors that NMFS, or others, are going to require

a 200 foot buffer.

If we go to a 200 foot buffer requirement, you will have less than

a quarter of a mile of buffer zones on the Touchet River.

And I submit to you that whether certain scientists in certain

rooms say you have to do 200 foot, in reality, if you want to improve the habitat on the Touchet River, go with the hundred foot

buffer, because you will get 26 miles of it, and for every buffer you

put, the landowner will also let you put in large woody debris and

will do meandering and root walk, they will let you do these other

things that will help the habitat as well.

So I say the biggest impediment is people who don’t want to

work with landowners, who don’t want to listen to the people in

this room, and who are more interested in a bureaucratic approach

than actually solving the problem.

Mr. ROMERO-BARCELO ́. In other words, you work only from the

scientific point of view but also from the political point of view,

working with everyone that is concerned.

Mr. MASTIN. And I won’t call it political. I would call it common

sense.

The principle is this: People like to be asked, not told. And people

will work with you if you respect their concerns and their interests.

Mr. ROMERO-BARCELO ́. That’s what I call political.

Mr. MASTIN. You collapsed all of that in Puerto Rico.

Mr. ROMERO-BARCELO ́. Some other people look at politics in the

negative, because some politicians are negative.

The difference between petty politics and politics, policy.

Mr. MASTIN. With your indulgence, Mr. Chairman, I just thought

of one other point that is very important.

We ask that you folks, as Members of Congress, listen to what

we did. We ask you to respect what the state legislature did last

year. No dissenting votes, from the most conservative to the most
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liberal. Every single member voted on what we did, and the Governor signed it.

And we ask you, when you look at appropriating dollars to the

state of Washington, please respect what we did.

I think to some degree we knew what we were doing, and we

would appreciate, if you are sending us money, to send it in a way

that respects what we did and doesn’t conflict with that and pull

down the effort that we have started in Washington State.

Mr. ROMERO-BARCELO ́. Thank you. Thank you very much.

Mr. FERRIOLI. Mr. Chairman, Chairman Pombo, Representative

Romero-Barcelo ́, we have a similar story to tell in Oregon, and

similar support for our effort. We appropriated $30 million directly, and $120 million are coming from voluntary enhancements.

The key effort is cooperation. Landowners, timber operators, cattle ranchers, farmers, irrigators, folks that depend on the land,

need certainty, and they need reasonable rules.

The issues that we have come up against with National Marine

Fisheries Service is they have no sense of propriety. They take a

regulatory approach to everything that they do.

And there’s a clear choice on the table here between the regulatory approach, which would be just to virtually stand over people

with the full weight of the Federal authority, or a cooperative approach, where you simply ask people to do a reasonable management regime based on certainty and based on reasonableness to improve aquatic habitat.

The word’s cooperation, and so the choice is clear.

The Oregon Plan, and I think to the same extent the Washington

plan, to recover the species far exceeds what could be required

under the Endangered Species Act, and it is based on cooperation,

as opposed to the mere avoidance of take, which is the regulatory

approach, being pushed by U.S. Fish and Wildlife and National

Marine Fisheries Service.

So we have come as a society to a choice. Either we are going

to involve every person that lives in our state and that works with

the land in recovering this species, or we are going to try and regulate every person that lives in this state as to everything that they

do in society to manage their land and produce the food and the

fiber and the goods that we all depend on.

We have chosen the course that is based on cooperation and involvement.

And unfortunately the courts decided on a technical issue that

we can’t consider cooperative efforts as being effective under the

Endangered Species Act.

That’s the flaw here. It wasn’t that Washington’s plan or Oregon’s plan wasn’t effective or wouldn’t work or wouldn’t be efficacious on this issue. It was that under the constrictions of the Endangered Species Act, you can’t consider cooperation in the listing

decision.

It shows you how badly flawed the Endangered Species Act is.

Mr. ROMERO-BARCELO ́. Thank you, Speaker Ferrioli.

Mr. POMBO. Congressman Hastings.

Mr. HASTINGS. First of all, I want to congratulate you legislators,

not only from Oregon and Washington, but also from Idaho and I
26

think Montana and other Western States that are taking the bull

by the horns on this issue and are trying to come up with local

issues.

Because I certainly subscribe to the notion that when the issue

is done at the end of the day, if it ever does get resolved, it will

be better resolved and understood because of the input that you

have had and decisionmaking that you have had at the local level.

Part of the reason for this hearing is to try to ascertain how

NMFS has been administering this Act in the Northwest.

Both of your states have described how you have gone through

this process.

My question, Dave, I suppose you would be the one from Washington since you took the lead on this, and I will ask you, and then

Dave, if you are the one from Washington, or Lynn, it doesn’t make

any difference to me.

My question is this: As you started this process, did you attempt

to include right from the beginning NMFS in this process, and if

not, why not, and if so, did they participate on an active basis to

try to help you through some of the hurdles that you would have.

Dave?

Mr. MASTIN. Congressman Hastings, several of us met with Mr.

Stelle, Will Stelle in Seattle, who’s in charge of NMFS up in the

Seattle area. And we also had hearings across the state. And

NMFS was always willing to come and testify before our task force.

I think that the approach we took was when we started looking

out there and seeing, HCPs and getting certainty and what does

it take and what rock do you want, I mean, how much do we have

to do and what do we have to do, and all of the maze, and no answers, and I am hearing from all of our state agencies, they are not

getting a response from NMFS, NMFS won’t tell them what they

need to do or won’t give them a clue, I am hearing this, and other

legislators are hearing from this task force.

So we just did something real simple. We said, let’s set aside all

of the politics, let’s set aside all of that stuff, and let’s pretend we

are God for a day, and let’s figure out how can we create a system

that is viable and will restore habitat.

And that is a system that is based on science and which the

landowners agree to be participants. And if you do those two

things, you will restore habitat. And that’s what we did in the legislation.

So in a sense, we avoided all of that because it seemed like a big

mess that we weren’t going to get resolved. While those of us in

the state of Washington are committed to reasonable and sufficient

environmental and salmon habitat restoration, that is what we

took to move on.

Mr. HASTINGS. One last statement in that regard. With the example of the two streams, the unfortunate part is you have the 6

month delay even though I assume in this case those two streams

you are talking about, they were along with the process all the

way.

But even if they are along the process, you had a problem of the

6 months delay for them to OK.

Did I hear you right?
27

Mr. MASTIN. That’s absolutely correct. So what we have, as many

of you are aware, there is a window of opportunity to get into the

streams to do restoration work. And that ends September 1st.

And so each day and each month that we lose, and in this case

we lost 3 months on one stream and 6 months on the other stream,

each day means that that’s another project we are not going to get

done this year, and that just backs up the projects down the road.

So that’s a major concern.

The other thing is even with the September 1st deadline, what

we saw, Fish and Wildlife, every day would come out and see if fish

were returning yet. And they actually got to work until September

13 because no fish—they were set to come back about September

1st, but Fish and Wildlife actually went out and made sure there

were no fish and allowed the landowners to keep working in the

stream to improve habitat.

That’s the kind of relationship we’d like to have with NMFS, one

that’s cooperative and working together.

But the problems on the most part, we’d like money from the

Congress so that we can go forward with our restoration efforts

that we think’s going to work.

Mr. HASTINGS. Go ahead, Lynn.

Mr. LUNDQUIST. Well, the process in Oregon actually was going

on before the session for approximately 18 months before we even

got into the session.

The Governor took the lead on this. Actually was working with

NMFS and with a lot of the natural resource community, Farm Bureau, cattlemen and so forth.

So, in direct answer to your question, yes, there has been a dialogue going on there.

However, the dialogue was not with the legislature through that

process. And when the legislature did get involved, NMFS I would

say did participate.

However, I would characterize it as the fact that how could we

meet their standards? It wasn’t a matter of what was good for the

fish. Even though they would say that is part of the process.

But really it seems more like, how do we meet the standards so

we don’t get listed. We thought we were going to get listed. And

eventually, now we have. That was the situation.

Also it seemed like when you went to step A, then there was step

B. And I suppose you could say part of it is it is a new endeavor,

at least for the state of Oregon. Very comprehensive. If I were to

bring that, it is probably about that thick, the Oregon Plan.

But once you got to one point, then you had to go to the next

point.

And what I said before, the Memorandum of Agreement, we

thought we were there. And then we had to have this gun to our

head, Memorandum of Agreement process.

So that’s the kind of history I think that Oregon has had with

implementing the plan.

Mr. FERRIOLI. Mr. Chair, Representative Hastings, Dave Mastin

mentioned, go get a rock.

That’s the experience we had. Our speaker mentioned the feeling

of have a gun to our head.
28

I tell you it was a very extortionary relationship. We would be

told that the commitment was questioned by the Federal agency,

the commitment of the people of Oregon was called into question

by this agency. We don’t trust you. We don’t believe that you will

do what you say you will do. Well, we’re not sure that this organization or this plan or this aspect of the plan will be sufficient.

What else can you do?

And that was a continuous relationship. Here’s an example. After

we agreed to collaborate and we knew National Marine Fisheries

Service had a real problems of what they were perceiving in the

Oregon Forest Practices Act, I thought that was because of their

misunderstanding of the requirements of the Act, we knew they

wanted to open a dialogue on the changes that they expected us to

look at at the state legislative level.

What we got was a press conference. And what we got was the

release of the document after it had that had been written.

There was no collaborative process. There was no iteration of values. There was no give and take on how we might improve the effects of the Oregon Forest Practices Act.

So the bottom line for us is that we were in an opportunity to

do something cooperatively and collaboratively.

Somebody pointed out in the legislative session that collaborators

were shot during World War II, and that is exactly why.

The definition of collaboration in Oregon was capitulation to the

National Marine Fisheries Service. We didn’t want to go there, and

we still don’t want to go there.

Mr. BALLARD. The way we have been treated by the National

Marine Fisheries in general is one of threats, and if you don’t do

what we’re going to tell you, no matter whether it has any basis,

no matter if it will steal people’s rights, if you don’t do it, we will

make you suffer at a greater level than what you are going to suffer.

I would submit to you if the employees that are making these decisions and the heads of these agencies were treated the same way

they treat us for a period of 1 year, we would find a dramatic

change.

It should not be happening in the United States, for people to do

things the way they’re doing. They are literally treating us as

though we are their prisoners, and that’s wrong.

Mr. LUNDQUIST. Congressman Hastings, one thing I did not point

out in our relationship, and that is what I think you are here to

find out about NMFS, was I believe there’s a significant disconnect

between the people that we worked with at maybe at the upper

level, and with a lot of the staff in NMFS.

And if you would read the judge’s decision, you will see that

pointed out.

And I think that’s very, very significant.

When you have an organization that I am going to say that even

the upper echelon were probably more receptive, at least they were

available, and were having I think a lot of staff undercutting it.

If you will read the judge’s decision, you will see that. And that

is just an untenable position.

Mr. HASTINGS. Thank you, Mr. Chairman.

Mr. POMBO. Congressman Nethercutt?
29

Mr. NETHERCUTT. Thank you, Chairman. Thank you all, gentlemen, for your testimony today.

I think you have illustrated what those of us at this panel have

come to be frustrated with, and that is Federal judges making decisions under the Endangered Species Act that Federal agencies tell

us and tell you that they are trying to implement.

There’s an ambiguity in the ESA that is interpreted by one or

more Federal judges that leads to terrible frustration.

So the ESA cries out for reform.

But from a political standpoint, my sense is it’s resisted time and

time again, and demagogued to the point where it becomes a very

political issue at the Federal level where we have to deal with trying to change those laws.

So I sense clearly what your frustration is.

I look at H.R. 4335 to transfer the functions of the National Marine Fisheries Service and Secretary of Commerce to the Secretary

of Interior, and I am not very pardoned by that, given the persuasion that we have to deal with at the Department of Interior and

the Secretary of the Interior.

So maybe anything’s worth trying, but, boy, we deal in spades

with those kinds of frustrations in dealing with all these land management agencies, comprised I am sure of good people and good intentions, but, boy, maybe that’s the fat into the fire in some respects.

But having said that, I want to address the issue of solutions,

and cost.

Senator Ferrioli, you mentioned the cost issue and this unfunded

mandate mentality.

Do you have specific recommendations about how we can address

the issue of unfunded mandates and cost for implementation of

EAs and NMFS requirements in a way other than to just eliminate

some Federal agencies, which many of us would prefer, but maybe

you can address that, sir.

Mr. FERRIOLI. Mr. Chairman, Congressman Nethercutt, I think

the key here is to be cognizant of the fact that the states, given

the challenge for managing for the recovery of species, have developed a program to do that that involves every agency in the state

government and significant commitment of resources at the state

level.

The National Marine Fisheries Service and U.S. Fish and Wildlife Service and other Federal agencies needs to get out of the way

and let those states accomplish those goals.

We don’t really have a problem with setting the goal at the Federal level. What we have a problem with is the infusion of Federal

regulations at the local level and the mistrust of state activities

and state efforts to accomplish the goal.

We don’t have a problem with where the bar is set, but once the

bar is set, leave it alone, and then let the state government and

the citizens of the state and the landowners of the state go about

meeting the requirements.

We will do it, and we will do it in a much more cost effective way

and a much more reasonable way than anything that the Federal

Government can bring to the problem.
30

Mr. NETHERCUTT. But that might impinge on the Federal employment of the Federal agencies.

Mr. BALLARD. My request would be to look at what the states

have done with cooperation from virtually every part of the state

of Washington and Oregon.

And as was pointed out, when you get unanimous votes.

What is not helpful, is for the Federal Government to send

money to a state that bypasses the legislature and the intent of the

legislature, and then gets put off into more programs that have absolutely no way to enhance the salmon.

So, we have good plans. And what we’d like to do is work in cooperation with you so that if you are going to send money, I must

be honest with you, my preference would be to keep your money

and to keep your rules and regulations.

But, having said that, the legislatures historically have been

overlooked. We are the ones that have to deal—These are our constituents. We go home, they know us by our first names, they know

our home phone numbers, and we have to deal with them. And it’s

our responsibility, and we gladly accept that.

But work with us, when you send resources, so that we can work

with the people then to do what’s been pointed out, is a very successful way to do it.

Mr. NETHERCUTT. Many of us would prefer not to have the

money being sent in the first place back to Washington. We’d rather have people here use it and have the states make decisions

about what’s in the best interests of their region.

I see my red light is on. I would just make a quick comment.

Representative Mastin, you are from the district in which I

serve, and you are recognized as a leader in this whole issue.

So, to the extent that there are any questions about the commitment to preserve fish habitat and have recovery efforts and respect

the rights and property interests of the industries that you serve

and I serve and everyone at this panel serves, that’s agriculture

and timber, we congratulate you and every member of this panel

for your commitment to those local control goals and decisions and

respect for the industries that drive our part of the country. That’s

why we like to be here.

So I thank you all for your testimony today. Mr. Chairman,

thank you.

Mr. POMBO. Thank you. I am going to release this panel. I would

like to thank you for your testimony. I can tell you that it was

quite refreshing, the honesty in which you answered the questions.

A lot of times when you have elected officials who have to deal with

these Federal agencies on a day-to-day basis, they kind of try to

sugar coat all of their answers.

And I appreciate your honesty in answering the questions.

I will tell you that there will be additional questions that will be

submitted to you in writing. I know I have some specific questions

that I would like to ask Dr. Anderson about his perspective on

some of the things that are going on.

If you could answer those in a timely basis for the Committee

hearing, we will leave the official record open to give you time to

answer those.
31

But I know that other members will have additional questions

they would like to ask of you, and I would like to thank you for

your time and for your testimony. Thank you for being here.

I would like to call up the second panel. Mr. William Stelle, Jr.,

Mr. Jeff Curtis, Dr. Darryll Olsen, Mr. John K. Givens, and Mr.

Bob Hale. If you would join us at the witness table, please.

I would like to welcome the witnesses here today. I think you

heard the explanation about how the lights work. I won’t do that

one again.

Mr. Stelle, if you are prepared, you can begin. You will have to

use that microphone there.

And just to remind you, all of you, you are going to have to speak

right into the mikes, because they won’t pick it up otherwise. So

get it as close to you as you can.

Mr. Stelle?

STATEMENT OF WILLIAM STELLE, JR., REGIONAL ADMINISTRATOR, NATIONAL MARINE FISHERIES SERVICE, SEATTLE,

WASHINGTON

Mr. STELLE. Mr. Chairman and members of the Subcommittee,

I appreciate the opportunity to testify before you today. I have a

written testimony which I want to submit to the Committee. And

I will summarize my comments before you.

Before I get into the substance of my testimony, I want to genuinely express my appreciation for this hearing today. I think it’s an

excellent opportunity for us to get together here in the Tri-Cities

area and talk about this important subject.

People care about it. It is complicated. There’s a lot of information. And I think a dialogue and a good, full throated discussion

about these issues is useful to continue on in the salmon recovery

effort here in the Pacific Northwest.

I think this hearing is useful, and I thank you for an opportunity

to participate in it.

Let me summarize my comments by making a series of what I

hope are fairly precise points, and then I encourage questions. I

look forward to them.

First and foremost, the salmon runs in the Pacific Northwest are

at serious risk of extinction, and that is the starting point for our

discussions today, and for all of the efforts here on salmon recovery. They are at risk in the Snake Basin, in the Upper Columbia,

in the Lower Columbia, in Puget Sound, in coastal and in the

drainages of coastal Oregon, and California. We have a very serious

problem, first and foremost.

Second basic point is that the causes of this problem are many

and extensive. And it’s important to understand that. This is not

an upstream issue only. It’s not a downstream issue only. We didn’t

get here in a day. We have come here to where we are today from

over a long period of time, and we will not reverse the trends in

these populations unless we have perseverance, patience, and resolve. This will not be simply a flash in the pan solution.

Third, and, again, very importantly, the Pacific Northwest are

absolutely and fundamentally committed to the restoration of these

salmon runs. The extinction of salmon in the Pacific Northwest is
32

not an option. This is not an Endangered Species Act issue per se.

It’s an issue about what we in the Pacific Northwest are all about.

The idea of our region, barren of salmon in the coming decades,

is completely unacceptable to everyone. And we have a deep and

abiding commitment to the restoration of these runs.

Salmon recovery is not fundamentally a political issue. It is not

a partisan football. It is a simple matter of priorities. And the priorities of the people of the Northwest, expressed over and over from

every point of view, is that we want a successful salmon restoration

effort here in the region.

Fourth. The issue, the challenge most fundamentally, is an issue

of habitat. Restoring salmon is the same thing as protecting our

clean water, is the same thing as restoring the health and vitality

of our stream and river systems. Healthy salmon runs, healthy

salmon streams, good, clean water are all one in the same effort.

Let me describe to you some of the basic principles that the National Marine Fisheries Service brings to the issue of salmon recovery here in this region.

First and foremost, we have a commitment to pursue the best

science available. Unequaled. It is an unequivocal commitment.

Our science is open. Our science is transparent. Our science is continually submitted to peer reviews, and our decisions are based

upon it. Point No. 1.

Point No. 2. It is a commitment to a comprehensive approach to

salmon restoration. As earlier witnesses have testified and observed correctly, there is no silver bullet, there is no one single

source of the problem, and a solution to be effective must be comprehensive. It is not just a question of the dams, though the dams

are important. It is not just a question of water, though water is

important. It is not just a question of fishing, though fishing is important. And it’s not just a question of hatcheries, though hatcheries are important.

Any successful solution for salmon restoration over the long term

in the Pacific Northwest must be comprehensive and must address

all stages of risks to salmon throughout their wonderful life cycle.

In the spawning and rear tributaries, in the mainstem, in the estuaries, and in the ocean.

The third point. We are absolutely committed to fostering partnerships in salmon restoration. Partnerships with the states, partnerships with the counties, partnerships with private entities,

wherever and whenever we can.

Some examples that you have heard again already is, one, with

the Oregon Plan. The speaker and Senator very eloquently described it to you. From our perspective, we worked very long and

very hard for a couple of years, shoulder and shoulder with the

State of Oregon to construct an Oregon Salmon Plan.

We believe it is the way to go. We support it. We made decisions

based upon it. And we will defend those decisions, and we will defend the continued implementation of that plan.

Closer to home, we spent several years working very hard in

good faith with the state, with the Tribes, and with the Mid-Columbia utility districts to develop a long-term strategy that they fostered for the operation and improvement of fish survivals and
33

productivities at their projects here in the Mid-Columbia region.

Again, a vital partnership.

Salmon solutions are not going to be Federal solutions alone.

They will not be state solutions alone. They will not be private solutions alone. If we are going to be successful, and we must be successful, we must do so in partnerships in good constructive collaborations. And we support those.

Finally, we are committed also to, in our salmon restoration

work, to honor Federal obligations to Native Americans and treaty

Tribes here in the Columbia Basin and throughout the Northwest.

The restoration of the salmon is not only vital to the people of

the Northwest in general, and important under the Endangered

Species Act, but it is also essential to honor our centuries of commitment to our Native American Tribes here in the Pacific Northwest, to enable them to exercise their treaty preserve rights, to fish

and hunt in from usual and accustomed fishing places.

We believe that the endangered species efforts and those treaty

efforts are compatible, and we seek to pursue them both.

What are some of the major challenges in the salmon restoration

effort?

Let me first of all cite what is not a major challenge. People care

about salmon, and that is the bedrock of success upon which this

effort is going to be based.

Some of those challenges are, first and foremost, scientific uncertainty.

I would love, and I can’t tell you how much I would love, to be

able to point to clear, unequivocal and convincing evidence on some

of the important issues we face here in this region.

The fact of life is, is that there is not crystal clear science on any

one particular factor. The ability to isolate one factor as the silver

bullet is very limited. The ability to eliminate the noise in the system, so to speak, from a scientific perspective is, is limited, and we

therefore don’t have absolutely clear-cut scientific certainties. We

must acknowledge that, and we must design strategies that build

decisions based upon on the best scientific judgment available to

us, and we do so.

Second, there are bottlenecks in the system. This is a hard job.

Speaking largely from an NMFS perspective, it is hard. There are

hundreds and hundreds of activities that one has to review. There

are meetings and meetings, countless meetings that you are invited

to at every level of the agency, and you only have a limited number

of people. So you cannot be everywhere at once. And it is simply

hard, a big, important challenge to our staff to try to cover all the

bases that we must.

I think we are meeting that challenge in a responsible way. We

have geared up to meet it. And our capabilities now are well suited,

as we move into additional restoration efforts here largely, largely

in the coastal areas.

The third major challenge——

Mr. POMBO. I am going to have to ask you to wrap it up.

Mr. STELLE. Yes. The third major challenge is what I consider

the blame game, and that is the tendency for entities or individuals

to try to pass the buck somewhere else.
34

You know this well. Everybody knows this well. It’s a fact of life.

But there is a tendency to point the fingers elsewhere, to say, no,

it’s not the dams, or, no, it’s not fishing, or, no, it’s not the habitat,

or, no, it’s not water.

Those assertions are all wrong. It’s a little bit of everything, and

all of the sectors and all of us will have to take responsibility in

improving salmon survivals and in contributing to the long-term

restoration effort.

The blame game will not succeed in where we must succeed.

Finally, I think building a sustainable ethic on the ground that

protects our streams is vital to a healthy stream system, to clean

water, to good productive land, and to an economy is part of the

long-term solution.

Now, let me comment finally on the legislation. We oppose enactment of H.R. 4335. The administration opposes this bill.

First and foremost, 25 years ago with enactment of the original

Endangered Species Act, Congress and then President Nixon made

a judgment that the consolidated management of putting this in

one single Federal agency made sense. It made sense then, and it

continues to make sense. Over that 25 year period the National

Marine Fisheries Service has built up decades of experience, expertise, and world class science in the execution of these responsibles.

Shifting these responsibilities to the Fish and Wildlife Service

would take years, it would take years for the dust to settle on that

kind of change.

I can’t think of a worse time than to do that in the middle of the

effort here in the Pacific Northwest we are in. And it would constitute a major disruption to salmon recovery efforts that we don’t

need.

What are the problems that this legislation is intended to avoid?

First, there are suggestions that there are inefficiencies in having joint management of the endangered species program between

the Fish and Wildlife and NMFS.

It would be my contention that in fact we have a joint collaborative effort in the implementation of the program and a record

that we are proud of here in the Pacific Northwest and nationwide.

We do things together. We do not duplicate, and we make sure that

our policies and strategies line up. If there are efficiencies to be

garnered from this legislation, they are minor.

Second, the second is that the real remedy for this legislation

that NMFS is too tough and that maybe if we shift responsibilities

elsewhere, it won’t be so tough.

These problems are not the problems of the National Marine

Fisheries Service. They are salmon problems. The science won’t

change and the solutions won’t change by simply changing the labels and the hats that people wear.

In conclusion, Mr. Chairman, again, I want to express my appreciation to be here, and I look forward to answering questions of the

panel.

[The prepared statement of Mr. Stelle may be found at end of

hearing.]

Mr. POMBO. Thank you. Mr. Curtis.
35

STATEMENT OF JEFF CURTIS, WESTERN CONSERVATION

DIRECTOR, TROUT UNLIMITED, PORTLAND, OREGON

Mr. CURTIS. Mr. Chairman, thank you for the opportunity to testify. Trout Unlimited is an organization of over 100,000 members.

We have about 7,000 members in Oregon, Washington and Idaho.

It is somewhat of a coincidence that here in Pasco you have two

former counsel of the Subcommittee on Fisheries Wildlife Conservation and the Environment on the same panel, both Will and

I served at different times as counsel to that subcommittee.

And during the time I served as counsel I know I often wondered

and I think Will probably did, too, about the division of responsibilities between the two agencies.

I mean, some of it really doesn’t make sense. Why, for example,

would the National Marine Fisheries Service have jurisdiction over

all pinnipeds but walrus, is an interesting question. So in a global

sense, looking at the division of responsibilities between the agencies makes some sense, and perhaps the Committee should consider that at some point in the future.

But like Will, I say, not now. We are in a crisis situation. This

year, less than 10,000 spring Chinook made it to Idaho. Less than

probably a third of those were wild fish. And they are going to 42

separate sub-basins. We are in an extinction spiral. That’s down

from an average of 15,000 over the last 10 years, and untold thousands prior to when the dams went in.

At this time, moving anadromous salmonid recovery responsibilities to an agency not previously involved in these issues is a recipe

for mass confusion. The chance that the upcoming decisions would

have a random quality to them would be greatly enhanced.

And I don’t think we should get basically different decisions out

of the two agencies. Frankly, I was at the U.S. Fish and Wildlife

Service as a legislative person when the snail darter situation came

up, and that agency was not known then and is not known now for

backing down on these issues.

Rather than tinkering with agency roles, we have endorsed the

development of a regional process along the lines of the three

sovereigns process. We believe that a process that brings the major

government agencies in the Basin together, state, tribal and Federal, that is open to participation by other parties, could move the

region closer to a consensus on the salmon and energy issues.

We are not so naive to think it would bring complete consensus,

but I think it would flush out the science and economics better and

get us in the region closer to a common understanding of what the

problems are.

But in the end, Mr. Chairman, members of the Committee, it will

not be process but rather dramatic action that is needed to restore

salmon. Current measures are clearly not working.

Several weeks ago, at our national meeting, our National Resource Board made up of grassroots members throughout the Nation endorsed proposals to retire the dams on the lower Snake

River.

We recognize this is a dramatic proposal. But after 20 years of

failed experiments to engineer salmon recovery, we believe like the

independent Science Advisory Board, that the time has come to
36

look at returning portions of the river to conditions more closely approximating the conditions in which the salmon evolved.

I recognize that many question whether such dramatic actions

are worth it to the region. Obviously, to those who believe that

salmon are an icon, it is worth it, but to those who look at economics more traditionally, I believe it is worth it, as well.

We have two assets at risk in the Northwest. One is salmon, the

other is our low cost energy.

In an era of energy deregulation, the question must be asked

why the rest of the Nation should subsidize cheap power in the

Northwest. More importantly, why should New Yorkers pay more

to heat and cool their homes than folks from Seattle or Pasco? Why

should Californians pay more for energy for their businesses than

Oregonians?

The answer is that we in the Northwest have a power system

that provides public benefits as well, investments in renewal energy assistance for the poor, and most importantly salmon restoration.

If the system does not provide for those benefits, if the power

system we are defending for our own advantage is killing a natural

resource we are charged with protecting, our position in defending

the region’s low-cost power is weakened.

It is apparent that the drawdown and the dam breaching scenarios will have both significant negative and positive effects on

the economy.

We believe the negative effects should be mitigated, but it is

clear that these economic impacts are far less than we could face

if we lost the benefits of low-cost power that we have enjoyed since

the 1930’s.

We believe, as in the past, when Native Americans relied on

salmon in the Columbia for both sustenance and economics, that

salmon and economics are still tied together.

And we believe that if we do something, we do the right thing,

and make tough decisions to restore salmon, we can have a future

with both a good economy and strong salmon runs.

But if we make decisions based on short-term economic interests,

we could lose both.

Thank you for the opportunity to testify. And I will be happy to

answer any questions.

[The prepared statement of Mr. Curtis may be found at end of

hearing.]

Mr. POMBO. Dr. Olsen.

STATEMENT OF DARRYLL OLSEN, PH.D., THE PACIFIC

NORTHWEST PROJECT, KENNEWICK, WASHINGTON

Dr. OLSEN. Good morning, Chairman Pombo, members of the

Committee.

My name is Darryll Olsen. I am a resource economist with the

Pacific Northwest Project, which is a resource economics consulting

firm located here in Tri-Cities, Washington. I have about 15 years

experience working directly on Pacific Northwest water, fish and

power issues.

I would like to thank the House Resources Committee for having

the foresight and the courage to question how the National Marine
37

Fisheries Service is implementing the National Marine Species Act

within the Columbia-Snake River Basins.

In particular, the Resources Committee should review carefully

the actions being invoked by NMFS to take control from the states

over water management in the Pacific Northwest and discern

whether these actions actually advance the best interests of the

fish resources and the social and economic well-being of the Pacific

Northwest citizens.

My comments to you today are principally from the perspective

as the principal investigator for the White Paper Review, the Columbia-Snake River Flow Targets/Augmentation Program. Copies

of the executive summary are attached to the testimony and I believe full reports have been provided to you.

The Review Study focuses on both policy and technical features

of the NMFS flow targets/enhancement program.

Dealing with policy issues NMFS has put forward the no net loss

water policy. This is a policy of confrontation. If accepted by the

states, this policy would prohibit any additional water withdrawals

for new municipal, industry or irrigation purposes. Including the

perfection of existing state granted water permits. The states

would cease to have control over water management decisions.

The Review Study also focuses on a number of technical issues.

Concerning hydrology, the NMFS flow targets ignore the physical

hydrology of the Columbia-Snake River Basin system.

Based on U.S. Bureau of Reclamation hydro data and studies,

the NMFS flow targets cannot be met in all months during low and

average water years, with or without the net effects of irrigation

withdrawals.

The net irrigation depletions are not the primary reason why the

NMFS flow targets cannot be met. The problem rests with the technical basis for the flow targets themselves. The targets are well beyond the Basin’s hydrologic capabilities.

Regarding biological impacts, Dr. Anderson has covered several

points, and I will simply summarize by saying that our observations indicate that attempts to use flow augmentation to improve

spring migrant survival, which is the bulk of the flow augmentation program, will provide no measurable fish benefits. And in the

case of fall Chinook, the benefits are uncertain and convoluted at

best.

Concerning economic impacts, based on the Bonneville Power Administration, the flow augmentation program consists of about a

$50 to $70 million per year program. These costs would increase

substantially if irrigation sector impacts were to begin.

The review also focused on the question of what are NMFS’ objectives. The Review Study made clear recommendations to NMFS

regarding changes to the flow target augmentation program that

optimized flow regime for biological benefits and economic costs.

Let me say that again. To optimize the flow regime for biological

benefits and economic costs.

But today NMFS has shown no indication whatsoever toward restructuring the flow chart augmentation program. In fact, the way

that NMFS is managing the program right now, they are putting

forth a scientific double standard.
38

Given this response, it is simply not possible to explain NMFS’

actions based upon the model of the prudent resource manager

seeking to enhance effectively fish benefits while administering

public funds and attempting to limit social and economic impasse.

Moreover, by failing to restructure the flow augmentation program, NMFS is clearly misallocating large volumes of water to the

west.

The flow regime cannot pass the classic criteria for water allocation, which is the demonstration of beneficial use.

The agency has embraced the policy of water misallocation, and

that policy hinders other more beneficial approaches to resource

management. Other approaches described for an optimization of

fish enhancements with economic costs and could seek out collaborative partnerships for new water resource projects and multiple

benefits of the region.

Thank you for the privilege of offering this testimony.

[The prepared statement of Dr. Olsen may be found at end of

hearing.]

Mr. POMBO. Mr. Givens.

STATEMENT OF JOHN GIVENS, EXECUTIVE DIRECTOR, PORT

OF KENNEWICK, KENNEWICK, WASHINGTON

Mr. GIVENS. Good afternoon, Chairman Pombo, and members of

the Committee.

Can everyone hear me?

I appreciate the opportunity to testify here today. My name is

John Givens. I represent the Port of Kennewick, which is one of 76

port districts in Washington authorized in public service by the

state legislature with a mission of fostering economic development.

We care about people. We also care about fish, too, because our

mission is very important as we carry it out in being responsible

environmental stewards of the resources we manage.

Let me take a second to talk about the Endangered Species Act.

I have been in the port industry now for about 15 years. Thirteen

years as a commissioner in the Port of Clarkston, in Congressman

Nethercutt’s district, and 2 years as the Executive Director of the

Port of Kennewick, in Congressman Hastings’ district.

I think the Act was written with the purest of intent to be a good

piece of legislation that could be reasonably interpreted and easily

managed.

But during the past several years I think it’s grown into a 900

pound gorilla with an attitude. It’s very difficult to manage, and oftentimes implemented on requirements that lack common sense.

And I think it’s time that it be revisited by Congress. That Act

needs to be reauthorized with a serious overhaul.

Let me share with you a good example of a potential recovery

plan alternative currently being explored that, if carried out, would

in my opinion be contrary to what most of the people in the Northwest feel would be a common sense solution to the problem.

The Columbia-Snake River system is one of our country’s most

valuable resources. That vital multiple use resource provides critical economic, recreational, and safety benefits to millions of people.

It stretches for 465 miles of a navigation corridor through a series

of about 30 ports opening international trade markets to more than
39

40 states. Forty three percent of all the wheat shipped from this

country travels through that remarkable system. Yearly cargo volumes exceed 50 million tons and provide revenues exceeding $16

billion.

Employment just in ports alone are estimated to exceed 50,000,

and I think about 1600 of your own Port of Lewiston, Congresswoman Chenoweth.

The federally authorized dams have the capacity to produce 75

percent of the Northwest energy needs using renewable, plentiful

and non-polluting hydropower.

About 50 percent of the 7.3 million acres of the producing farm

land and ranch land in Idaho, Oregon, and Washington are irrigated with water supplied from that system. Yearly sales from

those farms and ranches exceed $10 billion.

During 1996 and 1997 that system, the dams on that system,

were credited with saving more than $4.8 billion in property damage from two major flood events. I think that’s difficult to mitigate.

And I think people care about fish, but fish also care about people.

In spite of those unsurpassed benefits, serious consideration is

being given to breaching several of those dams and destroying the

integrity of that federally authorized system because of mandates

required under the ESA listing requirements. Yet the ESA has no

accounting responsibility for the potential aftermath that decision

might make if those dams are torn down, and, God, I hope Congress doesn’t allow that to happen.

In 1992 I served as a commissioner of the Port of Clarkston, and

at that time the U.S. Army Corps of Engineers, after consultation

with NMFS under the ESA, elected to stage a 30 day test drawing

water down to a near natural river level on the Lower Granite pool

of the Snake River.

The purpose of the test was to measure infrastructure integrity

under drawdown conditions.

The economic interests of the area were not involved under the

test planning, except shippers were told to make alternative arrangements for barging their transportation needs during the test

period.

The result of that 30 day activity related serious distress, lost

business revenue was estimated in the millions of dollars. Substantial physical damage occurred including sloughing embankments,

heaving and separated highways, twisted commercial and recreation docks, and inoperative water intakes. No cargo moved from

our port for more than a month, and one local marina operator

ended up filing bankruptcy as a result of the unrecoverable damage

and lost business of his—loss of business revenue.

Thousands of resident fish were killed after being trapped in

ponds which dried up when the river receded. The river corridor

through Lewiston and Clarkston almost immediately became a

stinking mud flat as habitat decayed.

And while some mitigation was later made available for documented physical loss to private property, the pot was too small and

the reimbursement was very difficult to obtain. An overwhelming

majority of the people who experienced that drawdown never want
40

to go through an experience like that again, and I don’t think the

people in this area want to do it for the first time.

The red light is up. I will quit. Thank you.

[The prepared statement of Mr. Givens may be found at end of

hearing.]

Mr. POMBO. Mr. Hale.

STATEMENT OF BOB HALE, HALE FARMS, HERMISTON,

OREGON

Mr. HALE. Mr. Chairman, members of the Committee, my name

is Bob Hale. And I am an irrigator. I have owned and operated

farms in the Hermiston, Oregon area my entire life.

Water is the lifeblood of my community, and it is the lifeblood

of my business.

I am also a partner in Inland Land. Inland was formed by three

family farms to complete the development of an existing farm with

existing state water rights.

Inland appreciates the opportunity to address you because our

farm development has been stopped in its tracks by NMFS and its

unreasonable, unscientific and unrealistic biological opinion of our

project.

My testimony will focus on Inland’s experience with NMFS’ implementation of the Endangered Species Act.

When we began our project, the Oregon Fish and Wildlife Service

expressed concerns that increased pumping from the existing farms

pump station would harm listed fish by attracting them into the

mouth of Willow Creek from the Columbia.

In response, Inland agreed to build a new pump station on the

mainstem.

On May 2nd, 1996, Inland filed a permit application with the

U.S. Army Corps of Engineers for this new pump station. This application triggered consultation with NMFS under ESA.

In addition, we have obtained zoning approval, a state permit for

construction, a Clean Water Act certification, and water right permit extensions from the State of Oregon.

However, we still cannot begin work on the project.

Why? The NMFS 1997 biological opinion.

The Corps of Engineers determined in July 1996 that our new

pump station would not adversely affect any of the listed salmon.

In spite of this, NMFS concluded in May 1997 that issuance of

an Inland permit would be likely to jeopardize the continued existence of listed salmon.

The ESA requires the action agency and the NMFS to use the

best available science. In my opinion, NMFS failed to do so.

Why did NMFS reach this conclusion? NMFS reached its jeopardy conclusion entirely based on the cumulative impact of Inland’s

water withdrawals, when combined with all irrigation withdrawals

in the Basin. NMFS decided that no more water should be allowed

to be diverted from the river until target flows are met.

There are two fundamental problems with the NMFS analysis.

First, NMFS target flows are unrealistic.

Second, NMFS’ analysis of the impact of irrigation withdrawals

is flawed.
41

Both of these problems arise from NMFS’ opinions about river

hydrology, not biology. It is baffling to me that NMFS, with no apparent expertise on the river hydrology, could trump the opinion of

the Corps who truly is the Federal expert on river flows and modeling.

NMFS’ use of the Bureau’s interim draft report on the cumulative impacts is even more flawed.

Based upon our discussions with Bureau staff, we believe NMFS

knowingly misused and misinterpreted the data to reach the result

it wanted to reach politically.

The Bureau study counted the full amount of water use authorized under all state water rights. Inland’s water that wasn’t even

being used was counted in this environmental baseline. They even

counted non-hydraulically connected deep wells as contributing to

the alleged flow depletions of the Columbia.

As a result, with Inland, NMFS adopted an unprecedented zero

net impact policy. NMFS believes this policy can only be satisfied

if Inland does not divert water during periods when target flows

are not being met or replaces any water Inland does divert with

additional upstream water rights.

Inland cannot develop its project not knowing from year to year

whether it will be able to irrigate the land. Inland cannot afford

to purchase another farm upstream and shut it down.

You can imagine our frustration, then, when NMFS announced

in June 1998 that it had entered into a Habitat Conservation Plan

with two public utilities in the Mid-Columbia.

Why will NMFS reach an HCP agreement with public utilities,

a no jeopardy opinion for the Federal hydro system, and a no jeopardy opinion for the sport and commercial fish harvests, allowing

them to directly kill fish, while they will not allow a farmer to

move an irrigation diversion point that will have no measurable

impact on the flows and fish survival.

Inland believes that the biological opinion was issued for political

purposes to pacify environmental organizations, not because of scientific justification.

As NMFS interprets the biological opinion, Inland’s water rights

are essentially worthless. NMFS is taking existing water rights

from landowners in order to create theoretical benefits for fish that

cannot be measured in reality.

Is NMFS implementing the ESA consistent with the law Congress passed? In my opinion, no.

Is NMFS implementing the ESA cost effectively? In my opinion,

no.

In our 4 year effort to permit this farm, with the assistance of

four regional law firms, three wildlife habitat consulting firms, two

salmon recovery consulting firms, two engineering firms, and a

Project Manager, we have spent nearly one million dollars and we

still cannot proceed. A fisheries biologist for the Corps’ Portland office said it best, when he interrupted me during a technical presentation I was making and said, excuse me, Bob, this isn’t about

science and biology, this is about politics.

Thank you.

[The prepared statement of Mr. Hale may be found at end of

hearing.]
42

Mr. POMBO. Thank you. Thank you for your testimony.

I would like to recognize Congresswoman Smith for her questions

at this time.

Mrs. SMITH. Thank you, Mr. Chairman. I passed him a note saying that I was going to have to leave close to one o’clock for another

public event in Yakima. So I appreciate you allowing me to ask

questions first.

I would like to begin with just commenting to Mr. Hale. There

was a bill dealing with takings, if a Federal action took your property, made you unable to use it, they should pay for it. And it

sounds to me like you effectively had a taking, if you do have a taking, if you are totally prohibited from using your property.

But I would like to start with Mr. Stelle, just some quick questions.

Do you support or oppose the initiative of state water rights? Do

you believe the state should have water rights?

Mr. STELLE. Yes.

Mrs. SMITH. OK. So would you believe your action and your authority could override those water rights by determining water levels or such?

Where the issue involves the operation, for instance, of Federal

dams, Federal facilities, then we do have the authority with those

Federal operators to modify those operations to improve flows for

salmon.

So therefore you do abrogate the state water rights by changing

the flow and making the water rights of no value?

Mr. STELLE. I am not sure, Ma’am, whether I would consider

that an operation of state water rights. It is an operation of a Federal facility.

Mrs. SMITH. Mr. Stelle, do you support or oppose—Well, let’s

state this a little different, we’re having—We both have been in

government too long it sounds like.

Do you believe that NMFS has a legislative authority to abrogate

state water rights in the Pacific Northwest?

Mr. STELLE. No.

Mrs. SMITH. You do not. You do not believe what you are doing

is abrogating water rights?

Mr. STELLE. No.

Mrs. SMITH. I have read quite a bit of the testimony, and you

have been reluctant to consider the recommendations put forth by

the Review Study. With testimony that suggests you have been

kind of strident in ignoring the technical problems raised within

the review.

The researchers who conducted the review appear by my review

to be prominent figures in conducting this type of research.

Do you just believe that their findings should be ignored because

they are inaccurate or incompetent, or what? Because they appear

to be totally ignored. Can you address that?

Mr. STELLE. Yes, Representative Smith. Are you referring to Dr.

Olsen, et al’s, report? I am not sure.

Mrs. SMITH. That is one of them, yes.

Mr. STELLE. As for the recommendations of Dr. Olsen’s report,

they have in fact been reviewed by our scientists.
43

I think in keeping with that, we have referred those ideas and

those recommendations to an inter-governmental group that we

have established with the states, four states and the Indian tribe

and the Federal operators, who determine flow operations for the

Federal system.

And thus far that group has declined to adopt or recommend the

adoption of those recommendations.

Mrs. SMITH. Did the agency in reviewing them send them with

comment as to whether they were right? Because you do comment

on the recommendations and you do send them in a way that is

weighted by your agency.

You have not been silent in your opinion. I have read quite a bit

about what you do believe.

It appears you as an agency are ignoring this except for shuffling

them off, and you are saying you don’t believe that.

What would be right about some of the review? What would you

agree would be right in your perspective? I mean, I am sure in the

review there are some things you agree with and some you don’t.

What’s wrong and which things should be ignored and which

things should be gone forward with in the review?

Mr. STELLE. To the question, have we formally commented on or

responded to the Olsen report. The answer I believe is no. Do you

know whether——

Dr. OLSEN. Capital N-O, no.

Mrs. SMITH. When did you actually get that?

Mr. STELLE. I don’t know.

Dr. OLSEN. You received it in February.

Mrs. SMITH. Is that because you are too busy or he is incompetent?

I am very serious. I get reports from people that don’t have the

ability, the background to give me a report. It’s not weighted as

much as someone that gives me a report that is qualified.

Is Dr. Olsen’s report not a qualified report to spend time to review after 6 months, 7 months?

Mr. STELLE. Ma’am, our scientists and technicians have reviewed

the report. They have also reviewed those recommendations with

the state and tribal managers, through which we make decisions

on and recommendations on the operation of the Federal projects.

Mrs. SMITH. Just in conclusion, I guess I want to ask one question. I have been looking over qualifications. What is your background in science or resource economies?

Mr. STELLE. I’m an attorney. I am trained as a lawyer.

Mrs. SMITH. I am sorry, Mr. Stelle. That was really probably a

lot more lawyers than just you. But thank you for your answer.

Mr. POMBO. Thank you. Mr. Romero-Barcelo ́.

Mr. ROMERO-BARCELO ́. No.

Mr. POMBO. Ms. Chenoweth.

Mrs. CHENOWETH. Mr. Stelle, I think we heard some startling

testimony from two very distinguished and highly regarded speakers of the House, and equally distinguished member of the Oregon

Senate and the House in Washington.

We heard the speakers and both of those gentlemen testify that

the treatment that they have received at the hands of your agency

in putting together a plan and trying to work with your agency and
44

in the restoration of salmon habitat was very sad. It was disrespectful. And it appeared that their recommendations were not

regarded.

The buck has to stop somewhere, Mr. Stelle. Does it stop with

you, or Katie McGintie, or the Vice-President? Where does the buck

stop?

Mr. STELLE. To the first part of your question, Representative

Chenoweth, as I mentioned, we worked very hard with the State

of Oregon, both the executive branch and the legislative branch, to

help make the Oregon Plan a reality.

I am actually proud of the effort we put into it. It was a good

faith effort. It was based on a mutual commitment that it was the

right way to go. And I believe it has opened an important doorway

for state and local restoration efforts here in the Pacific Northwest.

I absolutely regard the effort of the legislature and the Governor

with the utmost respect. It is and continues to be a genuine and

substantial effort. We support it. We approved it. We have defended it before Federal Court. We disagreed with the ruling of the

court that found that it was inadequate.

We believe it is in fact adequate under the terms of the Endangered Species Act. And we have persuaded the Department of Justice to appeal that ruling. We are defending the Oregon Plan and

we fully support it.

To your second question, the responsibility for the administration

of the Endangered Species Act has been delegated from the Secretary of Commerce to me as the regional administrator in the

north region, and I execute those responsibilities.

Mrs. CHENOWETH. Thank you, Mr. Stelle. I think that more than

just the defense of the Oregon Plan, I think these members of both

the House and the Senate were talking about the treatment of the

agency, too. And I appreciate your owning up to it.

I do want to say that you said the idea of our region being barren

of salmon is completely unacceptable. And I will look forward to

hearing from you about results and hearing from the members of

the legislature about results in there being a better working relationship.

But I think also what they are trying to say and what I and

other members of this region who serve in the House are trying to

say, that, yes, we admit that the fish are cultural icons. We admit

that.

But the idea of our region’s being barren of irrigated fields and

orchards and recreation and hydropower base is completely unacceptable, too.

And I also want to say that I look forward to hearing—I look forward to the day when I can hear from you and other agency personnel and leaders, I look forward to more substantive results rather than saying that meetings like this are good for dialogue and

good for collaborative results. Dialogue, we have got to move beyond.

And, Mr. Stelle, yes, you are an attorney, but you are a very

bright man, and you have put forth your agenda very, very well.

But it is not a satisfactory agenda to the future of this area.

Mr. POMBO. Mr. Nethercutt.
45

Mr. NETHERCUTT. Thank you, Mr. Chairman. I found this panel’s

testimony really quite revealing.

There seems to be an assumption here, Mr. Stelle, with all due

respect to you, and to you, Mr. Curtis, that only the Federal Government and its scientists and its employees have the endangered

species’ best interests at heart.

I want to follow on Representative Chenoweth’s comments about

National Marine Fisheries Service testimony here, with respect to

the treatment of the states of Washington and Oregon.

There seems to be in government today, and perhaps illustrated

clearly by your agency, a belief that the Federal Government is always right, that its employees and its scientists are only the ones

who have any wisdom. The treatment of Dr. Olsen’s report seems

to prove that in some respect. With regard to state’s rights, whether it’s the habitat conservation desires of the state, or the best

judgments of the states of Oregon and Washington, those seem to

be a subject of suspicion and question by your agency.

And at what cost? I mean, the cost is tremendous.

Mr. Hale, my goodness sakes, I don’t know how you can do it.

That’s a horror story, but it’s one of many that people like me and

others on this panel hear of regularly from people—normal, ordinary, good citizens—in our districts.

So it’s very difficult it seems to me for you to sit here, again respectfully, sir, and try to defend and make the statements that I

wrote down, your comments that you are meeting your responsibilities in—meeting your obligations in a responsible way.

You know, bankrupting Mr. Hale or costing him a million dollars

and causing, and ignoring in many respects, the good work of the

scientists and the people of the states of Washington and Oregon,

and ignoring Dr. Olsen’s report, who has put a lot of effort and

good scientific background into that, seems to me to be the height

of arrogance, and that is what is really bothering me.

I will allow you to respond.

Mr. Curtis, you talk about failed experiments on our river system, and drawdowns and other ways to try to restore salmon and

fish recovery.

My goodness, sir, and now you advocate breaching of the dams

and saying that essentially it doesn’t matter that the citizens of the

Pacific Northwest are going to have to pay more for power.

That’s a very real consequence. It’s not some theory that we’re

talking about here. That’s a very real consequence. Breaching the

dams are going to cause tremendous dislocation, not only to the integrity of our river systems, the recreational use, the power generation costs for sure, but the environmental quality would be deteriorated.

So, it’s easy to come in and testify blithely about and theoretically about how we all ought to be fair and pay more, how we

should worry a lot about salmon, that everybody has to pay their

share, and the Federal Government’s always right.

Sir, that’s wrong. And you are going to find, in the real world of

people who are here in this room that we speak to those real concerns. I know it’s difficult to be in government, but it shouldn’t be

difficult to use common sense, and look at the cost consequences of
46

Federal actions and the policies that are implemented by your

agencies.

So I have given my speech. I will be happy to have you respond.

But I am very serious about this. I think that’s a very real problem of government now. And this talk about breaching the dams

is just inflammatory, and I get real emotional about it, as many

others do, too.

So a quick comment. I am sorry to take all the time.

Mr. STELLE. Congressman, let me just respond briefly. I left a

misimpression. I think that frankly in a number—to your question

of do we believe that the Federal scientists or the Federal employees are the sole repository of truth and knowledge, the answer is

absolutely no. We don’t believe that.

Here in the Columbia Basin, obviously there’s a lot of dispute

about what works and what doesn’t work. And we with the National Marine Fisheries Service essentially brought in the National

Academy of Sciences and through the national academy set up an

independent science advisory board, specifically to get independent,

good transparent scientific advice on some of the issues that are so

difficult here in the Columbia Basin.

So, too, in the Oregon effort, we absolutely support the convening

of the multidisciplinary science team by the State of Oregon. It’s

the right thing to do and we support it, and we take what they do

very seriously.

To the issue of working with the states, I can only say it’s absolutely my hope that we continue to build a good, solid, effective,

constructive relationship in the implementation of the Oregon Plan,

and as the state of Washington and the counties work hard on

their efforts. It’s a good effort. We are 100 percent behind it. And

frankly, I hope we try our very best to work day to day.

Mr. CURTIS. Thank you. Just two comments. One, I think it’s unfortunate we don’t have some of the state biologists who participated in the PATH process here today.

I have the greatest respect for the state biologists and the tribal

biologists, as well as Federal people working on this. Howard

Schaller, Rick Williams, if somebody like that were here, I think

we could get some different approaches to some of the scientific

questions that have been raised.

The second question, though, with regard to suggestions and recommendations with regard to dam breaching, which I realize is a

highly inflammatory issue out here.

Let me just say that that is the reason that we continue to support a process to get closer to a regional consensus, so that we can

have a process where we can look at these tough scientific questions and the tough economic questions and come to a better understanding of what’s going on. And we support that.

If in the end the region comes to the conclusion, looking at the

best scientific data available, and the real economics that it’s not

the way to go, then I am sure the Congress, who makes the ultimate decisions on this and we recognize that, is not going to do it.

Mr. NETHERCUTT. I guarantee it.

Mr. CURTIS. Congressman Nethercutt, when these dams were

put in, they were very difficult decisions to do. People looked at
47

winners and losers. Towns were moved. And hatcheries were put

in. They were very difficult decisions.

I don’t second guess the people who made those decisions to put

those dams in.

I think we’re facing a similar decision process now. And I think

we should face those tough decisions the same way.

Mr. NETHERCUTT. Thank you.

Mr. POMBO. Congressman Hastings.

Mr. HASTINGS. You know, it’s interesting to listen to the first

panel and this panel.

And I want to address my questions to Mr. Stelle. Because we

heard, at least I heard, one member up here, very specifically that

the relationship between the state legislature, at least two of them

here, Oregon and Washington, and NMFS was not very good. I

mean, I think that came across loud and clear.

That being the case, then your perception of the things working

is probably not very good. And you have to deal with what reality

is.

So, I guess that’s something that you need to work on.

I think George, by colleague, George Nethercutt said it very well,

this is very serious. And there is a notion that one size doesn’t fit

all. The Federal mandate isn’t exactly—I just want to make that

observation.

Because the stark testimony difference between the respective

speakers and legislatures from where you sit, just don’t jibe.

You can say those were different settings and it didn’t make

sense, but they didn’t make sense today.

Now, having said that, Linda Smith asked you about state water

rights, and you didn’t elaborate, you just said that she asked you

directly, should states have water rights, and you said yes.

Now, I understood you to say that the Federal Government has

higher authority over state water law vis-a-vis Federal facilities.

Did I hear you correct?

Mr. STELLE. Representative, what I meant to say was that in the

operation of the Federal dams on the Columbia system, those operations are the responsibility of the Corps of Engineers and the Bureau of Reclamation on the advice of the National Marine Fisheries

Service. And they make those decisions on how to operate those

dams, in the winter, spring, summer and the fall.

And my understanding is they have solid, firm responsibility to

do so. And that exercising that responsibility doesn’t abridge state

water rights one way or the other. That is the point I was making.

But they do so.

Mr. HASTINGS. Well, it seems like it does. There are people here

that will probably attest that they are affected. I think that Mr.

Hale here would suggest that there is a cause and effect. And he’s

on the same panel that you are on.

But now, having said that, though, having given the qualification

that you just gave me, that the operation of the Federal facilities,

how far upstream does that affect? Does that affect all tributaries,

then, from a flow standpoint.

Mr. STELLE. No, sir, it doesn’t. It operates, I am not sure I can

give you the technical answer on that, but basically——

Mr. HASTINGS. Mr. Stelle, I am not the attorney, you are.
48

Mr. STELLE. The Federal projects, the decisions of the Corps and

the Bureau how to operate those mainstem projects are really

whatever water is coming in from Canada and flows into the system, flows into those pools.

Now, there is some Federal involvement through a treaty with

Canada on the operation of the big Canadian projects, to try to

coordinate——

Mr. HASTINGS. Let me try to be specific. There’s a report out, and

maybe you can clarify this, Lake Chelan, up in Central Washington

here, NMFS suggested that they were going to reduce the water in

Lake Chelan to augment the flow in the Columbia River.

You categorically deny that that’s not going to happen by NMFS?

Mr. STELLE. I know absolutely nothing about that. I’ve heard

that talk about what’s going on in Lake Chelan.

To the best of my knowledge, none of my staff have ever talked

to me about any intentions on Lake Chelan. I have no knowledge

about any kind of drawdowns of Lake Chelan. That is not true

from my perspective.

Mr. HASTINGS. Great. I want to ask Dr. Olsen a question here,

talking about flow, though, because we were talking about flows

here and you indicated in your testimony some regard about flows

and there’s a disconnect or some point as to how NMFS is implementing this.

I would just like you to elaborate on the flows based on what my

conversation with Mr. Stelle has been right here, vis-a-vis water

rights.

Dr. OLSEN. There’s actually several responses to that.

In my testimony I brought up the double standard issue. And

what we’re seeing now is public statements from NMFS officials

saying, we have some correlations.

Now, between flow and survival, 3 years worth of data, for flow

and survival with fall Chinook. They ignore other convoluting factors, they ignore other significance variables and say, aha, this is

it, this justifies the flow augmentation, we obviously need another

million acre-feet or something.

They are public statements. I can provide you with those, if you

would like those.

Mr. HASTINGS. Please do. I won’t speak for the Chairman, but

please do. I think the Committee would like to have those statements.

Dr. OLSEN. In the same breath, NMFS turns around and in basically the supplemental buy off which came out in March, and in

other quarters, personal conversations with management with

NMFS, they come back and say, that’s right, we don’t have any

flow survivals, statistical relationships for spring migrants for 5

years worth of data.

It’s higher quality data, more data than what they have for fall

Chinook. But they just ignore that, say, we don’t care.

So on one hand the standard is, aha, there is statistical correlation, that’s important, so that justifies their flow augmentation, but

we will totally ignore other data, better quality data that doesn’t

justify statistically the relationship.

There is a double standard being put forward for the science.

Mr. HASTINGS. Mr. Stelle, I might want to have a dialogue here.
49

Mr. STELLE. Representative, I would be happy to share with the

Committee and with Dr. Olsen, I think he knows the reviews that

our science center does of the flow survival relationships. We do it

every year to determine what the evidence appears to be on whether or not there is one, and if so, to what degree, what is the

strength of that relationship.

We will be conducting another technical review of the data this

fall for the 1997 runs. And I would be happy to share those reports

with the Committee. Dr. Olsen I think knows them. And they get

distributed broadly throughout the region.

Mr. HASTINGS. Mr. Stelle, one last thing——

Mr. POMBO. Dr. Olsen would like to respond.

Mr. HASTINGS. Dr. Olsen, thank you.

Dr. OLSEN. Just a comment back on that. Yeah, we’re well aware

of the data. It’s in our report, we use the raw data as well as the

summaries, we are well aware of that data.

But I think more importantly about the issue, about how you are

approaching this in open science, back in November I was working

on a contract for Bonneville Power Administration, where they

asked us to review the cost and benefits of various salmon methodologies of various regions, various things, drawdown, flow augmentation, spill, other types of things.

We presented an alternative to be reviewed by the scientific community, actually part of what is essentially I guess loosely called

the three sovereigns process. We presented an alternative and

asked for its review using the NMFS data, University of Washington data, and the response directly from Mr. Stelle was a letter

to the acting CEO of Bonneville Power Administration saying, you

don’t even have the right to introduce a low flow scenario for being

reviewed through the process.

I will be glad to provide you copies of the letter.

Mr. HASTINGS. Thank you. Mr. Stelle, western water law is very,

very complex, and I am certainly not by no means an expert on

that.

But I have to tell you, what you said is not satisfactory to me,

and what I would like you to do is to present at least to me, and

I hope the Committee would accept it also, a response as to what

is your interpretation of state water rights are, how that interacts

with your agency, so that we can understand where you are coming

from and how all of this works together.

Because I heard yes, and then I heard no, except. And I just

heard some things that are troubling to me.

I think maybe for the benefit of this member and maybe for the

benefit of this Committee, let’s hear precisely. And you said in your

testimony you want to be as precise as possible. Let’s hear precisely exactly how this reacts with you. I would appreciate that.

The next question I wanted to ask you, this is one thing I

learned in my years in Congress, when I make a request for response from a panel in writing later on, I’ve learned to ask when

I should be expected to get that. All right?

And so I will ask you, Mr. Stelle, when could you get me that

response?

Mr. STELLE. How about October 1st, Congressman?
50

Mr. HASTINGS. October 1st. If that’s not a weekend, but in other

words, what you are saying, within 30 days.

Mr. STELLE. Yes.

Mr. HASTINGS. And that should not be a weekend, if my calculation works, that should be on a Friday. I think we can handle that.

Thank you.

Mr. POMBO. Mr. Romero-Barcelo ́. Mr. Romero-Barcelo ́. Thank you, Mr. Chairman. I would like to

ask Mr. Stelle something.

Have you ever considered, have you found any other country in

the world where salmon have also disappeared and they have restored them? Do you have any knowledge of any other country

where that has happened?

Mr. STELLE. That’s a great question. I have heard some sort of

episodic talk about New Zealand and salmon restoration efforts

about New Zealand.

I myself am not an expert on them, but I hear there is some very

interesting stuff going on in salmon.

Mr. ROMERO-BARCELO ́. I happen to know about some, and I am

going to tell you, and I think sometimes we tend to isolate ourselves and forget about that other people might have solved the

problems. They might not be the same problems.

But when I was growing up in Puerto Rico, I considered Switzerland, to take a look at the small dairy farmers, where they were

so successful. And what I mean by small, 6 or 12 cows, and they

were successful. They had reasonable income from that.

And while I was there, one of the high officials of the Department of Agriculture started talking about the fishing and the plentiful salmon in Switzerland. And he said, well, salmon used to be

very, very, very plentiful, so plentiful that they used to pass laws

that gave food to their employees as part of the salaries or whatever, to give them salmon more than once a day and for no more

than 5 days a week.

Anyway, he said that because of the pollution in the lakes and

the rivers, the salmon just about disappeared.

And now when I was there, the salmon was back.

What they did, it was long ago, I was not looking into that subject matter, so I didn’t pay much attention, but I think we should

be checking to find out if that story was correct, and if it did happen in Switzerland, what did they do?

I mean, who knows? They might have some answer that we

don’t, or they might have some solutions that might be helpful for

us.

I will throw that out for consideration for you and for others.

Thank you.

Mr. POMBO. Thank you, Mr. Barcelo ́.

Mr. Stelle, I allowed you to extend your oral testimony because

I felt it was important for you to have the opportunity to get your

side of this out. I thought it was important for the Committee to

understand what your position was. And also I felt it was important for the members of the community that are here today to have

the opportunity to hear what you had to say.

One of the things that you said in your statement I think probably exemplifies a great part of the problem that we have had with
51

the implementation of the Endangered Species Act, and that’s

whether it’s through NMFS or whether it’s through Fish and Wildlife, because the culture is very similar within the Federal agencies.

Dr. Anderson, you said that extinction is not an option, that people of the Pacific Northwest want the salmon runs to be restored,

they want the salmon to be here.

And you went on to say that it is also part of clean water and

having clean and non-polluted water here. And then you go on to

give a very distinct inference that if anyone disagrees with what

you are doing, then they are in essence in favor of extinction and

dirty water.

And that’s a big part of our problem that we have. Because in

my experience with the Endangered Species Act, and unfortunately

I have had a great deal, I can tell you that the local people care

a lot more about the salmon than you do or I do. The local people

care more about clean water than anybody in the entire District of

Columbia. And that what we have seen is a disconnect between

what the Federal agencies are saying this is what you have to do

and what the solutions that are being generated locally are.

And I don’t think you can deny when you have the Speaker of

the House of Washington, the Speaker of the House of Oregon, distinguished colleagues that they serve with, coming in and saying

that they don’t have a good relationship with the Federal agencies,

that they felt that it was extortion, they felt that they were being

put upon by a Federal agency, I don’t think that you can realistically come in here and testify and say that you’ve got a great relationship. Because there’s a disconnect there.

And if we are ever going to have an Endangered Species Act that

works, it has to be done with the support of the locals. And we’re

not getting that. And that’s whether it’s here in the Pacific Northwest or California or anywhere else we have gone.

I just don’t see that happening right now. I would like to ask you

about the difference between what’s happened here and what happened with the Atlantic salmon. We had a similar types of agreements between the regions of the country, National Marine Fisheries Service on agreeing to go ahead with the management plan.

With the management plan being thrown out in Oregon, how are

you going to proceed with the Atlantic salmon at this point?

Mr. STELLE. Mr. Chairman, that’s a good question. Let me first

of all clarify.

The Oregon Plan stands on its own. And as Speaker Lundquist

testified earlier, the State of Oregon continues to move forward

with it.

We absolutely believe that’s the right thing to do. We have

worked with them in the development of that plan. And we believe

it should be the road map for recovery for coastal salmonids in Oregon.

The issue was, the specific issue was whether or not our decision

not to list coastal salmon runs in Oregon and rely instead upon the

Oregon Plan was appropriate under the Endangered Species Act.

We made that decision. We support the Oregon Plan. And we defended that decision in court. We were sued by a coalition of environmentalists I think in southwest Oregon. The District Court
52

ruled that we inappropriately relied upon the voluntary measures

in the Oregon Plan.

We do not believe that the Endangered Species Act prohibits voluntary measures. We believe that our reliance on those efforts was

lawful, that the Endangered Species Act provides that flexibility,

and we are appealing that suit.

Meanwhile, the State of Oregon has made a commitment to continue on with its plan.

The implication is, the question then is, well, what about the

Maine Plan? In the state of Maine, again, the National Marine

Fisheries Service and the state of Maine entered into an agreement

to implement an Atlantic salmon plan for their potentially listed

salmon runs in I think seven rivers in Maine.

First of all, let me note that the geographic scale is very, very

different. These were seven drainages in southern Maine, versus

essentially the entire Oregon coast.

The nature of the problem facing Atlantic salmon is different,

and therefore the automatics of a one-to-one correlation do not

work, because the situations are different.

In that situation, we deferred the listing in reliance on the Oregon Plan, we intended to defend that plan, too, and as of yet that

continues to hold.

There is a possibility, as usual, that folks may file a lawsuit to

challenge that decision. I don’t believe that’s happened yet, and I

hope it doesn’t, because I don’t think it’s very productive.

Mr. POMBO. So you don’t at this time even tend to list the Atlantic salmon?

Mr. STELLE. No, sir.

Mr. POMBO. Just to conclude my questioning, in your statement

you say that over the past 20 years you’ve developed a world class

expertise on evaluation of impacts of differing human activities on

the salmon life cycle, and you go on to list dam operations and fish

passage, fishing activities, fish husbandry and on and on and on,

and their impact on salmon.

We had testimony at a previous hearing, and at that hearing it

was testified that there is approximately a billion dollars a year,

and this was about 2 years ago, so I am guessing that the figure

has gone up, about a billion dollars a year that is being spent by

public and private sector on the recovery of the salmon.

Mr. Curtis testified that we are continuing to decrease numbers

on the return of the salmon. I believe, as he said, we have gone

from 15 in recent years down to 10,000 return, over a billion dollars a year, 20 years of experience in studying these.

At what point do you think we’re going to see some results?

Mr. STELLE. That is a great question. If I had my druthers, tomorrow. But as I think most of the scientific consensus here in the

region will report, this thing isn’t going to turn around because of

any one particular thing that we do, because it’s all too complicated.

I think as Dr. Anderson testified, the ocean is a huge issue. And

we need to get a better scientific understanding of the relationship

of ocean conditions and estuarine conditions and the productivity

of salmon populations, salmon survivals.
53

We have in fact submitted a multifaceted research program

starting this year, and I will be happy to submit it to the Committee, that is trying to get into that black box and develop a better understanding of the ocean’s conditions through the estuary. If

the oceans turn around, sir, I am optimistic.

Mr. POMBO. I guess my point is, I respect the work that has been

done by the biologists, by the scientists on this. I don’t necessarily

respect the work that is being done in the regulations, because I

think that many times the regulations that come out are political

and have little or no basis on the science.

And I think that that is a huge mistake that we are making in

the implementation of this. It is at times extremely frustrating to

sit as Chairman on a hearing like this, but the effort is being made

to educate the Committee on the real problems that real people are

having.

At the same time I think it gives all of you a window into how

frustrating it is to go back to Washington, DC and represent you

at times.

I would like to thank this panel very much for your testimony.

As in the previous panel, there will be additional questions that

will be asked. I ask you to respond to those in a timely fashion so

that we can include them in the hearing record.

Thank you very much. We are going to take a 10-minute break,

and I mean 10 minutes. So if any of you plan on leaving the room,

we are going to start in 10 minutes. So please respect that.

[Recess.]

Mr. POMBO. Thank you very much. I would like to welcome our

third panel. We have Mr. Jim Baker, Northwest Salmon Campaign

Coordinator of the Sierra Club; we have Mr. Fred Ziari, Chairman

of the Eastern Oregon Irrigation Association; Mr. Richard

Erickson, the secretary manager of the East Columbia Basin Irrigation District; and Mr. Rob Phillips, Director of the Northwest

Sport Fishing Industry Association. Welcome to our panel.

Mr. Baker, if you are prepared, I am sure that you understand

the lights, if you could try to conclude your testimony in 5 minutes.

Your entire written statement will be included in the record. But

if you could try to conclude your oral testimony in 5 minutes, the

Committee would appreciate it. If you are ready, you may begin.

STATEMENT OF JIM BAKER, NORTHWEST SALMON CAMPAIGN

COORDINATOR, SIERRA CLUB, PULLMAN, WASHINGTON

Mr. BAKER. It’s in my best interests to complete my testimony in

5 minutes, because we have already gone past the lunch hour. I

have already run out of blood sugar.

Good afternoon. Thank you for this opportunity to testify on H.R.

4335.

For the record, my name is Jim Baker, and I serve as Northwest

Salmon Campaign coordinator for the Sierra Club.

The Committee does have my written statement with my completed disclosure forms.

Let me briefly summarize my remarks for my verbal testimony

before the Committee.

Although the National Marine Fisheries Service, NMFS, listed

wild Sockeye in the Snake River Basin under the Endangered Spe-
54

cies Act in December, 1991, tragically throughout this decade the

numbers of spawning adult salmon and steelhead have continued

to decline toward extinction, despite these listings.

More often, the NMFS nearly 7 years after the first listing has

not adopted a recovery plan for Snake River Basin salmon and

steelhead. If the agency meets its self-imposed and court ordered

deadline, the NMFS will decide late in 1999 the key question of

how to lift the deadly toll taken on four Federal dams on the Lower

Snake River. Nor has the agency provided these listed salmon or

steelhead runs with adequate or effective interim protection under

the ESA.

NMFS has dismally failed to implement its current biological

opinion which began under court order in 1995.

The agency did not adopt a spread the risk strategy between

barged and in-river migration of juvenile salmon, did not provide

adequate spill for safe passage of young fish past the eight dams,

did not bring the elevation of John Day reservoir on the lower Columbia River to minimum operating elevation, did not release adequate volumes of water from upstream storage reservoirs, and did

not meet targets for flow augmentation.

The salmon desperately need all of these minimal protections,

and the Sierra Club intends to hold all of the Federal agencies’ collective feet to the fire for delivery of these measures in the courts,

in the Congress, and in the Clinton Administration.

While I do not see due diligence or proper performance on the

part of NMFS, the agency is just one of several Federal agencies

which has built this record of poor performance on Columbia Basin

salmon recovery under the ESA.

The U.S. Army Corps of Engineers has pursued an expensive and

wasteful agenda of gold plating its dams with new equipment and

technologies of at best dubious value to fish.

The Bureau of Reclamation has not provided additional water

volumes for flow augmentation in the Snake River, and indeed

until recently, had not even consulted with the NMFS as required

in the ESA.

For most of this decade the Bonneville Power Administration has

blamed fish and wildlife costs for its financial straits when the actual causes are BPA’s crushing debt load from WPPSS bonds and

wholesale electricity deregulation in 1992.

So what we have here is a failure by numerous Federal agencies,

in other words, a general failure of the Clinton Administration to

save salmon and steelhead in the Columbia Basin.

Turning now to H.R. 4335, I must tell you, Mr. Chairman, that

the Sierra Club opposes this bill because it is not responsive to the

root problem, the failure of the Clinton Administration to protect

and restore Columbia Basin salmon and steelhead under the Endangered Species Act.

This administration’s U.S. Fish and Wildlife Service is unlikely

to perform any better than this administration’s national marine

fisheries service. Moreover, the transfer of ESA functions between

the two agencies would inevitably cause even further delay in taking necessary actions to save these magnificent fish. It would particularly delay the 1999 decision on the Lower Snake River dams.
55

So to adapt Shakespeare a bit, I come not to praise NMFS, nor

to bury it.

What should the Congress do to put Columbia Basin salmon recovery back on a successful track?

No. 1. Appropriate full funding for needed studies into the biology, engineering, economic impacts and mitigations of proposed

salmon recovery actions. Similarly, the Congress should refuse

funding for wasteful gold plating technological fixes such as juvenile fish transportation which offer little or no benefit to salmon

and steelhead.

Two. Support and promote preparation of a single unified salmon

recovery plan among the three sovereign governments within the

Columbia Basin. Federal Government, the four states, and the 13

American Indian tribes. All three sovereign governments have legal

authorities and obligations for Columbia Basin recovery to all three

must participate together in the planning and implementation of

the recovery program.

No. 3. Keep the Clinton Administration to its promised 1999 decision on the Lower Snake River dams. In this particular case,

delay makes for huge waste. Multi hundred million dollar waste.

And fourth, follow the independent biology, such as the independent scientific advisory board.

The best available science is telling us that the salmon need

river ecosystem restoration, not more techno-fixes.

Thank you for this opportunity to testify today. And I welcome

your questions.

[The prepared statement of Mr. Baker may be found at end of

hearing.]

Mr. POMBO. Thank you. Mr. Ziari.

STATEMENT OF FRED ZIARI, CHAIRMAN, EASTERN OREGON

IRRIGATION ASSOCIATION, HERMISTON, OREGON

Mr. ZIARI. Good afternoon. My name is Fred Ziari. I am the

chairman of the Eastern Oregon Irrigation Association. We are located in Hermiston, Oregon, which is about 20 miles south of here.

Our members are, represent local farmers, ports and water users

in Eastern Oregon.

I should mention before I start that if you want to know who

killed the Oregon Plan, and consequently delayed fish recovery, the

man to my right, the Sierra Club, did that, and Trout Unlimited,

the ones that filed the lawsuit that killed that good voluntary program that was supposed to save salmon.

Our members have a long history of working in a cooperative

manner with Congress, state, Tribes and Federal agencies in implementing and enhancing fish runs in Eastern Oregon.

Over the past 15 years our farmers working cooperatively with

the Confederated Tribes of Umatilla and the related agencies have

successfully implemented the Umatilla Basin Project which has

brought the salmon back to our river and has become a model of

successful salmon recovery in the Northwest.

In other words, we have been and we are committed in salmon

recovery for long time. We irrigate some 200,000 acres of irrigated

land in Eastern Oregon. Almost all of our products are processed

locally and values are added. Annually over 80 percent of our prod-
56

ucts are valued between $8 to $900 million annually, exported out

of our region, and most overseas market through one of the most

efficient and economical Columbia River barge transportation system.

Over 8,000 people in our sparsely populated area are employed

in agriculture and other food related industries.

We do all of these with the use of only three-tenths of 1 percent

of Columbia River water. And that’s about all of the water the

state of Oregon uses in the whole state, three-tenths of 1 percent.

Let me make one thing very clear. Columbia River system, which

is the second largest river in the country, is not an over-appropriated river as some may want you to believe. The total of only

7 percent of the Columbia River water is utilized for agricultural,

municipal and industrial use in Oregon, Washington, Idaho, Montana and British Columbia combined. Only 7 percent. Ninety three

percent of all the water is untouched and is used for fish and

hydro.

Our farmers are a vital part of providing food for our citizens at

home and hungry world abroad. And we are very proud of these

achievements. As the world population are expected to reach over

10 million people in the coming decades, our ability to produce high

quality and affordable food supplies become even more vital.

All of these achievements are now in jeopardy through unrealistic dam removals over our dead bodies and excessive flow augmentation proposals by our Federal agencies. We watch with bewilderment how NMFS and an army of Federal agencies have totally

abandoned cooperative spirit of working with local officials and the

resource users.

When they are presented with the resolution to a problem by resource users, they instead decided to implement a mean spirited

policy to inflict pain and suffering to water users and landowners,

which you have seen one, Mr. Hale.

The zero net water policy, which they have implemented, totally

stops all of the irrigation. It has no meaningful analysis has been

done, no consultation with the local agencies, and it’s not prudent

and reasonable alternative. And it violates our state laws.

This no net water loss policy not only stopped all irrigation, it

also impacts all of our cities. A good example, the city of Umatilla,

which I am engineer for, has a total of 3300 people, and following

a statewide search for a suitable site, the State of Oregon now is

constructing the newest state prison in Umatilla, which will house

1500 prisoners, and employ 500 staff, doubling the town’s population.

To serve this facility, the state holds a state approved water

rights for a mere 23 cfs, cubic feet per second, out of over 200,000

cfs, but this permit, they cannot meet NMFS flow policy, and the

city is wondering, now what? And how will they meet the needs of

their citizens?

There are other cities around Eastern Oregon that face the same

situation.

Maybe we should stop the criminal and send them all to Mr.

Stelle’s neighborhood.

My time is up. I have the recommendation for Congressional action, and I hope you will consider that.
57

[The prepared statement of Mr. Ziari may be found at end of

hearing.]

Mr. POMBO. Thank you. Mr. Erickson.

STATEMENT OF RICHARD ERICKSON, SECRETARY/MANAGER,

EAST COLUMBIA BASIN IRRIGATION DISTRICT, OTHELLO,

WASHINGTON

Mr. ERICKSON. Good afternoon. My name is Dick Erickson. I am

the present manager of the East Columbia Basin Irrigation District. I would like to thank the members of the Committee for the

opportunity to provide information about the effects of NMFS flow

augmentation policies. The Columbia Basin Project was constructed

by the United States Bureau of Reclamation to provide approximately 622,000 acres of farmland by diverting at Grand Coulee

Dam approximately 3 percent of the river’s flow.

The project is authorized by Congress to ultimately irrigate

1,095,000 acres.

The NMFS mandated flow policy caused the Bureau of Reclamation in July 1993 to impose an administrative moratorium on new

Columbia Basin Project water service. That moratorium immediately resulted in the shelving of all planning for further development for the Columbia Basin project.

That action hit late in the EIS study process to enlarge the existing canal to 87,000 acres. This delay or cancellation of further development appears to many who are unfamiliar to be simply an opportunity foregone.

It is more complicated than that. Between one-third and one-half

of the 87,000 acres are irrigated by deep wells. All those wells were

permitted by the state of Washington in the late 1960’s and early

1970’s at a density estimated to give that aquifer a 30 year economic life.

Thirty years have now nearly passed and many of those wells are

not sustainable long-term.

The NMFS inspired Bureau moratorium has also taken authorized water supplies amounting to about 85,000 acre-feet per year

from the already developed first half of the project. Because of the

moratorium the Bureau has rescinded previously authorized contractual authorities for the districts to irrigate about 13,000 more

first half acres, translating to about 39,000 acre-feet per year.

Also reneged on was the authority to provide up to 60,000 acrefeet per year of project water to area industries and communities

for municipal and industrial use. The project’s M & I ability is now

capped at the amount then already in use which is about 14,000

acre-feet per year, locking up the balance of 46,000 acre feet.

This NMFS driven, Bureau enforced moratorium, exacerbated by

the scarcity of groundwater, has brought much of the Columbia

Basin Project area to the threshold of a no-growth scenario.

To better understand that situation please consider the attached

letter from the Port of Moses Lake which I will now summarize.

Much of Moses Lake’s industries are food processing companies

that convert Columbia Basin raw agricultural products to value

added consumer food products for domestic and export markets.

In recent years, other types of industries have also located in the

Moses Lake area which manufacture non-ag products such as elec-
58

tronics materials, automotive components, industrial chemicals and

metal products. And this diversification is important to our economy and the area’s working people to, among other things, help

smooth out the inherent cyclical nature of the ag section.

These industries have located around Moses Lake for a variety

of reasons, but an economic supply of electricity and a dependable

water supply are common needs of nearly all these manufacturers.

Both of these fundamentals are now being threatened by the

NMFS flow policies.

The Moses Lake area’s electricity is supplied by Grant County

PUD and is generated at Priest Rapids and Wanapum Dams on the

Columbia.

NMFS flow policies enforced by FERC are you know at the point

where the Grant PUD is having to spill something like 60 percent

of the Columbia’s flows. This results in the need to purchase replacement power at higher cost. Grant’s rates will need to increase

and there is concern they may eventually exceed the region’s market rate.

Most of Moses Lake’s industries’ economic feasibility is very sensitive to power costs. Most of these industries also need water for

the manufacturing processes and also for fresh water to blend with

processed waste water so they can be treated by land application.

The proportion of this processed water and either canal water or

groundwater for blending is critical for both waste water treatment

requirements and for crop nutrient requirements.

The use of groundwater in the Moses Lake area has been maximized. Complicating this is the fact that Moses Lake area groundwater is naturally high in sodium and other salts, making it more

difficult to use for some manufacturing processes and for blending

water for wastewater treatment. A number of Moses Lake area

food processors are using Columbia Basin Project canal water for

blending water and process water. These project industrial municipal supplies should be our supply for the future. However, that is

not presently possible on any meaningful scale, because of the Bureau’s scale has caused the Bureau of Reclamation to impose a

moratorium on any new Columbia Basin Project water services, including M & I.

The letter concludes by saying, please give careful consideration

to Moses Lake’s energy and water needs as you look into these

NMFS flow policies.

This letter is signed by Port of Moses Lake Commissioner Larry

D. Peterson.

On behalf of the East Quincy and South Columbia Basin Irrigation Districts, I ask this Committee to use its considerable authority toward reducing the NMFS flow targets to levels supported by

valid hydrology and valid biology and to end the Bureau’s moratorium.

Thank you very much.

[The prepared statement of Mr. Erickson may be found at end of

hearing.]

Mr. POMBO. Mr. Phillips, last but not least.
59

STATEMENT OF ROB PHILLIPS, DIRECTOR, NORTHWEST

SPORT FISHING INDUSTRY ASSOCIATION, OREGON CITY, OREGON

Mr. PHILLIPS. Like those preceding me, I also wish to thank the

Committee for this opportunity today to comment on H.R. 4335

specifically, and in general, upon the execution of the Endangered

Species Act.

My name is Rob Phillips, and unlike those preceding me, I am

not a doctor or a scientist, I own a little advertising agency up in

Yakima, Washington, and most of you might wonder what’s this

guy doing here. Well, much of our business is derived from sport

fishing. We have accounts that advertise to support fishermen, sell

equipment, and because of the decline in the salmon and steelhead

in the last 10 years, our business has seen much of that effect, as

well, and gone downhill.

My concern over this has led me to serve on the board of the

Northwest Sport Fishing Industry Association, and that’s who I am

representing today.

Our association consists of hundreds of businesses and thousands

of family wage jobs dedicated to our rivers, lakes and streams, full

of fish.

Many of our businesses have been deeply impacted by the implementation of the Endangered Species Act. Fishing closures and extensive regulations which are barriers to participation have severely impacted sport fishing opportunities for salmon and

steelhead. Quite a few of our members have actually had to close

their businesses in the last several years.

Most of us recognize, however, that the Endangered Species Act

is merely the messenger and not the message. Our watersheds are

in trouble, and the salmon are the indicator species. Admittedly,

the current manner in which the ESA is executed is very heavy

handed in dealing with sport fisheries. Sport fishing is often the favorite short-term target.

The problem is these burdensome short-term measures are

meaningless without substantial long-term measures. This is where

the current implementation of the ESA falls short in our opinion.

There are scarce to no examples of enforcement action for the

very real multi-generation take of salmon, steelhead and trout

which occurs in many different areas.

We feel that NMFS can and should play a stronger role in defining take and in enforcing serious violations, while helping to define

and implement restoration actions for the remainder of the problems.

Recovery will never be accomplished on the backs of the fishermen. Decades of fishing constraints have not brought about recovery. Massive smolt and adult mortalities caused by the Columbia/

Snake River hydro operations are causing constraints on fisheries

from Northern California to the Gulf of Alaska.

Operations of the Columbia River hydro system must be dealt

with in the same scrutiny and severity as sportfishing. NMFS, the

U.S. Fish and Wildlife, Bureau of Reclamation, Corps of Engineers

and BPA must all coordinate together to reduce the impacts which

are strangling healthy fisheries throughout the region.
60

H.R. 4335 does get to the heart of an important issue, however.

The National Marine Fisheries Service and the U.S. Fish and Wildlife Service must be better partners if the precious fresh water resources of the region are to recover to fishable levels, reassuring

the health of our watersheds.

There are no laws prohibiting better cooperation between the

agencies. Indeed, the dire plight of the resources demands better

communication and cooperation throughout the Federal family.

In Mr. Stelle’s defense, we feel NMFS did the right thing by

working with Governor Kitzhaber and the State of Oregon to build

a state supported and executed cover recovery plan.

In summary, from our perspective, the timing of the bill is inappropriate. Salmon and steelhead don’t need new laws and don’t

need agency changes. What they need first, is enforcement of existing laws, regulations and authorities.

Federal agencies need to have a better cooperation. Other improvements would include earlier work with the states before the

situation is so severe. The longer we delay tackling the problem the

more drastic and costly the measures for recovery become.

Earlier participation by NMFS, or whatever Federal agency it

might be, would facilitate a partner role with the states, rather

than an enforcement role. Step in earlier.

Northwest Sportfishing Association appreciates any intent in

which the bill may have been written which strives to enhance the

ability of the ESA to recover salmon and steelhead in our region.

The Northwest Sportfishing Industry recognizes that the improvements in our watersheds and operations of the hydro system

which benefit the weakest stocks will only further enhance the

healthy populations available for harvest.

We applaud any effort that allows us to plan for secure jobs and

futures, and even to rebuild the 10,000 jobs lost during the salmon

and steelhead decline. Thank you for the opportunity.

[The prepared statement of Mr. Phillips may be found at end of

hearing.]

Mr. POMBO. Thank you. Ms. Chenoweth?

Mrs. CHENOWETH. Thank you, Mr. Chairman.

I wanted to ask Mr. Baker in followup to a question that the

Chairman had asked earlier about the Atlantic salmon, where does

the Sierra Club stand on listing the Atlantic salmon? And I am

sure you are aware of the notice in the Code of Federal Regulations, suddenly it was mysteriously withdrawn.

Where does the Sierra Club stand?

Mr. BAKER. I must confess, I am not familiar with the case. My

colleague on the East Coast deals with that issue for the Sierra

Club.

I will be happy to get in touch with him——

Mrs. CHENOWETH. Would you?

Mr. BAKER [continuing] and I will apprise the Committee of what

our position is and what we are striving to accomplish.

Mrs. CHENOWETH. Thank you. And following up on Mr.

Hastings’s technique, when do you think we could expect that?

Mr. BAKER. Oh, if you are willing to accept the same 30 days,

I can assure you we will get you a response by October 1st. If you
61

would like it in a shorter term, I would be willing to talk to you

about that, to check.

Mrs. CHENOWETH. October 1st is fine. And I was reminded, I

think it’s a Thursday.

You endorsed the three sovereigns concept. And that troubles me.

The three sovereigns concept involves the state and Federal and

tribal governing authorities.

Mr. BAKER. Correct. Governments, not just governing authorities,

but governments.

Mrs. CHENOWETH. And you indicate in your testimony you

thought that there’s a legal basis for that already in the law for

the Tribes, for instance, to be one of the governing authorities in

the management of the water in the Columbia system.

Where is that legal authority?

Mr. BAKER. I didn’t say management of water. I said that the

Tribes have legal authority and obligation for salmon recovery in

the Columbia Basin.

The courts in three consecutive decades, three consecutive

judges, have ruled that the Tribes do have a right to salmon in the

Columbia Basin under their 1855 Treaty. That litigation has gone

all the way to the Supreme Court.

I would view that as an accepted fact that the Tribes do have an

authority over salmon recovery, and we should honor that.

In fact, we will probably be unable to proceed with a single unified recovery plan until we honor all of the legal authorities, all of

the sovereign governments in the Columbia Basin. That would also

include the states and the Federal Government.

Mrs. CHENOWETH. Mr. Baker, I am familiar with those cases, too,

and I can’t totally disagree with them.

But as we study the objectives of the three sovereigns, it goes beyond just the Tribes having the right to the fish. It actually goes

to river governance.

And I think you will have to admit that, too, won’t you?

Mr. BAKER. Obviously, when so many scientists have told us that

the bulk, not the exclusive, but the bulk of mortalities to fish inflicted in the Columbia Basin, upper Columbia Basin, come at

these dams, there is no alternative, if we’re trying to build a single

unified recovery plan, but to address that impact from the dams.

Mrs. CHENOWETH. Let me ask you, you are familiar with the pit

tag results, aren’t you?

Mr. BAKER. Yes, I am.

Mrs. CHENOWETH. Then you are probably aware that our pit tag

results show that 719,850 adults salmonids passed over the fish

ladders at Bonneville Dam, and that’s more than a hundred thousand more than the 60 year average for that particular dam.

Yet at The Dalles Dam, there was only 425,716 fish that passed

that dam in that same year, 1997, and that’s below it’s 41 year average.

And one of the largest impacts between those two dams is about

800 or so gillnets. It appears that the gillnets have contributed to

significant losses.

I also want to say, Mr. Curtis testified that there was only

10,000 salmonids that got into Idaho last year, and I do want for

the record to note that there was 159,385 adult salmonids that as-
62

cended the fish ladders at Ice Harbor Dam in 1997. So I think

those figures are important.

And I do want to say that you did give us a list of actions that

should be taken, but I do think that together we need to deal with

the problems that I’ve just mentioned, and that is the gillnetting.

I think some day we’re going to have to deal with whether that is

an appropriate method for one single entity in this nation to deal

with an endangered species.

Thank you, sir.

Mr. BAKER. Mr. Chairman, would you like me to respond?

Mr. POMBO. Yes. Go ahead.

Mr. BAKER. On the pit tag data, the scientists in the PATH

group, which Dr. Anderson talked about on the first panel, have reviewed those pit tag data. They are unanimous in conclusion, that

we must have an adult survival rate of smolts delivered to the estuary of the Columbia River, plus have a survival rate of at least

2 percent if we are to avoid extinction.

We must have a rate of survival above 4 percent in order to, preferably 6 or 7 percent, if we are going to rebuild the runs to harvestable levels and meet our obligations, not only under the Endangered Species Act but those treaties, in addition the treaty with

Canada.

The pit tag data now is completely in from the 1995 class of

smolts, and it indicates that the survival rate was less than onehalf of 1 percent. That’s a program that is simply not going to

produce the results we need to make sure that these fish do not

go extinct.

With regard to, forgive me, there were a lot of things that you

discussed there, Representative Chenoweth, with regard to the

three sovereigns program and the Indian fishing rights, I would remind you that the Bolt decision requires the Tribes to participate

in regulation of the fishery in the Columbia River, and while we

agree with you that there need to be changes in harvest, a long list

of experts over the last two decades, experts including those from

the National Marine Fisheries Service, the Northwest Power Planning Council, the Oregon Department of Fish and Wildlife, the Columbia Basin Fish and Wildlife Authority, and even the Bonneville

Power Administration, have estimated that the dams on the Snake

River and the Lower Columbia are responsible for at least 80 percent of the human inflicted mortalities to these fish.

That’s not to say that we should not address impacts from harvest. But it is to say that if we are going to restore these fish, we’re

going to have to put at least 80 percent of our effort into relieving

this total taken by these dams.

Mr. POMBO. Mr. Romero-Barcelo ́.

Mr. ROMERO-BARCELO ́. Thank you, Mr. Chairman.

Mr. Baker, in your testimony you suggest there should be a river

system restoration, the full scope, and for the rest of your testimony I also gather that that river ecosystem restoration would include the elimination of the Lower Snake River dams.

Mr. BAKER. The Sierra Club does support breaching the dams,

removing the earthen portion of those dams and leaving the concrete structures in place.
63

We take this position very reluctantly. We recognize the kind of

impacts that Congressman Nethercutt talked about earlier with

the second panel.

But the scientists are telling us, they’ve told us in a number of

blue ribbon studies now, that only if we have a healthy river are

we going to have healthy salmon runs.

Mr. ROMERO-BARCELO ́. When were those dams built, and how

many are there?

Mr. BAKER. On the Lower Snake River, there are four Federal

dams, Ice Harbor, Lower Monumental, Little Goose, and Lower

Granite is located about five miles from where I live in Pullman,

Washington, as the crow flies. The head of those four reservoirs is

in Lewiston, Idaho, in Representative Chenoweth’s district.

Each of the dams was built consecutively upstream, beginning in

1961, and completed in 1975 with the impoundment at Lower

Granite. Since that time salmon runs in the Snake River Basin

have all trended downward.

Mr. ROMERO-BARCELO ́. From the time they were built?

Mr. BAKER. As each of those dams was built, the trend line has

been downward and increasingly downward as each of those dams

was brought on line.

Mr. ROMERO-BARCELO ́. Forgive my ignorance, but if those dams

that have been there, there are other dams in other places where

there are also salmon, in the other rivers, in the system, in the

states of Oregon and Washington.

Well, as you have heard in testimony today, there are rivers

within the Northwest that have declining salmon runs that have

no dams.

I have never even tried to suggest that there aren’t other causes

of mortality to fish runs. And if you look at those rivers in the

Northwest which have declining salmon runs but no dams, you will

find another tale, another story of how human kind has had such

an impact on the fish that they are declining.

Typically in the Northwest, as you heard from Mr. Curtis and

Mr. Stelle, the fish are spawning and rearing habitat.

But the scientists are also clear that if we make a river that does

not have good, healthy migratory habitat, such as by putting a dam

in a river that has no safe passage for juvenile fish, you will bring

that run to extinction, just as surely as silting up or otherwise destroying spawning and rearing habitat.

I might add, sir, if you would allow me, responding to Mr.

Nethercutt’s concerns about impacts, we worry about them, too. I

personally worry about them. I live just up from Lower Granite

Dam. My wife’s and my financial fortunes are tied to the local economy, just as so many of the people in the audience here today are.

I can assure you I don’t take this position lightly. It’s come after

an exhaustive review of the independent science. And I would observe that we as a society have shown a remarkable ability to find

any number of very cost effective ways to run our economy, to get

products to markets, to produce electricity that is affordable and

serves as an engine for our economy.

We have found a number of ways to conduct irrigation in an efficient way as Mr. Sierra just testified.
64

What the scientists are telling us, that we are going to have to

use that ingenuity, find some other ways than we are currently

using to run this economy, because the fish need this river.

I don’t like that probably any more than some of the folks in the

audience who are heckling me right now. It’s a biological fact.

We’re going to have to find some way to make these rivers

healthy again, or we are going to be without the salmon.

I am here to assure you, Mr. Nethercutt, and members of the

panel, that the Sierra Club has always had as its policy that whatever those economic impacts may be, we will support, we will advocate, we will fight for the best possible mitigation of those impacts

and to try our utmost to make sure that every economic layer who

is impacted by actions taken for salmon recovery is to the best of

our ability kept whole.

Mr. Romero-Barcelo ́. If the economic livelihood of people that live

nearby, have their businesses nearby, agricultural farms nearby, do

they need that system, those dam systems for their economic survival, which is your choice between the two?

Mr. BAKER. I believe we don’t have to make that choice.

Mr. ROMERO-BARCELO ́. In the meantime. If they are stopped now,

if they no longer can have access now, I understand that’s the

situation——

Mr. BAKER. Representative, as I said earlier, the Federal waterway in the Lower Snake River was completed in 1975. There was

a thriving agricultural economy in my part of Washington State

long before the completion of those dams, and the initiation of that

waterway.

Since it has been completed, yes, the barge companies now enjoy

a near monopoly on shipping from the lower Snake valley on a 50

mile area on either side of the river.

But it wasn’t always so. We managed to build a very strong agricultural economy by shipping crops to market on rail and truck,

and we can convert back to doing so again. I am not saying that’s

easy. But it can be accomplished. And if we go about mitigating

these kind of closures, like the closure of the Federal waterway, we

can perhaps in the 21st century enjoy a win-win solution, healthy

salmon runs that are responsive to our treaty obligations and an

economy in the local area that continues to thrive.

That’s what I am seeking, and I hope that’s what the Congress

would be seeking, as well.

Mr. ROMERO-BARCELO ́. Thank you very much. I have run out of

time.

Mr. BAKER. I thank you, sir.

Mr. POMBO. Mr. Nethercutt?

Mr. NETHERCUTT. Thank you, Mr. Chairman.

Mr. Baker, I can’t resist following up, sir, on your comments.

I would like to explore in this brief time how much sacrifice you

and your organization are willing to accept.

Assume that agriculture in the Columbia Basin disappears.

Would that be acceptable, if the dams are breached? Assume that

consequence occurs. Would that be acceptable to you and your

group?

Mr. BAKER. Well, that’s a hypothetical, and——
65

Mr. NETHERCUTT. I am asking you to assume that, sir. Would

that be acceptable?

Mr. BAKER. I am not in a position to really play these kinds of

hypothetical games, sir, with all due respect.

I would challenge you, if you want to put that hypothetical situation to me, to find an economist who really sincerely believes that

that’s the alternative we’re facing.

Mr. NETHERCUTT. What if I found a lot of farmers who believed

that? Would that be sufficient to you, or does it have to be scientists who make the judgments about real life problems?

The Sierra Club has a policy of zero net water loss. The Sierra

Club has a no harvest policy in our forest.

And I think the facts are, with a zero harvest policy in our public

lands, you are going to see the disappearance of the timber industry, which in my judgment, from some people that I’ve talked within, the group you represent, that’s just fine.

I don’t think you’ve heard anybody on any panel today say we

find it acceptable that salmon disappears. Everybody on these panels are saying, we want to respect the salmon recovery efforts, but

we also want to be reasonable about it, and understand the consequences of the action.

But what I am hearing, sir, is that if the dams are breached, and

I am going to resist that with every fiber I have while I am in Congress, you can assume that there will be a dramatic increase in

power cost and the replacement of a clean power resource with a

less environmentally acceptable resource, whether it’s fossil fuels or

nuclear. There’s going to be a tremendous disruption to the use of

the river system, the transportation that it is used for multiuse

transportation, not just agriculture. There will be a tremendous impact on our roads, a tremendous impact on recreation, and all with

a huge dollar cost.

I think you can also assume that the Congress has to approve

and appropriate funds to breach dams, which can run in the multi

hundreds of millions.

Now, the taxpayers are going to have to pay for all of that.

I am not convinced that taxpayers are willing to sacrifice the

economies of the Inland Northwest for your standard of acceptability for environmental protection or species protection. I just

don’t think that’s going to happen. And it shouldn’t.

Talk about breaching the dams. I find a reluctance on your part

to breach the gillnetting. I don’t hear you saying that.

I hear you say, well, we need to work through all of that.

And I don’t disagree with that either. But there seems to be a

selective principle under which the Sierra Club operates.

So, I think we have a rough road ahead of us. We have to look

at the middle ground we heard from those witnesses saying that

we have to work hard to do both, we can’t sacrifice the farm and

timber economies for the salmon, but we’re going to try, and the

states are going to try to find a balance.

We shouldn’t have this bureaucracy in place that restricts so

much of common sense in the way public policy is decided.

I want to say, too, to Dick Erickson, thanks. I went and looked

at Rodeo Lake yesterday, and talked to people about the ground-
66

water conservation area, and efforts to be environmentally responsible.

It’s these kinds of people who are in opposition I think to what

are extreme feelings and policies that you and your group advocate,

for a single purpose rather than looking at the economic consequences of the policies you espouse.

So I am happy to have your response. I am sorry to take so long

to lecture, or at least make my expressions known. But this is a

very serious issue. I think there has to be some reason in the policies that the Sierra Club adopts in order to have more credibility

with a lot of people who care deeply about both the economy and

species protection.

If you have any comments.

Mr. BAKER. Well, we do not see a solution to the salmon crisis

in the Columbia Basin which would lay waste to farms in this watershed. We never have, we never will.

We always looked at every proposed action to save salmon to

make sure that it has high biological benefit according to independent scientists, and that it is responsive to the needs of society’s

expressed in the political system.

We have always recognized that nothing will go forward in the

way of modifying these dams unless Congress approves it.

And I take your challenge very seriously, Congressman.

As the studies continue to, in the various Federal and state agencies, we are learning, that the value of the dams, as you’ve just

stated it, is perhaps a bit overstated. The dams do not produce

more than 5 percent of regional generation. The Northwest Power

Planning Council has analyzed what the impacts would be of losing

that generation, as well as breaching the dams and providing mitigation.

Their analysis shows that BPA will continue to be a strong, viable public utility, if you will.

We are looking at studies which indicate we can convert back to

rail and truck.

We would support the kind of infrastructure that needs to be

made. We wouldn’t just support them. We would advocate them, we

would fight for them.

These dams, contrary to some of the testimony I heard today,

provide no flood control. If you would care to bring in a witness

from the U.S. Army Corps of Engineers, you will learn these four

dams are in front of the river projects, they are not capable of providing flood control.

If anything, if I might be allowed to finish my statement, if anything, breaching these projects would probably provide more flood

control to the cities of Lewiston and Clarkston. That’s an engineering fact. Whether people like to accept it or not.

Mr. POMBO. Thank you. I am going to recognize Mr. Hastings,

but I would like to say one thing in the audience, that it’s against

the rules of the House to allow responses from the audience, to

allow reaction from the audience. I’ve tried to be very lenient with

that today. But I would like to encourage the audience to please

try to restrict your comments during the testimony.
67

It makes it difficult for those of us sitting up here if things get

a little bit out of control. So I would just appreciate it if you would

kind of keep it down.

Mr. Hastings?

Mr. HASTINGS. Mr. Baker, I think I will ask you some questions,

too.

Mr. BAKER. I am starting to feel like a bartender at a Southern

Baptist convention.

Mr. HASTINGS. I am not going to pursue that one.

Mr. BAKER. I don’t think I want to go any farther there either,

Congressman.

Mr. HASTINGS. I will just say, I know the last comment you made

regarding flood control you make in reference to the Snake River

dams.

But I am old enough to have remembered the flood of 1949 which

came down the Columbia River. It was a pretty devastating flood.

Now we have dams, about as many dams, in fact there are that

many dams that were in-place, put in place since then, and we

have had no terrific floods, and yet we have had high water years.

I guess I would just question the scientific data that you refer

to. But that may be an honest disagreement.

You in your testimony, in answers to questions, referred a lot to

scientists, so I am going to make the assumption that you believe

that whatever decisions are made should be made on good and

valid, scientific data. Is that a very good assumption on my part?

Mr. BAKER. That is a very fair assumption and a very accurate

one.

Mr. HASTINGS. Have you read Dr. Howard’s White Paper Review

with recommendations——

Mr. BAKER. Dr. Howard?

Mr. HASTINGS. Dr. Howard Olsen. I am sorry.

Mr. BAKER. Yes, I have.

Mr. HASTINGS. Would you care to comment on their conclusion

in that study regarding the flow targets? Because you are critical

of NMFS regarding their flow targets.

The White Paper, as I understand it, says that the flow targets

can be reached. Would you care to comment on that?

Mr. BAKER. Yes. I will comment. I will point out first of all, I am

not a biologist, and the Sierra Club has no staff biologist. We have

tried to review the entire scientific record.

I must tell you that there are a number of scientists in the Federal Government, the state governments, at the Tribes, and on

independent bodies, that do not agree with the conclusions in that

White Paper.

Dr. Anderson this morning said that his paper had been peer reviewed. Well, that’s true. But it has not undergone independent

peer review.

And in the salmon biology that has been cut and quartered so

frequently because of the very high stakes involved, that is the

kind of review we would want to see.

When we talked to independent biologists, they believed that the

flow targets are needed by the salmon. They will not provide for

a restoration of the runs, but they will give the salmon important

protections in the interim.
68

On the question of hydrology, I was a seated participant at the

salmon summit which Senator Mark Hatfield convened in the winter of 1990-1991, in order to try to get ahead of the curve on the

potential listings for salmon in the Columbia Basin.

At the salmon summit we heard and viewed studies about hydrology which indicate that it is indeed difficult at best to meet

these targets.

That’s one of the reasons why we have, the Sierra Club, and

other fish advocates, have always tried to impress upon Members

of Congress and other decisionmakers that we have a relationship

on the hydrology where if we’re going to have salmon runs, we

have got to pull the reservoir down somewhere. You can either pull

down the storage reservoir and get new augmentation, or you can

breech dams on the lower Snake, and get far better benefit.

Mr. HASTINGS. That begs the question, then. How much is

enough? How much flow is enough?

Where does the Sierra Club reach a conclusion that we will have

maximized the flow? At what level is that? How many cubic feet

per minute? Give me something——

Mr. BAKER. What I am suggesting, Congressman, with the dams

in place, operating as they currently are, we will be unable with

certainty to provide all of the flow augmentation that the fish need.

Mr. HASTINGS. Does that include the Columbia stem, as well as

the Snake?

Mr. BAKER. Yes, sir.

Mr. HASTINGS. Let me just make this observation that Mr.

Erickson made, then, in that regard.

The Columbia Basin Project, over 500,000 acres, is irrigated by

a net less than 3 percent of the water behind Grand Coulee Dam.

Everybody has acknowledged that when Grand Coulee Dam was

built, it was built without fish ladders, so all the runs are gone

there. Those were gone a long time before. So we are only using

3 percent of the water behind Grand Coulee Dam.

Now, that Lake Roosevelt goes all the way into Canada. I think

it is a hundred and some miles there. So there is a lot of water

back there clearly.

Now, below Grand Coulee Dam you have, what, five rivers, the

Cokononda, the Nettaw, the Entiot, the Wenatchee and the

Yakima, that augment the flows into the Columbia River system.

And you are saying that because the irrigation districts and the

irrigated agriculture takes 3 percent of the water behind Grand

Coulee Dam, and all the flows of those five rivers that I am saying,

is not enough?

Mr. BAKER. I neglected in responding to Representative

Nethercutt——

Mr. HASTINGS. But answer——

Mr. BAKER. We have not embraced a zero net policy.

Mr. HASTINGS. Thank you for responding to that. I am asking

you, I am asking you a direct question. Is what I just outlined, is

that not enough?

Mr. BAKER. The biologists tell us that that would probably not

be enough, undoubtedly would not be enough to restore salmon

runs.

It would provide, however, important interim protection.
69

Mr. HASTINGS. Let me understand this, then. Lake Roosevelt, I

don’t know how many cubic acres or feet that that holds, but presumably if what you are saying, that breaching dams on the Snake

River will augment runs, then I think it is logical to follow what

you are saying, that if one were to breach dams on the Columbia,

you would come up with the same net result in your opinion, which

would be more runs.

Now, I really have a hard time accepting that, when all of that

water behind Grand Coulee Dam keeps a constant flow in the Columbia River and it is augmented by these other rivers.

Am I missing something in my understanding?

Mr. BAKER. Yes. I have been previously testifying about the Sierra Club’s position on the Lower Snake River dams. We have also

listened to the independent biologists, specifically the independent

scientific group, which has told us we need to lower, not breach,

but lower the reservoir level at John Day pool on the Lower Columbia, in order to, among other——

Mr. HASTINGS. Of course that’s downstream from the Snake, so

you are still talking about the Snake River.

Mr. BAKER. I am sorry?

Mr. HASTINGS. You are still talking about the Snake River.

Mr. BAKER. It is also intended to be responsive to the need to

meet the kind of water velocities, flow, water temperatures and a

healthy river that the salmon need in the upper Columbia.

As I understand the hydrology from the salmon summit given to

me by competent hydrologists from the salmon summit on——

Mr. HASTINGS. One hydrologist?

Mr. BAKER. No, sir. A number of hydrologists.

If you want to reduce the flow augmentation from Grand Coulee

and other projects in the upper Columbia, you must lower reservoir

in the lower part of the river that the salmon are going through.

That’s the only other solution to the problem of providing the fish

with the healthy flows and ecosystem that they need.

Mr. HASTINGS. Let me just conclude my remarks by asking you,

I say this very seriously, I’d like to know, I think everybody here

and certainly this Committee wants to know how much is enough.

What is adequate? How many cubic feet, you pick it, cubic feet per

second at any point, maybe four or five points on the Columbia

River. Because otherwise you are just saying we need more water.

We need more water. But what is adequate? What is adequate?

And that has not to me ever been answered.

In fact I asked you directly, and I am not saying you are skirting

the issue but you certainly haven’t answered me directly. Maybe

you know what the answer is or maybe you have to research that.

But if that’s the case, I would like to you respond to me.

I don’t care where you want to pick it. Do you want to pick the

flow of Wanapum Dam, you tell me what is adequate at that point,

and then you can go on down stream, if you want to go to the

Snake River, do it at Ice Harbor Dam, if you want to do it at John

Day, at The Dalles, that’s already on the record, if you want to do

it at Bonneville, I don’t care where, but if you would give me a position in writing on what is adequate as far as flow at those particular points on the river system, I would appreciate it.

Could you do that for me?
70

Mr. BAKER. Sure. And I assume the same October 1 deadline——

Mr. HASTINGS. Since you anticipated my next question, I will accept that gratefully. Thank you.

Mr. POMBO. I hate to do this, but Mr. Baker——

Mr. BAKER. Boy, do I wish I had that lunch now.

Mr. POMBO. Just so I can understand the Sierra Club’s vision on

this, is that we would breach the four dams on the lower Snake.

Mr. BAKER. Yes.

Mr. POMBO. We would return the agriculture of the area to predam conditions, operate in a way that they did before that? I am

just trying to understand your testimony previously.

Mr. BAKER. No, sir. I didn’t say that.

Mr. POMBO. You said we had a vibrant agriculture before the

dams and we could return to the way we were doing things at that

time.

Mr. BAKER. Well, since the building of Ice Harbor Dam, the reason I stopped you was not out of disrespect, I want to assure you,

the reason I stopped you is that since the building of Ice Harbor

Dam in the early 60’s, there have been installed some 13 pumps

for taking irrigation water out of that pool and cultivating a number of thousands of acres of cropland, which was not there previously.

From testimony I’ve heard from Mr. Ziari, among others, it is

feasible to extend those pumps and intakes so that we can continue

to, with the irrigation ag along that pool.

Mr. POMBO. So you would allow irrigation to continue?

Mr. BAKER. Absolutely. It’s a water right.

Mr. POMBO. It is the barges would be the part that would not

continue?

Mr. BAKER. That appears from the economic studies I have seen

to be the major impact upon agriculture in the lower Snake valley.

And if the dams are bypassed, that is one of the results, that the

Federal waterway would close, yes, sir.

Mr. POMBO. You also said, and you can correct me if I am wrong,

you have also said that you would support trucking or railroads

and the infrastructure necessary in order to accomplish that.

Am I correct in assuming that?

Mr. BAKER. Yes, sir. We would support those investments.

Mr. POMBO. That is somewhat inconsistent with my experience

in California in terms of the positions that the Sierra Club has

taken in terms of trucking and establishing that kind of infrastructure.

There’s been a lot of opposition, building the roads and freeways

and stuff necessary to accomplish that in that particular state.

But just so I can understand, up here you guys would support

that?

Mr. BAKER. Well, I am going to have to answer that question,

Mr. Chairman, two ways.

First of all, I am not familiar with the particular roads and railroads that you are referring to in California. If you would provide

me with some of the proposed infrastructure investments that you

feel the Sierra Club was opposed to, I would be more than happy

to take that up with my California colleagues and respond to you,

why we took a position——
71

Mr. POMBO. No. I know where they are opposed. They filed lawsuits and stuff. I can very easily go to the lawsuit and determine

why they were opposed.

Mr. BAKER. Uh-huh.

Mr. POMBO. But what I am interested in is if I am going to tell

these folks you can’t use barges anymore, you’ve got to use trucks,

and diesel is not inexpensive, and it’s also known for some impact

on air quality, if I am going to tell you you can’t use barges any

more, these guys are using trucks, I don’t want you to come back

in 5 years and say, well, we were kidding about trucks, you can’t

use those either.

I just want to make sure that we understand each other.

Mr. BAKER. Sure. And that leads to——

Mr. POMBO. You support freeways, you support all of the infrastructure necessary to truck their products to a port to export their

product?

Mr. BAKER. That leads me to the second part of my responsibilities. I don’t know what particular highways might be proposed. I

do not know what particular new roadbeds——

Mr. POMBO. I can promise you there will be hundreds of miles

of six lane freeways that will be necessary in order for us to replace

the current transportation system.

I wish we had a barge system where I am from that we could

effectively move our products to port. Unfortunately, we don’t.

But as a result California is criss-crossed with major freeways.

Mr. BAKER. The County Commissions where I live, looking at

this, didn’t propose any six lane highways. It was upgrades of the

current highways, to four lanes, and in another cases, simply an

upgrade of the pavement on a number of county roads.

That proposal, I would see no opposition from the Sierra Club.

As I said earlier, we would probably be fighting for those kind

of proposals.

Mr. POMBO. I don’t want to look back in the previous testimony,

but I forget how many million ton of product we were talking

about.

I can assure you that repaving county roads is not going to move

millions of tons.

Mr. BAKER. I am simply reporting to you what the County Commissioners where I live tell me is needed. About $32 million worth

of road improvements.

Mr. POMBO. Let me go to a different topic. That goes to power

generation. You can correct me if I am wrong. You said that there

were other forms of power generation that the Sierra Club would

support.

Mr. BAKER. Yes, sir.

Mr. POMBO. Can you let me in on what those are?

Mr. BAKER. First and foremost, this region takes great pride in

the strides we have made forward in capturing the resource of energy conservation. That was——

Mr. POMBO. Excuse me. I didn’t say energy conservation. I said

power generation. Let me know which forms of power generation

the Sierra Club now supports.

Mr. BAKER. If I might be permitted to complete my answer about

energy conservation. This region in the Northwest Power Planning
72

Act declared conservation a generating resource for the purposes of

planning and providing energy supply.

Mr. POMBO. Well, as far as a cowboy from California is concerned, can you tell me what forms of power generation the Sierra

Club supports?

Mr. BAKER. Yes, sir. We support energy conservation, which is

estimated to offer a resource much larger than the average output

of these dams.

We have also supported and continue to support clean—the development of clean renewables, another cornerstone of the Northwest Power Planning Act. There is a huge resource in this region

in wind and solar power, and we support its acquisition, bringing

it on line.

Mr. POMBO. I represent the area that probably has the largest

wind generation facility in the world, and have been part of that

industry from day one. I am probably more familiar with wind energy generation than any Member of Congress, past, present, or

probably future. Because I have great hopes that some day a great

portion of our energy could be produced by wind.

But I can tell you the technology is not there at this time.

The ability to supplement existing systems is there with wind energy. But for it to be a source of generation, for people to depend

upon, it’s just not there yet.

It’s interesting that when we began the wind energy generation

project in San Joaquin County and Alameda County in California,

the environmental groups were in support of that.

But they are now no longer in support of that because it has destroyed the view in the hills of having all the windmills up there,

and they filed a number of lawsuits to try to take them out.

So, you know, you are damned if you do and you are damned if

you don’t.

And this is a huge concern to me, when you start talking about,

we could do away with the dams, and energy production could be

replaced by some mythical thing out there in the future, and the

transportation infrastructure can be replaced by some mythical

thing out there in the future, where the reality is the money is not

there to build all your freeways to move this stuff, the technology

does not exist to have wind or solar energy replace all of the stuff,

the future of what we could get out of the dams.

So it is not as cut and dried as the way you would like to put

it.

Finally, I would like to ask you specifically about the Oregon

Plan. And it’s my understanding that Sierra Club was party to the

lawsuit that resulted in that plan being rejected.

Mr. BAKER. Yes, sir.

Mr. POMBO. It’s difficult for me to understand why, when you

have a state and Federal Government get together on an environmental issue like saving the salmon and all of the bloodshed and

everything that comes with that, how difficult that is to get the

state and local government to agree with the Federal Government

on any.

It appears at least from my vantage point that the vast majority

of the citizens in Oregon agreed to this plan.
73

I know I’ve been contacted by a number who felt that the plan

went way too far and that Oregon was giving up way too much.

But it is difficult for me to understand why, if you have this kind

of collaboration that’s put together with the state and Federal Government agreeing that this is the best thing for salmon, we would

have the Sierra Club file a lawsuit to stop them from doing that.

Mr. BAKER. Actually, we filed a lawsuit, Mr. Chairman, in order

to make certain that the fish were listed under the Endangered

Species Act. We did not file a lawsuit to disrupt the Oregon Plan.

Mr. POMBO. But the purpose of the Oregon Plan was to prevent

it from being listed on the Endangered Species Act. You wanted to

list it under the Endangered Species Act.

So it appears that your effort was to undermined what they were

trying to do.

Mr. BAKER. You first characterized the Oregon Plan as a bona

fide good faith effort to stave salmon and steelhead.

To the extent that that was what the plan intended to do, we

supported it.

To the extent that it was intended to substitute or defer or otherwise prevent a listing of coho, which they deserve under law, we

were opposed to the Oregon Plan, and filed our lawsuit.

We were not in any way trying to dispute the Federal, state partnership in the plan. We were trying to make sure that fish got the

protection under the law that they deserved.

Mr. POMBO. Well, apparently there were a lot of people that disagreed with you on that position. Which brings me to my final

point, and then I will stop.

The Sierra Club have, if you go back to the original Endangered

Species Act and read the original Endangered Species Act, read the

testimony that occurred before Congress at the time, it’s really

pretty difficult to find any major problems with the original Act.

But we end up here today with all of these problems. And I think

that if you study case history on this, a lot of it has been through

lawsuits. And it’s been judges, courts in different parts of the country who have taken what was the original Endangered Species Act

and interpreted it in different ways. And we have ended up with

a law that I believe today is impossible to implement.

That’s why we ended up with so many conflicts when this

reaches real people.

Do you think it’s time that the Sierra Club and other environmental organizations sit down and look at the law and say, these

are the problems we have with it, let’s try to make some changes,

let’s reauthorize this Act, but these are the problems we have, and

we know we’re not going to get everything we want, but let’s try

to make some change in this so we don’t have the kind of conflicts

that we currently have?

I would venture to say that there are very few issues that you

could come to this community and have over 400 people show up

on for a Congressional hearing. Obviously there is a major conflict.

We have major problems.

Is it time for you guys to sit down and realistically say, these are

the problems with the Act and let’s go?

Mr. BAKER. Mr. Chairman, us guys have done that. We have sat

down——
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Mr. POMBO. Well, I am going to interrupt you here. I’ve been the

Chairman of the Endangered Species Task force, the principal author of the revisions, the principal in the Republican Party over the

past 4 years, and you haven’t sat down with me.

Mr. BAKER. I can’t explain why that might not have happened,

other than you may not have asked us to come to your door.

Mr. POMBO. I have asked on numerous occasions.

Mr. BAKER. I can assure you that we have carefully reviewed the

endangered species for reauthorization, we have proposed a number of changes which we believe would be responsive not only to

making for better assurances that species will not decline, much

less go extinct, and will be responsive to making it possible for the

Act to be implemented in a way that’s responsive to the concerns

of people in society.

We have to my knowledge brought our documents to Capitol Hill.

I cannot explain to you why we may not have come by to talk to

you. But if you are inviting us, if you are opening your door——

Mr. POMBO. My door is open. It has always been open. I have invited you in on a number of occasions. Even after I was named the

eco-thud of the year.

I realize that this—I appreciate you coming and testifying and

sharing with us your opinions. I would greatly appreciate you and

the rest of the panel answering any further questions that we have.

This issue is obviously quite emotional. This issue is obviously a

source of great conflict in the country today.

I don’t think that you can put all the scientists and biologists

and politicians in the world in one room, and it doesn’t make any

difference, because as long as real people are being hurt by it, we

have got a problem. And unless we fix that problem, we’re not

going anywhere.

And I thank all of you very much for being here, for your testimony.

As we continue to work through this, as Congress continues to

try to make an Endangered Species Act that works for wildlife and

for people, the testimony we receive today will be a great help to

all of us.

And thank you very much. The hearing is adjourned.

[Whereupon, at 2:45 p.m., the Committee was adjourned.]

[Additional material submitted for the record follows.]
75

STATEMENT OF HON. ROBERT F. (BOB) SMITH, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF OREGON

Thank you, Mr. Chaimman, for holding this hearing. The National Marine Fisheries Service’s (NMFS) implementation of the Endangered Species Act (ESA) is a

very important issue for not only my district, but for the entire Pacific Northwest.

This region’s effort to recover salmon species protected under the ESA is unparalleled and the cost of this effort on the lives of our people and the economy of our

region is immeasurable. I think that it is safe to say that almost every person and

industry in this region have felt, or will soon feel, the effects of the decisions of

NMFS. If not from the consequences of the listing of the coastal Oregon coho, then

through the long-temm recommendation for operation of the Federal Columbia River

Power System (FCRPS) due from NMFS next year. Consequently, this hearing is

not only very important, but also very timely.

As you will hear from many of the witnesses present, NMFS has failed to implement the ESA in a manner consistent with its mandates. NMFS does not implement

the ESA in a timely manner. Instead, decisions are delayed well beyond statutory

deadlines. It does not base its policies on sound science or even reality. It fails to

provide applicants with prudent and reasonable alternatives that are technologically

and economically feasible. In addition, it has yet to identify the overall goal of the

region’s efforts, spending hundreds of millions of the region’s dollars every year on

measures that they cannot say with any certainty will benefit the protected salmon.

The list goes on and on. The overall effect has been a haphazard effort based upon

speculation, rather than science.

This cannot continue. NMFS’s irresponsible implementation of the ESA has had

a detrimental effect on our economy. The Columbia River and its system of 30

multi-purpose Federal dams are the backbone of our regional economy. Since 1937,

when the first dam was built, the system has grown to provide the region with a

low-cost and stable supply of electricity, navigation through a series of locks from

the Pacific Ocean to Lewiston, Idaho, irrigation for agriculture, flood control capabilities and recreational opportunities. As a result, the Pacific Northwest has enjoyed a strong economy built up around the FCRPS.

The measures required by NMFS under the ESA have diminished the value of

the FCRPS to the region, particularly with regard to hydroelectric power production.

Now, certain policies and measures being implemented or discussed threaten to diminish the system’s value even more.

No Net Loss Policy on Water Withdrawals. NMFS is implementing a new policy on water withdrawals in the Columbia River and its tributaries that is called

‘‘No Net Loss.’’ NMFS has said that no new water withdrawals, including withdrawals under existing but undeveloped water rights, will be allowed until the flow

targets it set in its 1995 Biological Opinion are met. As you will hear from my good

friend and constituent, Mr. Bob Hale of Inland Land Company, this policy is not

based on sound scientific evidence or even reality. There is no conclusive evidence

that more water in the river will actually benefit the salmon. Even more troubling

and reflective of NMFS’s tendency to base costly policies on bad science is that there

is no evidence that the river’s flow was ever at the level required by NMFS in its

’95 Biological Opinion. Recent studies have shown that those flow targets cannot be

met even if all irrigation withdrawals in the Columbia basin were stopped.

Nevertheless, this unrealistic policy is being used as a basis for denying existing

water rights no matter how small the impact of the proposed withdrawal to the

overall flow of the river or to the health of threatened or endangered salmon. Just

as troubling is the fact that NMFS is implementing this policy without regard for

state water rights. This utter disregard for state rights to water, the viability of our

regional economy, and existing scientific evidence is unconscionable.

If this policy continues to be implemented, family farms like Inland Land Company will be forced to reduce production or to go out of business. As more and more

water withdrawals are denied, valuable agricultural land will not be used and industries dependent upon agriculture, abundant water and low-cost electricity will locate elsewhere.

Breaching Dams. As the time for the new recommendation for operating the

FCRPS nears, more and more conservation groups are calling for breaching the

Lower Snake River dams and the John Day dam on the main stem of the Columbia

River. Some say that this is the only way to recover threatened and endangered

salmon. Again, this is an irresponsible statement. It completely ignores the impact

on salmon of overfishing, adverse natural trends and other activities. In addition,

no objective scientific analysis has yet to determine, conclusively, that removal of

the dams will save the salmon runs. Yet, the economic, social and environmental

costs will be enormous. At a minimum, the region will lose all barge transportation
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to Lewiston, Idaho, a good portion of its low-cost electricity supply and the stability

of its transmission system. All of which will have to be replaced at a huge environmental and economic cost to the region.

The bottom line from my perspective is that the region’s economy cannot continue

to bear the uncertainty and risk resulting from irresponsible environmental policies

and statements. In addition, it will not bear the devastation that will occur if the

dams are breached.

The Federal Government, whether through NMFS or the U.S. Fish and Wildlife

Service, must, at a minimum, make the following changes:

• It must adopt fiscally responsible policies that are supported by good science.

The region cannot continue to pay hundreds of millions of dollars every year

on measures that NMFS thinks may benefit protected salmon.

• It must work closely with those people and interests impacted by their decisions to find reasonable solutions. No policy is a good policy if it does not reflect

the concerns of those directly impacted.

• It must also be held accountable for its decisions and actions. The region cannot continue to finance costly measures that do not accomplish its intended

goals. Finally, it must develop recommendations for future FCRPS operations

and water use that can be implemented within the current configuration of the

system and that are consistent with state water rights.

Thank you, again, Mr. Chairman, for holding this hearing today.

STATEMENT OF SPEAKER LYNN LUNDQUIST, OREGON HOUSE OF REPRESENTATIVES

Chairman Young and members of the Committee, I am Lynn Lundquist from

Powell Butte, Oregon and serve as Speaker of the Oregon House of Representatives.

I appreciate the opportunity to testify before you today on an issue that has had

a significant impact on the local communities that comprise this region. There is no

question that the Federal Endangered Species Act has, and unless changed, will

continue to adversely impact the Northwest region’s economy, environment and

sense of community.

I will keep my comments brief and to the point. I hope I am able to give you an

illustration ofthe concern in the region by passing along three points this morning.

Point one: a bad law can not be administered as a good policy.

The Federal Endangered Species Act (ESA) does not provide effective mechanisms

for species recovery and fails to encourage states’ participation in the recovery of

threatened and endangered species. The comments and frustrations that will be expressed during this hearing are due partially to the fact that the ESA has not proven to be an effective mechanism in encouraging the recovery of species.

To further demonstrate my point, I would encourage you to consider what has

happened to Oregon’s efforts to recover the Oregon Coastal coho salmon. Facing a

potential listing, Oregon developed a plan to address Oregon Coastal coho salmon

recovery. The plan is referred to as the Oregon Plan for Salmon and Watersheds

or ‘‘Oregon Plan.’’ The Oregon Plan outlines hundreds of measures state agencies

are currently undertaking to recover the species. The Oregon Legislature authorized

over $30 million to be used for implementing the provisions of the plan. In addition

to the $30 million, contributions in the form of habitat improvements on private

lands have been estimated to be well beyond $100 million. Let me again stress that

this is on private land where private citizens and companies are conducting the

work. The Oregon Plan includes a variety of actions that would not be achieved by

a listing under the ESA.

When the NMFS made a decision not to list one of the evolutionary significant

units of the Oregon Coastal coho salmon, the decision was immediately challenged

in court. In a significant blow to the Oregon Plan, and further proof that the ESA

needs to be changed, the court concluded that the ESA does not allow for the consideration of the biological effects of future or voluntary conservation measures, thus

the decision to not list should be reevaluated. This conclusion resulted in the NMFS

listing the species effective October 9, 1998.

The fact is Oregon has a plan, the money and an unprecedented commitment from

industry and landowners to save Oregon’s salmon and streams while the Federal

Government literally has no tools to achieve species recovery. The Federal Government’s track record is dismal when it comes to developing a timely recovery plan,

let alone implementing measures that result in increased numbers of salmon. Reform of the ESA is needed to bring about a new approach to the way the states and

Federal Government can work together to achieve species recovery.
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Point two: agencies can make a bad law even worse.

Although I have highlighted some of the concerns with the ESA itself, not all of

the disappointment has been solely as a result of the law. Obviously, agencies have

discretion in how the law is to be administered. The NMFS has created considerable

frustration among legislators, state agencies and citizens, especially those citizens

who have to comply with the directives or uncertainty created by NMFS. A primary

concern with the NMFS is their apparent mistrust of the motives of local communities to develop local solutions to the issues surrounding species recovery. The forcing of Federal mandates upon the communities will be less than successful in recovering species.

In Oregon we have a variety of examples in which the actions of NMFS has not

furthered the species recovery but has instead created resentment with the agency.

Examples include the development of a variety of Memorandum of Agreements

(MOA) that involve the NMFS in areas including forest practices, water withdrawal,

agricultural activities and even gravel removal. In addition, the agency has told

state legislators to help secure funding for salmon recovery yet has failed to request

any Federal assistance to support Oregon Coastal salmon recovery efforts.

A way to judge the effectiveness of the NMFS is to look at what it has accomplished. With respect to salmon recovery in the Columbia Basin, the NMFS has not

yet developed an acceptable plan, provided a definable objective or created a process

that has resulted in progress towards the recovery of species. Something needs to

change if we are to be successful in our objective.

Point three: it is imperative NMFS and other Federal agencies do not infringe upon Western water law and the states’ sovereignty over the allocation of the resource.

I believe you will hear examples how the NMFS has impacted and will continue

to impact the allocation of water in the West. To be blunt, this is unacceptable and

will not be tolerated. NMFS has indicated its desire to consult with state water resource agencies on all water withdrawals in regions where fish are listed under the

ESA. This strategy appears to be more a tactical maneuver to influence or prevent

the withdrawal of water.

It is important to note the actions and requirements by NMFS create an additional burden on state agencies as well. If NMFS wishes to consult with state water

agencies on all water withdrawals in areas impacted by the ESA, who is responsible

for the increased expenses associated with the state having to respond to NMFS’

concern? My experience has been that NMFS is happy to tell you what to do yet

they don’t want to help pay for it.

In summary, my request is simple, change the ESA law to allow for local solutions

to species recovery, direct the agency or agencies to be a partner in the process and

stay away from infringing on states’ authority over water rights. I would again like

to thank Chairman Young and the members of the Committee for the opportunity

to share with you my thoughts on the issues regarding the NMFS and the ESA.

STATEMENT OF HON. TED FERRIOLI, OREGON STATE SENATOR

Mr. Chairman and Members of the Committee, thank you for the opportunity to

testify in favor of H.R. 4335 that would consolidate administration of the Endangered Species Act under authority of the Secretary of the Interior.

Mr. Chairman, as you well know, the two Federal agencies that administer the

Endangered Species Act are U.S. Fish & Wildlife Service (USF&WS) and National

Marine Fisheries Service (NMFS).

U.S. Fish & Wildlife Service is responsible for managing listed or protected avian

and terrestrial species and native aquatic species. National Marine Fisheries Service

is responsible for managing listed and protected marine mammals, aquatic species

and anadramous (fresh-to-salt water migratory) fish.

Because some aquatic species and marine mammals are migratory and some

aquatic species are non-migratory but share the same spawning and rearing habitat, there is an overlap of administrative and management authority between these

agencies. For instance, USF&WS is responsible for managing Bull Trout which

spawns and rears in very cold, clear water normally associated with uplands and

headwaters.

In managing for Bull Trout, USF&WS has developed guidelines affecting virtually

every aspect of natural resource management associated with riparian areas and

uplands, including grazing, timber harvesting, water withdrawals for irrigation,

vegetation management, recreational fishing and other aspects that affect habitat.
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In addition to these guidelines, a formal reconciliation with USF&WS—called

Conferencing—is required for virtually all management actions proposed on or near

Bull Trout habitat whether on Federal or non-Federal lands.

Mr. Chairman, listed species of salmon and steelhead trout spawn and rear in

some of the same habitat as Bull Trout. Salmon and steelhead are anadramous, or

fresh-to-saltwater migrating fish. As such, they fall under the authority of NMFS.

NMFS has developed its own steelhead guidelines for proposed management actions on or near riparian areas—guidelines which are similar, but not identical to

USF&WS guidelines for Bull Trout. Conferencing with NMFS for listed anadramous

species is also required.

Mr. Chairman, on the same reach of a headwaters stream, land and resource

managers must develop a set of prescriptions to meet the requirements for Bull

Trout, including Conferencing with USF&WS, and a similar but not identical set of

prescriptions to meet requirements for steelhead or Salmon, including Conferencing

with NMFS.

This obvious duplication of efforts is costly and unnecessary, not only to landowners and taxpayers, but also to those who rely on timely and efficient Federal

decisionmaking. Let me provide an example: The Summit fire was caused by lightning on August 13, 1996. During 24 days, the fire burned across 37,961 acres of

mixed conifer forestlands, damaging riparian areas and leaving a mosaic of firekilled timber estimated at approximately 300 million board feet.

Because of the extreme complexity of planning for management actions on Federal

lands, especially where reside threatened or endangered species—Malheur National

Forest Planning Staff wrote, then rewrote the Summit Fire Recovery Project, eventually preparing two Environmental Impact Statements. On July 12, 1998, a Record

of Decision was issued calling for salvage and rehabilitation of approximately 6,600

acres producing about 50 million board feet of timber.

Major requirements of the fire recovery project draft EIS included development

of a Water Resources Management Plan, Consultation with USF&WS for Bull

Trout, and Consultation with National Marine Fisheries Service for steelhead.

Mr. Chairman, although prescriptions for Bull Trout management on riparian

areas in the project area were designed to protect cold, clean water and spawning

and rearing habitat for all aquatic species, the complexity and cost of the Summit

Fire Recovery Project was considerably accelerated by the development of yet another complete set of management prescriptions for steelhead under direction of

NMFS, also designed to protect cold, clean water and spawning and rearing habitat

for aquatic species.

Along with other planning delays, and the continuing threat of litigation by radical environmentalists, the Summit Fire Recovery Project, which should have taken

no more than six months from planning to implementation, required more than 23

months to complete. The cost of suppression for the Summit Fire was $25,400,000.

Planning for this project cost approximately $1.2 million for the original DEIS and

additional $356,432 for the Supplemental DEIS.

During the months between the fire and the eventual approval of the recovery

project, insects and blue stain fungus infested the stands and severe checking reduced the value of salvageable timber. If conducted in August 1997, the project

could have produced $6.9 million for the Federal treasury according to the Final Environmental Impact Statement (page 2-21). Today, the project will produce less than

one sixth of that amount, or $1.1 million according to the Final Supplemental Environmental Impact Statement issued July 12, 1998 (page S-6).

Members of the Committee, the delay and expense caused by mere duplication of

effort as we saw in the Summit Fire Recovery Project may be the least costly aspect

of dual administration of the Endangered Species Act.

Mr. Chairman, you may have heard of the Oregon Plan for the recovery of Salmon

and steelhead. It is a state-driven plan for the recovery of Coastal Coho salmon and

many species of steelhead.

The purpose of The Oregon Plan is not merely to avoid the ‘‘take’’ of listed species,—the only requirement on landowners under the Endangered Species Act—but

actually to recover aquatic species by involving forestland owners, irrigators, cattle

producers, dairymen, farmers and municipal watershed managers in a cooperative

effort to improve water quality and aquatic habitat.

Early in the process of developing the Oregon Plan leading to a Memorandum of

Agreement to facilitate a ‘‘no-list’’ decision for Coastal Coho salmon, NMFS expressed its intense dislike of the Oregon Forest Practices Act, indicating a strong

desire to rewrite the Act and demanding changes in virtually every aspect of

forestland management.

Eventually, NMFS submitted a proposal to the Oregon Board of Forestry titled

A Draft Proposal Concerning Oregon Forest Practices. The proposal was developed
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by NMFS staff without input from those familiar with Oregon forest practices. Some

of the proposed changes are, in a word, preposterous. For instance, in the section

titled ‘‘Hydraulic Conditions Required for Adult Fish Passage’’ culvert design is detailed:

‘‘Where culvert lengths exceed 150 feet, a bridge installation should be strongly

considered. Generally, culverts smaller than six feet in diameter are not adequate for fish passage and should not be used. Culverts less than 10 feet in diameter require lighting within the culvert barrel, provided by a vertical riser

(above the road surface), or by artificial lighting at least every 75 feet (Draft

Proposal on Oregon Forest Practices, February 17, 1988—Appendix VI, page VI3).

The document also proposes to increase the buffer width for fish-bearing streams,

in some cases to 300 feet on each side. Elsewhere, NMFS advocates the prohibition

of forest management activities . ..

‘‘. . . in wet weather conditions (typically two inches of precipitation in 24 hours)

especially during the winter period (October 1-April 30). Hauling or skidding

should not resume for 48 hours after precipitation ends or until road surfaces

and ditches are not flowing with water.’’ (Draft Proposal on Oregon Forest Practices, February 17, 1988—Section V, 2 A page 47-48).

Mr. Chairman, Western Oregon is famed for many things, among them is its prodigious rainfall—measured at more than 200 inches per year in some coastal areas.

A shutdown of operations in coastal areas for rain, or throughout the state during

the period from October 1 to April 30 is particularly disconnected from the reality

of Oregon climatological conditions.

Analyis of NMFS February 17, 1998 Draft Proposal Concerning Oregon Forest

Practices prepared by Oregon Small Woodlands Association and Oregon Forest Industries Council concludes that NMFS proposals will cost Oregon forestland owners

an estimated $25.4 billion in lost economic value and render forestry operations impossible or unfeasible on 41 percent or 3.3 million acres of private forestland. (‘‘Summary of Macro Economic Impact of NMFS Forest Practice Proposal,’’ Oregon Small

Woodlands Association and Oregon Forest Industries Council, April 1998).

Mr. Chairman and members of the Committee, this is an unconsionable intrusion

by a Federal agency into the management authority of the state of Oregon and an

even more egregious intrusion against the interests of private landowners.

I urge you to bring to heel what is clearly an agency out of control and to remove

administrative authority under the Endangered Species Act from the Department

of Commerce and National Marine Fisheries Service.

Mr. Chairman and members of the Committee, even though our experience with

the Department of Agriculture and U.S. Fish & Wildlife Service in administration

of the Endangered Species Act leaves much to be desired, administration of the Act

by the Department of Commerce acting through NMFS is a disaster. We therefore

strongly urge passage of H.R. 4335.

Mr. Chairman and members of the Committee, again, I thank you for the opportunity to provide testimony and stand ready to answer your questions.

STATEMENT OF JAMES J. ANDERSON, ASSOCIATE PROFESSOR, SCHOOL OF FISHERIES,

UNIVERSITY OF WASHINGTON

I wish to thank the House Resource Committee for the opportunity to appear at

this hearing. I am an Associate Professor in the School of Fisheries at the University of Washington and have been involved with Columbia research for over a decade. My group and I have developed models for fish passage through the

hydrosystem and for harvest management. I am currently a member of PATH,

which is a group of scientists tasked with quantitatively evaluating proposed fish

recovery strategies including increased smolt transportation and breaching the

lower Snake River dams. In these studies I have worked extensively with National

Marine Fisheries Service scientists and managers.

My specific comments concern the NMFS flow targets as an Endangered Species

Act management tool. I also note my thoughts and observations on how science has

been used in ESA salmon management. Simply put NMFS has justified many actions in terms of their qualitative benefits. Because of the increasing complexity of

ESA management, the benefits of actions must be put in terms of the numbers of

fish and the costs of the actions.

The Two Cultures At NMFS

NMFS has two cultures, a scientific culture responsible for basic and applied research on fish and their ecosystem and a management culture responsible for regu-
80

lating commercial fisheries and recently for implementing the ESA for salmon. Most

of my experience has been with the NMFS scientists and I have high regard for

their integrity, dedication and abilities to conduct scientific research in the charged

atmosphere of endangered species issues. NMFS scientists have decades of experience with salmon and their continued involvement is essential to insure that endangered species are recovered. NMFS managers have an even more demanding task.

Balancing the social and economic factors affected by the ESA is a difficult job because of the political constraints and limitations of the science that often is unable

to provide clear explanations and conclusions. I believe that for effective management the two cultures must be integrated and work together.

Management Lags Science

The relationship of NMFS science and management is critical to the success and

failure of the ESA implementation. A well-known observation in fisheries is that

management lags science, sometimes by a decade. Management is not unaware of

the recent scientific results, but in the fast moving political arena it is often difficult

to resolve the scientific uncertainties to the point that they can be incorporated into

management. Consequentially managers typically favor past ideas in making decisions. This is not a surprise considering that management must balance public perceptions as well as the scientific information, and in this regard, the public often

takes views derived from their desire for a particular outcome. They often select or

reject a scientific result according to whether or not it supports their belief. Managers of ESA resources can not take this approach.

Acceptance of scientific principles is a slow process so it is natural to focus on old

beliefs in making decisions. But it is essential for that managers educate the public

on the relevance of recent scientific work. NMFS has not always done this. In any

case, fisheries managers must not ignore the new research, nor fail to resolve the

conflicting claims. It is in this regard that ESA salmon managers need to use the

available science and especially for the interim decisions involved with the daily allocation of water resources.

Flow Targets

I will focus on the flow policy of NMFS. A decade ago many fish biologists believed

that the Snake River salmon decline was mainly the result of increased fish travel

time through the hydrosystem. It was thought that by increasing flow to mimic the

predam flows the fish would return to the predam levels. Improved survival studies

and model results indicate that a strong increase in fish returns from flow increases

is not possible. The current estimate of the impact of flow on spring chinook is a

hundred times less than was previously believed. The flow augmentation program

may produce a 1 percent increase in runs, far less than the 1000 percent needed

to recover the spring chinook from its present level.

In developing the Biological Opinion for dam operations in 1995, and again for

the mid Columbia stocks in 1998, NMFS did not incorporate the quantitative estimates that challenge the efficacy of flow as a fish recovery action. NMFS, in both

instances, called for flow targets during the smolt migration and based the justification on circumstantial and largely outdated evidence. Nowhere in the analyses were

quantitative estimates provided. It appears that the underlying NMFS belief was

that, although a flow survival relationship can not be demonstrated, it is likely that

one exists and therefore it is worth increasing flows to obtain an unspecified benefit

in survival.

The recent analysis conducted by PATH has found no evidence that increased

flows will significantly increase spring chinook returns, neither directly through improved hydrosystem passage nor indirectly through an unspecified relationship between river flow and post hydrosystem survival. For the subyearling fall chinook migrants the studies do show a relationship between survival and a number of river

properties including, temperature, flow, water turbidity and the timing of the migration. My recent analysis of the fall chinook data suggests a relationship between fall

chinook smolt survival and fish size. Furthermore, if the operative factor is fish size,

then flow augmentation, which may cool the water and initiate early migration,

could reduce fish size and decrease survival. The important point here is that, although flow correlates with survival in some years, a correlation is not evidence that

increases in flow within a year will improve survival. Flow could be beneficial or

detrimental; we simply do not know its affect at this time.

Under these results, no flow survival in spring chinook and uncertainty for fall

chinook, NMFS made a policy decision to strongly manage flow, irrespective of proof

that it benefits fish. In addition, the flow targets are hydraulically impossible to

achieve in below average water years. Furthermore, NMFS has been inflexible in
81

reevaluating the flow targets in light of the new information and it has not aggressively pursued a resolution of the scientific claims on the impacts of flow.

Water Withdrawal Policy

To support the flow targets NMFS imposed a moratorium on new water withdrawals in the Columbia and Snake River basins. Where and when water is withdrawn is clearly important to the level of impact it has on fish. A water withdrawal

above spawning grounds may impact egg survival but the same withdrawal in the

mainstem will have virtually no impact on smolt survival. The NMFS policy does

not distinguish these differences. It is inflexible to the individual needs of water

users and the varying impact of water on fish. This failure to quantify individual

actions will not work in the long term where demands for salmon restoration increasingly confront the demands for water. Since the demands for both will only increase it is essential to quantitatively assess the impacts of withdrawals on a case

by case basis using the best available models and data.

Putting Numbers On Actions

For two decades now regional fish recovery actions have been justified on the

grounds that they appear to benefit to fish. There has been few quantitative assessments of the actions, few peer reviews of the claims, and little flexibility in allocating resources. Although the region, through groups such as PATH, is now attempting to put numbers and probabilities on the impact of actions, only a limited

number of issues are being addressed. Issues, such as the evaluation of the flow targets and water withdrawal moratoriums, are not being addressed.

I believe that the atmosphere of distrust and adversity in managing threatened

and endangered salmon is to some degree, because managers have failed to quantify

results and challenge unsupportable claims on the benefits or detriments of actions.

Instead of addressing issues in terms of the numerical cost and benefits and ranking

actions by their effectiveness NMFS has used inflexible targets and moratoriums.

These qualitative and largely intuitive approaches to management encourages fish

advocates to misuse the scientific information and push for unrealistic demands and

it forces water users into resolving issues through the courts and governmental

intervention.

STATEMENT OF WILLIAM STELLE, JR., REGIONAL ADMINISTRATOR, NATIONAL MARINE

FISHERIES SERVICE, NORTHWEST REGION

Mr. Chairman, thank you for the opportunity to appear before you today. Your

letter of invitation suggests I focus my testimony on the National Marine Fisheries

Service’s (NMFS) implementation of the Endangered Species Act (ESA), whether

NMFS’ ESA program overlaps or is consistent with the Fish and Wildlife Service’s

ESA program, and whether our implementation of the ESA is cost-effective. Finally,

you asked for my views on H.R. 4335, which proposes to transfer the Department

of Commerce’s responsibilities for conserving threatened and endangered marine

and anadromous species to the Department of the Interior. In my testimony, I will

address these issues from a regional perspective, since our salmon program in the

Northwest is a significant part of NMFS’ ESA program. I will also raise several additional national concerns relevant to the proposed transfer of responsibilities.

Since these hearings are being held in the Pacific Northwest, we have focused our

comments on NMFS’ efforts to protect and recover imperilled salmon throughout

this region. Clearly, Pacific salmon listings have affected almost every watershed on

the West Coast and the interior Columbia Basin. Without a doubt, these listings

have a more far-reaching impact than previous ESA listings. Salmon listings, proposals to list, and associated actions affect almost every ecoregion of the West Coast

north of Los Angeles. These salmon listings affect one of the most precious and precarious resources of the West: water. The salmon’s life cycle is complex and its migration vast. Hundreds of human activities have destroyed salmon habitat and

brought salmon populations to the brink of extinction: timber harvest, farming, mining, irrigation and water development, road-building, urbanization, damming, dredging, hydropower operations, fishing, fish culture . . . the list is quite long.

As you know, the ESA imposes a number of duties on the Secretaries of Commerce and the Interior. Whenever Federal agencies take actions that affect listed

salmonids, they must consult with NMFS or the Fish and Wildlife Service, whose

job it is to advise whether the Federal action will jeopardize the continued existence

of the listed species. This determination is a complex and difficult one when it

comes to salmon because the interacting effects of so many human activities threaten salmon’s very existence.
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In the Northwest Region, NMFS has established a large program to help Federal

agencies meet this consultation requirement. NMFS has reviewed Federal actions

as geographically broad as the Northwest Forest Plan and as local as a scientific

permit for a very localized Forest Service activity. Since 1991, with the first salmon

listings in Idaho, NMFS has completed review of several thousand activities. NMFS

has taken steps to make the consultation process more efficient. For example, we

encourage Federal agencies to conduct ‘‘programmatic’’ consultations. That is, we

ask them to consult with us on broad programs and policies. In this sort of consultation, we can jointly develop general principles and procedures to apply to individual

actions. When individual actions are consistent with those principles and procedures, we can move very quickly through them. This approach was recently upheld

by the Federal district court in Western Washington in reviewing NMFS’ consultations on Northwest Forest Plan actions. We entered into a Memorandum of Understanding to coordinate consultation on operation of the Federal Columbia River

Power System that required the operating agencies to submit only one biological assessment from which both NMFS and Fish and Wildlife Service developed their respective biological opinions.

Simply gearing up to take all of the actions required by the ESA has been a tremendous challenge for NMFS. It takes many biologists a considerable amount of

time to sort through and understand the status of individual populations of a species, how various actions affect them, and whether the fish populations can withstand the impacts and remain viable. To help us do our job, since 1991 Congress

has increased the total NMFS budget for salmon by $16.5 million. This has allowed

us to increase the regional staff from some 50 employees in Portland and Seattle

in 1991 to 150 employees spread throughout the region today. With the help of Congress, and to be more responsive to constituents throughout the region, we opened

field offices in Boise, Olympia, and Roseburg.

Over the past twenty years, NMFS has developed a world class salmon science

program covering a number of areas crucial to the Pacific Northwest. Our salmon

science program consists of a major, nationally-renowned program on fish passage

and survival research in the Federal Columbia River Power System that is absolutely vital to evaluating the effects of Federal dams on salmon recovery. That program has been in place since the mid 1970s and now consists of roughly sixty scientists. Our salmon science program also consists of a major conservation biology

division which provides the risk assessments that support: (a) our listing and recovery programs; (b) habitat and chemical contaminations research programs that may

be used in support of cleanup and restoration efforts for hazardous wastes sites by

EPA and the Federal natural resource trustees; and (c) salmon rearing and fish disease research that is helping chart the path for improved hatchery practices in the

Pacific Northwest. Finally, with funding from the Bonneville Power Administration,

we have launched a major research effort into the ocean and estuarine survival of

salmonids to better understand the role of ocean and estuarine conditions on salmon

survival and recovery.

The success of our salmon science program also can be measured in terms of its

ability to understand the factors that put salmon at risk. We have developed over

the last twenty years of effort world class expertise to evaluate the impacts of differing human activities on the salmon life cycle (e.g., dam operations and fish passage; fishing activities; fish husbandry; and general pollution of the marine and estuarine environment). We are developing state-of-the-art techniques for examining

the cumulative impacts of various types of activities and mitigation measures and

indicating the degree to which these create a risk to a local salmon population. We

can use the state-of-the-art science and technology to look at various types of impacts and mitigation measures and indicate the degree to which risk will be increased or lessened.

Probably the most difficult task in implementing the ESA for a species like salmon is trying to calculate how to allocate the conservation responsibility when there

are many factors that have caused salmon to decline throughout the West. All of

these factors must be addressed if we want to restore salmon. The status quo is literally driving salmon runs to extinction, and we must make basic changes in how

we approach salmon and their habitat if our salmon are to remain part of the heritage of the Pacific Northwest.

To respond to your second request, I’d like to talk about coordination between the

two Services to ensure consistency. Even before coastal salmon stocks were listed,

NMFS began working with the U.S. Fish and Wildlife Service to ensure that Federal agencies, states, tribes and private citizens could count on the agencies to be

efficient and consistent in their responses. For example, the Services worked together on the Federal technical team that developed the Northwest Forest Plan to

ensure it was adequate for all aquatic species, including salmon. We also started
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working with the Fish and Wildlife Service after realizing that landowners in Oregon, Washington and California were developing habitat conservation plans for the

threatened northern spotted owl and wanted assurance that any plan they developed for owls would address salmon as well. To provide landowners with ‘‘one-stop

shopping,’’ NMFS and the Fish and Wildlife Service established a joint office in

Olympia, Washington, where biologists from both services collaborated on the development and review of habitat conservation plans. That office was instrumental in

developing the Washington DNR and mid-Columbia PUD Habitat Conservation

Plans.

The Services have taken other actions to be certain we implement the ESA consistently and efficiently for Federal agencies and private landowners. Some of the

more obvious actions are our joint regulations and policies on consultations and

habitat conservation plans. We are issuing a number of joint policies for private

landowners, including the ‘‘no surprises,’’ ‘‘candidate conservation agreement,’’ and

‘‘safe harbors’’ policies that give landowners greater future certainty when entering

into conservation agreements with the Services. To make certain our staffs adhere

to consistent procedures when dealing with the public and other Federal agencies,

we have issued joint policy and guidance documents, such as the Section 7 Consultation Handbook and Habitat Conservation Handbook. We have issued a number of

other joint technical policies such as our artificial propagation policy. Whenever one

of the Services takes a major action or faces a novel situation, we communicate with

each other at the regional and national level to ensure our approaches to the ESA

are consistent. We are currently working on future, joint policies, like one on candidate conservation agreements, that will ensure a consistent level of service between NMFS and the Fish and Wildlife Service.

Although NMFS and the Fish Wildlife Service coordinate our activities to provide

the same level and kind of service to other agencies and the public, each agency

brings different strengths to the Federal ESA program. Our strengths—NMFS with

extensive marine expertise and the Fish and Wildlife Service with extensive freshwater and terrestrial experience—are complementary in the ESA program. Both

NMFS and the Fish and Wildlife Service implement the ESA on rivers and streams

in the Pacific Northwest despite clearly divided responsibility for different listed

species. To take care of listed Pacific salmon from their cradle to their graves,

NMFS has had to add expertise on freshwater ecosystems to its existing marine expertise. Although this freshwater expertise and responsibility appears to ‘‘overlap’’

with the Fish and Wildlife Service, it is absolutely necessary to provide a coherent

service for the people, communities, and industries that depend on salmon for their

economic and social well being. There is no duplication of costs between our ESA

programs; in fact, NMFS’ ESA program is extremely cost-effective.

Finally, you asked for my views on H.R. 4335, which is your proposal to transfer

NMFS’ ESA responsibilities to the Fish and Wildlife Service. NMFS’ largest ESA

program is for salmon, which is where this proposal would have the greatest impact.

The Administration opposes H.R. 4335 for the reasons discussed below.

The Pacific Northwest is in the midst of a major challenge to recover salmon runs

that face extinction. Meeting this challenge will affect major facets of northwest life:

power; water resources; fishing; forest and agricultural land management; and the

like. This region is on the brink of some very important decisions on the Columbia

River power system. We are also gearing up for major re-licensing efforts for many

big hydropower projects, including some in Idaho.

The National Marine Fisheries Service is unquestionably dedicated to the recovery of salmon in the Pacific Northwest. Our leadership of and involvement in many

of the key salmon efforts is substantial—from the Columbia River Power System to

the Oregon Salmon Plan to the growing efforts of Washington communities to prepare for salmon listings in Puget Sound. The challenges associated with joint administration of the ESA in this region are significant but resolvable; the benefits of

shifting salmon responsibilities would be fewer than anticipated, while the disruption, confusion, and delays associated with the transfer of ESA responsibilities

would be very substantial.

That said, we must ask ourselves what problem this legislative proposal is intended to solve and is this proposal the best solution. Is there concern that other

Federal agencies and private parties are ‘‘overloaded’’ trying to deal with two separate Services protecting at least two (but usually more) different species? If so, such

a transfer might address that concern because there would be only a single ESA

agency. There are other ways to address this concern such as steps the Services

have already taken, that are not as disruptive. Earlier I provided examples of joint

consultations, joint HCPs, and co-location of offices that has helped provide ‘‘onestop’’ shopping services to Federal agencies and applicants. We are exploring other

administrative ways of coordinating NMFS’ and Fish and Wildlife Service’s ESA
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programs like joint processing of Federal agency actions that affect threatened or

endangered species, which has streamlined the Corps of Engineers’ permitting program elsewhere in the country.

Is the main concern duplication of effort, that is, several biologists analyzing the

same action? Right now, there is very little duplication of effort. The number of biologists working on a consultation depends on the geographic scope of the action,

the number and diversity of species involved in the consultation, and the probable

environmental significance of the action. Right now, if an action affected bull trout,

chinook salmon, and grizzly bears, NMFS and Fish and Wildlife Service would have

to assign both fishery and wildlife biologists to evaluate the action. With the proposed transfer of ESA responsibilities, the Fish and Wildlife Service would still require both fishery and wildlife biologists to evaluate the action so there probably

would not be an appreciable reduction in the number of biologists required to implement the ESA.

Some will argue that the main problem is that NMFS is too protective of species

in its application of the ESA, and the best solution is eliminating us from the program. Others would argue that we are not protective enough. We respect those

views as part of the public dialogue associated with the difficult task of protecting

salmon and clean, healthy water. The Administration has said many times, salmon

throughout the West are in deep trouble, and it is the full range of human actions

that have put them there. We cannot keep doing business in the Northwest the way

we have been and expect salmon to survive in the wild. The Fish and Wildlife Service, with its proud legacy of environmental stewardship, would give you the same

answer. Shifting NMFS’ ESA responsibilities to the FWS would create confusion and

delays that could last for years. I mentioned earlier what NMFS has done to prepare for the special challenge of managing salmon issues in the Pacific Northwest.

It has taken us some years to get to a point where we can implement our salmon

program efficiently. We have gathered a lot of expertise on salmon science and salmon management, and we have invested a lot of resources to develop working relationships with the hydropower industry (public and private) to address salmon

issues. We now have a good staff organized and equipped to administer the ESA

to conserve salmon species cost-effectively. Our organization is fairly simple, our

numbers are lean, and our people are skilled at their jobs.

If NMFS’ ESA responsibilities were transferred to the Fish and Wildlife Service,

they would have to repeat what we did—organize to get the job done, locate and

train new staff, find space, and request appropriations. In addition to preparing to

handle salmon in freshwater ecosystems, the Fish and Wildlife Service would have

to gear up for new marine responsibilities based on this proposed legislation. Based

on our experience, we estimate that they would need a minimum of about 150 new

FTEs and about $16.5 million in new money just to start handling the additional

workload necessary to protect Pacific salmon. The confusion and delays associated

with the transfer you propose would create major inconveniences and delays to private landowners, fishing communities, and timber interests—all whose lives are affected by listed salmon. It would, therefore, substantially disrupt ongoing efforts

throughout the Pacific Northwest in salmon recovery at the worst possible time. If

the transfer occurs without providing the Fish and Wildlife Service the personnel

and funding to handle the new workload, the difficulties will become much larger.

Finally, I think we need to examine what the other consequences of transferring

authority to the Fish and Wildlife Service might be. Right now, people engaged in

marine fisheries only deal with one Federal management agency; transferring ESA

responsibility will require them to deal with two agencies where listed species are

involved. Hence, transferring ESA responsibility to the Fish and Wildlife Service

solves a perceived problem for people on land, but creates new problems for people

who make their living from the sea.

Would the benefits of this proposal outweigh the consequences? As I said, I think

the main perceived benefit is to other Federal agencies and individuals who work

on rivers and forests and now must deal with two Services. On the other hand, people who earn their living from the sea and now deal only with NMFS, would have

to deal with NMFS and the Fish and Wildlife Service. There are trade-offs to either

approach: who benefits, who loses? My agency and I look forward to engaging the

Congress, and the region, on that question.

Although most of my testimony, up to this point, has involved the extensive efforts undertaken by NMFS to meet its responsibilities to protect endangered and

threatened species of Pacific salmonids, H.R. 4335 would reach far beyond these

troubled species.

Under the Endangered Species Act, in addition to listed salmonids, NMFS is responsible for many other marine species, including the Arctic bowhead whale, the
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Pacific and Atlantic humpback whales, the blue whale, the Steller sea lion, the Hawaiian monk seal, seven species of sea turtles. Even if NMFS’ ESA responsibilities

were transferred, NMFS and its parent agency, the National Oceanic and Atmospheric Administration (NOAA), would continue to have significant responsibilities to

protect and recover these animals pursuant to the Marine Mammal Protection Act,

the Magnuson-Stevens Fishery Conservation and Management Act, the Whaling

Convention Act, the National Marine Sanctuaries Act, and statutes implementing

a dozen international conservation agreements, in addition to our other authorizing

legislation. With respect to whales, sea lions, sea turtles and ESA-listed species of

marine fish, H.R. 4335 would increase, rather than decrease, the need for interagency coordination and would give rise to more, not less, duplication of effort and

expertise.

Setting aside the issue of salmonids for the moment, NMFS and NOAA strongly

object to transferring ESA authority to Interior since NMFS and NOAA would still

have to address the relevant ESA concerns in managing marine fisheries, marine

mammals, and aboriginal whaling that have the potential to adversely affect other

marine species such as whales, dolphins, seals, sea lions and sea turtles.

To name just a few of the ongoing ESA issues that would be made more complicated by enactment of H.R. 4335, the management of the Alaskan groundfish

fisheries, now handled by the Regional Fishery Management Councils and NMFS,

must take into account the needs of the Steller sea lions. Management of the lobster

fishery and the gillnet fisheries in New England must also take into account the

needs of the right and humpback whales. So too must management of the salmon

gillnet fisheries in Alaska and recreational activities in the Hawaiian Humpback

Whale National Marine Sanctuary must take into account the needs of the humpback whales that migrate from Alaska to Hawaii. Under H.R. 4335, Interior would

be granted much greater control over these fisheries.

Even more significantly, NMFS’ national and international responsibilities to protect sea turtles from incidental take in shrimp fisheries would not go away if responsibility for endangered species were transferred from NMFS to Interior, since

sea turtles are considered ‘‘fish’’ under the definitions of the Magnuson-Stevens Act.

As should be obvious, the above issues concerning the interaction of marine fisheries and species protected under the Endangered Species Act, the Marine Mammal

Protection Act and the National Marine Sanctuaries Act are all quite controversial.

NMFS and NOAA have more than two and one-half decades of experience in coordinating conservation programs for living marine resources. NOAA is the Nation’s

oceans agency. The Department of the Interior could not easily acquire our expertise.

Even with respect to Pacific salmonids, NMFS and the other NOAA agencies

would have to remain involved in ESA matters as a result of our broad ocean fishery resource management responsibilities, including the Federal Power Act, the Fish

and Wildlife Coordination Act, the Coastal Zone Management Act, as well as the

new requirements of the Sustainable Fishery Act that requires the Regional Fishery

Management Councils, in cooperation with NMFS, designate essential fish habitat,

which for salmonids at least, will cover much the same river basins as are now covered by our ESA programs. In short, even if NMFS’ current ESA responsibilities

were transferred to Interior only with respect to anadromous species, NOAA and

NMFS would not be relieved of work and the public would not have fewer Federal

agencies to deal with.

Mr. Chairman, thank you again for the opportunity to testify. I look forward to

answering any questions you may have.

MR. STELLE’S RESPONSE TO QUESTIONS FROM THE COMMITTEE

Dear Mr. Chairman:

The Committee requested that the National Marine Fisheries Service supplement

my testimony at your hearing in Pasco, Washington, on September 2, 1998. I was

asked whether the Endangered Species Act abrogates state water law. I am pleased

to provide the following as further response to this question.

It is inevitable that both state and Federal environmental statutes intended to

protect aquatic species and their habitat will intersect with the exercise of established water rights. It has been the consistent approach of this Administration to

meet ESA water needs consistent with state law. Consistent with this position, the

Federal agencies have deliberately implemented their programs, including those for

the ESA, to respect water rights. Some examples include:
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• Columbia and Snake River Basins, Washington, Oregon and Idaho:

In 1995, during ESA consultations on Federal hydropower operations, the

Federal Government concluded it would implement flow augmentation from

the Upper Snake River through acquisition by the Bureau of Reclamation

from willing sellers and express compliance with Idaho state water law.

• Rio Grande River Basin, New Mexico and Texas:

Similar to the Snake River Basin, the U.S. Fish and Wildlife Service and

the Bureau of Reclamation are working with local and state parties to meet

water needs for listed species pursuant to state law.

• Upper Colorado Recovery Implementation Plan, Colorado, Utah, New Mexico and Arizona:

This plan, which provides recovery measures for fish species listed under

the ESA, calls for implementation of instream flow needs under state law.

In addition, compliance with state water law for ESA water needs is central to

efforts in the lower Sacramento River (Bay Delta Agreement), the Platte River, and

across Colorado.

With respect to aquatic species protected under the ESA, it is also important to

ask where the courts are on the interaction between implementation of the ESA and

the exercise of state law based water rights. Perhaps the closest case on point where

the courts had to address state water rights in the context of ESA is United States

v. Glenn-Colusa Irrigation District, 788 F. Supp. 1126 (E.D. Cal. 1992). In this case

involving endangered Sacramento River winter run chinook salmon NMFS successfully sought to enjoin an irrigation district from diverting water pursuant to a state

water right because an inadequately screened diversion was directly taking these

juvenile salmon. The court addressed state water law issues and found that compliance with the prohibitions of Section 9 of the ESA did not abrogate water rights,

but rather required that the right be exercised in a manner that did not violate the

take proscription.

In our view, the fair and effective management of these issues can only be accomplished through open and candid discussion among water users and those agencies

implementing programs protecting and restoring our aquatic resources. NMFS encourages such basin-wide planning efforts to meet the ESA needs of listed species

as well as the needs of water users to the fullest extent possible.

STATEMENT OF JEFF CURTIS, WESTERN CONSERVATION DIRECTOR, TROUT UNLIMITED

Trout Unlimited, the Nation’s largest coldwater fisheries conservation organization, appreciates this opportunity to testify at this hearing on Endangered Species

Act implementation and H.R. 4335. TU has over 100,000 members nationwide in

over 450 chapters. We have over 7,000 members in Oregon, Washington and Idaho.

Trout Unlimited is opposed to this legislation. From our perspective, Columbia

River salmon management would not be fixed if this bill were passed. Frankly, I

cannot imagine the U.S. Fish and Wildlife Service carrying out its ESA responsibilities much differently than the National Marine Fisheries Service (NMFS). And, if

they did, the Federal courts would certainly force them to carry out their responsibilities consistent with ESA mandates. Let us recall that, while Judge Marsh ratified NMFSs current approach in American Rivers v. NMFS, he did so with a considerable degree of skepticism.

At this time, moving anadromous salmonid recovery responsibilities to an agency

previously not involved in these issues is a recipe for mass confusion. Given the imperiled species status and pending court-imposed deadlines, the chance that upcoming decisions would have a random quality to them would be greatly enhanced.

Rather than tinkering with Federal agency organization and responsibilities, we

endorse the development of a regional structure along the lines of the ‘‘three

sovereigns’’ process currently being discussed by the governors of the four Columbia

Basin states. We believe a process involving the major governmental agencies in the

basin—state, tribal and Federal—that is open to participation by other interested

parties, will move the region closer to a consensus on salmon and energy issues.

While we are not so naive that we think complete consensus will ever be reached

on these issues, we do believe the region as a whole can come to a more complete

understanding of the issues.

But, in the end, it is not process but rather dramatic action that is needed to save

salmon. To be blunt, the problem with the Columbia River is that we have changed

the river to something that is now much less hospitable to salmon and steelhead.

We have changed the hydrograph, running the river so it suits power production

as opposed to running it the way that it ran when salmon were plentiful. We have
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dewatered and degraded many of the tributaries that spring chinook and steelhead

need for spawning. And perhaps most importantly, we have turned a flowing river

into a series of slow moving lakes.

Recently Trout Unlimited endorsed proposals to breach the four lower Snake

River dams. We recognize that we are advocating major changes in the system and

we know that prompts two important questions. First, do we really have to make

changes as significant as breaching dams to restore salmon? Trout Unlimited believes that to save ESA listed chinook and sockeye salmon and steelhead that return

every year bound for Idaho’s headwaters we do. Twenty years of failed barging and

trucking experiments to get fish around these dams have demonstrated that, in essence, we can’t fool mother nature. It is time to take more drastic actions. The Independent Scientific Advisory Board (ISAB) has concluded that the juvenile fish transportation program will not restore salmon. The ISAB has called for a normative

river approach—restoring some sections of the Columbia/Snake River system to

more natural conditions such as those found in the Hanford reach of the mainstem

Columbia—to provide necessary habitat for salmon recovery.

Second, and perhaps the more obvious question, is it worth it to the region? Obviously, to those of us who believe that salmon are an icon of the region and a symbol

of who we are, the answer to that question is obvious. But to those who look at

these issues in more traditional economic terms, I believe the answer is still in the

affirmative.

While everyone knows that one of the assets of the Northwest, salmon, is at risk,

we are also in some danger of losing another asset—low cost federally subsidized

power. In an era of energy deregulation, the question must be asked why the rest

of the nation should subsidize cheap power in the Northwest. More importantly,

why should New Yorkers pay more to heat and cool their homes than folks from

Seattle or Pasco? Why should Californians pay more for energy for their businesses

than Oregonians?

The answer that we in the Northwest give is that our power system provides public benefits as well—investments in renewables, energy assistance for the poor and,

most importantly, salmon conservation. If the system does not provide those benefits, if the power system we are protecting for our own advantage is killing a natural

resource we are charged with protecting, our position in defending the region’s lowcost power is much weaker.

It is apparent the drawdown and dam breaching scenarios being considered will

have both negative and positive effects on the economy. TU supports efforts to mitigate the negative impacts to current river users. But it is clear that these economic

impacts are far less than what we could face if we lost the benefits of low cost power

we have enjoyed since the 1930s.

Many years ago, when there were no dams on these rivers, the fate of the Native

Americans who lived in this watershed was inextricably tied to the salmon in the

rivers. The salmon were articles of commerce as well as a food source. The health

of the people and the salmon were linked. We do not believe that link has been broken. Our salmon and energy futures are still connected. If we sacrifice salmon for

what may only be very short-term energy benefits to the region, in the long run we

may very well end up with salmon extinctions and the loss of the competitive advantage of low energy costs. If, on the other hand, we as a region decide to make the

tough decisions necessary to restore salmon, we stand a better chance of having a

future that includes both salmon and a healthy economy.

Trout Unlimited appreciates the opportunity to testify before the Committee.

STATEMENT OF JOHN K. GIVENS, EXECUTIVE DIRECTOR, PORT OF KENNEWICK

Good morning, and thank you for the opportunity to participate in this hearing.

My name is John Givens and I represent the Port of Kennewick, one of seventysix port districts in Washington authorized into public service by the state legislature with a mission of fostering economic development. In carrying out that mission

ports also work hard to be responsible environmental stewards of the resources they

manage.

My invitation to speak solicited remarks on the implementation of the Endangered Species Act (ESA), and views on H.R. 4335, regarding transfer of functions.

I believe the Endangered Species Act of 1973 was enacted with the purest of intent to be a good piece of legislation that could be reasonably interpreted and easily

managed. I also believe that during the past few years our changing environment

has transformed the ESA into a nine hundred pound gorilla, often difficult to manage, and at times implemented on requirements that might lack common sense. I

think it needs to be revisited by Congress.
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I’ll share with you a good example of a potential recovery plan alternative being

explored that, if carried out, would in my opinion be contrary to what most Northwest residents feel would be a common sense solution to the problem.

The Columbia-Snake River system is one of our country’s most valuable resources.

That vital multiple use resource provides critical economic, recreational, and safety

benefits to millions of people.

The 465 mile federally authorized navigation corridor flows through a series of 46

ports, opening international trade markets to more than 40 states. Forty-three percent of all wheat shipped from this country travels through the remarkable Columbia-Snake system. Yearly cargo volumes exceed 50 million tons and provide revenues exceeding $16 billion dollars.

Employment numbers created through that system exceed 50,000.

The federally authorized dams which make that system unique have capacity to

produce 75 percent of the Northwest’s energy needs using renewable, plentiful, non

polluting hydropower.

About 50 percent of the 7.3 million acres of the producing farm and ranch land

in Idaho, Oregon and Washington are irrigated with water supplied from that critical system. Yearly sales from those farms and ranches exceed $10 billion dollars.

During 1996 and 1997 the Columbia-Snake River dams were credited with saving more than $4.8 billion dollars in property damage from two major flood events. The

70,000 acre feet storage capacity behind John Day Dam alone reportedly lowered

the river level at Portland by 1.5 feet during flooding.

Reservoir related recreational activities created on those reservoirs add hundreds

of millions of dollars to our country’s economy each year.

Yet, in spite of the unsurpassed benefits provided by that system, serious consideration is being given to breeching several of those dams and destroying the integrity of that federally authorized system because of perceived ESA listing requirements. The ESA has no accounting responsibility for the potential catastrophic

aftermath a decision to tear down those dams might have on those who depend on

the resources they provide. I hope Congress doesn’t allow that to happen.

During 1992, while I was serving as a Port of Clarkston Commissioner, the U.S.

Army Corps of Engineers, after consultation with NMFS under the ESA, elected to

stage a 30 day test drawing water down to a near natural river level on the Lower

Granite pool of the Snake River. The purpose of the test was to measure infrastructure integrity under drawdown conditions.

The economic interests of the area were not involved in the test planning except

shippers were told to make alternative arrangements to barging for their transportation needs during the test period. The result of that 30 day activity caused serious

distress. Lost business revenue was estimated in the millions of dollars. Substantial

physical damage occurred, including sloughing embankments, heaving and separated highways, twisted commercial and recreational docks, and inoperable water

intakes. No cargo moved from the Port of Clarkston for more than a month. A local

marina operator ended up filing bankruptcy as a result of unrecoverable damage

and business revenue loss.

Thousands of resident fish were killed after being trapped in ponds which dried

up when the river receded. The river corridor through Lewiston and Clarkston almost immediately became a stinking mud-flat as aquatic habitat decayed.

While some economic mitigation was later made available for documented physical loss to private property, the pot was small and reimbursement was difficult obtain. An overwhelming majority of the people who experienced that drawdown never

want that experience again.

Now, six years later, we who depend on the integrity of the Columbia-Snake System are still living under the dark cloud of permanent natural river level drawdown

while dam breaching options are being considered. Ports have great difficulty attracting many industries to their facilities with that curtain of uncertainty threatening large investments to bring needed jobs to communities.

New ESA fish listings are occurring on a regular basis throughout the region. I

understand that the Northwest has 15 species listed as threatened, and five as endangered under the ESA. In addition to those existing listings, 12 species have been

proposed for threatened status, and two for endangered protection by either NMFS

or USFWS.

Once a population is tagged with an endangered listing, the only option available

is to develop a sustainable recovery plan without regard to cost or economic effect.

It deeply concerns me when I think about how the Endangered Species Act, if not

sensibly interpreted, will drive the future of economic development in this country.

Congress needs to review the ESA to make sure that recovery options are based

on good science, sound economics and common sense logic. That makes for good policy. People deserve win-win solutions.
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I have concerns about the tiers of governing agencies involved in the ESA recovery process. It’s hard to know where to turn to find help any more. Recovery efforts

for anadromous fisheries are charged to NMFS. Unfortunately, that agency has both

too few people and resources to meet the growing challenges facing them. I receive

reports the NMFS consultation process is very slow. Recovery plans are difficult to

complete, and then when finally approved are often challenged in court. Those involved with projects affected by threatened or endangered listings are often frustrated by the amount of energy and time involved on their parts due to agency resource scarcity.

In closing, I’ll say that I have no personal preference on what Federal agency, the

Department of Interior or Commerce, is delegated the responsibility of coordinating

ESA recovery. Consolidation seems to make sense. Single agency control is less likely to place two agencies at odds when recovering competing species. Expertise can

be centralized. What is important is that the delegated recovery agency be given the

tools (clear mission, people, expertise and funding levels) to do a good job.

Thank you.

STATEMENT OF BOB HALE, HALE FARMS, SHAREHOLDER, INLAND LAND COMPANY

LLC

My name is Bob Hale. I am a shareholder in Inland Land Company LLC (‘‘Inland’’), 115 West Hermiston Avenue, Suite 240, P.O. Box 110, Hermiston, Oregon

97838. Inland was formed in 1994 by three family farms to develop an irrigated

farm on several thousand acres of undeveloped agricultural land in Morrow County,

Oregon. Inland leased the land it did because it had existing partially developed

state water rights. No new state water rights were needed.

I was born and raised in the small town of Echo, Oregon and have owned and

operated farms in the area my entire life. We grow potatoes, onions and other crops

for local food processors. New irrigated acreage needs to be developed in our area

to replace land taken out of production due to urban expansion, groundwater restrictions and conversion of cropland to tree farms. Our local communities and food processors will not survive unless we maintain our agricultural land base.

You have asked witnesses to address three questions: (1) whether the National

Marine Fisheries Service (‘‘NMFS’’) is implementing the Endangered Species Act

(‘‘ESA’’) consistent with the authority granted in the ESA; (2) whether their activities overlap or are consistent with those of the Fish and Wildlife Service; and (3)

whether their implementation is being conducted in a cost effective manner. You

also asked for our views on H.R. 4335, a bill that would consolidate ESA implementation in the U.S. Department of the Interior. Inland appreciates the opportunity

to address these questions because our farm development has been stopped in it

tracks by the NMFS and its unreasonable, unscientific and unrealistic Biological

Opinion on our application to the U.S. Army Corps of Engineers (the ‘‘Corps’’) for

a new pump station from the John Day Pool on the Columbia River.

I cannot address your second question regarding consistency between NMFS and

Fish and Wildlife Service activities under the ESA. Inland has had no dealings with

the Fish and Wildlife Service, only the NMFS. Given our experience with the

NMFS, enactment of H.R. 4335 seems like a good idea. We certainly do not need

two Federal agencies implementing the same statute. I have to think that the Fish

and Wildlife Service has had enough experience under the Act that it would not

have issued the unscientific, highly political Biological Opinion NMFS issued on Inland’s application.

My testimony will focus on Inland’s experience with NMFS implementation of the

ESA: (1) its consistency with the Act; and (2) its cost effectiveness.

On May 2, 1996, Inland filed its application with the Corps for a new pump station on the Columbia River. The existing point of diversion for the water rights on

the property is on the Willow Creek arm of the Columbia. When Inland advised the

Oregon Water Resources Department (‘‘WRD’’) of its intent to complete development

of the existing water rights, the WRD contacted the Oregon Department of Fish and

Wildlife (‘‘ODFW’’). ODFW expressed concern that increased pumping from the Willow Creek pump station would harm listed salmon and steelhead by attracting them

into the mouth of the creek. In response to this concern and to avoid problems with

the existing pump station if the John Day Pool were ever drawn down, Inland

agreed to build a new pump station. A new pump station requires a section 10/404

permit. The permit application triggered consultation requirements under section 7

of the ESA. Inland included an environmental assessment and biological assessment

with its permit application in May 1996.
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Inland has obtained local zoning approval, a state fill and removal permit for construction, department of environmental quality 401 Clean Water Act certification,

and water right permit extensions from the OWRD needed to develop the new farm.

In spite of nearly a four year effort, however, we cannot begin work on the new

pump station.

Why? The May 16, 1997 Biological Opinion issued to the Corps by NMFS.

A detailed permitting chronology is attached to my testimony as Exhibit A. The

key points are that the Corps determined on July 19, 1996 that the proposed pump

station would not be likely to adversely affect any of the listed salmon stocks in the

Columbia River. NMFS disagreed with the Corps and asked for a supplemental biological assessment. Inland submitted this to the Corps on September 18, 1996. The

Corps reviewed it again, and again concluded on October 31, 1996 that the proposed

new pump station would not adversely affect listed species. NMFS did not issue its

Biological Opinion until May 16, 1997. A copy of the Opinion is attached as Exhibit

B.

The ESA and its implementing regulations require consultation to be completed

within 90 days. They also require NMFS and the Corps to explain to an applicant,

in writing, if a longer period of time is required. In our case, the NMFS Biological

Opinion was not issued until over one year after our application to the Corps and

nearly eight months after the Corps submitted the supplemental biological assessment to NMFS. These delays in the consultation process are unconscionable. Applicants are forced to agree to extensions of the statutory timelines under the threat

of an adverse opinion if they do not. Congress should impose the same type of hammer on Federal agencies under the ESA that the Oregon Legislature has imposed

on many state and local government permitting activities. If NMFS fails to provide

its opinion in a timely fashion, the requirement for the opinion should be waived.

The ESA also requires the action agency and the NMFS to use the best available

scientific information in preparing biological opinions. In our opinion, NMFS failed

to do so. To understand how flawed the NMFS analysis was, you need to understand what the impacts of our project will be. You should also remember that we

are completing development under existing water rights that are already partially

developed.

The Inland project when fully developed will pump a maximum of 303 cfs. The

peak withdrawal actually will occur only for about two weeks each season. The biological assessment reviewed and approved by the Corps concluded that this diversion would have no significant impact on smelt survival during out migration, nor

on fish travel time in the John Day Pool. Under low flow conditions, the largest estimated impact on yearling chinook would be a total of 16 fewer smalls out of

16O,OOO migrants. The largest impact on travel time is 0.01 days, or about 15 minutes for fish experiencing a migration of weeks or months. The Inland project would

only divert two and one half one hundredth of one percent (0.025 percent) of the

Columbia River system’s water. The impact on flows in the river is so small it cannot be measured. This analysis was done by leading experts on Columbia River

flows and fish. The Corps’ experts agreed with it. In spite of this, NMFS concluded

that issuance of the permit would be likely to jeopardize the continued existence of

listed salmon in the Columbia and result in destruction or adverse modification of

their critical habitat.

Why did the NMFS reach this conclusion? NMFS acknowledges that the Inland

diversion is only a small fraction of the river’s flow and that Inland’s fish screens

and construction methods would avoid impacting the listed fish. NMFS reached its

jeopardy conclusion entirely on the ‘‘cumulative impact’’ of Inland’s withdrawal

when combined with all irrigation withdrawals in the entire Columbia Basin. NMFS

decided that no more water should be allowed to be diverted from the river, even

under existing state water rights, until the target flows established in NMFS’ 1995

Biological Opinion on the Columbia River hydroelectric system are met.

There are two fundamental problems with the NMFS analysis. First, the NMFS

flow targets are unrealistic. Second, NMFS’ analysis of the impact of irrigation withdrawals on Columbia River flows is flawed and was applied incorrectly and unfairly

to the Inland project. Both of these problems arise from NMFS’ opinions about river

hydrology, not biology. NMFS is staffed largely by biologists, not hydrologists. It is

baffling that NMFS, with no expertise on river hydrology, could trump the opinion

of Corps experts on hydrologic impact analysis, when the Corps truly is the Federal

expert on river flows and modeling.

Several reports analyze the NMFS flow targets. The fact is that NMFS flow targets have never been met in the known history of the river. Recent reports by consultant Darryll Olsen and by Carl Dreher of the Idaho Department of Water Resources show that the NMFS flow targets could not be met even if all irrigation in
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the Columbia River Basin were eliminated. How can NMFS continue to assert that

the flow targets are based on the best available scientific information?

NMFS’ use of the Bureau of Reclamation’s draft report on the cumulative impacts

of irrigations withdrawals on flows in the Columbia are even more flawed. NMFS

requested the study and acknowledges that it is only a draft and only provides

rough evaluations of impacts in low flow years. Based upon our discussions with Bureau of Reclamation staff, we believe NMFS knowingly misused and misinterpreted

the Bureau’s data to reach the result in wanted to reach politically in issuing the

Inland opinion.

Inland is being made to pay the price for all of the water withdrawals that have

ever occurred in the Columbia Basin. The Bureau of Reclamation study counted the

full amount of water use authorized under all state water rights (including permits,

certificates and decreed rights) as water withdrawals. Based on this study, NMFS

concluded that ‘‘but for irrigation withdrawals, our ability to meet spring and summer stream flow objectives would significantly improve.’’ The NMFS rejected the

Corps’ analysis of the impacts of the Inland project because the Corps did not take

into account the ‘‘contribution of existing water withdrawals’’ to the baseline condition. In its analysis of current water withdrawals and assessment of future water

withdrawals, NMFS counted partially developed unperfected water right permits,

such as Inland’s, as contributing to withdrawals. Counting all existing certificated,

decreed and permitted water rights as withdrawals of water from the Columbia in

determining the effect of water withdrawals on flows makes no sense. Every water

right is not used every year and most water rights do not use the full amount of

duty authorized. The NMFS analysis grossly overstates the impact of water withdrawals on flows. NMFS even counted non-hydraulically connected groundwater

rights as contributing to the alleged flow depletions.

Based upon this, the NMFS is not using the best science available.

The ESA requires the NMFS to provide a ‘‘reasonable and prudent alternative’’

to the proposed action if it issues a ‘‘jeopardy’’ opinion. The NMFS ‘‘reasonable and

prudent alternative’’ for the Inland project requires that:

‘‘so that no water withdrawal occurs during times designated as flow objective

periods in the FCRPS opinion unless: *** the permitted proves to NMFS’ satisfaction that he will provide for in stream use, at the point of diversion or upstream of this point during periods when flow objectives are not expected to be

met, an amount of water from completed water rights that is equivalent to the

flow depletion caused by the new use. This replacement flow is intended to result in zero net impact of the new diversion on flow targets’’ (emphasis added).

NMFS adopted this unprecedented ‘‘zero net impact’’ policy as a reasonable and

prudent alternative and imposed it for the first time ever on Inland.

The ESA and its implementing regulations are clear that in order to be a ‘‘reasonable and prudent alternative’’ the alternative must meet the intended project purpose, be able to be implemented consistent with the action agency’s statutory authority, and be economically and technologically feasible. 50 CFR Section 402.02.

NMFS believes that the alternative required in its Biological Opinion can only be

satisfied if Inland either does not divert water during periods when target flows are

not being met; or replaces any water it diverts with other water rights dedicated

to instream flows. If this is what the alternative requires, it does not meet the definition of a reasonable and prudent alternative because (1) it cannot be implemented

in a manner consistent with the intended purpose of Inland’s farm project; (2) cannot be implemented consistent with the Corps’ legal authority and jurisdiction; and

(3) is not economically and technologically feasible.

In order to finance development of a new farm of this size, Inland must rely upon

project financing from banks or other lenders. These lenders will not loan money

unless they are sure that the loan can be repaid over the life of the project. Lenders

will require assurance that the conditions of the 404 permit and all other permits

will be able to be met over the term of any project loan. This means that Inland

cannot wait and see whether target flows are being met in any given year and then

arrange mitigation on an annual basis. The project cannot be built unless Inland

can show lenders that it can provide replacement flows every year. Inland cannot

develop its project not knowing from year-to-year whether it will be able to irrigate

the land.

The Corps may have the legal authority under Section 404 of the Clean Water

Act to condition permits to meet the requirements of the ESA, but the Clean Water

Act expressly recogmzes the authority of the states over water rights and states that

the states’ authority should not be abrogated or superseded by the Clean Water Act,

33 USC § 1251(g). As NMFS interprets the Biological Opinion, Inland’s existing

water right permits are essentially worthless. Target flows were not even met last

year when there were record snowpacks and flows in the Columbia Basin. The tar-
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get flow period extends over eighty percent of the irrigation season. NMFS is requiring Inland to acquire sufficient water rights to irrigate the entire farm to replace

the water that would be diverted under Inland’s existing permits, or to not divert

at all during eighty percent of the irrigation season. If the Corps imposes such a

condition in the permit, it would violate the Clean Water Act by making Inland’s

existing state permits worthless.

Ever since the Biological Opinion was issued Inland has tried to figure out a way

to meet NMFS’ requirements. NMFS never even discussed Inland’s project purpose

or economic and technical feasibility of the ‘‘reasonable and prudent alternative’’

with us before it issued its opinion. In spite of lengthy discussions with NMFS, the

Corps and state officials, we have not figured out a way to meet the requirements

of this supposedly reasonable alternative. It is very difficult under current state law

to acquire existing water rights and convert them to instream uses. Even the Bureau of Reclamation’s flow augmentation program has been for short terms. The

holders of existing water rights are not willing to transfer them for the period needed for Inland’s project financing. There is no organized market for such water transfers; they must be arranged with individual landowners which is time-consuming

and uncertain. For all of these reasons, Inland believes that the NMFS interpretation of its own ‘‘reasonable and prudent alternative,’’ when tested against the real

world situation facing Inland, does not meet the definition of a reasonable and prudent alternative at all.

In spite of the NMFS’ questionable flow analysis and seemingly unachievable alternative, Inland met with the Corps to try and satisfy the NMFS alternative. Inland and the Corps agreed on an approach we thought would work. We met with

NMFS officials on July 31, 1997 to explain our approach. Inland and its lessor offered to voluntarily cancel 12,120 acres of the existing water rights to mitigate for

developing the rest. NMFS representatives were not receptive to the proposal. A

copy of the Inland proposal is enclosed as Exhibit C for your information. Inland

believes that the proposal exceeds the requirements of the Biological Opinion. Inland would ensure that valid existing water right permits that have been partially

developed will be permanently reduced at a ratio of 1.5 to 1. The replacement flow

offset would exceed the peak amount the project would ever use, even though the

peak withdrawal would actually only occur for about two weeks a year. Inland believes that its proposal assures no net loss of flow as required by the biological opinion. The only reason that the NMFS disagrees is that the NMFS thinks partially

developed water rights should not be counted for purposes of offsetting future diversions. NMFS suggests that reducing rights under existing permits is a ‘‘paper exercise’’ that will not truly replace flows diverted for the new project. As discussed in

our letter to the Corps of Engineers dated February 4, 1998 (attached as Exhibit

D), the NMFS position is directly contrary to its own analysis of the effects of the

project which counted unperfected rights in the baseline and in the analysis of cumulative effects.

NMFS should not be able to have it both ways. If unperfected or partially perfected permits count for purposes of concluding that irrigation withdrawals are significantly impacting the listed species, then partially perfected permits should count

if they are canceled in order to reduce the impact of such diversions on the species.

What does this NMFS position really mean?

• If any water permittee pumps more water next year than they pumped the

year before, resulting in additional development under existing water rights,

the Corps must reinitiate consultation with the NMFS on the impacts of the

pumping.

• In order to continue to develop existing valid state water rights, cities, farms,

ports and other businesses will have to somehow obtain duplicate water rights

and dedicate them to in-stream flows even though the permittee has valid state

water rights and valid existing Federal permits for their pump stations.

If the NMFS approach is followed, the Federal Government would be sending a

very unfortunate message to water users in the Columbia/Snake Basin. The message would be that no one who has to divert water from the river under either a

new or an existing Section 404 permit can do so and still comply with the ESA. If

the Clinton Administration wants to assure that growing cities and towns and the

irrigation community avoid any Federal involvement requiring ESA compliance, this

would be a great way to do it. Rather than encouraging salmon recovery efforts, the

NMFS policy discourages it.

As noted in the permit chronology, we were told throughout the discussions with

state and Federal officials that every mitigation proposal we made and every variation we suggested was not acceptable to NMFS. Frankly, we faced a problem of

‘‘bring me a rock’’ with NMFS never explaining what kind of a rock they wanted.

Instead, they simply rejected every feasible suggestion we made and insisted that
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the only acceptable solution would be somehow obtaining water rights equivalent to

the maximum water withdrawal the project would ever make and dedicating them

to instream flows. Perhaps the most frustrating moment came at a meeting in November 1997 when NMFS suggested, for the very first time, that Inland might be

able to do a habitat conservation plan (‘‘HCP’’). Frankly, after six months of attempting to get straight answers from the agency, Inland had no desire to embark

on an HCP since NMFS could provide us with no guidance on what would be required, how long it would take or the likelihood of getting approval.

You can imagine our frustration when NMFS announced in June 1998 that it had

entered into an HCP with two public utilities in the mid-Columbia allowing them

to continue to operate hydroelectric facilities which kill fish. Their ‘‘no net impact

commitment’’ simply requires them to meet a 95 percent survival rate for juvenile

and adult salmon passing through the dams and reservoirs and a 91 percent overall

survival rate. Inland’s diversions would not impact even a fraction of the listed species affected by these dams. Why will NMFS reach an HCP agreement with public

utilities, a no jeopardy opinion for the Federal hydro system and a no jeopardy opinion for sport and commercial fish harvests allowing all of them to directly kill fish

while they will not allow a farmer to move an irrigation diversion point for existing

state water rights that will have an immeasurable impact on flows and fish survival?

No one appears willing to insist on good science from NMFS. Inland believes that

the Biological Opinion on its project was issued for political purposes to placate environmental organizations, not because of any scientific justification. NMFS seems

willing to live with a flawed cumulative effects analysis that grossly overstates the

impact of irrigated agriculture on river flows. The NMFS view appears to be that

any water withdrawals from the Columbia Snake River system are bad and should

be discouraged and cut back. This is completely unrealistic given the population

growth in the region, let alone the need to maintain the net base of irrigated lands.

The NMFS no net loss policy cannot be met under existing state water law. Fundamentally, NMFS has told farmers in the Columbia Basin that further development of existing water rights will not be permitted if it requires any kind of permit

from the Corps of Engineers or another Federal agency. Basically, NMFS is taking

existing state water rights from landowners in order to create theoretical benefits

for fish that cannot be measured in reality.

Inland is willing to address the real environmental impacts of its project. Inland

is willing to give up a portion the water rights it now has and to commit to the

highest standards of water conservation in its operations. Rather than providing encouragement and incentives for companies like Inland to invest in effective mitigation efforts for the listed species, NMFS prefers to impose conditions that are impossible to meet in order to shut down water development.

Is NMFS implementing the ESA consistent with the law Congress passed? In my

opinion, no.

Is NMFS implementing the ESA cost effectively? Again, in my opinion no.

Inland has spent nearly $1 million trying to permit its project and because of

NMFS we still cannot proceed. A fisheries biologist for the Corps Portland office

said it best when he interrupted me during a technical presentation I was making

on our project’s non-measurable impact on fish survival when he said, ‘‘. . . excuse

me Bob, this isn’t about science and biology, this is about politics.’’
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STATEMENT OF FRED ZIARI, CHAIRMAN, EASTERN OREGON IRRIGATION ASSOCIATION

My name is Fred Ziari and I am the chairman of Eastern Oregon Irrigation Association, located in Hermiston, Oregon. By profession I am an irrigation engineer

with over 18 years of experience in water management fields in the Pacific Northwest. The Eastern Oregon Irrigation Association appreciates the opportunity to

present its views on the role of the National Marine Fisheries Service on the management of our Columbia/Snake River. Our Association represents farmers, ports

and water users in Eastern Oregon.

Our members have a long history of working in a cooperative manner with Congress, State, Tribes and Federal agencies in implementing and enhancing fish runs

in Eastern Oregon. Over the past fifteen years, our farmers working cooperatively

with the Confederated Tribes of Umatilla and the related agencies have successfully

implemented the Umatilla Basin Project, which has brought salmon back to our

river and has become a model of successful salmon recovery in the Northwest.

We live in an area that on average receives less than 8 inches of rainfall a year.

Consequently our communities are totally dependent on the Columbia River for its

agriculture, industries and municipal drinking water supplies.

With the use of high technology such as satellite, aerial infrared, intensive soil

moisture and crop monitoring, and the use of precision agriculture, our farmers

have implemented one of the most extensive water conservation projects in the nation. This conservation effort has resulted in water savings of over 20 percent. We

irrigate some 200,000 acres of lands in Eastern Oregon. Almost all of our products

are processed locally and values are added. Annually over 80 percent of our agricultural products valued between $800 million to $900 million, are exported out of our

region and most for overseas market through the efficient and economical Columbia

River barge transportation system. About 8,000 people in our sparsely populated

area are employed in agriculture and related food processing. We do all this with

the use of only less than 0.3 percent of the Columbia River water.

Let me make one thing very clear, that the Columbia River system, which is the

second largest river in the country, is not an over-appropriated river, as some may

want you to believe. A total of only 7 percent of Columbia River water is utilized

for agricultural, municipal, and industrial use in Oregon, Washington, Idaho, Montana, and part of British Columbia. Our farmers are a vital part of providing food

for our citizens at home and the hungry world abroad, and we are very proud of

that achievement. As the world population are expected to reach to over 10 billion

people in the coming decades, our ability to produce high quality and affordable food

supplies becomes even more vital.

All of these achievements are now in jeopardy through unrealistic dam removal

and excessive flow augmentation proposals by our Federal agencies. We watch with

bewilderment, how the National Marine Fishery Service and an army of other Federal agencies, have totally abandoned cooperative spirit of working with local officials and the resource users. At the same time they have wasted billions of dollars

of Northwesterners’ ratepayer’s money with nothing to show for it. When they were

presented with a resolution to a problem by natural resource users, they instead decided to implement a mean-spirited policy to inflict pain and suffering to water

users and landowners. A good example of this politically driven rule making is ‘‘flow

augmentation’’ and the total shutdown of the river system under the ‘‘zero net water

loss’’ policy. This policy is of the utmost concern to all of our communities in Eastern

Oregon.

Under the ‘‘flow augmentation’’ policy, NMFS arbitrarily requires a minimum flow

of 220,000 cubic feet per second up to August 15th at the McNary Dam, which is

more water than is naturally available in the Columbia River system. Our average

flow for the month of August is 125,000 cubic feet per second. If we shut down all

of our water uses in the Pacific Northwest we still can not meet this flow target.

This goal is not achievable, it is not scientific, and biologically has not been shown

to aid in salmon recovery.

The ‘‘zero net water loss’’ policy is a reactionary policy based on no meaningful

or defendable analysis, no consultation with other Federal or state agencies, while

at the same time they have failed to follow their mandated Reasonable and Prudent

Alternative (RPA) rules. This policy impacts everyone in the Northwest that depends on the river and above all it violates our state water laws.

This policy not only impacts our farmers and food industries, it also severely restricts our cities’ ability to meet the drinking water supply needs of their citizens.

Case in point, I am the engineer for the city of Umatilla, Oregon, a town of about

3,300 people located on the Columbia River, 25 miles south of here. Following a

state-wide search for a suitable sites, the State of Oregon is now constructing a new

state prison in Umatilla which will house 1,500 prison inmates and employ 500
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staff. To serve this facility, the City holds a state-approved water right to appropriate a mere 23 cubic feet per second from the Columbia River which has a mean

river flow of over 200,000 cubic feet per second. But this permit which they worked

so hard to get has been nullified by NMFS without a hearing or compensation. The

City is wondering, now what, and how will they meet the needs of their citizens.

There are other Cities in Eastern Oregon that are facing the same dilemma.

Recommendation for Congressional Action

It is obvious to our members that the NMFS management policy is a failure that

has not produced a workable regional plan to recover endangered salmon, nor do

we have any confidence in them to produce a workable plan in the future.

• It has become obvious to us that the present NMFS Salmon recovery strategy

is one of partisan political strategy, not a scientific or even common sense

solution. We ask your help in overseeing their actions and to help bring accountability into the process.

• Our farmers are the stewards of the land and they own over 70 percent of the

riparian salmon habitat along the rivers. However, these vital economic stakeholders have been totally dismissed and shut out of this recovery process.

American citizens would have been totally outraged if for example the government of Brazil did the same thing to Yanomami Tribe of Amazon. For a meaningful recovery plan, landowners must be part of the solution and be represented at the table. We ask your help by empowering the resource users in

this process, and by supporting provisions in Senator Gordon Smith’s S. 2111.

•The main problem may not be NMFS (although they have lost many opportunities to make a difference), but it is the unworkable ESA process that so far

has failed miserably and in my opinion has not effectively recovered any species. We recommend that a bipartisan committee of the House and Senate with

the aid of a renowned scientific panel to investigate the effectiveness of ESA

process in recovering species and make recommendations for its improvement.

NMFS management policies should provide a good case study.

• ESA must be modified so that cooperative, and volunteer recovery plans

such as the Umatilla Basin Project which was successfully implemented by our

local communities, or the one proposed by State of Oregon, the so called ‘‘Oregon Plan’’ can be the focus of a cost effective recovery plan. By the way a Federal Judge recently overturned this popular, voluntary ‘‘Oregon Plan’’ which has

frustrated our Oregon Governor, Legislators and most of the citizens and is a

prime example of flawed ESA processes that presently NMFS is so vigorously

pursuing.

• We support the provisions of H.R. 4335 and believe it may be a more appropriate vehicle of species recovery provided some modification to ESA is implemented.

On behalf of our members we thank you for the opportunity to comment on this

important issue which is vital to both our economy and our environment.

STATEMENT OF ALEX MCGREGOR, STATE PRESIDENT, WASHINGTON ASSOCIATION OF

WHEAT GROWERS

A flood of economic grief would be unleashed if the four lower Snake River dams

were breached. Before this experiment to save dwindling salmon runs is imposed

on people of the Northwest, we must look at the effects of dam breaching objectively.

We must first look at what will be sacrificed in an experiment that may fail to save

the fish.

Some facts help put the impact of dams breaching in perspective.

•The 1,250 mega-watts of the four Snake dams is equal to 20 percent of Pacific

Northwest residential needs, or over 100 percent of residential needs for Idaho

and Montana combined.

• Navigation value is $414 million per year.

• Irrigation loss on over 36,000 irrigated acres representing annual farm value

of $100 million to $150 million.

• Dam decommissioning costs would be between $500 million and $816 million—

with concrete removal, between $848 million and $1.22 billion.

• Remaining BPA debt on the four dams is $864 million. BPA would lose $200-

million annually, and its financial stability would be determined by an uncertain future electricity market.

I am most familiar with wheat production in Washington state and so use these

figures to show the ripple effect of dam breaching beyond any one state’s borders:

Washington wheat contributes nearly $1.2 billion to the state’s economy annually,
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with up to 90 percent of wheat being exported. Commodity shipments on Lower

Snake barges are expected to increase by about 1 percent per year for the next 25

years, if the dams remain. That means in 2022 there likely will be about 5.2 million

tons shipped compared with about 4.2 million today. The multimillion-dollar question is, ‘‘If we lose navigation, where is all this traffic going to go?’’ Rail and roads

are not adequate to the task.

The above question is as relevant to the environment as well as to economic

health in the Northwest. Barging is efficient regarding emissions.

• Hydrocarbon emissions: navigation is 20 percent of rail and 14 percent of

truck.

• Carbon monoxide emissions: navigation is 29 percent of rail and 11 percent of

truck.

• Nitrous oxide emissions: navigation is 29 percent of rail and 5 percent of

truck.

• Barging efficiencies also extend to fuel use.

• A ton of commodity can move 514 miles by barge on one gallon of fuel.

• A ton of commodity can be moved 202 miles by rail on one gallon of fuel.

• A ton of commodity can be moved 59 miles by truck on one gallon of fuel.

Additionally, hydropower is renewable, plentiful and non-polluting. Compare this

to fossil fuels and nuclear energy as the next best alternatives for large-scale energy

production.

If barge navigation were halted, an additional 120,000 rail cars would be required

annually, or an equivalent of 700,000 semi-trucks, greatly increasing highway congestion and/or traffic backups at railroad crossings. It would take an additional

204,320 semi-trucks or 51,080 more railcars to handle just the wheat that is now

carried on barges if barging were discontinued above McNary Dam.

Revenue from the natural resources industries is an economic tributary running

through the Northwest and it must be guarded to protect the human species. Wheat

and other exportable crops are an important part of that tributary. The wheat commissions of Washington, Oregon and Idaho, as well as the grassroots grower associations in each of the three states, are united in their opposition to an experiment

that not only may fail, but may cause hardship to people in this great region.

Notions that we can turn back the clock, breach the dams, or lower the water to

a ‘‘natural’’ level seemed farfetched when we first heard them a few years ago. Some

activist groups view dam breaching as a way to return the river to its ‘‘natural’’ wild

state of the past. Those of us who have lived near the river since before building

of the dams realized no amount of money or nostalgia will bring back those former

times. But the economic devastation our state would suffer in this forlorn search

for the ‘‘natural’’ world few knew would be considerable.

DAVID J. STUECKLE,

LACROSSE, WASHINGTON,

September 2, 1998.

The Hon. DON YOUNG

Chairman, Committee on Resources,

House Resources Committee

U.S. House of Representatives,

Washington, DC.

Hearing—Pasco, Washington, September 2, 1998

Dear Sir:

Just a few words about how important the dams on the Columbia and Snake Rivers are to agriculture in the Northwest. The railroads are gone and our local roads

can not handle more load. The counties can’t keep up with maintaining the roads.

The barge traffic is very vital to get our crops to market year around.

It upsets me a great deal that the NMFS has not considered the impact that dam

removal will have on our economy.

I don’t want a Federal agency messing with my water rights.

Hydroelectric power is important to our area because of the large irrigated area.

Thank you for considering my concerns.

DAVID J STUECKLE,

LaCrosse, Washington
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WEST COAST SEAFOOD PROCESSORS ASSOCIATION, PORTLAND, OREGON, LETTER TO

HON. DON YOUNG

We recently reviewed a copy of H.R. 4335, the ‘‘Endangered Species Consolidation

Act’’ which you introduced with several House colleagues. We understand that your

Committee will be holding field hearings on the bill in September and ask that

these comments be included in the hearing record. These comments are submitted

on behalf of the West Coast Seafood Processors Association, whose members have

seafood businesses in Oregon, Washington, California, and Alaska.

Two years ago, you introduced legislation reforming the Endangered Species Act

(ESA) which—among other things—made some of the same changes in law as does

H.R. 4335. At the time, we generally supported ESA reform but expressed our concern with removal of the Secretary of Commerce from the ESA process. Subsequently, your Committee reported the bill with an amendment which maintained

the Secretary of Commerce’s role. We are therefore puzzled as to why the Committee is again looking at taking away the Secretary of Commerce’s responsibilities

under ESA.

We understand the frustration that land-owners and land-based resource industries have with the emphasis that the Department of Commerce has put on salmon

restoration. As we and others testified before your Committee in April of this year,

the Federal Government has poured billions of dollars into Columbia River salmon

recovery, yet wild salmon returns are lower than when the recovery program started. At the same time, the Department of Commerce has virtually ignored the Pacific

groundfish fishery, which in Oregon has a value greater than all other fisheries

combined. Could money be better spent? We certainly think so.

We also understand the concern that land-owners have to deal with several different Federal agencies under ESA. Again, we have the same concern. For the most

part, we are able to deal with one Federal agency—the Department of Commerce—

when it comes to ESA actions affecting marine fisheries. However, long-liners in

Alaska and gillnet fishermen in Washington must deal with both the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS) on

seabird entanglement issues. Dive fishermen in California must deal with USFWS

in regard to sea otter interaction. The problem—and the frustration—is the same

at sea as it is on shore, but the answer is not to solve the problem on land by shifting the burden to small businessmen who make their living on the ocean.

Here are examples of some of the problems that will result if H.R. 4335 is passed.

The Pacific whiting fishery off California, Oregon, and Washington is managed by

NMFS under a fishery management plan developed by the Pacific Fishery Management Council. NMFS and the fishing industry have long recognized that a certain

level of salmon bycatch occurs in the fishery. Accordingly, NMFS issues a biological

opinion specifying the allowable level of bycatch and the industry takes steps to

monitor and avoid bycatch to stay within that allowable level. Both NMFS and the

Council have found this to be a logical and acceptable arrangement.

If H.R. 4335 were enacted, the issuance of a biological opinion and any arrangements to avoid salmon bycatch would fall under USFWS, an agency that has little

knowledge and no experience with marine fisheries. In fact, section 2(d) of the bill

would give USFWS management authority over any marine fishery that interacted

with an endangered or threatened species. Marine fisheries management is convoluted enough without bringing in another Federal agency with no expertise in the

area.

In Oregon, Pacific groundfish fishermen, processors, and recreational anglers are

already paying the cost of marine fisheries management through licenses, fees and

taxes, as well as paying for endangered salmon programs in our State. We neither

want nor need the additional burden of having marine fisheries management turned

over to the Department of the Interior.

A similar problem would occur in Alaska, where several marine mammal species

are listed as threatened or endangered. Again, fisheries management authority

would be removed from the relevant Council and NMFS, and placed in the hands

of USFWS. The same problems would occur in New England (harbor porpoises and

whales) and in the Gulf of Mexico (sea turtles). On the international front, NMFS

would be removed from ICCAT if bluefin tuna are listed and from IATTC (threatened species of porpoises). In Hawaii, interactions between monk seals and long line

fishermen would now come under the jurisdiction of USFWS.

The Alaska Congressional delegation has worked hard to prevent the Department

of the Interior from taking over fish and game management in Alaska under subsistence regulations; it seems inconsistent to allow that same agency to take over

marine fisheries management in the entire country.
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Just this week, you were quoted in the press as saying ‘‘everyone wants the Endangered Species Act to work effectively.’’ We agree; like you, we support ‘‘the much

needed ESA reform effort.’’ Unfortunately, H.R. 4335 does not provide that reform;

it simply shifts a set of problems from small businessmen on land to small businessmen on the ocean.

We believe that there are better, more effective ways of alleviating the regulatory

burden faced by land-owners and land-based resource industries. We are interested,

as we have always been, in working with those entities, with you, and with your

staff in finding reasonable answers to problems that we all face. However, H.R. 4335

as presently written is not one of those answers. Thank you for providing us the

opportunity to comment

LETTER FROM LINDA M. JOHNSON, DIRECTOR, GOVERNMENT RELATIONS, WASHINGTON STATE FARM BUREAU, OLYMPIA, WASHINGTON

Dear Committee Staff:

Enclosed is our testimony which we would like to have submitted for the record.

I was in attendance at the hearing but in the confusion of the day, simply forgot

to submit our testimony to your staff in attendance. Also included are copies of several letters one faxed to me by a member the other handed to me at the hearing.

They asked me to be sure they were also submitted for the record as well.

Please thank the Chairman for scheduling this hearing and all of the Committee

members who were in attendance. Also, a hearty thanks to the Committee staff as

well. We know that meetings which go as smoothly as this one did only happen because of the behind the scenes effort of staff.

As you know it was well attended and our members that were in attendance were

very pleased with the messages which were delivered. We truly appreciated the opportunity to attend this important hearing.

If you have any questions, please don’t hesitate to call me at the number shown

above.

STATEMENT OF THE WASHINGTON STATE FARM BUREAU, OLYMPIA, WASHINGTON

The Washington State Farm Bureau is very concerned with NMFS approach to

saving the salmon under the jurisdiction of the ESA and their desire to breach the

dams along the Snake and Columbia River.

First we feel it is important to point out that the WA State Farm Bureau actively

worked with the Joint Committee on Salmon Recovery for the past year and a half

to create and pass legislation which would help to protect and recover the salmon.

There were several pieces of legislation which were passed unanimously by the

House and the Senate and signed by our Governor. The actions and the money

which was allocated proves that our state and our farmers are determined to do the

right thing, protect and recover the salmon.

It is important to note that these bills depend on working closely with the landowners. Much of the habitat for salmon is located on private property. Landowners

are willing to work towards this worthwhile goal as long as Agencies and Congress

understand that people have to fit in this equation.

NMFS has not been an easy agency to work with and often times have been a

major stumbling block to our local efforts. They seem to have forgotten that the

Grand Coulee dam was specifically built for irrigation of the Columbia Basin. They

seem to have forgotten how important the power generated by the dams in our state

is to the survival of the farms which were created because of the promise of irrigation water and power.

As a result of these dams we have an excellent transportation system which is

environmentally friendly. This barging system handles shipments of wheat and corn

from as far as the midwest. By shipping freight on the river we actually help to

improve the air quality in our state through fewer air emissions. We also help to

cut our dependency on foreign fuel because it takes far less fuel to ship by water

than by either rail or truck.

Supporters of breaching the dams state that trucking and railroads will pick up

the shipments. The existing transportation infrastructure is incapable of handling

the increased freight. Eliminating barging would result in a marked increase of traffic on our already overloaded freeway system which leads into our port systems on

the West Coast. We already have a freight mobility problem which we are trying

to solve and this will only add to the problem. The highway system in Washington

State is simply not capable of handling the amount of freight that is shipped up

and down these rivers.
101

Unfortunately, railroads eliminated a vast majority of their unprofitable spur

lines years ago. This means that it will be almost impossible to bring rail back to

the areas economically. Not to mention the fact that the railroads already can’t meet

the current needs of wheat shipments.

Supporters of breaching dams state that it won’t disrupt irrigation. Unfortunately

when you lower the river to the levels they suggest our irrigation pipes are left

sucking air instead of water. The cost of extending these irrigation pipes is not a

cheap endeavor for farmers. Who is going to help cover this cost? That’s assuming

the farmers would even be allowed to, which is highly questionable when you view

the way the environmental organizations currently use the court system.

The power generated by the Bonneville Power system is a very important component of the success of farming in our state. As a result of reasonable electricity

rates, we have farmers who have made major investments in irrigation equipment,

dairy milking barns, and other capital investments. We have numerous food processing facilities which have been built to process the crops grown in eastern Washington, which also require reasonable power rates. Eliminate the access to reasonable priced power and many of these investments may not pay. Not to mention the

number of jobs generated by the farms, and the supporting industries.

The dams were also built for flood control, which seems to be conveniently forgotten by supporters of breaching. Is the government prepared to fund FEMA for the

flood damage which will result if dams are breached?

Contrary to the belief of supporters of breaching dams, generations of family

farms would not survive for many of the reasons mentioned above.

Next we want to point out that NMFS has been remiss in its duties. They have

not researched the problems of the predators to the salmon. We have sea lions

which are protected under the ESA feasting on salmon at the mouth of the rivers.

We have sea gulls and terns which are also voracious predators. Why have they not

expressed concern about predator control and done something about this? NMFS appears to have no studies which look at what happens to salmon when they are in

the ocean. This is an important part of the salmon life cycle and yet it is a black

hole as far as research. Why? Where is NMFS on this important piece of the puzzle?

What about drift nets on the high seas? Not to mention the gill nets which are

place in the river by the Indian tribes. Is anyone looking at these important pieces

to the puzzle?

Farmers are willing to do their part to provide good habitat for the salmon. But

who is going to guarantee that we have salmon returning once the habitat is fully

restored?

We hope that Congress will take into consideration the complexity of this problem

and allow the states of Washington and Oregon to move forward unimpeded. The

ESA is not working as it is currently written and it is time to take a close look at

what needs to be changed to make it work as Congress originally intended, before

the economy of Washington State is devastated in the admirable hope of saving

salmon.

We ask that Congress take into consideration the people of Eastern Washington

who face this economic disaster. We believe that a little common sense can go a long

ways and the result will be both salmon and people surviving.

STATEMENT OF RICHARD L. ERICKSON, SECRETARY-MANAGER, EAST COLUMBIA BASIN

IRRIGATION DISTRICT

Honorable Members of the Resources Committee:

Thank you for the opportunity to provide information to the Committee about the

effects on the Columbia Basin Project of the National Marine Fisheries Service’s Columbia River flow policies. The Columbia Basin Project, constructed by the United

States Bureau of Reclamation and now primarily operated by the East, Quincy, and

South Columbia Basin Irrigation Districts presently provides irrigation water to approximately 622,000 acres of farmland. This irrigation is accomplished by diverting,

at Grand Coulee Dam, approximately 3 percent of the Columbia’s flow. The Project

is authorized by Congress to ultimately irrigate 1,095,000 acres.

The NMFS mandated flow policy caused the Bureau of Reclamation in July of

1993 to impose an administrative moratorium on new Columbia Basin Project water

service.

This moratorium resulted in the shelving of all planning for further development

of the Columbia Basin Project. This action hit late in the EIS study process to enlarge an existing canal to provide Columbia River water to 87,000 acres. That planning effort had begun in 1983, was nearing completion at the time it was shelved

and had substantiated that this next phase of CBP development was economically
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feasible and had the support of both the U.S. Fish and Wildlife Service and the

Washington Department of Wildlife because of the considerable new fish and wildlife habitat that would be created on the Project. This cancellation occurred in spite

of the fact that the draft EIS demonstrated that the 87,000 acre development would

need only another 0.3 percent of the Columbia’s flow at Grand Coulee and that adverse impacts to anadromous fish would be negligible. That Bureau decision to stop

planning does not appear to us to have been science driven but rather based on political expediency.

This delay or cancellation of further development appears to many who are unfamiliar to be simply an opportunity foregone. However, between one-third and onehalf of those 87,000 acres are irrigated by deep wells. All these wells were permitted

by the State of Washington in the late 1960’s and early 1970’s at a density estimated to give that aquifer a 30 year economic life. That state action was taken with

the expectation that the Federal Government would continue the orderly phased development of the second half of the Project, gradually replacing that groundwater

source with surface water. Thirty years have now nearly passed. Many of those

wells are not sustainable long term. The draft EIS estimated that by 1989, the deep

well irrigation in the CBP second half area had declined from a peak of 110,000

acres to about 90,000 acres.

This NMFS inspired USBR moratorium has also taken authorized water supplies

amounting to about 85,000 acre feet per year from the already developed first half

of the Project. Because of the moratorium the Bureau has rescinded previously authorized contractual authorities for the Districts to irrigate about 13,000 more first

half acres, translating to about 39,000 acre feet. Also reneged on was authority to

provide up to 60,000 acre feet per year of Project water to area industries and communities far municipal and industrial use. The Project’s M&I ability is now capped

at the amount already then in use which is about 14,000 acre feet per year, locking

up the balance of 46,000 acre feet.

This NMFS driven, USBR enforced moratorium, exacerbated by the scarcity of

groundwater, has brought much of the Columbia Basin Project area to the threshold

of a no-growth scenario. To better understand that situation please consider the attached letter from the Port of Moses Lake.

We are often told that our response to this moratorium and the source of our future water supply should be increased water conservation. Significant conservation

is ongoing but is not a solution. In the East Columbia Basin Irrigation District the

average on-farm use of water is now about 3.5 acre feet per acre. That average use

was about 4.3 acre feet per acre in the past. That 0.8 acre foot per acre reduction

is nearly a 20 percent efficiency improvement and amounts to over 100,000 acre feet

annually. However, there is no sincere willingness by government to allow the use

of this conserved water to offset the effects of the Bureau’s moratorium. Every time

that concept is raised we are told that such use is contrary to Federal reclamation

law, contrary to Bureau policy and contracts, is water spreading, should carry a

much higher Bureau repayment cost and is contrary to state water law.

An outrageous example of the extent to which these NMFS flow policies is dictating Bureau of Reclamation actions is the recent agreement by USBR to run Columbia River hydrologic studies for the Columbia River Intertribal Fish Commission

showing Grand Coulee diversions to the Columbia Basin Project being reduced by

1 million acre feet per year. That would amount to a 40 percent reduction in the

water available to CBP farms. Crop diversity is one of the hallmarks of the Project

along with the multiple purpose use of Project waters for resident fish, wildlife and

recreation. Assuming a 40 percent shortage would be distributed uniformly throughout the Project, instead of growing 70 or so different types of crops each year, only

a handful would be possible—the potatoes, apples, onions and alfalfa hay, to name

a few, would no longer be possible. Such a shortage would also likely diminish the

Project created wetlands and lakes managed by the U.S. Fish and Wildlife Service

and the Washington Department of Fish and Wildlife. While the Bureau’s Acting

Regional Director has offered assurances that no such actual reduction is seriously

being contemplated, the fact that Bureau hydrologists would undertake a study that

is contrary to the Congressionally authorized purposes of the Columbia Basin

Project, that violates the Federal repayment contracts between the Bureau and the

Districts and that runs counter to the primary water supply mission of the Bureau

demonstrates that these Federal agencies are out of control in their zeal to enforce

the Endangered Species Act.

On behalf of the East, Quincy and South Columbia Basin Irrigation Districts, I

ask this Committee to use its considerable authority toward reducing these NMFS

flow targets to levels supported by valid hydrology and valid biology and to end the

Bureau’s moratorium.
103

Regarding H.R. 4335, which if enacted would consolidate ESA authority with the

Secretary of Interior, I’m not sure if that would be an improvement or not. In the

Northwest, NMFS is using its ESA authorities to further an agenda of dam removal

and single purpose control of mainstem flows. Judging from his statements and actions, the current Secretary of Interior has a similar agenda, especially regarding

dam removal. If Congress determines to consolidate ESA authority to a single agency, it needs to be done in a manner that requires the responsible agency to minimize

social and economic impacts as it administers the Endangered Species Act.

LETTER FROM PORT OF MOSES LAKE, MOSES LAKE, WASHINGTON

PORT OF MOSES LAKE,

MOSES LAKE, WASHINGTON

August 19, 1998.

Resources Committee,

124 Longworth House Office Building,

Washington, DC.

Honorable Members of the Resources Committee:

Thank you for your interest in overseeing Columbia and Snake River fish flow

augmentation targets being set by the National Marine Fisheries Service and other

Federal agencies. The purpose of this statement is to be sure the Committee is

aware that the NMFS flow targets are having impacts beyond those two rivers and

beyond the economic sectors which are direct river users. Moses Lake, Washington

is relatively far from the banks of the Columbia or the Snake but our community

is being affected by these federally mandated flow policies.

Much of Moses Lake’s industries are food processing companies that convert Columbia Basin area raw agricultural products to value added consumer food products

for domestic and export markets. In recent years, other types of industries have located in the Moses Lake area which manufacture non-ag products such as electronics materials, automotive components, industrial chemicals and metal products.

This diversification is important to our economy and the area’s working people to,

among other things, help smooth out the inherent cyclical nature of the ag sector.

These industries, ag and non-ag, have located around Moses Lake for a variety

of reasons, but an economic supply of electricity and a dependable water supply are

common needs of nearly all these manufacturers. Both of these fundamentals are

being threatened by the NMFS flow policies.

The Moses Lake area’s electricity is supplied by Grant County Public Utility District and most of that energy is generated at Priest Rapids and Wanapum Dams

on the Columbia. NMFS flow policies, enforced by FERC, are now to the point that

Grant PUD is having to spill something like 60 percent of the river’s spring and

summer flow thus idling many generators. This results in the need to purchase replacement power at a higher cost. Grant PUD has worked diligently with NMFS for

a couple of years to develop an ESA Habitat Conservation Plan. So far an affordable

HCP has not been possible. Grant’s rates continue to increase and there is concern

they may eventually exceed the region’s market rate. Many of our Moses Lake industries’ economic feasibility is very sensitive to power costs.

Most of these industries also need water for their manufacturing processes and

also for fresh water to blend with the process wastewater so that it can be treated

by land application. Most of this land application is done by irrigation of crops by

nearby farmers so the wastewater is actually supplementing our irrigation supplies

and has a beneficial effect on irrigation demands on the Columbia and on area

groundwater. However, the proportion of process water and either canal water or

groundwater for blending is critical both for wastewater treatment requirements

and for crop nutrient requirements. These canal water and groundwater supplies

are now on the verge of exhaustion.

The use of groundwater in our area has been maximized. There is little argument

about this from the ag sector, from municipalities and from industries. The circumstances under which the State will issue new groundwater permits are very limited. Complicating this even more is the fact that Moses Lake area groundwater is

naturally high in sodium and other salts making it more difficult to use for some

manufacturing processes and for blending water for wastewater treatment.

A number of Columbia Basin Project area food processors are using CBP canal

water for blending water and process water. These CBP municipal/industrial supplies should be our supply for the future. That is not presently possible on any

meaningful scale. The NMFS flow policy, since 1994, has caused the Bureau of Reclamation to impose a moratorium on any new CBP water services, including M&I,

even though previously existing reclamation contracts and state water rights certifi-
104

cates and permits provided for several thousands of acre feet of M&I service. The

only M&I water now available through the Bureau of Reclamation and the irrigation districts is what comes from previously issued M&I contracts that have been

surrendered. We are told that most of what is available through these cancellations

is now spoken for. It is ironic that this NMFS flow policy, supposedly necessitated

by the Endangered Species act, is now about to complicate our area’s ability to comply with the Clean Water Act.

The Port of Moses Lake has worked hard to attract these industries. These industries have invested much in locating here. These companies are national and international in scope. With today’s global economy they no doubt have opportunities

elsewhere. Please give careful consideration to Moses Lake’s energy and water needs

as you look into these NMFS flow policies.

Sincerely,

LARRY D. PETERSON,

Commissioner.

STATEMENT OF ROB PHILLIPS, DIRECTOR, NORTHWEST SPORTFISHING INDUSTRY

ASSOCIATION

Honorable members of the Committee, thank you for the opportunity today to

comment on H.R 4335 specifically, and in general upon the execution of the Endangered Species Act. I am Rob Phillips, joint owner of the advertising firm Smith,

Phillips and Dipitrio located in Yakima. Approximately 40 percent of our advertising

billings are directly tied to sportfishing and tourism related businesses. We acutely

experience downturns in salmon and steelhead populations, as advertising dollars

can often be the first part of a budget cut.

My concern over the declines led directly to my service on the board of directors

of the Northwest Sportfishing Industry Association. Our association consists of hundreds of businesses and thousands of family-wage jobs dedicated to our rivers, lakes

and streams being healthy and full of fish. Since fish live in every zip code, you will

find our businesses distributing our economic benefit throughout the region. Information regarding our business membership and economic impacts of the

Sportfishing Industry are enclosed with this testimony.

Our businesses have been deeply impacted by the implementation of the Endangered Species Act. Fishing closures and extensive regulations which are barriers to

participation have severely impacted sportfishing opportunities for salmon and

steelhead. Many of our businesses have not been able to survive the declines.

Most of us recognize, however that the Endangered Species Act is merely the messenger and not the message. Our watersheds are in trouble, and the Salmon are

the indicator species. Admittedly, the current manner in which the ESA is executed

is very heavy-handed in dealing with sportfisheries. Sportfishing is often the favorite short-term target. The problem is, these burdensome short-term measures are

meaningless without substantial long term measures.

This is where the current implementation of the ESA falls apart. There are scarce

to no examples of enforcement actions for the very real multi-generation ‘‘take’’ of

salmon, steelhead and trout which occurs from hydro passage and habitat degradation. We feel that NMFS can and should play a stronger role in defining take and

enforcing serious violations (especially where they occur under section 7) while helping to define and implement restorative actions for the remainder of the problems.

In other words, enforce the worst actions, while helping with compliance in other

areas.

Recovery will never be accomplished on the backs of fishermen. Decades of fishing

coxswains have not brought about recovery. Massive small and adult mortalities

caused by Columbia/Snake river hydro operations are causing constraints on fisheries from Northern California to the Gulf of Alaska. Operations of the Columbia

River hydro system must be dealt with in the same scrutiny and severity as

sportfishing. We continue to apply tune-ups to a car that needs a whole new transmission. NMFS, USF&W, BuRec, The Corps, and BPA must all coordinate together

to reduce the impacts which are strangling healthy fisheries throughout the region.

H.R. 4335 does get to the heart of an important issue, however. The National Marine Fisheries Service and the U.S. Fish and Wildlife Service must be better partners if the precious freshwater resources of the region are to recover to fishable levels, reassuring the health of our watersheds. There are no laws prohibiting better

cooperation between the agencies—indeed the dire plight of the resources demands

better communication and cooperation throughout the Federal family.

NMFS did the right thing by working with Governor Kitzhaber in the State of

Oregon to build a state supported and executed recovery plan. It is unfortunate that
105

Judge Stewart struck down the NMFS ‘‘no list’’ decision for coho in the coastal ESU,

however NMFS is standing by the Oregon plan in the Courts. We hold that NMFS

will accept the substance of the Oregon Plan as a recovery plan, when a final listing

determination is made.

As Governor Kitzhaber facilitated coordination and communication throughout

State agencies in the Oregon Plan, we must demand the same of the Clinton Administration. Truly, if there is fault to find with the National Marine Fisheries Service’s

implementation of the Endangered Species Act, much of it lies in the sideways accountability. Federal activities will only move in the same direction when turf issues

are removed and the Administration demands more accountability from its agencies

for salmon recovery.

With the onset of numerous listings and proposed listings, now is not the time

to shuffle the deck chairs on the Titanic. It may be that in the future, salmon and

steelhead will benefit from transferring responsibilities under the ESA. Changing

into another vehicle is not something a sane person does while the vehicle is moving.

In summary, from our perspective the timing of the bill is inappropriate. Salmon

and Steelhead don’t need new laws and don’t need agency changes. What they really

need first, is enforcement of existing laws, regulations and authorities. Federal

agencies need to have better accountability to the Administration and better communication and cooperation. It is pathetic that taxpayers and ratepayers fork over

dollars in one hand that destroy salmon, while paying out of the other hand dollars

to save salmon. ACCOUNTABILITY, COORDINATION, & COMMUNCATION!!

Other improvements would include earlier work with the states before the situation is severe. Everyone knows that an ounce of prevention is worth a pound of cure.

The longer we delay tackling a problem, the more drastic and costly the measures

for recovery. Earlier participation by NMFS (or any of the Federal agencies for that

matter) would facilitate a partner role with the states, rather than an enforcement

role. STEP IN EARLIER!

ESA levels of recovery do not often meet other standards of recovery. In this region, the Power Council, the Lower River Treaty Tribes, and the States of Washington and Oregon all have recovery to harvestable levels as their standards. The

goals of ESA should be to the harvestable levels that give a return to society on

the investment, as well as allow for better coordination between the sovereigns in

the region.

NSIA appreciates any intent with which the bill may have been written which

strives to enhance the ability of the Endangered Species Act to recover salmon and

steelhead in our region. NSIA recognizes that the improvements in our watersheds

and operations of the hydrosystem which benefit the weakest stocks will only further enhance the healthy populations available for harvest. We applaud any effort

which allows us to plan for secure jobs and futures, and even to rebuild the 10,000

jobs lost during the salmon and steelhead declines.

We ask that you help our industry in demanding accountability and enforcement

out of the administration and the agencies involved in salmon. The future of our

industry will be dim without it.

RESPONSE FROM JAMES M. BAKER TO WRITTEN QUESTIONS FROM MRS. CHENOWETH

Re: Atlantic Salmon Recovery

At the Pasco, Washington hearing of the Committee on Resources on September

2, 1998, Rep. Chenoweth directed me to respond in writing to her and the Committee no later than this date. This letter is written in compliance with her directive.

By my recollection from the hearing, Rep. Chenoweth asked me to compare and

contrast the recovery efforts under the Endangered Species Act (ESA) for. coho

salmon in Oregon, and Atlantic salmon on the East Coast. She also asked me to

explain any differences in Sierra Club policies or actions for the two fish on the two

coasts.

In 1993 two conservation groups—not the Sierra Club—petitioned for ESA protection of Atlantic salmon throughout its historical range in New England rivers. In

1995, the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife

Service proposed an ESA listing for the fish as ‘‘threatened,’’ but only for those

stocks of Atlantic salmon spawning in seven rivers in the state of Maine.

In contrast, the Sierra Club was one of 23 organizations which petitioned the

NMFS for listing of coho salmon in Oregon, Washington State, and California, and

was one of several co-plaintiffs which successfully sued the NMFS in order to force

the agency to propose an ESA listing for coho salmon. The 1995 proposed listings
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comprehensively covered all native coho in all streams in Oregon from the Columbia

River south to California, and indeed beyond to Monterey Bay.

In December, 1997, the Federal agencies declined to list Atlantic salmon in deference to the Maine Salmon Plan. Similarly, the NMFS in 1997 declined to list coho

salmon in Oregon in deference to a state plan, which, like its counterpart in Maine,

was entirely voluntary. The Sierra Club and several co-plaintiffs sued the NMFS for

refusing to list Oregon coho, and earlier this year, a Federal district judge remanded

the decision to the agency which subsequently did list the fish as ‘‘threatened’’ in

Oregon rivers.

In contrast, conservation organizations on the East Coast, including the Sierra

Club, have not yet decided whether to file a lawsuit against the Federal agencies

for not listing Atlantic salmon in Maine and/or throughout New England. From Rep.

Chenoweth’s remarks at the September 2 hearing, I surmise that she concludes

from their failure to date to challenge the Federal agencies in the courts that the

Sierra Club and other New England conservation groups support, or approve of, the

Maine Salmon Plan.

Such a conclusion is incorrect. First of all, the Maine plan applies to fish stocks

in just seven rivers in one state, instead of the regional effort in all Atlantic salmonbearing rivers throughout New England which conservationists continue to seek.

Moreover, the Maine plan lacks funding, enforcement, and accountability, and even

includes a stakeholders process which has no representation from environmental organizations. So the lack of a Federal lawsuit from conservation groups does not in

any way mean support for, approval of, or even acquiescence in, the Maine Salmon

Plan. At this time, the Sierra Club and other conservation organizations simply

have not decided whether to file a lawsuit for ESA protection of Atlantic salmon.

Turning briefly to another matter raised at the Pasco hearing, Rep. Chenoweth

asserted that PIT-tag (Passive Induced Transponder) data demonstrate that the

‘‘800 gill-nets’’ set by American Indians in the Columbia River below the Snake

River confluence inflict an inordinate and predominant toll on upriver salmonid

stocks. Federal, state, tribal, and independent biologists do not agree with this interpretation of the PIT-tag data. Moreover, the Columbia River Inter-Tribal Fish

Commission informs me that, throughout this decade, American Indians have never

put 800 nets in the river. Law enforcement programs by the Bonneville Power Administration confirm that the Tribes have not violated harvest limitations under

U.S. v. Oregon.

Thank you for this opportunity to respond to Rep. Chenoweth at this later date.

If you have additional questions or would like further information, please do not

hesitate to contact me at your earliest convenience.

RESPONSE FROM JAMES M. BAKER TO WRITTEN QUESTIONS FROM MR. HASTINGS

Re: Flow Augmentation for Columbia Basin salmon

At the Pasco, Washington hearing of the Committee on Resources on September

2, 1998, Rep. Hastings directed me to respond in writing to him and the Committee

no later than this date. This letter is written in compliance with his directive.

According to my notes from the hearing, Rep. Hastings directed me to respond to

the following question: ‘‘How much flow [augmentation] is enough [for Columbia

Basin salmon and steelhead]?’’ Rep. Hastings asked this question with regard to a

white paper ‘‘The Columbia-Snake River Flow Targets/Augmentation Program’’ by

Darryll Olsen (1998) criticizing flow targets set by the National Marine Fisheries

Service (NMFS).

Over the past quarter century, biologists have identified a positive correlation between river flow during juvenile salmonid migration, and survival to spawning

adulthood. In an exhaustive review of the scientific literature commissioned by the

Northwest Power Planning Council, Glenn F. Cada of Oak Ridge National Laboratory (1993) concluded that ‘‘the general relationship of increasing survival with increasing flow in the C[olumbia] R[iver] B[asin] still appears to be reasonable.’’ In

its landmark Return to the River, the Independent Scientific Group (1996) noted

this positive correlation, and encouraged flow regimes which approach the natural

hydrograph as an important way to provide the ‘‘normative’’ river conditions required for salmon and steelhead recovery. The data cited in the white paper by

Darryll Olsen (1998) also demonstrate this positive relationship between flow and

salmonid survival.

While positive, the exact one-to-one relationship between flow and fish survival

has not been determined by biologists at this time. The reason for this lack of precision is the inability of scientists to conduct the proper and necessary research. The

U.S. Army Corps of Engineers and the Bureau of Reclamation have never provided
107

sufficient flows properly timed to meet research protocols. Moreover, the huge number of juvenile fish needed to attain statistical validity has never been available.

In 1990, the Columbia Basin Fish and Wildlife Authority (CBFWA) recommended

a flow augmentation program to provide adequate salmonid survival through the

mainstem dams and reservoirs on the Columbia and Snake Rivers. The CBFWA

proposal set minimum targets of 300,000 cubic feet per second (cfs) in the Lower

Columbia and 140,000 cfs in the Lower Snake River sustained during the spring migration, and lower targets of 250,000 cfs and 100,000 cfs respectively sustained during the summer juvenile fish migration. CBFWA recommended these flow targets

based upon historical data; the CBFWA proposal has never been tested in-the-river.

Nevertheless, the CBFWA recommendation for flow augmentation remains the best

available answer to Rep. Hastings’ question as to ‘‘how much flow is enough.’’

As I testified at the September 2 hearing of the Committee, hydrological evidence

was brought to the regional Salmon Summit in 1990-91, and subsequently to the

Northwest Power Planning Council that the current configuration of dams and reservoirs in the Columbia Basin can not attain the CBFWA flow recommendations on

a sustainable basis. For this reason, the Salmon Summit explored, and the Northwest Power Planning Council in 1994 recommended, reservoir drawdowns at the

four Lower Snake dams and at the John Day project on the Lower Columbia as the

only way to achieve the water and juvenile fish travel speeds equivalent to the

CBFWA flow proposal. Basically the salmon need either very deep drawdowns of

storage reservoirs for flow augmentation, or relatively shallow (in vertical elevation)

drawdowns of some of the run-of-the-river reservoirs through which the fish migrate. As I said earlier, the four dams on the Lower Snake and the John Day Dam

on the Lower Columbia River have been investigated throughout this decade for

these drawdowns at run-of-the-river projects.

As you know, the white paper by Darryll Olsen also argues that the currently configured system of dams in the Columbia Basin can not achieve these high flow targets recommended by CBFWA, or those specified by NMFS in its ‘‘Biological Opinion.’’ For this reason, Olsen contends that NMFS should not set any flow augmentation targets. That the dam system can not meet the CBFWA flow targets does not

mean that lesser flows are not beneficial. Therefore, the Sierra Club and fish conservation organizations reject Olsen’s argument in his white paper because biologists have concluded that there is a positive relationship between flow and salmonid

survival, and because the perilous situation of the salmon and steelhead close to

extinctions demands the prudent course of taking the most risk adverse actions—

in this case, flow augmentation.

The Olsen white paper further argues that, because scientists have not established the exact relationship between one cfs of flow during juvenile fish migration,

and some resulting number of salmonid surviving to spawning adulthood, NMFS

has no justification for setting any flow augmentation targets. First of all, Olsen

bases his argument on a very limited set of PIT-tag (Passive Integrated Transponder) data, which, as I stated earlier, would actually support the flow-survival relationship when added to the larger data set which biologists have gathered historically. Moreover, to conclude that NMFS should set no flow targets, Olsen must

prove that there is no flow-survival relationship whatsoever, which his white paper

patently can not and does not do. Therefore, the Sierra Club and fish conservation

organizations reject this second of Olsen’s arguments, too, once again because biologists have concluded that there is a positive relationship between flow and salmonid

survival, and because the perilous situation of the salmon and steelhead close to

extinctions demands the prudent course of taking the most risk adverse actions—

in this case, flow augmentation.

Clearly I differ with the arguments and conclusions of the Olsen white paper. In

this regard, I would respectfully remind Rep. Hastings and the Committee that the

white paper has not undergone independent peer review by biologists, economists,

or hydrologists.

Turning briefly to another matter raised at the Pasco hearing, Rep. Hastings and

others on the Committee panel expressed skepticism about my assertion that the

four Federal dams on the Lower Snake River provide no flood control. Here is an

excerpt from a copyrighted article in the Lewiston Morning Tribune of August 16,

1998:

The four dams between Lewiston and Pasco, that are being considered for

breaching—Lower Granite, Little Goose, Lower Monumental and Ice Harbor—

are run-of-the-river dams. ‘‘A run-of-the-river dam has some significant application in water management, but they are not necessarily true flood control dams.

That’s what storage reservoirs are for,’’ says Dutch Meter, spokesman for the

corps at Walla Walla. ‘‘Run-of-the-river dams must pass virtually all the water

that arrives.’’
108

Again I would respectfully submit that a witness from the U.S. Army Corps of

Engineers will confirm my assertion at the hearing that the four Lower Snake dams

by their design have no flood control function.

Thank you for this opportunity to respond to Rep. Hastings’ question in writing.

If you have additional questions or would like further information, please do not

hesitate to contact me at your earliest convenience.
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(203)

HEARING ON THE ENDANGERED SPECIES

ACT

THURSDAY, SEPTEMBER 3, 1998

HOUSE OF REPRESENTATIVES, COMMITTEE ON RESOURCES, Boise, Idaho.

The Committee met, pursuant to notice, at 10 a.m. in the Boise

City Hall, 150 North Capitol Boulevard, Boise, Idaho, Hon. Richard

W. Pombo presiding.

Mr. POMBO. Good morning. I would ask unanimous consent that

my entire statement, opening statement, be included in the record.

I am, in the interest of time, going to summarize my opening statement.

It is great to be here in Boise, Idaho, today to have an opportunity to hold another in a series of hearings on the Endangered

Species Act, on its impacts, what is working, what is not working,

possible changes that can be made. Specifically, there is legislation

that has been introduced that would deal with the National Marine

Fisheries Service and the transfer of functions over to Fish and

Wildlife in the Interior Department, which is one of the issues that

we are covering today.

One of the—what we would hopefully like to take away from the

hearing is a lot of good ideas, a lot of good discussion, good debate,

on what is occurring, what is working, and what is not working.

One of the major concerns that many of us have is that we continue to have major conflicts over the implementation of the Endangered Species Act.

Everyone who has testified before our hearings in the past has

voiced strong support for saving endangered species and being able

to have a strong and vibrant wildlife, at the same time, reducing

the conflicts between people and their environment. So one of the

things that we would like to do is come away with some real good

discussion.

I would like to ask all of you, today, that are members of the audience, one of the House Rules that we have is that we do not allow

comments coming from the audience. We have a very full and long

schedule that is ahead of us. And any comments, positive or negative, shouted out from the audience do nothing more than cut time

down of the people that are testifying and their ability to get their

point across.

One of the things that we would like to do is to have the ability

to have everyone have their say and have their opportunity to

speak here this morning. So I would appreciate it if we would have

the courteousness from the audience at this time.
204

I would like to turn to the Ranking Member on the Committee,

Mr. Romero-Barcelo ́, for any possible opening statement he may

have.

Mr. ROMERO-BARCELO ́. Thank you, Mr. Chairman. I would like

to say thank you once again for holding these hearings. I think this

is important to everyone throughout the Nation. The Endangered

Species Act has created a lot of issues. And wherever there are endangered species, there is conflict between what some groups feel

should be done and what piques people’s interest.

And I think the hearing we had yesterday and today is a way

of learning. I learned a lot. The more I learned, the more I realized

I have to learn from the issues involved in so many different decisions and statements that have been made and what is the cause

and what are the solutions. So I think it is definitely a very important issue.

There is a lot of interest yesterday and today. We have seen a

number of people who have come to these hearings. So it is my

pleasure to be here, and I look forward to learning a little bit more

about this and what the solutions might be.

Mr. POMBO. Well, I thank you very much. Just so everybody

knows, Mr. Romero-Barcelo ́ flew all the way from Puerto Rico to

participate in this hearing. We appreciate him being here.

Mr. ROMERO-BARCELO ́. We do have some endangered species over

there, the manatee and the turtle.

Mr. POMBO. Well, thank you for being here. Congresswoman

Chenoweth, your opening statement.

Mrs. CHENOWETH. Thank you, Mr. Chairman. I join my colleague, Mr. Crapo, in welcoming both of you to Boise. We are just

thrilled that you would bring the Committee into Boise on this

very, very important issue.

And before I begin my opening statement, Mr. Chairman, I

would like to ask for unanimous consent to enter into our record

the statement of our Senator Dirk Kempthorne, who had planned

on being here and taking part in this hearing, but was called back

to the Senate, as you know, and they are now in session.

Mr. POMBO. Without objection, it will be included.

[The prepared statement of Senator Kempthorne follows:]

STATEMENT OF HON. DIRK KEMPTHORNE, A SENATOR IN CONGRESS FROM THE STATE

OF IDAHO

I am pleased that Representative Helen Chenoweth is holding this hearing today

to address the role of the National Marine Fisheries Service in implementing the

Endangered Species Act. As you know, I have dedicated a considerable amount of

my energy toward reforming the Endangered Species Act over the last several years.

Hearings throughout the country—and particularly in the West, where we have significant ESA issues—were integral to the Senate Committee on Environment and

Public Works’ fact-finding mission during the development of my ESA reauthorization bill. Undoubtedly, the law needs to be reformed, and to that end I am truly

glad that Representative Chenoweth has elected to hold these NMFS jurisdiction

hearings in the West.

The subject of this hearing is particularly relevant to the dilemma we have been

facing with regard to the decline of Idaho’s salmon and steelhead. As you know, the

debate has been strongly focused on flushing and spilling more Idaho water or removing the lower Snake river dams in an attempt to aid fish migration. I remember

in 1995, my Senate Subcommittee on Drinking Water, Fisheries, and Wildlife held

a hearing on the salmon spill policy on the Columbia and Snake rivers. At that

hearing, the NMFS was criticized for the lack of good, peer-reviewed science which

contributed to its decisions on the fish spill policy.
205

It is vital that decision-makers like NMFS take into account the effects of all factors which contribute to fish decline when determining a preservation strategy.

Issues such as predation and harvest should not be eclisped by the attention focused

on spill and dam removal. However, I am concerned that the issue of fish harvest

has placed the National Marine Fisheries Service in a situation where it must

prioritize between two competing missions. On the one hand, the NMFS facilitates

and oversees commercial fishing in U.S. waters. On the other hand, the agency has

been entrusted with a mission of conservation to preserve this resource for the future. I believe there must be a clear separation between NMFS’s role as a conservation organization and its role as a fisheries development and management organization. At a minimum, the NMFS biological opinion on harvest should be independently peer-reviewed to ensure that harvest methods are consistent with conservation

goals. For example, I am concerned about the bycatch of salmon in groundfisheries

since there is no way to prevent the taking of endangered and threatened fish in

a groundfish catch. The bycatch loss of any of these fish could jeopardize an entire

distinct population segment. In addition, the NMFS’ definition of harvestable surplus with regard to endangered fish species should be seriously questioned.

These hearings should help Congress sort out whether the two NMFS missions

are truly complementary, or whether competing priorities greatly limit NMFS’s ability to review the fullest spectrum of solutions when considering fish recovery options. The new avenues of debate and discussion that these hearings will produce

are productive and needed. As a Member of Congress who has made ESA reform

one of my most important goals, I am gratified to see these issues addressed here

today, and I thank the Chairman for this opportunity to express my views.

Mrs. CHENOWETH. Thank you.

I, again, want to publicly thank Chairman Don Young, who is my

good friend from Alaska, for bringing the House Resources Committee to Boise.

There are few things that are more symbolic of Idaho and the Pacific Northwest than the salmon. The salmon represents the enduring spirit of survival. And for generations, the salmon has struggled to return year after year to the same spawning grounds. This

same spirit of survival is shared by the pioneers who settled the

new frontier and built Idaho. Like the salmon’s struggle, many Idahoans are struggling. We have to find a way for everyone to survive

and to thrive. And this is why we are here today, to look for solutions that will not only save the fish but save Idaho’s remarkable

way of life.

Under the Endangered Species Act, the National Marine Fisheries Service, an agency within the U.S. Department of Commerce,

was given responsibility for management of oceangoing fish. This

authorization has unfortunately involved the National Marine

Fisheries Service fish biologists managing timber, rangeland, road

building, farmland, and just about every on-land activity that you

can possibly imagine. What was once an agency dedicated to managing ocean fisheries now finds itself hundreds of miles inland involved in every aspect of land use.

National Marine Fisheries Service’s fish management has become so incredibly single-minded that people are not longer part of

the equation. We find that, like the salmon, many, many Idahoans

are struggling too. Again, we must find a way where we can all live

together.

There is no other issue in Idaho or the Pacific Northwest that is

as emotionally charged as salmon and steelhead management. It is

an issue that we can all agree has been mired in controversy. Rhetorical battles are the norm, not solutions. Yet we offer a solution.

Together, I and other members of the House Resources Committee have drafted a simple piece of legislation to take one step,

only
206

one step, in the right direction. No one, including myself, claims

this bill will solve all of our problems and put an end to the controversy. Yet it will consolidate authority. It will make government

more efficient and accountable and consistent and lead, I believe,

to better fish management simply because of that accountability. I

believe everyone can support that concept, and I look forward to

hearing constructive comments to improve the bill.

The Endangered Species Consolidation Act, H.R. 4335, authored

by Don Young and cosponsored by myself, Mr. Crapo, Mr. Pombo,

and others, transfers National Marine Fisheries Services’ ESA

functions to the Fish and Wildlife Service. By bringing under one

roof all ESA functions, everyone—the farmer, the rancher, the recreationist, the lumberman, the mine, the environmental groups,

State and Federal agencies—will know that U.S. Fish and Wildlife

Service determinations will be final. Today’s dual agency responsibility allows for feasible deniability and a lack of accountability.

Our bill will paste a big sign over the Fish and Wildlife Service

that says, ‘‘The buck stops here, right here.’’

There can be finality despite our long and bitter experience of

being whipsawed between multiple Federal agencies. Further, and

possibly even more frustrating, agency decisions are often contradictory.

Take, for instance, the bull trout. Steps taken by NMFS to save

the salmon impact the bull trout, and steps taken by Fish and

Wildlife Service to help the bull trout affect the salmon. Duplicative ESA authority results in contradictory policies and paralyzing

controversy.

It is my view that if ESA enforcement authority were under one

roof, there would be more consistent policies that could accomplish

both salmon and bull trout recovery objectives.

There are numerous examples of duplicative and contradictory

agency actions: the Fish and Wildlife Service habitat conservation

plan, 2 years in the making, completely gutted by NMFS—a loss

of tens of thousands of dollars; an Idaho timber sale once approved

by NMFS and the Fish and Wildlife Service put on hold a year

later; an Army Corps of Engineers study indicating success in the

transportation of smolt downriver, but a NMFS decision stated exactly the opposite.

Clearly, interagency turf battles and contradictory policies and

decisions will not piece together the salmon puzzle. But we can

solve these problems by consolidating ESA authority in one agency.

A word of caution, though, don’t mistake this simple piece of legislation for an attempt at ESA reform. ESA’s substantive recovery

requirements and legal protections remain totally intact and are in

no way affected by this legislation. Our bill merely speaks to government efficiency, responsibility, and accountability. It does not

solve all of the issues, but it is a start.

Since late July when we introduced our Endangered Species Consolidation Act, I have heard many comments and concerns. And it

is certainly far from clear that the Fish and Wildlife Service will

necessarily do a better job than NMFS of fish management.

After all, it was the Fish and Wildlife Service who introduced the

wolf into Idaho—and you know how I felt about that—and is forcing the reintroduction of the grizzly bear—you know how I feel
207

about that—both predator species, over the objection of the people

of Idaho, the Governor, our legislature, and the entire congressional delegation. The Fish and Wildlife Service has done nothing

to engender the trust of Idahoans.

But when it comes to accountability, the Federal Government

has become skilled at passing the buck, and we must pick our poison. This is the purpose of the bill, and this is exactly why I asked

Don Young to bring the Resources Committee to Idaho. Congress

must listen carefully to what Idahoans have to say.

And last, I want to say that America is the most benevolent

country in the history of the world. We lead the world in humanitarian actions and helping people to a better way of life and a better future. Yet we have left people out of the equation on the salmon issue by allowing our region to be mired in controversy and our

economy to degrade to a shadow of its former self.

It is inconceivable to me that many groups and individuals have

focused solely on the dams for the solutions here rather than looking at the legion of issues involving salmon restoration.

And with that, I do want to say in closing that, in my opinion,

the NMFS has no authority to force another government agency to

violate a congressional mandate, whether it is Dworshak Dam or

taking water out of Idaho for an unproven measure like salmon

fleshing. And I think that we, in the Congress, must be very watchful and very vigilant with regards to those kinds of agency actions.

Mr. Chairman, without objection, I would conclude now, and I

would like to enter my entire testimony into the official record.

Thank you.

Mr. POMBO. Without objection.

[The prepared statement of Mrs. Chenoweth follows:]

STATEMENT OF HON. HELEN CHENOWETH, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF IDAHO

Welcome everyone. I want to publicly thank Chairman Don Young, my good friend

from Alaska, for bringing the House Resources Committee to Boise. I also want to

thank my good friend from California, Richard Pombo, the Chairman of the Endangered Species Task Force established by Newt Gingrich, for chairing this hearing.

I welcome my colleague from Puerto Rico, Carlos Romero-Barcelo ́, to Boise. I know

my colleague and fellow Resources Committee member, Mike Crapo, is as concerned

as I am about what is happening in our state of Idaho.

There are few things more symbolic of Idaho and the Pacific Northwest than the

salmon. The salmon represents the enduring spirit of survival. For generations, the

salmon has struggled to return year after year to the same spawning grounds. This

same spirit of survival is shared by the pioneers who settled the new frontier and

built Idaho. Like the salmon’s struggle, many Idahoans are struggling. We have to

find a way for everyone to survive and thrive. This is why we are here today—to

look for solutions that will save the fish, and save Idaho’s remarkable way of life.

Under the Endangered Species Act, the National Marine Fisheries Service, an

agency within the U.S. Department of Commerce, was given responsibility for management of ocean-going fish. This authorization has unfortunately evolved into

NMFS fish biologists managing timber, rangeland, road building, farmland and just

about every on-land activity you can imagine. What was once an agency dedicated

to managing ocean fisheries now finds itself hundreds of miles inland involved in

every aspect of land use.

NMFS’ fish management has become so incredibly single-minded that people are

no longer part of the equation. We find that, like the salmon, many, many Idahoans

are struggling too. Again, we must find a way to all live together.

There is no other issue in Idaho or the Pacific Northwest that is as emotionally

charged as salmon and steelhead management. It is an issue that we can all agree

has been mired in controversy. Rhetorical battles are the norm, not solutions. Yet

we offer a solution. Together, I and other members of the House Resources Commit-
208

tee have drafted a simple piece of legislation to take one step in the right direction.

No one, including myself, claims this bill will solve all of our problems and put an

end to the controversy. Yet it will consolidate authority, make the government more

efficient, accountable and consistent, and lead to better fish management. I believe

everyone can support that concept and I look forward to hearing constructive comments to improve the bill.

The Endangered Species Consolidation Act (H.R. 4335) authored by Don Young

and cosponsored by myself, Mike Crapo, Richard Pombo and others, transfers

NMFS’ ESA functions to the U.S. Fish & Wildlife Service. By bringing under one

roof all ESA functions, everyone—the farmer, rancher, lumberman, miner, recreationist, environmental groups, state and Federal agencies—will know that U.S.

Fish & Wildlife Service determinations will be final. Today’s dual agency responsibility allows for feasible deniability and a lack of accountability. Our bill will paste

a big sign over the Fish & Wildlife Service that says, ‘‘The Buck Stops Here . . .

Right Here.’’

There can be finality despite our long and bitter experience of being whipsawed

between multiple Federal agencies. Further, and possibly even more frustrating,

agency decisions are often contradictory. Take for instance the bull trout. Steps

taken by NMFS to save the salmon impact the bull trout; and steps taken by FWS

to help the bull trout affect the salmon. Duplicative ESA authority results in contradictory policies and paralyzing controversy. It is my view that if ESA enforcement authority were under one roof there would be a more consistent policy that

could accomplish both salmon and bull trout recovery objectives.

There are numerous examples of duplicative and contradictory agency actions; a

FWS habitat conservation plan two years in the making completely gutted by

NMFS—a loss of tens of thousands of dollars; an Idaho timber sale once approved

by NMFS and the FWS put on hold a year later; an Army Corps of Engineers study

indicating success in the transportation of smolt down river, but a NMFS decision

stated exactly the opposite.

Clearly, inter-agency turf battles and contradictory policies and decisions will not

piece together the salmon puzzle. But we can solve these problems by consolidating

ESA authority in one agency.

A word of caution: Don’t mistake this simple piece of legislation for an attempt

at ESA reform. ESA’s substantive recovery requirements and legal protections remain totally intact and are in no way affected by this legislation. Our bill merely

speaks to government efficiency, responsibility and accountability. It does not solve

all of the issues, but it’s a start.

Since late July when we introduced our Endangered Species Consolidation Act,

I’ve heard many comments and concerns. It is certainly far from clear that the Fish

& Wildlife Service will necessarily do a better job than NMFS of fish management.

After all, it was the FWS who introduced the wolf into Idaho and is forcing the reintroduction of the grizzly bear, both predator species over the objection of the people of Idaho, its legislature, its Congressional delegation, and Governor. The FWS

has does nothing to engender the trust of Idahoans.

But when it comes to accountability, the Federal Government has become skilled

at passing the buck, and we must therefore pick our poison. This is the purpose of

the bill, and this is exactly why I asked Don Young to bring the Resources Committee to Idaho. Congress must listen carefully to what Idahoans have to say.

Lastly, I want to say that America is the most benevolent country in history. We

lead the world in humanitarian actions and helping people to a better way of life

and future. Yet we’ve left people out of the equation on the salmon issue by allowing

our region to be mired in controversy and our economy to degrade to a shadow of

its former self.

We’ve even gone so far as to consider radical, false solutions like destroying the

four lower Snake River dams, when we should be looking for common sense solutions that work.

It is inconceivable to me that many groups and individuals have focused solely

on the dams, rather than looking at the legion of issues involving salmon restoration. What about predation and changing ocean conditions? I recently learned that

NMFS has approved a commercial harvest of threatened and endangered chinook

and salmon. Last year’s fall harvest from August 27 to September 20 gill netted

64,100 chinook and 22,700 steelhead. And I understand that historically this fishery

has taken 40 percent of the total fall chinook run with large incidental catches of

steelhead.

Let me say that I am not taking issue with tribal cultural and ceremonial salmon

harvests. However, this fall chinook gill net harvest is solely commercial, often selling the fish for as little as a dollar per pound. If these fish are truly endangered,
209

why do we continue to harvest so many of the remaining adults? These are the only

endangered species with an allowable harvest.

When NMFS’ salmon decisions literally cost the region hundreds of millions of

dollars annually and have had the effect of putting people out of work and shutting

down industries, allowing a commercial harvest of the very chinook and steelhead

that we are trying to save is a little bit insane.

Again, we are all here together. We are all struggling together. H.R. 4335 is a

good start in laying the foundation to make a more consistent, efficient and responsive Federal Government.

One final note, Mr. Chairman. Last Tuesday I held a hearing in Orofino, Idaho

on drawdowns of the Dworshak Reservoir to flush salmon downriver. For the last

few years NMFS has forced the Corp of Engineers to ‘‘draw down’’ the reservoir in

an unproven experiment to flush salmon downriver.

The unexpected result was a significant impact on bull trout habitat and kokanee

salmon—another example of NMFS’ actions adversely affecting another agency.

In my opinion, the NMFS has no authority to force another government agency

to violate a Congressional mandate—in this case the legislation that authorized

Dworshak Dam—for an unproven measure like salmon flushing.

Mr. Chairman, the drawdowns at Dworshak are a violation of law, and break the

promises made to the local people. Dworshak’s authorizing statute specifically promised the people of Idaho flood control, power generation, log transportation and

recreation.

It is legally, ethically, and worst of all, morally wrong for unelected bureaucrats

to re-craft the dam’s mission and purpose, and wreak havoc on a community that

relied on promises made by the Federal Government.

Mr. Chairman, without objection, I would like to enter this testimony into the official record as a case study of how the NMFS has gone too far.

[The above mentioned material can be seen at the Committee office where it will

be kept on file.]

Mr. POMBO. Mr. Crapo?

Mr. CRAPO. Thank you, Mr. Chairman. I appreciate you and our

Ranking Member for being here and for giving us the opportunity

to hold this hearing on what is probably one of the most critical

issues in the Pacific Northwest. And the issue, as I see it today,

is not just with regard to the legislation before us, but with regard

to the question of how we manage salmon and steelhead recoveries

and we how manage endangered species actions.

For some time, I have been a very open and vocal critic of the

National Marine Fisheries Service and the way that it has approached salmon and steelhead recovery measures.

And I think that whether one comes from the—from any of the

many different perspectives that we have in the Pacific Northwest,

whether it be from the perspective of the salmon and steelhead recovery effort or the perspective of the economies and the jobs in

Idaho and in the Pacific Northwest that are at risk because of some

of the proposed decisions that have been on the table for the last

several years and that are now on the table or other perspectives.

It seems to me that there has been great concern with the management decisions and the approach of the National Marine Fisheries Service. This is not the first hearing at which I have raised

these concerns. And I think that to kind of highlight what I am focusing on here today, it seems that we have got to insist on more

regional State and local involvement in the decisionmaking process.

In Idaho, we have been under Governor Batt’s very good leadership working on a plan to try to spread the risk and approach the

issue of salmon and steelhead recovery in a sensible way by building consensus among the different competing interest groups.

Not everybody was happy with that plan. People had to give and

take in order to work together. But we were getting people to give
210

and take and work together in Idaho, yet our voice fell on deaf

ears. Our efforts to provide a path forward fell on deaf ears at the

National Marine Fisheries Service.

And, in fact, the service actually, in the face of what I thought

was pretty strong consensus, chose alternate approaches, which

were not justified. They were not justified by science. They were

not justified by politics. They were not justified in the face of the

type of consensus that we move forward.

Even as recently as this year, after it looked like we were starting to make progress with some of the efforts to encourage the National Marine Fisheries Service to approach some of the ideas that

we have developed here in Idaho. It turns out that the management actions taken by NMFS this year seem to ignore the very discussions that we have had and the very approaches that we have

developed.

And because of that, I was very willing to lend my name to the

support for this legislation if, for no reason, than to engage this debate as to how we approach decisionmaking and how the Federal

Government must interact with the States and the region in this

case and local communities in the decisionmaking processes.

I am very aware, as has already been referenced, that there are

great concerns that people have with regard to the U.S. Fish and

Wildlife Service. And had the U.S. Fish and Wildlife Service been

the agency in charge for the past number of years, we would probably be holding a hearing here today about concerns with regard

to the way that they had undertaken management decisions.

I know that those concerns will be raised here today by many.

And I guess what I hope comes out this hearing is a full airing and

a full discussion of how we will approach this critical issue. It is

critical to us in this region that we save the wild salmon and

steelhead. And it is also critical to us in this region that we not

destroy the economy of our region. And I am confident that we can

do that.

The economies of our region that have grown over the last decades are critical to the people of Idaho. And the jobs that they represent, strengthen and support the families of the people who live

here in Idaho. And there are ways that we can maintain and

strengthen and regain our cultural and wildlife heritage with the

fish, the salmon, and the steelhead, without destroying economies.

I am very concerned that right now we in the region, even as we

work aggressively to develop consensus, do not seem to have a

voice in the process. And that voice must be heard. And that is one

of the reasons for this hearing, and I look forward to the testimony

to be heard today. Because one way or the other, efforts like we

have seen in Idaho and in the region to find a path forward have

got to get past the bureaucracy that is now built up around the Endangered Species Act.

Thank you, Mr. Chairman.

Mr. POMBO. Thank you. I would like to call up our first witness

here today, Governor Phil Batt. If he would join us at the witness

table.

Governor, I would like to welcome you here today. We have all

had the opportunity to review your testimony. Feel free to summa-
211

rize your written testimony. The entire thing will be included in

the record. Welcome, and you may begin.

STATEMENT OF PHILIP E. BATT, GOVERNOR, STATE OF IDAHO

Governor BATT. Thank you, Mr. Chairman, members of the Committee.

I see in the rules that I am limited to 5 minutes. My testimony

may run six or seven. I would like to read it, if I could.

Mr. POMBO. Yes. Go ahead.

Governor BATT. Mr. Chairman and members of the Committee

on Resources, I congratulate the Committee for addressing the

question of how Federal agencies could better serve the people. In

this case, you are examining whether the U.S. Fish and Wildlife

Service could better handle the responsibility of endangered species

regulation than the National Marine Fisheries Service, the agency

that now partially handles that responsibility.

I want to say with emphasis, that I do not believe some Federal

agencies are serving their constituents properly or implementing

their authority consistent with the intent of Congress. Examples

are abundant, and I will mention just a few.

The Environmental Protection Agency has become so large and

complicated that it has lost all practicality in the application of its

responsibilities in the field. Its water quality actions have imposed

unnecessary and indefensible burdens on the State of Idaho. EPA

is not charged with protecting endangered species, but, after consultation with the U.S. Fish and Wildlife Service, they impose actions on us, which are addressed plainly for that purpose.

Another example is the censuring of Idaho’s DEQ for its enforcement procedures regarding air quality. Never mind that Idaho is

one of the few states, maybe the only one, that has not even a single Federal non-attainment area under the State’s jurisdiction. Our

air quality is excellent and has improved dramatically. Our sin is

not dirty air but failure to fine enough people and to shut down

enough operations and thereby put people out of jobs. We believe

in a cooperative effort with clean air as the objective.

EPA believes in punishment with results only secondary. Chuck

Clarke, the director, is most reasonable in his frequent discussions

held between us. But when the lieutenants and privates in EPA do

their work in the field, they are bureaucratic in the extreme and

sound, sweet reason doesn’t stand a chance. Costly State planning

and remediation efforts are thrown on the scrap heap.

Let’s take another example, the U.S. Forest Service. Local Forest

Service managers are great. They are practical. After careful consideration of the impact, they authorize occasional timber sales.

Then the inevitable protests are filed, and the sales are canceled.

The agency is powerless and the forests are debilitated by disease

and fires caused by a lack of timely maintenance and harvest of

forest products.

The Department of Energy is another agency which is ineffective

because of internal paralysis. The Pit 9 fiasco is baffling. Hundreds

of millions of dollars have been spent and not a spoonful of waste

has been removed. Radioactive materials, foolishly dumped into the

pits years ago, continue to threaten our aquifer. President Clinton

has thwarted efforts to open the central repositories necessary to
212

carry out the national policy of waste disposal. Our new policy is

gridlock.

Federal agencies are not all bad. I believe FEMA, under James

Lee Witt, has done a very good job in cleaning up disasters and

also placing great emphasis on prevention.

I also believe our military does an effective, although sometimes

wasteful, job of protecting our freedom. Oftentimes, their job is

complicated by other Federal agencies, such as the Bureau of Land

Management.

Speaking of the BLM, that agency has a history of imposing

rules, which, in my opinion, are far beyond the authority granted

by Congress. I must give credit to Bruce Babbitt for rescinding the

proposed law enforcement rules on BLM land after I personally

asked him to do so. But the agency still seems to impose arbitrary

regulations in many areas.

One of these topics is the tribal gambling question. Mr. Babbitt

seems to have wide authority to decide questions on Indian gaming. He has asked for even more. States’ rights seem to take a back

seat in these matters. Fortunately, Congress has not acquiesced to

him.

President Clinton recently put out an executive order, which

called for Federal supremacy over nearly all State and local matters. After a loud outcry, he put the matter on hold, but the increase in Federal power continues, occasionally taking a baby step

backward but then regaining its pace.

But I have digressed from the main question: Would we be better

off dealing with U.S. Fish and Wildlife Service than with NMFS regarding anadromous fish recovery?

The NMFS used to be concerned mainly with ocean fishing. Its

involvement in regulating storage dams and water quality is a recent phenomenon. NMFS makes its decisions in conjunction with

a myriad of Federal agencies, which you have pointed out, including the Bureau of Reclamation and the Corps of Engineers and others, as well as receiving input from state, private, and other

sources.

I believe Mr. Stelle is a capable, conscientious department director. But the department is pulled and tugged in so many different

directions that its decisions are almost capricious. They have little

basis in science or practicality.

I proposed leaving more smolts in the river during high water

years as opposed to barging so that we may get a better scientific

comparison for future actions. And I have a lot of support for that

proposal. But NMFS ignored that suggestion because of pressure

from BOR and others. NMFS seems to be powerless to set a consistent course of action.

But to move the anadromous fish recovery to the U.S. Fish and

Wildlife Service? Wait a minute. These are the folks who brought

us wolves. They are the ones who tell us we are going to get grizzly

bears whether we want them or not. They are the Bruneau snail

people. They will probably list the lynx soon. They were the chief

cause of the paralysis imposed by the Upper Columbia River Basin

EIS study. They were the chief protagonist of the special interest

group which brought a suit to shut down most of Idaho through a

ruling of a judge sitting in Hawaii.
213

Mr. Ruesink is a pleasant fellow. He is a good, conscientious

man, but he is a captive of the Federal rules. When he came to my

office to discuss the grizzlies, he brought with him strong proponents of bear reintroduction from the private sector. They had

little regard for those with opposite views. His agency has given

short shrift to our plan for improving bull trout populations in

Idaho. They chose to ignore the sound plans laid out by our agencies for recovery, in favor of imposing Federal dictates based mostly

on shutting down our economy.

We, in Idaho, are proud to be part of these United States. Our

Federal agencies have a difficult job. The absurdities which arise

are usually caused by overzealous interpretation of Congress’ desires. You are to be commended for trying to clarify and monitor

the laws you have passed concerning our resources.

Yet in closing, I would like to gently remind you and our Congressmen that we work with these agencies every day and that we

would appreciate being consulted before recommending such a

major change in responsibility.

Let me also say, that this debate is a worthwhile effort, and I

congratulate you on bringing this to Idaho. Thank you.

Mr. POMBO. Thank you very much, Governor.

I would like to thank the Governor very much for his testimony.

Governor BATT. Did you have questions? I am sorry.

Mr. POMBO. That is all right. Thank you for your testimony. It

is a great deal. You brought up many of the concerns that members

of this panel, members of the Resources Committee have about the

legislation, many of the concerns that I think we will hear about

later today, and thank you for your testimony.

Mrs. CHENOWETH. And Mr. Chairman, I want to join you in

thanking the Governor for his testimony. I think that his testimony

reveals, from a man who has been so even-handed in his governing

of this State, even-handed with everyone. It has been very admirable. But his testimony brings out the frustration that one, who

is the chief executive officer of this State, has felt.

And, Governor, I very much appreciate your time and your good

testimony. Thank you very much.

Mr. POMBO. Thank you.

[The prepared statement of Governor Batt follows:]

STATEMENT OF PHILIP E. BATT, GOVERNOR, BOISE, IDAHO

Chairman Young and members of the Committee on Resources:

I congratulate the Committee for addressing the question of how Federal agencies

could better serve the people. In this case you are examining whether the U.S. Fish

and Wildlife Service could better handle the responsibility of endangered species

regulation than the National Marine Fisheries Service, the agency that now partially handles that responsibility.

I want to say, with emphasis, that I do not believe some Federal agencies are

serving their constituents properly, or implementing their authority consistent with

the intent of Congress. Examples are abundant. I’ll mention a few.

The Environmental Protection Agency has become so large and complicated that

it has lost all practicality in the application of its responsibilities in the field. Its

water quality actions have imposed unnecessary and indefensible burdens on the

state of Idaho. EPA is not charged with protecting endangered species but, after

consultation with USFWS, they impose actions on us addressed plainly to that purpose.

Another example is the censuring of Idaho’s DEQ for its enforcement procedures

regarding air quality. Never mind that Idaho is one of the few states, maybe the

only one, that has not even a single Federal non-attainment area under State’s ju-
214

risdiction. Our air quality is excellent and has improved dramatically. Our sin is

not dirty air, but failure to fine enough people and to shut down operations and

thereby put people out of jobs. We believe in a cooperative effort with clean air as

the objective. EPA believes in punishment with results only secondary. Chuck

Clarke, the director, is most reasonable in the frequent discussions held between us.

But when the lieutenants and privates in EPA do their work in the field, they are

bureaucratic in the extreme, and sound, sweet reason doesn’t stand a chance. Costly

state planning and remediation efforts are thrown on the scrap heap.

Let’s take another example—the U.S. Forest Service. Local forest service managers are great—they are practical. After careful consideration of the impact, they

authorize occasional timber sales. Then the inevitable protests are filed and the

sales are cancelled. The agency is powerless and the forests are debilitated by disease and fires, caused by lack of timely maintenance and harvest of forest products.

The Department of Energy is another agency which is ineffective because of internal paralysis. The Pit 9 fiasco is baffling. Hundreds of millions of dollars have been

spent and not a spoonful of waste has been removed. Radioactive materials, foolishly

dumped into the pits years ago, continue to threaten our aquifer. President Clinton

has thwarted efforts to open the central repositories necessary to carry out the national policy for waste disposal. Our new policy is gridlock.

Federal agencies are not all bad. I believe FEMA, under James Lee Witt, does

a good job in cleaning up disasters and, also, places great emphasis on prevention.

I also believe our military does an effective, although sometimes wasteful, job of

protecting our freedom. Oftentimes their job is complicated by other Federal agencies such as the Bureau of Land Management.

Speaking of the BLM, that agency has a history of imposing rules, which in my

opinion, are beyond the authority granted by Congress. I must give credit to Bruce

Babbitt for rescinding the proposed law enforcement rules on BLM land after I personally asked him to do so. But the agency still seems to impose arbitrary regulations in many areas.

One of these topics is the Tribal gaming question. Mr. Babbitt seems to have wide

authority to decide questions on Indian gaming. He has asked for even more. State

rights seem to take a back seat in these matters. Fortunately, Congress has not acquiesced to him.

President Clinton recently put out an executive order which called for Federal supremacy over nearly all state and local matters. After a loud outcry, he put the matter on hold, but the increase in Federal power continues, occasionally taking a baby

step backward but then regaining its pace.

I have digressed from the question—would we be better off dealing with USFWS

than with NMFS regarding anadromous fish recovery?

The NMFS used to be concerned mainly with ocean fishing. Its involvement in

regulating storage dams and water quality is a recent phenomenon. NMFS makes

its decisions in conjunction with a myriad of Federal agencies, including the Bureau

of Reclamation and the Corps of Engineers, as well as receiving input from state,

private and other sources. I believe Mr. Stelle is a capable, conscientious department director, but the department is pulled and tugged in so many different directions that its decisions are almost capricious. They have little basis in science or

practicality. I proposed leaving more smelts in the river during high water years as

opposed to barging so that we get better scientific data for future actions. I had a

lot of support for this proposal. But NMFS ignored that suggestion because of pressure from BOR and others. NMFS seems to be powerless to set a consistent course

of action.

But to move the anadromous fish recovery to USFWS? Wait a minute. These are

the folks who brought us wolves. They’re the ones who tell us we’re going to get

grizzly bears whether we want them or not. They’re the Bruneau Snail people.

They’ll probably list the lynx soon. They were the chief cause of the paralysis imposed by the Upper Columbia River Basin EIS study. They were the chief protagonist of the special interest group which brought a suit to shut most of Idaho totally

down, through a ruling of a judge sitting in Hawaii. Mr. Ruesink is a pleasant fellow, but he’s a captive of the Federal rules. When he came to my office to discuss

grizzlies, he brought with him strong proponents of bear reintroduction from the private sector. They had little regard for those with opposite views. His agency has

given short shrift to our plan for improving bull trout populations in Idaho. They

chose to ignore the sound plans laid out by our agencies for recovery, in favor of

imposing Federal dictates based mostly on shutting down our economy.

We, in Idaho, are proud to be part of these United States. Our Federal agencies

have a difficult job. The absurdities which arise are usually caused by overzealous

interpretation of Congress’ desires. You are to be commended for trying to clarify

and monitor the laws you have passed concerning our resources.
215

Yet in closing, I’d like to gently remind our Congressmen that we work with these

agencies every day. You might consider consulting with us before recommending a

major change in responsibility.
216
217
218
219

Mr. POMBO. I would like to call up our second panel: Mr. Thomas

Kerr, Ms. Olivia James, Mr. Bob Maynard, Mr. Mark Limbaugh,

and Mr. David Doeringsfeld. If you would, join us at the witness

table.

Thank you for being with us today. For those of you that have

not had the opportunity to testify in the past, I will explain the

light system to you.

Your entire written statements will be included in the record. We

ask you to summarize those and try to keep your oral statement

within 5 minutes. The light system: Green is to begin, yellow is

wrap it up, and red is to stop. And if you could try to stay within

the 5 minutes, it would be appreciated by the Committee.

Mr. Kerr, if you are prepared, you may begin.

STATEMENT OF THOMAS KERR, COMMISSIONER, VALLEY

COUNTY, IDAHO

Mr. KERR. I am Tom Kerr, Valley County Commissioner. I was

born in 1937 in McCall, Idaho. I was raised there, educated there.

I have a B.S. Degree in mining engineering from the University of

Idaho in 1961. I have worked as a professional land surveyor in

Valley County for 25 years, and I am very familiar with its people,

conditions, and needs. I have served on the board of county commissioners since 1997.

My testimony not only represents the views of my colleagues on

the Valley County Board of Commissioners but also those of the

Idaho Association of Counties, which represents the elected officials

in Idaho’s 44 counties. I do not believe that my views on NMFS are

in any sense unusual, but, on the contrary, are typical of those of

my colleagues around this great state.

There is an ongoing project, the course of which has decisively

shaped our view of the role of NMFS in fulfilling its responsibilities.

The Warren-Profile Gap Road was built prior to the establishment of the Payette National Forest and is a public right-of-way

under the jurisdiction of Valley County.

In 1994, debris torrents washed out a 500-foot segment of the

road along Elk Creek. During the Chicken Complex Fire, later in

1994, emergency funds were used to repair this damage. We experienced unusually heavy rainstorms during the year following the

fire and high runoff caused the destruction of two bridges and seriously damaged portions of the road. Further storms and flooding

caused even more damage to the road in the winter of 1996 and

1997.

In February 1997, the Valley County Commissioners met with

the representatives from the Forest Service, Federal Highways, National Marine Fisheries, Fish and Wildlife Service, Idaho Department of Lands, the timber industry and private landowners to put

together an action plan for the repair of the road which would be

consistent with the needs of the community as well as the requirements of the regulatory agencies.

I am disappointed to report that the plan we agreed to in February 1997 has yet to come to fruition. There is no question that

this failure is largely due to the inaction of the National Marine

Fisheries Service.
220

NMFS has consistently taken an inordinate amount of time to

complete the analysis necessary for repair work to proceed. When

it finally does come back with its review, it asserts that it still

needs more information to issue a Biological Opinion, even when

it already has received sufficient data. This view is shared by our

local Forest Supervisor, Dave Alexander, who wrote in his June 9,

1998 letter to Ms. Elizabeth Gaar of National Marine Fisheries

Service regarding their delay in the issuance of a Biological Opinion:

‘‘I am very concerned that after 17 months of discussion,

analysis and meetings, and almost 3 months after we jointly

reached agreement which resulted in a four-party memorandum of understanding outlining the resolution of this issue,

we are continuing to see delays in the issuance of a Biological

Opinion.’’

Rather than participating throughout in an open and straightforward way, NMFS seems only to take potshots at the successive

plans they want submitted for approval. It would seem logical for

them to identify all of the conditions needing mitigation at one

time, rather than picking a new one later.

On at least one occasion the NMFS representative admitted that

he had not really read the report that was to be the subject of a

meeting at NMFS’s office in Boise with Federal Highways, Forest

Service, Fish and Wildlife, Valley County, and a representative

from Representative Chenoweth’s office, most of whom had to travel to Boise for the meeting.

I was left with a clear impression that talking to the locals is a

low priority indeed, and that our point of view is not being fairly

represented or even taken seriously.

I observed that NMFS representatives have not had sufficient

authority to speak for the agency, but we are convinced that the

outcome may not be any different even if NMFS officials of sufficient stature participate in the process.

One NMFS representative said they did not really care what the

cost and inconvenience of NMFS’s might be to the public. As long

as NMFS has an institutional culture so resistant to public scrutiny, accountability, and cooperation, it is hard to imagine that this

situation could improve.

Meanwhile, the road remains unrepaired, local landowners are

without access to their property, the State of Idaho has not been

able to proceed with a timber sale, the Forest Service has limited

access for forest management, and the United States taxpayers

continue to foot the bill for more NMFS delays. The great irony is

that more damage is being done while they are being delayed to

the detriment of fish spawning and rearing habitat.

Therefore, the commissioners of Valley County and the Idaho Association of Counties urges you to support H.R. 4335. While we are

not always thrilled and happy with the positions taken by the U.S.

Fish and Wildlife Service pursuant to the Act, it will get it under

one agency. And our experience has been that they are more responsive and cognizant of our concerns, participate more openly in

discussions of proposed action, and are generally more timely and

efficient in reaching conclusions than is the National Marine Fisheries Service.
221

Thank you.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Kerr may be found at end of

hearing.]

STATEMENT OF OLIVIA JAMES, PRESIDENT, THE RIVER

COMPANY

Ms. JAMES. Mr. Chairman, members of the Committee, thank

you for the opportunity to comment on the Endangered Species Act.

I represent The River Company, one of four outfitters who offer

1-day raft trips on the upper main Salmon River out of Stanley,

Idaho. Stanley has a population of 69 and is almost totally dependent on tourism centered on river activities. We four outfitters, all

together, do about a million dollars of business a season. We are

small. Since Snake River chinook salmon were listed under the Endangered Species Act in 1992, we have been subjected to abuse of

power, mismanagement, and overregulation by the U.S. Forest

Service and National Marine Fisheries Service.

Five-year permits issued in August 1996 require that as soon as

chinook salmon are seen exhibiting spawning behavior on August

21st, whichever is sooner, anywhere in the navigable 30-mile

stretch of the Salmon River in the Sawtooth National Recreation

Area, all floatboaters, commercial and private, must portage a halfmile section where salmon historically have nests or redds.

We have to take out 2 miles above the federally funded official

takeout through my company’s leased picnic site. What is normally

an eight-mile trip is shortened to five-and-a-half. While guests are

getting a shorter river trip for their money, outfitters have to add

vehicles and personnel to execute the portage and carry the rafts

up the steep embankment at the improvised takeout. Our costs are

further increased by funding federally required monitoring.

Outfitters and the public are subject to a penalty point system

for violating regulations. This resulted in the river being closed to

public floating in mid-August in both 1996 and 1997.

Because new permits were not accompanied by a NMFS Biological Opinion and Incidental Take Statement, as was the case in

years prior, as soon as a salmon moves off its nest, because of a

passing floatboat, the river can be closed. In 1997, the river was

closed on September 10 because one fish moved off its redd twice,

both times for less than 15 minutes.

Previously, NMFS defined a ‘‘take’’ as a single fish moving off its

nest three times, or eight different fish once each, at a distance of

10 feet or more for 20 minutes or more. Now, ‘‘take’’ is no longer

applicable. No disturbance is allowed.

There is no documented evidence that displacement of listed chinook from a redd from more than 20 minutes is related to diminished spawning success or a diminished reproductive or survival

rate for the species.

To the contrary, the available scientific evidence for other chinook salmon indicates that spawning salmon may leave their redds

for up to 8 hours a day with no adverse effects on spawning success

as measured by egg retention in female spawners.

We four tiny outfitters are victims of ‘‘over protection’’ of a fish

listed under the Endangered Species Act. Instead of using the best
222

scientific and commercial data available, the Federal agencies have

relied on casual observations of redd displacement as justification

for decisions to restrict and even prohibit the use of the river by

floatboaters.

Regulations governing floatboats have been based on two arbitrary assumptions: one, that floatboats pose a threat to endangered

chinook salmon; and two, that the presence of floatboats will discourage salmon from spawning.

In 1997, salmon spawned both where we portaged and where we

rafted. This indicates that the original assumptions are false. Instead of using this opportunity to measure effects of float boating

on salmon spawning, the Forest Service instead elected to close the

river to floatboating.

In general, the NMFS has taken a very conservative approach to

the assignment of incidental take to habitat-related projects. Little

or no incidental take is permissible for most Federal habitat

projects, including floating on the upper Salmon River; while up to

86 percent direct mortality of juvenile salmon, is permissible in the

hydropower system.

In other words, aggressive regulatory measures are being taken

against activities least limiting fish, while relatively passive measures are being taken against those most limiting fish.

The Idaho Department of Fish and Game views the extreme restrictions on floating resulting from U.S. Forest Service consultation with NMFS as biologically inappropriate and economically and

socially unfair. They view the current restriction on the use of

floatboats in salmon spawning habitat as unnecessary given the

minimal or nonexistent effects of floating on salmon that they have

observed.

The NMFS and U.S. Forest Service facile resort to the precept

that floatboating disturbance leads to salmon mortality, if taken to

its logical extreme, could allow these agencies to close the upper

Salmon River and the entire Sawtooth National Recreational Area

to recreational use altogether. Clearly, this was not Congress’ intent when it established the Sawtooth National Recreation Area to,

among other things, ‘‘provide for the enhancement of recreational

values.’’

Thank you.

Mr. POMBO. Thank you.

[The prepared statement of Ms. James may be found at end of

hearing.]

STATEMENT OF ROBERT A. MAYNARD, PERKINS COIE, LLP

Mr. MAYNARD. Mr. Chairman and members of the Committee,

thank you for inviting me to speak with you today.

My name is Robert A. Maynard. I am an attorney practicing here

in Boise, Idaho with the Perkins Coie law firm. I have given you

my background in my written statement. I have practiced law in

the environmental/natural resources arena for many years. My experience includes Endangered Species Act issues and working with

the National Marine Fisheries Service and the Fish and Wildlife

Service.

A good bit of my recent private practice is focused on habitat conservation agreements which are negotiated between private land-
223

owners and the Services under Section 10 of the ESA. I have also

been working with many people with concerns about something

called essential fish habitat, which is a NMFS program based on

some 1996 amendments to a statute known as the Magnuson-Stevens Act.

NMFS’s responsibilities and actions regarding essential fish

habitat are quite relevant to NMFS and the Fish and Wildlife Service Endangered Species Act, or ESA, responsibilities. I want to

focus on this connection in my remarks.

H.R. 4335, to me, seems clearly directed at decreasing complexity

and potential for conflicts between agencies in implementing the

ESA. Currently, completing consultation under Section 7 and other

procedures under the ESA can be quite time consuming. The complexity and time involved can be greater when both NMFS and the

Fish and Wildlife Service have ESA jurisdiction regarding a particular project or program.

We have this overlapping jurisdiction in the Columbia and Snake

River basins, as you have all mentioned. For instance, NMFS’s responsibility for salmon stocks and Fish and Wildlife Service responsibility for bull trout. We have got that just north of here in Bear

Valley. I have mentioned some other examples in my written statement.

Conflicts between agencies and substantial delays in completing

these processes can be very costly to the government, businesses,

and citizens.

So consolidating ESA administrative responsibilities in the Department of Interior, as proposed in H.R. 4335, could simplifiy ESA

implementation and increase its cost effectiveness. However, this

would not necessarily eliminate the Department of Commerce’s involvement in salmon and other fish and wildlife issues.

For example, the Department of Commerce and NMFS would

continue to have substantial responsibilities with respect to salmon

under the Magnuson-Stevens Act. Under this statute or by virtue

of fisheries expertise, NMFS could be expected to remain a consulting or cooperating agency in National Environmental Policy Act

and other procedures carried out by Federal action agencies such

as the Forest Service for various activities with the potential to impact salmon habitat.

On this point, the ‘‘essential fish habitat’’ program is particularly

important. The Magnuson-Stevens Act primarily concerns management of commercial marine or ocean fisheries in offshore waters.

There are several regional fishery management councils that oversee that with the help of NMFS.

The essential fish habitat—or EFH is the acronym I use—

amendments to the statute provide for the councils to identify essential fish habitat for fish species included in their fishery management plans.

Federal agencies are thereafter required to consult with NMFS

regarding federally funded or authorized activities which may adversely affect this identified EFH. There are some further provisions for commenting on State or Federal actions and recommending habitat conversation measures. Council-managed fish species include Pacific salmon.
224

NMFS EFH regulations and draft recommendations to fishery

management councils take an extremely broad approach to identifying EFH and activities with the potential to adversely affect

EFH. Thus far, it appears that virtually all habitat is being proposed for identification as essential.

For example, draft recommendations define EFH for Pacific coast

salmon to include all fresh water habitat currently or historically

accessible to salmon in Washington, Oregon, Idaho, and California,

as well as coastal waters along the west coast.

The NMFS regulations state that EFH will always be greater

than or equal to ESA aquatic critical habitat for any council-managed fish species listed under the ESA. The regulations furthermore set out an elaborate consultation process which can be compared to the ESA Section 7 consultation process.

And this brings me to my basic point with respect to ESA implementation and H.R. 4335.

In the event that NMFS ESA jurisdiction over salmon species is

removed, NMFS could still be administering a consultation process

as cumbersome as the Section 7 process over a geographic area as

broad or broader than the reach of the ESA. So the process could

be quite redundant with respect to activities to which the ESA applies.

In my written statement, I have included the concern that many

people in affected businesses and industries have about this approach that they consider unnecessarily broad, costly, and really

counterproductive to implementing the Magnuson-Stevens Act and

fish protection in general.

There has been concern expressed in the Senate Appropriations

Committee’s report about NMFS exceeding the intent of Congress

under the Magnuson-Stevens Act.

And to close, I would simply state that an effort to consolidate

the ESA functions in the Department of the Interior and increase

cost-effectiveness of ESA implementation should also address

NMFS ESA jurisdiction and actions under the Magnuson-Stevens

Act. If problems that are arising with EFH implementation are not

dealt with, potential cost savings and other efficiencies of ESA consolidation may be substantially reduced.

Thank you.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Maynard may be found at end

of hearing.]

STATEMENT OF MARK LIMBAUGH, EXECUTIVE DIRECTOR,

PAYETTE RIVER WATER USERS ASSOCIATION, INC.

Mr. LIMBAUGH. My name is Mark Limbaugh. I am a fourth-generation Idaho farmer. And I am also the Watermaster on the

Payette River system in Idaho. I deliver over 150,000 acres of irrigation water, both natural flow and stored water, under State

water law. And today I am representing the Payette River Water

Users Association, an association that represents those 150,000

acres and farmers that own and operate those acres as their executive director.

First of all, I would like to enter into the testimony, if there is

no objection, Mr. Chairman, the testimony of Mr. Sherl Chapman,
225

the Idaho Waters Users Association Executive Director, and also

Mr. Dewitt Moss, a member of the Committee of Nine and a known

fish expert in Idaho.

Mr. POMBO. Without objection, thank you.

[The prepared statement of Ms. Chapman may be found at end

of hearing.]

Mr. LIMBAUGH. Mr. Chairman, members of the Committee, I appreciate the opportunity to talk to you today.

Currently, under NMFS implementation of the Endangered Species Act, our Idaho water rights are under attack. Idaho currently

provides between 2 and 2.8 million acre-feet of water to fish down

the lower Snake River under the current NMFS flow augmentation

flow targets program.

Currently, however, the United States Bureau of Reclamation,

under the direction of the Corps of Engineers and NMFS, is studying adding an additional million acre-feet of water from Idaho to

augment flows in that reach. However, there are very little biological benefits that support this misuse of Idaho water.

Target flows on the lower Snake River are artificially set too

high, in my opinion. Current studies indicate that hydrologically

those flows cannot be met with all the water that is taken during

average or dry years. But yet, NMFS still studies recovery methods

that require Idaho water.

During the past 100 years, Idaho irrigation development has not

appreciably affected the flows of the lower Snake River. The trend

lines show a modest decrease in flows over the hundred-year period

in the spring and a modest increase in flows during the summer

critical time period that NMFS is trying to meet these target flows.

The million acre-feet, if obtained by the Federal Government,

would only meet target flows 35 percent of the time.

Now, what is the impact of that million-acre feet coming out of

Idaho, if, in fact, that is the route that NMFS wants to take in

their 1999 Biological Opinion? Between $40 million and $70 million

in lost direct net economic impact to the state. That does not include secondary economic impact, such as food processing, other

jobs, and tax-base related activities.

Between 200,000 and 500,000 acres of productive Idaho farmland

would be dried up forever. The remaining acres would suffer shortages in average and dry years of up to 700,000 acre-feet of water.

Recreation would be impacted as reservoirs were drawn down

every year down to the mud flats that we don’t see right now. But

we will see if the additional million acre-feet is provided by Idaho.

White water river recreation would be limited because of the increased flows in that time period. Obviously, resident fisheries and

water quality in our reservoirs in Idaho would be extremely impacted.

Well, what is the benefit of this flow augmentation? Flow augmentation currently only provides one-tenth of one mile per hour

increase in velocity. Flow survival studies do not show any significant improvement. Currently, we only have a 0.4 to 0.6 percent

smolt adult return ratios. We need to improve those between 250

and 400 percent just to maintain current stocks.

While NMFS studies the extremes of draining Idaho of its water

or taking out dams, other measures have been ignored. Predators
226

such as the Rice Island and Caspian terns eat between 10 and 15

million smolts. And that is only one colony out of eight colonies

that are predators to the smolt salmon. Pinnipeds injure or kill up

to 70 percent of our returning adults.

And while NMFS protects redds, as Ms. James suggests, in an

unconscionable way, we still allowed in 1997 under an OSU, Oregon State University, study up to 1 million fall chinook to be harvested while only 360,000 spring, summer, and fall chinook collectively made it to Bonneville Dam. So this is the result of an agency

that does not have the management and is not accountable for

what they are doing.

In closing, using Idaho water to recover salmon and steelhead

will not work. Irrigation is the reason for an abundance of food

supply in this nation. Irrigated agriculture silently and reliably

provides up to $60 billion in western income, and Idaho is a big

part of that.

Regardless of what happens to H.R. 4335, we cannot allow Federal agencies to overturn State water law, undermine Idaho’s water

supply, damage our food supply, and revert our productive valleys

that you see here today back to the dusty, barren, sage-covered

lands that our forefathers found here over a hundred years ago.

Thank you.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Limbaugh may be found at end

of hearing.]

STATEMENT OF DAVID DOERINGSFELD, MANAGER, PORT OF

LEWISTON

Mr. DOERINGSFELD. Mr. Chairman, members of the House Resources Committee, on behalf of the Idaho seaport, Port of Lewiston, we appreciate the opportunity to speak with you today.

Implementation of the Endangered Species Act was initially carried out with the best of intentions. However, complex and often

conflicting requirements of ESA have made it almost impossible to

produce a fish recovery plan which can be implemented and which

produces win-win solutions.

Yesterday, you heard from one of the ports on the Mid-Columbia

River concerning the implementation of ESA by NMFS. I would

like to echo some of those concerns.

Once a species is listed as endangered, the only option available

is to develop a recovery plan without any regard to cost, social, or

economic impacts. While the people of the Northwest want to save

anadromous fish, they are not willing to do so at any cost, and they

don’t want to be part of empty gestures or false promises for the

fish.

Our Northwest lifestyle is built around the remarkable Columbia/Snake River System. The many benefits we have received have

shaped our communities, our culture, and are a vital part of the

Northwest economy.

Approximately 90 percent of our region’s agricultural products

are exported. We all rely on the Northwest’s unique integrated system of growing, processing, storing, and transporting food for export. Losing one link in the chain would have serious effects and

our lives would be drastically different without it.
227

Over 40 percent of all the wheat grown in the United States is

exported through the Columbia/Snake River System. River barges

carry essential cargo 465 miles from Lewiston, Idaho to Astoria,

Oregon, stopping at 25 ports along the way. This extraordinary

river system creates a safe river passage and has made the Pacific

Northwest the market basket of the world.

Yet today, we have a black cloud hanging over the economic future of the Pacific Northwest and NMFS appears to be the only

agency in charge of whether we will have prosperity or disaster.

When ESA gives a single Federal agency the power to control

public and private land use, throw out state conservation plans,

and dictate the amount of water that flows in our rivers, common

sense would indicate that we have gone too far.

I believe that we need open discussions in which to develop a

river governance framework whereby the region retains control

over ESA implementation. The Governors of Idaho, Montana, Oregon, and Washington are currently exploring river governance options. We are hopeful that a broadened Northwest Power Planning

Council will be given the authority to oversee ESA implementation.

I don’t pretend to be an expert on fish, but if we have learned

anything by now, it is that there is no magic solution to the fish

problems in the Northwest. Fish runs all along the West Coast are

in decline, not just the fish that encounter dams. The people in the

Northwest don’t like lose-lose schemes like destroying dams or

massive flow augmentation, especially when it is not known whether these efforts would return even a single fish.

When we consider whether transferring ESA enforcement responsibilities from one Federal agency to another, as outlined in

H.R. 4335, it is difficult to ascertain which agency would be more

effective since agency control seems to make sense. Currently, we

have Federal biologists from NMFS, U.S. Fish and Wildlife Service,

and the Corps all working on fish recovery. Centralizing the authority and expertise to provide a clear mission and reduce conflicting goals.

So here is the bottom line in this whole debate. Along with other

Northwesterners, we want to preserve the things we value most

about living in the Pacific Northwest; a rural culture and a strong

regional economy capable of supporting families and communities

for years to come.

Our dams are a vital link in the structure of the Northwest’s

economy. We have grown to depend on them to provide dependable

low-cost power to our homes, deliver goods to world markets, protect ourselves from floods, and provide recreational opportunities.

We simply want common-sense solutions that really work. We

deserve a win-win solution for everyone connected with the river,

one that allows the fish to thrive but preserves the benefits of our

remarkable river system for future generations.

Thank you very much.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Doeringsfeld may be found at

end of hearing.]

Mr. POMBO. Mrs. Chenoweth?

Mrs. CHENOWETH. Thank you, Mr. Chairman. I wanted to ask

Tom Kerr that you mentioned in your testimony the Chicken Creek
228

Fire from several years ago. Wasn’t this one of the several large

fires on the Payette last year? Or what year did that occur?

Mr. KERR. Representative, that was in 1964 with the Chicken

Complex. We had the Savage Creek fire and the Chicken Complex

that burned through that area. That was one of them. The 1994

was the one that burned up the Corral. The Blackwell Fire and the

Chicken Complex was all in that fire. That is part of what precipitated the massive erosion down there.

Mrs. CHENOWETH. Do you know if NMFS was involved in any of

the decisions while the fire was burning?

Mr. KERR. NMFS would not let them, it is my understanding,

use borate or any other control systems on that fire down in the

main south fork of the Salmon, because it would be injurious to the

fish, notwithstanding the fact that several hundred thousand tons

of material washed off after the fire into the stream.

Mrs. CHENOWETH. What happened to the elk and the deer and

the other critters?

Mr. KERR. I didn’t see too many down there.

Mrs. CHENOWETH. What was the final size of the fires?

Mr. KERR. The final size of the fires was supposedly, with the

Blackwell and the Corral fire—I don’t think it joined up with the

Chicken, but it was the largest fire in the United States.

Mrs. CHENOWETH. Do you know how much timber was burned

and how much of that burned timber has been salvaged?

Mr. KERR. Very little of it has been salvaged due to the delays.

I don’t know how much was actually destroyed. I do know that as

a member of the Big Payette Water Quality Council, we were worried about Payette Lake quality. And while we were in the middle

of the study, the Blackwell and Corral fire burned up over 52 percent of the watershed of the lake, which really didn’t help the

water quality too much.

Mrs. CHENOWETH. Thank you. Thank you, Commissioner.

I wanted to ask Mr. Mark Limbaugh, you mentioned a study

done by the Idaho Department of Water Resources Director, Karl

Dreher, showing the flow argumentation has done nothing and can

do nothing to recover the fish. Why do you believe that NMFS continues with their thinking, I believe faulty, of the benefits of flow

augmentation?

Mr. LIMBAUGH. You know, I don’t really understand it either,

Congresswoman. You know, Karl Dreher, our director, did do a

study. And in his opinion, the declines in the salmon populations

cannot be the result of changes in the Snake River flows as measured at the lower Granite Dam because the flows haven’t changed.

NMFS is continuing to use Idaho water because we are probably

the easiest target. We don’t understand how our water can help

when it only provides the very incremental hydrologically insignificant velocity increases that it does. However, the economic impacts,

as you can tell by my testimony, are unconscionable for our state.

Currently, we are missing out on opportunities to use that very

same water in this State for recharge of our aquifers, for our municipal and industrial uses that are getting very close to running

out of supply and all because of NMFS continued efforts to include

Idaho water in any kind of a recovery plan.
229

Mrs. CHENOWETH. Mark, you state that you feel NMFS flow augmentation policies really are threatening food production and food

processing, which contribute, I think you said in your testimony,

about $60 billion annually to the western United States besides

helping feed the people of the world. Do you think the average citizen really understands these threats to the very fabric of our nation?

Mr. LIMBAUGH. Well, we are very concerned, because irrigation

is the reason why we have such a reliable and sustainable food

supply. Irrigation provides us the stability to grow any crop in the

West that is, you know, suitable for a certain climate. And most

of the fresh fruits and vegetables that we rely on and need for the

21st century for the very health of our Nation are grown in the

West under irrigated projects, because of that reliability, because

of that sustainability.

And so, consequently, to attack irrigation attacks our food supply. Food does come from Albertson’s. It comes from our farms. And

irrigation is the main ingredient that makes it possible to grow any

kind of crop at all in the West.

Mrs. CHENOWETH. Thank you very much.

Mr. POMBO. Mr. Romero-Barcelo ́?

Mr. ROMERO-BARCELO ́. Thank you very much, Mr. Chairman.

Mr. Limbaugh, do you know about drip irrigation?

Mr. LIMBAUGH. Yes, I do.

Mr. ROMERO-BARCELO ́. What kind of irrigation do you use here?

Mr. LIMBAUGH. Irrigation techniques in Idaho range from drip to

pivots and overhead sprinklers, and also, there are some gravity

flows.

Mr. ROMERO-BARCELO ́. The drip irrigation consumes very little

water.

Mr. LIMBAUGH. The drip irrigation consumes very little water.

However, economically, it is infeasible because of the price of crops.

And if that price goes up, obviously, the price goes up for the consumer as well. So, you know, really, the use of water is probably

the most efficient economical use and it actually passes right

through to the consumer, the savings that Idaho and other irrigation areas provide.

Mr. ROMERO-BARCELO ́. Except for one thing; the drip irrigation

keeps, maintains the topsoil better and doesn’t allow the washing

away of soil as other types of irrigation do.

Mr. LIMBAUGH. Possibly. However, we are coming up and using

more and more management practices in our basin to provide for

cleaner water allowing the topsoil to be left on the field. And that

is very easy to do with new technology.

Mr. ROMERO-BARCELO ́. I wasn’t aware of that. The other thing is,

I know that the drip irrigation was, I think, basically developed in

Israel where they turned the desert into a farmlands and very,

very profitable farmlands. That is why I was just asking whether

that was being used here. Your answer is that yes, it is being used?

Mr. LIMBAUGH. Yes, it is.

Mr. ROMERO-BARCELO ́. But it is not economically feasible for

some farmers?

Mr. LIMBAUGH. It is not wide-spread, no.
230

Mr. ROMERO-BARCELO ́. Mr. Maynard, I want to make sure that

I know what your position is regarding the bill with all of the jurisdiction of the Endangered Species Act under the Fish and Wildlife

Service instead of where it is now. Are you in favor of that or do

you have your doubts about that? And if you do have doubts, why

is it that you are in favor?

Mr. MAYNARD. Thank you, Congressman Romero-Barcelo ́. I don’t

have a position on the bill. I think it has merit. There are a lot of

issues that need to be addressed. And to make it work, if we are

going to get to a truly consolidated, more cost-effective ESA approach that is going to be by consolidating functions in one department, in particular this essential fish habitat program needs to be.

Mr. ROMERO-BARCELO ́. But you mentioned some of the jurisdiction that the management services still have, which they still have

under this bill. Is that correct?

Mr. MAYNARD. Yes. The basic point would be, you’d take away

NMFS’s ESA consultation and other responsibilities and they

would be still be there at the table with this essential fish habitat

consultation in the same areas on the same activities.

Mr. ROMERO-BARCELO ́. If they were going to be passed over the

Fish and Wildlife Service, how do you suggest that that problem

be solved? Does it not have a solution?

Mr. MAYNARD. Well, in terms of the essential fish habitat responsibilities in the Magnuson-Stevens Act, you could look at, basically,

bringing that program in to where it focused more on offshore marine habitat and consultation regarding that, rather than activities

that are hundreds of miles inland that do not concern commercial

fishing.

If ESA consultation covers those activities, an exclusion, to avoid

redundancy, that would avoid duplication from the EFH program

might work. You might treat it that way. If someone was doing the

ESA, the consultation, there is nothing more you need to do for this

Magnuson-Stevens Act.

Mr. ROMERO-BARCELO ́. So where would you suggest certain

changes to this bill in order to prevent what you are just indicating?

Mr. MAYNARD. I think that sort of thing should be considered. I

don’t have specific suggestions today.

Mr. ROMERO-BARCELO ́. Could you come up with the some specific

suggestions later on?

Mr. MAYNARD. I could sure try.

Mr. ROMERO-BARCELO ́. All right. I would ask how much of a

timeframe would you like to come up with some kind of a suggestion?

Mr. MAYNARD. Give me a couple of weeks at least.

Mr. ROMERO-BARCELO ́. Fine. A month is all right too. Thank you

very much.

[The information referred to follows:] ——————

DRAFT NOTIFICATION OF H.R. 4335, A BILL TO TRANSFER TO THE SECRETARY OF THE INTERIOR THE FUNCTIONS OF THE SECRETARY OF

COMMERCE AND THE NATIONAL MARINE FISHERIES SERVICE UNDER

THE ENDANGERED SPECIES ACT OF 1973

Insert the following after SEC. 2:
231

SEC. 3 ENDANGERED SPECIES ACT PREEMPTION WHERE APPLICABLE OF MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT ESSENTIAL FISH HABITAT PROVISIONS

(a) Any essential fish habitat designated for a fish species pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.)

shall not include any critical habitat designated for the same species pursuant to

the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

(b) Any action for which a formal or informal consultation or conference is completed pursuant to section 7(a) of the Endangered Species Act of 1973 (16 U.S

1536(a)) covering a fish species included in a fishery management plan pursuant to

the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801

et seq.) shall not be subject to any essential fish habitat consultation, comment, coordination, or recommendation regarding the same species pursuant to the Magnuson-Stevens Fishery Conservation and Management Act

(c) For purposes of this section, the terms ‘‘action’’ and ‘‘species,’’ shall have the

same meaning as in the Endangered Species Act of 1973.

Mr. POMBO. Mr. Crapo?

Mr. CRAPO. Thank you, Mr. Chairman. Mr. Maynard, I will stick

with you for a minute. I was interested in your testimony about the

essential fish habitat. And perhaps you said this, but I am not

quite clear on it. Is the function of the essential fish habitat program, which is under the Magnuson-Stevens Act. Correct?

Mr. MAYNARD. That is correct.

Mr. CRAPO. Is that duplicative of the Endangered Species Act

studies or programs, or is it supplemental? See what I am asking?

Mr. MAYNARD. As currently proposed, and in the implementing

regulations, it appears to me to be duplicative and kind of an addon to such procedures as ESA’s Section 7 consultation for activities

that might affect salmon in the Snake River Basin, for instance.

That you would be doing your ESA consultation, and then you

would have to do additional documentation and procedures to get

through this EFH consultation process, a document called an EFH

assessment, which is similar to biological assessments that has additional requirements. So it is duplicative and adds to.

Mr. CRAPO. So in terms of trying to address the question you’ve

raised, it seems to me there are two obvious approaches. One

would be to eliminate the EFH requirements, or the other would

be to consolidate the EFH requirements under the Endangered

Species Act and have that all be managed by one entity. Am I correct in perceiving it that way? Are those two obvious approaches?

And if so, do you have a preference between either of those approaches?

Mr. MAYNARD. I think those are each an option. Just thinking

today, I do not think that giving an essential fish habitat function

to the Fish and Wildlife Service—a Magnuson-Stevens Act responsibility to the Fish and Wildlife Service makes a lot of sense.

Mr. CRAPO. You don’t think that does?

Mr. MAYNARD. It doesn’t strike me as a logical division of labor

or authority.

Mr. CRAPO. So that should stay with the National Marine Fisheries Service, if it stays?

Mr. MAYNARD. I think so. And therefore, it would make more

sense to make sure that the NMFS Magnuson-Stevens Act, EFH

responsibility doesn’t overlap with inland terrestrial ESA responsibilities. But if it stops at the coast, it should be workable. If it

is going to extend farther than that, then there ought to be an ef-
232

fort at just avoiding duplication. That if you do something with

Fish and Wildlife Service under the ESA, that is good enough.

Mr. CRAPO. All right. Thank you.

Mr. Limbaugh, again, you may have covered this in your testimony, but I want to understand it correctly. Could you describe to

me just geographically where the water users that you represent

operate?

Mr. LIMBAUGH. OK. Mr. Crapo, in the Payette River Valley, we

go from McCall on down to the mouth of the Payette and the Snake

River. The majority of the intensive farm efforts are in the lower

valley. But we also represent irrigators up on the north fork and

the south fork of the Payette River System. So they are mostly livestock raisers and hay producers.

Mr. CRAPO. Now, are you aware of any studies—I know there

have been some studies that have occurred over time recently

about what the impact of taking another million acre-feet of water

for water augmentation would do to irrigation, for example. Are

you aware of any recent studies that would indicate what kind of

impact that would have in the area you would represent here

today?

Mr. LIMBAUGH. Currently, the only study that we have been

looking at—and, of course, it is such a absurd notion, that the only

study that has been done on this is the United States Bureau of

Reclamation that they are continuing to complete now.

And the updates that we have had show that Cascade Reservoir,

which is a water quality limited reservoir, and also provides about,

oh, I would say, about 300,000 acre-feet of contracted storage space

to our lower valleys, basically, would be disseminated every year

because of that million acre-feet drop.

Plus the fact that by reducing the number of contracted storage

space in that reservoir, it would reduce the amount of water available for the existing farmers. And that would result in some

fallowing or drying up of farm ground in our valleys.

Mr. CRAPO. So do I understand you correctly that you would expect at least 300,000 acre-feet of water to be diverted to irrigation

purposes?

Mr. LIMBAUGH. At least for that particular use, yes. And the reason why you look at the numbers and the reason why the Bureau

is setting such huge numbers is because of reliability. If they are

going to provide a million acre-feet every year, then they have to,

you know, basically, get quite a little bit more water secured than

that amount of storage and natural flows in order to provide that

amount of water on an annual basis.

Mr. CRAPO. I see my time is up. If I could just ask one more

quick question, Mr. Chairman? Do you know of any correlation in

terms of how many acres of ground has to leave production for each

acre-foot of water that is lost in your region?

Mr. LIMBAUGH. You know, if you are talking storage space, like

I say, we have storage space that protects us during dry years and

so, you know, we don’t use all of our storage space every year because of that. But we have used all of it in recent history. In 1994

and 1992, we have used all of our storage space. But basically, in

order to provide, let’s say, 300,000 acre-feet of water from the
233

Payette basin, you would probably be looking at between 100,000

and 120,000 acres of fallowed ground, in my opinion.

Mr. CRAPO. All right. Thank you.

Mr. POMBO. Mr. Doeringsfeld, how many tons of products do you

ship in and out of the Port of Lewiston every year?

Mr. DOERINGSFELD. Out of the Port of Lewiston we move approximately 800,000 tons of wheat barley and approximately

18,000 TEUs, or containers, out of the port.

Mr. POMBO. How many containers?

Mr. DOERINGSFELD. Containers—it is not measured by tonnage.

It is measured by compound measures, TEUs, 20-foot equivalent

units. And we move approximately 18,000 containers out of the

port.

Mr. POMBO. And that is shipping out. What about coming in?

Mr. DOERINGSFELD. Coming in—out of the Port of Lewiston,

mainly, what comes up the river visits the Port of Whitman County, which is a port within about a 5-mile radius of the Port of

Lewiston. So what we have inbound from the Port of Lewiston is

really almost non-existent.

For instance, if you look at the tonnage of wheat and barley that

moved out of the port, and then you looked at those containers,

that represents about a $12.5 million transportation savings that

goes back to the—mainly to the family farmers within that area.

Mr. POMBO. And the 18,000 containers, those are the ocean shipping containers that are used.

Mr. DOERINGSFELD. That is correct.

Mr. POMBO. Thank you.

Ms. James, you talked about, in your testimony, the fish being

scared off their nests when the floatboats go by. How do you know?

Ms. JAMES. How do we know that the floatboats are the reason

that the fish move?

Mr. POMBO. Well, do you actually see the fish scared away?

Ms. JAMES. Well, you see the fish move. But if you watch the fish

from the road when there aren’t any boats, they move around too.

So no one knows that they are moving because a floatboat went by.

That is not possible to prove.

Mr. POMBO. I know, and that is kind of why I am asking.

Ms. JAMES. But that is what the restrictions are based on, the

fact that if a floatboat goes by and the fish moves, it is assumed

that we caused that fish to move. And in the old days when we had

a ‘‘take’’ statement from NMFS, it was OK as long as the fish returned within 20 minutes. But now that we don’t have any ‘‘take’’

statement, it isn’t OK if the fish moves.

Mr. POMBO. Do you have somebody standing there watching?

Ms. JAMES. Oh, yes. The Forest Service is there all the time.

Mr. POMBO. Every time you send a boat out, somebody is standing there watching?

Ms. JAMES. Supposedly. They feel compelled to watch every redd

when there is a boat on the water.

Mr. POMBO. Are you serious?

Ms. JAMES. Whether it is an outfitter or a private citizen.

Mr. POMBO. We really have somebody there watching as you go

by?
234

Ms. JAMES. Yes. And not only that, we have to pay—we outfitters

have to pay the Idaho Department of Fish and Game to watch also.

Because we aren’t legally allowed to pay the Forest Service, which

is what they wanted. It is now written in the permits. And NMFS

insists—and NMFS is there too sometimes—that we watch to make

sure that these fish are not disturbed.

Mr. POMBO. You said that you have an 8-mile——

Ms. JAMES. That is all we float, 8 miles.

Mr. POMBO. An 8-mile run.

Ms. JAMES. Yeah.

Mr. POMBO. And there is somebody who stands at every

point——

Ms. JAMES. At every redd.

Mr. POMBO. At every redd?

Ms. JAMES. Well, you see, most of the redds are in this half-mile

section that we portage.

Mr. POMBO. What if there is one outside of that half-mile——

Ms. JAMES. Well, then they take special notice of that one. Because if the fish moves when we float, then they close the river.

That is what happened last year, because that is not allowed. Fish

aren’t allowed to move because of floatboats.

Mr. POMBO. And does anybody stand there when the boats aren’t

going by?

Ms. JAMES. I don’t think so. But we also are paying for a singlewing aircraft to fly up the river, the whole 30-mile stretch, once a

week from August 1st to August 15th and twice a week after August 15th, to look for redds that might not have been spotted by

people standing on the banks. And the outfitters have to pay for

that too.

Mr. POMBO. Can they see them from an airplane——

Ms. JAMES. They can see them better from an airplane. And the

reason they decided this is because last year they did their annual

air survey in September, which they always do, to count the number of redds in the river. And they discovered they’d missed one.

So now the Forest Service and/or NMFS has decided that the only

way to be sure we have got every redd is to have twice a week aircraft spotting.

Mr. POMBO. I am going to have to get out there to see one of

these next time I come.

I know my time is almost up. I wanted to ask Mr. Kerr a question.

In your prepared testimony you talk about February 1997 the

Valley County Commission met with representatives of the U.S.

Forest Service, Federal Highway Administration, National Marine

Fisheries, U.S. Fish and Wildlife Service, Idaho Department of

Lands, the timber industry, and private landowners.

You go on to say that you put together a plan for the rebuilding

of this road and maintenance of this road. You state that because

of the inaction of the National Marine Fisheries Service between

February 1997 to now you have not done anything.

Am I to understand from this testimony that everyone else who

was a party to this had agreed to it?

Mr. KERR. When we were at the meeting, it was—all of them

were there. It was facilitated by the United States Forest Service.
235

There was a chart made up of schedules, of deadlines that were to

be met by each agency, and everything. I am not sure if every

agency met their deadlines and schedules.

But I do know that a primary reason that they did not was everything that they submitted that went to NMFS was either ignored—the only way we got back to a meeting with NMFS was the

Federal Highways and Forest Service forced a meeting that I mentioned in Boise that forced them back to the table to sit down and

talk about this. And this was almost a year and a half later.

Mr. POMBO. So the only thing stopping you from doing the work

on this particular road at this point is NMFS?

Mr. KERR. Basically, yes.

Mr. POMBO. All right. Thank you.

Mr. KERR. It is so difficult to get an answer out of them. When

you do answer them, then they come back with something else.

And it just seems like a delaying tactic. I am not sure whether if

it was all under the U.S. Fish and Wildlife if the results would be

any different, but we feel that it would be quicker.

Mr. POMBO. I don’t know if it would be any different or not. It

is just that we do have oversight responsibility in a lot of the

things that—a lot of the problems that we end up dealing with are

problems within the bureaucracy. And if this is a particular problem within the bureaucracy, it is something apparently Congresswoman Chenoweth is aware of. And it is something, I think, that

bears further study to find out what exactly is going on. But thank

you.

I want to thank this panel. I am going to excuse you. But I will

say there may be further questions that the Committee has. Those

will be submitted to you in writing. You can respond in writing in

a timely fashion. Your response will be included in the hearing

record. Thank you.

[The information referred to may be found at end of hearing.]

Mr. POMBO. I would like to call up the third panel: Mr. Tom Stuart, Mr. Mark Pollot, Mr. Jerry Klemm, and Mr. Dell Raybould.

Thank you for joining us. I would like to welcome this panel here

today. I believe you all heard the instructions in terms of the time

limit. Your entire written testimonies will also be included in the

record. I appreciate you all being here today.

Mr. Stuart, you may begin.

STATEMENT OF TOM STUART, BOARD PRESIDENT, IDAHO

RIVERS UNITED

Mr. STUART. Mr. Chairman, thank you very much for coming to

our beautiful State, and I hope you enjoy your visit.

Mr. POMBO. I always enjoy it when I come here.

Mr. STUART. My name is Tom Stuart. I am the Board President

of Idaho Rivers United. I also own a business in the Stanley Basin

on the Salmon River. I think it is remarkable that from a town of

69 people, we have two representatives here today, with my friend

Olivia James. I really appreciate that. I had no idea we had such

influence on this Committee. It is remarkable.

Today, I speak with the same sort of frustration I have heard

from many of the other speakers. I also speak on behalf of a significant portion of the conservation community in Idaho, about 2,000
236

members of Idaho Rivers United, and another 5,000 members and

club members of the Idaho Wildlife Federation.

Both of our organizations, I should point out to you, along with

national organizations like Trout Unlimited, the National Wildlife

Federation, America Rivers and others, have already endorsed the

retirement of four unnecessary dams on the lower Snake River to

restore Idaho salmon. We believe that the science is now clear.

We believe these dams produce a small amount of what is surplus power. We believe that these dams also provide no flood control since they are run-of-the-river projects. We believe that there

are alternatives to move commerce from ports in the Lewiston and

Clarkston region that should be exercised.

Now, H.R. 4335 is certainly about the ESA and the roles of the

NMFS and the Fish and Wildlife Service. But I think we must all

be honest with ourselves today. We realize that the underlying

issue is really the salmon and steelhead crisis in the Northwest.

And the central issue in that crisis is whether or not to mothball

four unnecessary dams on the lower Snake River between Lewiston

and Pasco.

First, let me discuss briefly the value of salmon restoration to

our region. It is a huge economic resource for us that I believe is

your responsibility as well as mine. As of 1988, the value of sport

and commercial salmon fishing in this region accounted for 62,000

jobs, and a $1.2 billion annual contribution to the region’s economy.

In Idaho, we don’t get a lot of that, but with our remnant

steelhead fishery we still have about $90 million worth of contribution annually and 2,700 jobs. We, in the fishing community in

Idaho, the business community, have already suffered a great deal

with the loss of chinook fishing. We have had no general chinook

salmon fishing season in Idaho since 1978, with an estimated loss

of about 1,800 jobs and about $60 million per year the result.

In a recent Idaho Statesman article about the little town of

Salmon, Idaho, one gentleman was quoted as saying, ‘‘We lost our

thriving salmon economy when Lower Granite Dam was built in

1975, and we lose $1 million a week.’’

I want to take a moment—I am sorry the Mr. Romero-Barcelo ́

has left—but I want to take a moment to thank the Minority party

for the invitation to represent this huge sector of the region’s economy. We realize that the economic value of the resource is huge.

And I know that both the Majority and Minority sides have a crucial interest in this. The family wage jobs in fishery-related businesses are your responsibility, and I urge you to weigh them heavily.

In your letter of invitation the question was posed whether

NMFS is implementing the ESA consistent with the Act. And the

answer is, frankly, in my view, that the NMFS has not yet been

allowed to.

I would criticize the NMFS in several areas; some have already

been mentioned. I echo Governor Batt’s criticism that the NMFS

has not adequately weighed Idaho’s recommendation to ‘‘spread the

risk’’ as was strongly supported by Congressman Crapo in 1998

and in previous years; we have not been able to influence that process to the degree that I think is appropriate.
237

Further, the NMFS has a demonstrated institutional bias toward

barging and trucking fish that I believe has significantly compromised their objectivity in future decisions. Any reasonable person might ask whether the NMFS can be truly objective. But there

is more that must be said here.

I want to observe also, that there is no other single issue in the

Northwest that is so contentious and so polarized as this one. I

have a friend in Stanley Basin that remarked to me that no agency, NMFS or the Wildlife Service, can wade through a swamp so

full of alligators and expect to arrive on the other side without a

few teeth marks. We must acknowledge up front that no agency

that would potentially remove dams to save salmon is likely to escape the wrath of those who oppose salmon restoration or oppose

that solution.

Now, a larger question, I think, comes to the forefront, and it is

not which agency should be in charge, but why the laws compelling

the United States to save salmon, the Columbia Basin salmon,

have not yet been upheld. I would hope this Committee would encourage new initiatives in that direction with new commitment.

It has been the goal of some Members of the Congress to weaken

the content of the ESA or to disable its implementation. This may

well be the goal of H.R. 4335 despite any perceived merits of transferring the ESA authority from one agency to another.

Unfortunately, the legislation is proposed by some whose credibility may be compromised or whose effectiveness in this issue may

be compromised because they have been perhaps better known for

ridicule of the ESA or of endangered species rather than for their

concern about salmon recovery.

We all make statements we would like to take back. But with all

due apologies, we can’t speak effectively about salmon processes

after we announce that Idaho salmon are not endangered because

we can buy them at the grocery store.

The science is now conclusive. PATH process scientists now agree

that retiring the four dams on the lower Snake will recover the fish

with 99 to 100 percent certainty. Now, nothing would please me

more than to have Secretary Babbitt in charge of removing these

dams on the lower Snake. But I can’t believe that is what is really

being offered by this legislation.

The probable goal is to strip authority for salmon recovery from

the NMFS, transfer it to the Fish and Wildlife Service, and then

disable the Wildlife Service in the appropriations process. I can’t

see the Nation’s promises being kept by this legislation.

I think it is more important to keep the regional processes, which

are on track now, at least toward a solution, whatever that is, in

place to make the 1999 decisions that are now imminent. At another time, perhaps 2 years ago, I would have supported this legislation.

I believe at this time with the ongoing processes well under way

and a lot of water under the bridge, and with no further delay tolerable for the fish, that I cannot support H.R. 4335.

Whatever one’s opinion of NMFS’s past performance, I think the

1999 decision should proceed without disruption. I think we are

going to hear a lot about who should be in charge. This is the im-
238

portant question, but it doesn’t get at the root cause of our continued collective inability to solve the salmon dilemma.

I think our inability stems to date from a focus on process and

justifying the status quo and justifying the fact that we simply

built a few too many dams, rather than on leadership and a commitment to finding solutions and getting on with the mitigation

that is appropriate.

We don’t need a solution to process. We need a solution to salmon decline. As long as we are more concerned about process than

solutions, I am convinced that we will fail. We can restore salmon

fisheries. We can reduce the demands or eliminate the demands on

Idaho water. We can save $90 to $100 million of taxpayer and ratepayer money by mothballing the four dams on the lower Snake.

And I would urge this Committee to let NMFS press ahead with

their work and be ready to stand by with ready and quick action

for appropriations and authorizations, and focus on the mitigation

that is going to be required for the good folks of the Port of Lewiston and the others who may face economic readjustments from the

need to rescue jobs in our salmon and steelhead fishing sectors.

Thank you very much. I am sorry I ran just a bit over time.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Stuart may be found at end of

hearing.]

STATEMENT OF MARK POLLOT, FOUNDATION FOR

CONSTITUTIONAL LAW

Mr. POLLOT. Thank you, Mr. Chairman, members of the Committee. Before I start my remarks, I would like to request the indulgence of the Committee. I just recently got out of the hospital,

so I am behind on my written testimony. I would like the consent

of the Committee to submit after today’s hearing.

I have to respectfully disagree with Mr. Stuart. I believe, of

course, that the steelhead and the salmon are the context in which

this hearing has arisen. However, the real issue here is, in fact, ensuring a valid and viable decisionmaking process and also some

certainty among the people who are affected by endangered species

regulation by making sure that there is one outfit that they go to,

one set of regulations that they must examine to know what it is

they have to do and how it is they have to go about doing it.

And some of the members of the Committee know something of

my background. I started my legal career at the Justice Department in Washington and spent the better part of my time there in

what is now called the Environment and Natural Resources Division. Originally, it was called the Land and Natural Resources Division, the name having been changed to protect the innocent, I

guess.

In the process of being there, I had to work with agencies like

NMFS and like the U.S. Fish and Wildlife Service and the Forest

Service and the BLM and got to know how they operated from the

inside as well as how they operated from the outside. And while

most of the folks that I had to deal with were at least well-intentioned and trying to do the best job possible, I certainly ran into

more than my share of people there whose grade school report

cards must have read, ‘‘Does not work and play well with others.’’
239

In 1993, I published a book. And in the process of doing the research for that book, I found out that in that particular year alone,

the year in which I wrote the book, there were 63,000 pages in the

Federal Register in that year alone of regulations, proposed regulations, amendments, and proposed amendments to regulations.

As of last year, I believe last year there was somewhere in the

neighborhood of 93,000 pages. That does not include, of course, the

statutory language itself, the regulatory guidance letters, the internal guidance that is the judicial decisions and so forth that pour

out of agencies and legislative bodies both at the Federal and the

state level.

The idea that one may be presumed to know the law in the face

of this onslaught is absurd. So the idea that one should have a

multitude of agencies all addressing overlapping areas of jurisdiction with regard to species management is, one, I think it is about

time that it has been examined and that legislation has been proposed to put it all in one place, one-stop shopping as it were, so

that one is not now faced with even competing or even conflicting

regulations, assuming one can find them in the first place.

This is not about really who would be the better manager of the

Fish and Wildlife Service. I am no more happy with how the Fish

and Wildlife Service than with how NMFS does it. But I do believe

it is a move in the right direction to put it one place and to at least

increase the chances of both quality decisionmaking and accountability.

However, having said that, I must also point out that as Mr.

Maynard, for example, said, there are areas out there that remain—in the Magnuson-Stevens Act, there is only one of these

areas that remains hidden. For example, the Bureau of Land Management has its own, what you might call, personal endangered

species program. They refer to it as species of special concern.

But it allows them, without even the limited safeguards of the

Endangered Species Act, undertakes species regulation and to control the activities not only public but on private land adjacent to

but surrounded by public land just as NMFS and Fish and Wildlife

Service presently do under the Section 7 consultation requirement.

The bottom line of all of this is that I can certainly point to any

number of absurdities, absurd decisions that have come out there.

But the bottom line also is that we deal with two kinds of laws,

whether it is endangered species regulation or any other kind of

regulation, that is substantive law and procedural law.

Substantive law, of course, for example, is the part in the ESA

that says, ‘‘Thou shalt not take an endangered species without obtaining an incidental take permit.’’ However, no matter how good

the substantive law is—and I see my time is up here, so I will wrap

up as quickly as possible.

No matter how good the substantive law is, if the procedural

laws are not addressed, the substantive law might as well not even

be there.

We are all familiar with the fact that it is not only State and

Federal agencies but local agencies who will take the works of legislative bodies, provide their own spin and gloss to them, and essentially rewrite that legislation. And the way you do that is

through administrative processes.
240

And the way in which that rewrite of regulation is maintained

is that at the judicial review level, courts have abdicated their responsibility to interpret the laws as passed by the Congress and

defer to agency determinations as to what that law means; meaning, basically, is the law is whatever the agency says that it is unless the judge or judges that are involved so find that interpretation so distasteful that they are willing to override that law.

So I believe that this is a good first step and necessary first step.

But to make this work properly, you must first seek out those other

areas of overlapping regulation that are more or less hidden. And

second, must seek to amend such laws as the Administrative Procedure Act to require courts to give meaningful scrutiny to agency determinations.

And also, I might suggest that you look at the possibility of an

analogy California has called the Permits Streamlining Act that

places meaningful time limits on agency actions such that if they

don’t act in a meaningful and responsible fashion, they lose the opportunity to act and the regulated public is allowed to proceed.

Thank you.

Mr. POMBO. Thank you.

[The prepared statemenmt of Mr. Pollot may be found at end of

hearing.]

STATEMENT OF JERRY KLEMM, PRESIDENT, PULP AND

PAPERWORKERS RESOURCE COUNCIL

Mr. KLEMM. Mr. Chairman, members of the Committee, and ladies and gentlemen in the audience, before I begin my testimony,

I would like to say that I am here representing the United Paperworkers International Union Local 712 in Lewiston, Idaho and the

Pulp and Paperworkers Resource Council; it is a nationwide organization with over 400,000 members. I am currently the regional director for the 10-State Rocky Mountain region.

I am concerned with some of the comments that I have heard

today on mitigation. Labor is not going to stand by and watch our

jobs being flushed down the river. We are going to stand up tall

and be heard, and you are going to hear more of us. We are not

going to be replaced by minimum wage jobs. I am alarmed at the

building power of small regulatory agencies to circumvent and reinvent the law of the land to meet very narrow goals established

in far less than perfect legislation. What I believe are united consequences of those narrow goals that are not mitigated by that

same legislation.

I do not believe, for example, that the authors of the Endangered

Species Act knew that the National Marine Fisheries Service would

use the Act to circumvent individual and state water rights in pursuit of their aims. This is especially troubling when dealing with

issues like flow augmentation where the working hypothesis is unworkable.

NMFS believes massive flow augmentation will help fish. Idaho

Fish and Game Director Steve Mealey says, ‘‘Flow augmentation

will not recover the fish and it places large burdens on vital state

interests.’’ While I don’t like Mr. Mealey’s solution, which is dam

removal, I do agree that flow augmentation is not the answer.
241

But flow augmentation is a perfect vehicle for NMFS to use to

take water rights in an attempt to wrest control of water in the

West to meet their own ends away from states and individuals and

use that water.

I am not suggesting there is a malicious conspiracy at work here

to take western water. I am saying that a small regulatory agency

with veto power of Federal, State, and private land management

has interpreted the law in such a way that the net result is the

taking of Western water without due process.

While NMFS has been busily engaged following its narrow path,

her sister agency in the Department of Interior, the U.S. Fish and

Wildlife Service, is engaged in its own efforts to meet the same

ends, but not always by the same means. How painful it must be

for the leadership in these two agencies, both charged with implementing and enforcing the ESA, to have to work around, over, and

through each other and everyone else to implement the Act. Their

experience and training are often in conflict. Their political bosses

answer to different drummers for different reasons. Their histories

and clientele are so different. Their veto power and willingness to

use that power shaped by their experience.

I absolutely support H.R. 4335 to consolidate those agencies that

hold such power over the rest of us. While more sophisticated populations in cities far removed from Lewiston may think this is much

ado about nothing, the time will come when they will appreciate

what you are trying to do here.

The first time busy big city mayors go up against Will Stelle and

the gang, they will realize it was the right thing to do after all.

Wasn’t it Will Stelle who said on 12–15–97, ‘‘Science will not give

us the answers, although many pretend otherwise’’?

If not science, who? The answer is, Will Stelle and NMFS, unbridled by the democratic process or the principles of republican forms

of governance. Ridiculous, you say? When NMFS and the U.S. Fish

and Wildlife Service vote, who may vote them down? When they

enforce the flawed and often ruinous law, who may veto them? To

whom are these people accountable?

The answer, of course, is that you, Mr. Chairman, and your colleagues may ultimately veto those agencies. But you cannot prevail

against an administration so dedicated to sacrificing human and

community needs.

You, in good faith, enacted this law to help endangered species.

You could not know that your intent would so mutate as to be unrecognizable today from the legislation enacted so long ago. Who

could foresee the dueling agencies and cross-purposes? Who could

predict that the administration would so cynically use the law to

further their own dark ends over the very particular rights of individuals and States?

Stelle’s recent hostile takeover of the issuance of the 4d rule for

spotted owl in Oregon demonstrates NMFS cannot be trusted to

work cooperatively in an administration supposedly dedicated to

collaborations. It is time to muzzle the hounds and bring some

management to chaos. It is time to either bind the two agencies together or make them one. Or if that is not possible, limit NMFS’s

authority to the ocean and U.S. Fish and Wildlife Service inland.

Make the boundary the coastline.
242

I am not a biologist. I am not a professional. I am a welder at

the mill where I work. I don’t pretend to have all of the answers.

But I do know something about organizing to get something done.

A prophet said we cannot serve two masters, and I believe him.

In closing, I believe that the laboring people in the State of Idaho

need what we call certainty. Right now, the way things are going

we have got no certainty. We end up wondering whether our jobs

are going to be here today or tomorrow or the next day. It has got

more gyration than Wall Street did last week. And we need to have

that leveled out and have something available for us in the future

for our children and their children.

Also, on behalf of UPIU Local 712, and my employer, The Potlatch Corporation, I would like to request that you keep the record

open for additional testimony.

Mr. POMBO. The record will be held open for probably about 2

weeks for additional testimony for the record. Thank you for your

testimony.

[The prepared statement of Mr. Klemm may be found at end of

hearing.]

STATEMENT OF DELL RAYBOULD, CHAIRMAN, COMMITTEE OF

NINE, WATER DISTRICT 1

Mr. RAYBOULD. Chairman, members of the Committee, it is a

pleasure for me to be here today to testify on behalf of the Committee of Nine. I am chairman of the Committee of Nine. The Committee of Nine is an advisory committee to Water District 1. It comprises of about 15,000 irrigators in Southern and Eastern Idaho

that irrigate over 1.2 million acres of agricultural farmland. We irrigate out of the Snake River and out of many reservoirs, both private and Federal reservoirs that contribute to that water system.

Today I am here to express the concerns of thousands of

irrigators, and not only irrigators but also industrial water users

and municipalities that depend on irrigated agriculture in Southern and Eastern Idaho.

We are talking about NMFS today. NMFS has been charged with

developing a recovery plan for recovering the endangered salmon.

They have avoided making the tough decisions required to protect

the salmon. But instead, they shifted from a recovery plan to efforts in seeking water for flow augmentation.

We water users are not only concerned about the use of water

for irrigation, but we are vitally concerned about our local economies, the resident fisheries, the beautiful recreation areas that

have been created over the years by these irrigation reservoir systems.

I am just going to give a quick example. Henry’s Lake is a private reservoir of which I am a director of that reservoir. It is located at the headwaters of the Henry’s Fork of the Snake River,

the leading tributary to the Snake River.

And over the years, since Palisades Reservoir was constructed,

there has been ample storage water that we have been able to develop water exchanges between reservoirs that has allowed us to

keep the water levels in these upper reservoirs at high levels by

exchanges with other reservoirs. That has made it very feasible for

the fisheries to develop in those beautiful streams up there.
243

If NMFS takes an additional million acre-feet or the million-anda-half acre-feet they want out of Idaho, it will effectively preempt

these water exchanges. These small reservoirs and and many of

our Federal reservoirs will be drawn down to the very limit every

year, ruining recreation, ruining fisheries, and also limiting irrigated agriculture.

That is the thing that we are most concerned about today, is that

NMFS and fish and wildlife have tunnel vision. They are not looking at the overall effects that some of the decisions that they are

making will affect all of us. We are all in the same boat here in

this.

There has been no willingness of NMFS or other Federal agencies to admit that because of conditions beyond the control of man

that maybe the recovery of salmon to the extent that sport fisheries

and the Indian tribes want may not be possible. Most of this is due

to the effects of climatic conditions in the Pacific Ocean, in the estuaries where the salmon grow and mature.

I am going to refer to a recent study of the Scripps Institution

of the Oceanography at San Diego, California, which was published

this July in the Journal of Science. Where they say that the major

result of these dramatic ocean temperature changes shift salmon

populations north to the Gulf of Alaska. The most spectacular

shifts upward have been the sockeyes and the pink salmons.

Again, these sharp declines have been attributed to the changes

in the survivorship of young and juvenile salmon in the open ocean,

irrigation and reservoir storage have had nothing to do with it.

We don’t hear NMFS say anything about the pinnipeds, about

the terns, about all of the predators that have shifted north from

California because of these climatic changes. None of that is being

addressed, only taking Idaho water. Is it any wonder that many in

the water community believe that the Federal Government is using

the Endangered Species Act as a vehicle to control Idaho water?

As far as H.R. 4335, I talked to one irrigator that is a little bit

worried about the Federal Government. And he said that ‘‘If the

cannibals are going to eat you, does it matter which pot you are

boiled in or which tribe does the cooking?’’

Well, we are a little dubious about Fish and Wildlife. We are also

dubious about the government agencies that have come in here and

mandated and commandeered our water. In one instance, we have

been negotiating for several years on some of these endangered

species; the snails, for example, and the deerflats issue in the

Snake River.

We had a deal worked out on the Deerflats. When it went back

to Washington, DC, the solicitor back there came back to us and

said, ‘‘No deal, we are not going to do that. We want the water.’’

Now, on another occasion, we met with the Department of Justice

officials in Pocatello. And they informed us as irrigators, that we

had no right to maintain our bona fide contracts that we have with

the Federal Government for space in the reservoirs. They said we

will take it and that is that. If you don’t like it, sue us.

We are a little bit upset about the heavy-handed way that we

have been handled by some of these agencies. And I would suggest

to you, Committee, in closing, that you take a deep look into the

funding of these programs. Where is the money coming from for
244

NMFS to continue these exploratory experiments that they are proposing. Where in the BOR budget are they getting money to purchase water or to rent water?

Where in the Endangered Species Act is authority given for

NMFS to require BOR to abrogate their bona fide contracts with

reservoir spaceholders to acquire this 1,427,000 acre-feet of water?

Where is this coming from?

I cannot believe that they have that right or authority. I can’t believe that you as a Congress have given them that authority to abrogate contracts that were approved in previous legislation.

There are thousands of jobs here at stake in Idaho. Our tax base,

our school system is dependent on our economy, of which the potato

industry in Idaho is a little more than one-third of our total economy.

In recent studies by the BOR as to the economic effects of what

would happen if this million acre-feet is taken out of Idaho, a very

cursory—very small attention was given to what would happen to

our economy if the potato industry were to be in demise. And this

million acre-feet will do just that.

There are thousands and thousands and thousands of jobs at

stake, cities at stake, businesses at stake, and our school system

at stake. I could go on, and I hope that you have the opportunity

to read my statement in full. It outlines a lot of these things that

I have said here.

We are concerned. We as irrigators have been on the front line

now on this for the past several years. And we are now seeing some

of our recreation people and some of our city people all at once realizing what is happening to them. So I would suggest to you, as a

Committee, that you do review these things very carefully.

And I thank you very much for the opportunity of being here

today representing the water users of the State of Idaho.

Mr. POMBO. Thank you. Thank you, panel, for your testimony.

[The prepared statement of Mr. Raybould may be found at end

of hearing.]

Mr. POMBO. Mrs. Chenoweth?

Mrs. CHENOWETH. Thank you. Your testimony was very impressive. I wanted to ask Mr. Stuart, you are President of the Idaho

Rivers United. Is that your full-time employment?

Mr. STUART. No, ma’am. I am a volunteer. I am a businessman

in Stanley, Idaho, and a retired military officer.

Mrs. CHENOWETH. Retired military officer?

Mr. STUART. Yes, ma’am.

Mrs. CHENOWETH. And you are a businessman in Stanley, Idaho?

Mr. STUART. Yes.

Mrs. CHENOWETH. What do you do in Stanley?

Mr. STUART. I run the Redwood Motel and Cabin Complex in

Stanley. I have owned and operated it for 20 years.

Mrs. CHENOWETH. I found your testimony very interesting, especially in view of the fact that the testimony that we have heard

from Mr. Klemm and Mr. Raybould about the fact that if we see

destruction of our system as we know it now very suddenly, there

would be a sudden loss of jobs.

What do you think after you listen to Mr. Klemm? What do you

think these people are going to do?
245

Mr. STUART. Ms. Chenoweth, I am sensitive to that, and I appreciate your concern. I must point out, though, that the status quo

is neither cheap nor benign at this point. We have a very costly series of dams on the lower Snake that ratepayers and taxpayers pay

dearly for. And I am sure you are well aware of the costs to maintain and operate and sustain those operations. Workers like Mr.

Klemm are not going to benefit from change, certainly.

But there is a strong case to be made that the costs far outweigh

and far exceed the benefits of those particular projects.

Mrs. CHENOWETH. You are not answering my question.

Mr. STUART. I am sorry. My concern about Mr. Klemm, I share

his concern. The jobs in Idaho——

Mrs. CHENOWETH. You feel his pain?

Mr. STUART. I wouldn’t go that far. I share his concern. I come

from a long union background. I think the jobs in Lewiston must

be protected. And I would urge this Committee to be the spearpoint

of that. I believe that changes in the lower Snake River to restore

a very valuable resource, the fisheries resource, are inevitable.

And I would encourage—I applaud Mr. Klemm for taking a

strong position. I think the unions and the workers of Lewiston

must take a strong position to assure that the necessary mitigation

to adjust for change is in place.

Mrs. CHENOWETH. Thank you, Mr. Stuart. They have taken a

strong position, and I hope that you will study their strong position

very much.

In your testimony you mentioned that we need to devise alternatives to moving commerce out of the Port of Lewiston. Do you

know what those alternatives mean in the form of tens of thousands of additional truckloads of commerce going down that scenic

highway? Are you prepared to support the increase in truck traffic

and diesel-driven and gasoline-driven truck traffic?

Mr. STUART. Congresswoman Chenoweth, I think this is a wonderful opportunity for leaders like yourself to rebuild the road and

rail network into Lewiston and Clarkston. I would be first in line

to support a four-lane highway to Pasco and to modify the rail facility in the Port of Lewiston to accommodate the 26-car-plus trains

to handle the grain commerce and the Potlatch traffic that we certainly need to sustain and want to sustain out of the Port of Lewiston.

That is mitigation that is totally appropriate, and I would strongly support it.

Mrs. CHENOWETH. Are you familiar with a man by the name of

John Schuler, a sheep rancher in Montana?

Mr. STUART. No, ma’am.

Mrs. CHENOWETH. Who was charged with the taking of one endangered species, a charging grizzly bear?

Mr. STUART. I am not familiar with that.

Mrs. CHENOWETH. I would be happy to send you the case.

Mr. STUART. I would like for you to do that.

Mrs. CHENOWETH. They found him guilty because he defended

his life by taking one endangered species.

The salmon has been listed as an endangered species.

Mr. STUART. Yes, I know.
246

Mrs. CHENOWETH. Why aren’t we treating salmon and the bear

and everyone else alike? Why are we giving a special privilege to

stake the salmon in commercial fishing, gill netting, and every

other way? Where in the law is there one reference to one species

having an exemption?

Now, you have made broad implications and big political statements in your testimony. You cite the law for me, sir.

Mr. STUART. Ma’am, the basis for protecting our salmon fisheries

is multifold in at least three——

Mrs. CHENOWETH. I want specifics.

Mr. STUART. The Indian Treaties of 1855 provide for the——

Mrs. CHENOWETH. I want the specifics in the Endangered Species

Act.

Mr. STUART. Can you clarify your question for me, please?

Mrs. CHENOWETH. I don’t think it could be more clear. Where in

the Endangered Species Act was any one species given exemption

from the provisions of the Act and allowed to be killed?

Mr. STUART. You are correct. There are no provisions, except

those under section 10, the consultation process.

Mrs. CHENOWETH. Mr. Pollot, I would like to ask you with regards to the water that is stored behind the dams, who owns that

water?

Mr. POLLOT. Well, the physical water is the State of Idaho’s. The

right to use the water is owned by the person, to the water

rightholder.

Mrs. CHENOWETH. What about the unallocated water? Who owns

that water?

Mr. POLLOT. Water which is unallocated is owned by the State

of Idaho.

Mrs. CHENOWETH. Now, you just heard Mr. Dell Raybould talk

about the fact there have been agencies who have said we are

going to take the water, even up to 1.427 million acre-feet.

Mr. POLLOT. Well, I have two problems with that, Congressman.

The first problem, of course, is that one cannot take which—under

the Federal Constitution one cannot take which does not belong to

the Federal Government without paying for it. The Fifth Amendment’s Just Compensation Clause requires that if they take something for public use, they have to pay for it. And they have to pay

just compensation, not mere compensation.

So Congress, for example, could not even set a rate of compensation for that. And the courts have made it very, very clear that that

is their job.

Second, even under those circumstances, the Federal Government may, of course, exercise its power of eminent domain under

the Fifth Amendment. However, that power belongs to Congress.

Congress may delegate that to the specific agencies. If Congress

does not authorize the agency to do that, it cannot even take even

if it wishes to pay for it.

And by the way, the storage contracts are themselves property

separate and independent from the water, separate and independent from the water rights, and are just as subject to the limitations on the Federal Government of the Fifth Amendment as to

water and the water rights themselves.
247

Congress, actually, in the Endangered Species Act—and I can’t

remember the section numbers right off the top of my head—specifically provided that if water was needed for endangered species

purposes, it could be acquired but it could be only be acquired in

accordance with State procedures.

Now, as I read the Endangered Species Act as it currently is

written, Bureau of Reclamation, Fish and Wildlife Service, and

NMFS cannot merely go in without complying with State procedures and acquire that water.

Mrs. CHENOWETH. Mr. Pollot, let me ask you, are what is now

commonly being called storage rights by the agencies, are those

really bona fide water rights?

Mr. POLLOT. Well, I guess the best analogy to use is, if I own a

parking garage. I own the parking garage.

Mrs. CHENOWETH. Now, wait a minute. Let us say that the agencies own the parking garage.

Mr. POLLOT. OK. The agencies own the parking garage. If I come

to enter into an agreement, whether it is an expressed agreement

or implied agreement on the back of the ticket, or whatever, and

I go in and I store my car in that garage. Depending on the terms

of the contract, nothing—the ownership of my car, just like the

ownership of the water, does not pass to the owner of the garage.

I have rented that space. I have a contract with that person. And

as long as I adhere to my contract, I am allowed to park my car

there. Other than having to pay that person for that privilege—and

courts would determine the contracts—I have no obligation. He has

no right over my car.

Mrs. CHENOWETH. Very interesting.

Mr. Raybould, can you tell me, has the Federal Government ever

offered any potential compensation for the potential loss of that

1.427 million acre-feet as it would impact the nine committees that

you represent, water committees?

Mr. RAYBOULD. No. The compensation that the water users have

received up-to-date for the test program that has been underway

for the past 4 years—the Idaho legislature authorized a test program for 427,000 acre-feet on a willing-seller willing-buyer basis,

which was negotiated kind of in Washington by Senator Craig. But

that water has been rented by the Bureau of Reclamation.

At this point in time, there has been no attempt for the Federal

Government to come in and take over the space in those reservoirs.

However, the Bureau of Reclamation is presently undergoing an

economic impact study to determine what the economic impacts

would be to the economy of the State of Idaho and to individuals

if the Federal Government did come in and take this 1.427 million

acre-feet of water.

There has been no talk up to the present as to any compensation.

And we are very concerned about the frivolous way that the BOR

is determining these economic impacts. Because it doesn’t take into

consideration secondary and third impacts and tax bases and those

kinds of things that would affect the livelihoods and the lifestyle

of the people here in Idaho.

So there has been no approach yet saying we will compensate

you so much for the taking of this space in these reservoirs. But

so far, they have just said we may do it.
248

Mrs. CHENOWETH. Thank you, Mr. Raybould.

And Mr. Chairman, I want to apologize for going over my time.

I try not to do that, but when I hear testimony from men like Jerry

Klemm, who have left his job and traveled 400 miles to get here,

that testimony is serious stuff.

And when I hear the testimony from Mr. Raybould about the impact on an entire region of our State, the southern part, and Mr.

Klemm representing the northern part, I get pretty concerned.

Thank you very much for your patience.

Mr. POMBO. Mr. Romero-Barcelo ́?

Mr. ROMERO-BARCELO ́. No questions.

Mr. POMBO. Mr. Crapo?

Mr. CRAPO. Thank you, Mr. Chairman. And I will be brief.

I wanted to ask Mr. Raybould, I am sorry, but I had to step out

just toward the end of your testimony. Did you state in your testimony whether there had been any studies that indicate what the

loss of irrigation land would be if an additional 1 million acre-feet

of water were diverted from irrigated activity?

Mr. RAYBOULD. There has been estimates in the ranges between

500,000 and 800,000 acres that would be dried up. And, of course,

that would depend on the particular water year, the kind of winter

that we have, and the natural flow that we have in our streams.

I think the thing that has been overlooked by the Bureau of Reclamation and by many who were talking about this is the loss of

our high-value crops. We are seeing bankers, every year, because

of farm conditions and because of their own interests, contacting

watermasters, contacting irrigation districts every spring to find

out whether or not there are ample supplies of storage water available so that they can lend money to growers to plant high-value

crops like potatoes, beans, and sugar beets.

And if these water supplies are diminished and we are not sure

that we have an adequate water supply to carry us completely

through the season to the maturing of these crops, bankers will not

loan money to plant those crops. We will be reduced to going back

to pasture, to dry grazing, those kinds of things, that even though

there will be acres in production, they will not be producing the

kind of crops that produce the revenue that it takes to maintain

our economy. That is the seriousness of it.

Even though we are talking about some acres coming out of production, it is the kind of acres that are coming out of production

that is going to have the devastating effect on our economy.

Mr. CRAPO. Thank you very much. And I just wanted to talk to

Mr. Stuart for just a minute.

Tom, I read your testimony, and I understand the strong concern

that you are raising and I appreciate it. In fact, I share with you

the concern to try and make certain that we don’t disrupt and

cause further delay in resolving the issue with regard to salmon recovery.

I think that as—I made a little note in your testimony that I

thought that was one of the most critical issues that we have to

face as we look at this legislation. The question I have to you is,

I assume that you—well, you said in your testimony—you have

your own problems with NMFS and some of the processes.

Mr. STUART. Absolutely.
249

Mr. CRAPO. Do you believe that it would necessarily require the

disruption of the process for the transfer of jurisdiction to take

place?

Mr. STUART. No, sir. I don’t think it would necessarily require

the disruption. But that is my concern, along with concerns about

the appropriations process that I stated also in my testimony.

Mr. CRAPO. And that is kind of the issue I wanted to focus on,

because I would certainly hope that whatever we do—and as I said

at the outset of this hearing, I am very concerned that whether it

is this legislation or some other approach that we start getting

some results and some actions taken so that we can resolve this

issue in a way that takes into consideration human and economic

factors and takes into consideration the species and finds the path

forward that we can get out of here.

Do you believe that, short of some type of disabling activity in

the appropriations process or manipulations of the appropriations

process, that a good faith effort to try to move the process forward

could be achieved under either agency?

Mr. STUART. Congressman Crapo, I would like to see more detail

on that. I think that despite my criticism of NMFS’s past performance in many areas—I have detailed a few of those—One I forgot

was the management of the upper river, which my friend, Olivia

James, addressed very adequately, is a total misdirection of priorities.

And it is possible that the Fish and Wildlife Service could do the

job for us. My concern is, of course, the potential disruption at this

time, very late in the 1999 decision process. Of course, the NMFS,

in the last couple years, has brought many processes to bear, and

is heading toward a solution, whatever that solution is, with

PATH, with economic studies, and other vehicles for regional consensus and collaborative efforts.

I am concerned. I don’t want to delay what has been accomplished to date or restart or reaccomplish any of it. I think that

would be a grave error. That is my concern.

I see no substantial gain from legislation, at this point in the

process, of transferring authority to the Fish and Wildlife Service,

whereas 2 years ago, I believe there would have been a substantive

gain. I think the focus of your Committee should be to focus on the

mitigation issues that Mr. Klemm, I think, has so articulately stated. I think that is where the focus should be.

Mr. CRAPO. Well, I think you certainly raised a very important

question about the way it could be introduced into the process of

what we do. On the other hand, I think we all want to be sure that

we also introduce into the process the decisionmaking regime that

will take into consideration the important critical factors of this

panel and others have brought forward.

Mr. STUART. Yes.

Mr. CRAPO. Thank you very much.

Mr. POMBO. Just to continue on with that, Mr. Stuart, it is this

Committee’s responsibility. And as oversight responsibility on endangered species, over the past 20 years, we have spent billions of

dollars on the recovery of salmon. I think that you will agree that

we have had very little to show for that.

Mr. STUART. Yes, sir, very little to show for it.
250

Mr. POMBO. We have continually become more conflicted. We

have the result where members of the community are very divided

on the issue. It is very confrontational. You have people like Mr.

Klemm and all of his coworkers that are looking at this as a loss

of jobs, about wiping out an entire industry that he represents and

all of the men and women that work there.

And on the other side, we have people who have made their living as fishermen off of that industry that have watched that be destroyed.

Mr. STUART. That is correct.

Mr. POMBO. In that context, we look at this and we say there is

something wrong here, and we need to fix that. You continually

stated people were trying to protect the status quo. I don’t think

there is a single person on the Committee that says a status quo

is a good idea.

Mr. STUART. I am glad to hear that, Mr. Chairman.

Mr. POMBO. I don’t think there is a person that is testifying before the Committee thinks that a status quo is a good idea. Nobody

that I have met yet in the past 2 days have come up to me and

argued don’t do anything, everything is working great. Everybody

has said we have major problems. And we need to fix that.

Mr. STUART. Yes.

Mr. POMBO. It is not constructive to debate, to come in and say

that, Well, because this Member of Congress, whether you were referring to me or someone else, has been critical of the Endangered

Species Act. That member has lost some kind of credibility, I believe was your term. Because in the last few minutes I have heard

you being critical of the Endangered Species Act and of the results

of that Endangered Species Act. And I would question whether or

not that destroys your credibility to speak on the issue at this

point.

Mr. STUART. Well, I hope not. I do share your observation that

the ESA is definitely an imperfect document. I know that the

NMFS is obviously an imperfect agency as is the U.S. Fish and

Wildlife Service. It is an issue of balance.

I support the goals of the Endangered Species Act, as I am sure

the members of this Committee do, and I am anxious to see them

implemented.

Mr. POMBO. I have been very up front about my position on the

Endangered Species Act. I believe in the original goals with the Endangered Species Act. I believe that what the agencies are being

asked to implement today is an utter disaster both for people and

for wildlife.

I think it has gotten to the point where it is nearly impossible

to administer this law in any sane fashion. We have people who are

having their water rights taken away from them by Federal agencies, who have no authority whatsoever to do it. But they are being

told by court decisions somewhere or bureaucratic or regulatory decisions somewhere that this is what they have to do.

And it is not what—you know, the environmental community has

made a lot of this law through lawsuits and court decisions. It is

not going to be long before the irrigators are out there making the

same kind of law based upon lawsuits. And in the meantime, your
251

salmon are going to disappear, because nothing is being done to go

after recovery of those salmon.

Two years ago, we held a hearing in Vancouver, and I asked a

representative of the fishing industry at that time, if I gave you a

billion dollars a year to recover the salmon, could you do a better

job than what is being done? And he said absolutely.

And I think that there are very few people who would look at the

situation that we are in today and say, If I had a billion dollars

a year to spend on the recovery of the salmon, could I do a better

job than what is being done? And I believe whether it is people

with your point of view or people with other points of view, they

could do a much better job, or at least they feel they could do a

better job than what is being done.

It is the responsibility of this Committee to hold oversight hearings and to determine how the public’s money is being spent and

whether the public interest is being fulfilled by the Federal agencies. And that is not being done, in my humble opinion.

Mr. STUART. I agree with you, sir. We need to do a better job

across the board.

Mr. POMBO. If we are going to solve the problems that we have

with the Endangered Species Act and come to some kind of consensus and solution, it is only going to be done when reasonable

people sit down and discuss reasonable solutions that protect individual rights, which are protected by our Constitution, at the same

time doing a better job of protecting wildlife.

That has not happened yet. And until we have reasonable people

sit down and throw away the kind of accusations and the kind of

demagoguery that has existed up to this point, it is never going to

happen.

I thank the panel a great deal for your testimony. I have had the

opportunity to read all of your testimony that has been submitted

up to this point. There will be further questions that are going to

be asked. I do thank all of you for giving us your time here today.

I believe this is an extremely important issue not just for Idaho

or the Pacific Northwest, but an extremely important issue for our

entire country. Because this is the battleground, this is the front

line in this war that we are waging. And until we come to some

kind of a reasonable solution, this is not going to end.

Thank you very much, and I will excuse the panel.

I would like to call up the fourth panel: Mr. Will Stelle, Mr.

Shawn Cantrell, Mr. Jim Little, and Mr. Mitch Sanchotena.

I would like to welcome our fourth panel here today. You have

heard me describe the time constraints that we are under. I will

ask you to stay within the 5 minutes. Your entire testimony will

be included in the record. If you do not, I will have to ask you to

wrap up and finish it.

Mr. Stelle, I allowed you to go way over yesterday, and I would

appreciate it if you would stay within the 5 minutes. You may

begin.

STATEMENT OF WILL STELLE, NATIONAL MARINE FISHERIES

SERVICE

Mr. STELLE. Thank you, Mr. Chairman and members of the Committee. Again, I appreciate the opportunity to visit with you here
252

in Boise on this important subject. And I will move quickly through

my comments and watch the light bulbs closely.

First, some general observations about the salmon setting and

then some of the basics about our approach to it. First and foremost, the most important starting point to this debate is to understand that, as a factual matter, salmon and steelhead runs are at

serious risk of extinction throughout the Pacific Northwest. And

that is why we are here today.

Second, equally important, the causes of the salmon problem are

many and extensive. There are no single causes, and there are no

single silver bullets. It is not just a question of the dams. It is not

just a question of overfishing. It is not just a question of water.

And it is not just a question of ocean conditions. It is all of the

above. We must understand the solution must be comprehensive to

be successful.

Third, the people of the Pacific Northwest are absolutely committed to the restoration of our salmon and steelhead runs. The

distinction of these runs is not an option. Salmon restoration and

salmon recovery is not a political issue, because everybody agrees

that it must happen. Nor is it a partisan football to be tossed back

and forth.

It is a simply a matter of priorities. And for the people here in

the Pacific Northwest, it is a priority for all of us. The issue understood, fundamentally—the most important issue is an issue of habitat. Restoring salmon runs is the same thing as protecting the productivity of our rivers and streams, which is the same thing as protecting our clean water; clean water, healthy streams, strong robust salmon runs.

Some of the fundamentals of the approach that we are bringing

to salmon restoration: First, and foremost, a commitment to good

science to pursue good science, whatever way it leads us. It is an

absolute rock-hard commitment.

Second, a commitment to a comprehensive life cycle approach to

salmonid recovery that takes into account and addresses all of the

major features of risks to our salmon populations; again, no silver

bullets.

Third, fostering partnerships wherever we can with states, with

localities, with public and the private sector to effectuate a more

successful restoration effort.

In the Columbia River management, we have worked very, very

hard with the States and the tribes and the communities in decisions on how to operate the dams and what to do literally on a

week-by-week basis.

We have major habitat conservation agreements with utilities in

the mid-Columbia area and with the operators up and down the

West Coast. We have worked very hard with the State of Oregon,

we are doing so with the State of Washington. These collaborative

partnerships are essential.

Finally, we must also honor our fiduciary obligations, our trust

obligations, to the treaty tribes here in the Pacific Northwest who

have formal treaties with the United States.

Major challenges to salmon recovery:
253

One, the scientific uncertainty. There is no absolute clarity

that science will give us, and we must always remember that.

There will always be uncertainty. We must make judgments.

Two, the blame game. There is absolutely the tendency time

and again to pass the buck and to point fingers. We will not

be successful in salmon recovery unless we grow up, take responsibility, and put our shoulders to the task together.

Three, jumping to conclusions. We are too prone to jump too

quickly to conclusions when the science is not in and when

doing so prematurely is not responsible. And I say, in this particular, I was impressed with the discussions yesterday on the

whole issue of flow survivals, which came up earlier today. And

on that particular matter, I am looking forward to sitting down

with some of the witnesses here and yesterday to go through

the science and to see whether or not we can come to an agreement on what that science says. It is absolutely our responsibility.

Four, to build a sustainable ethic to protecting our streams,

protecting our clean water, and restoring our salmon runs is

vital to a healthy landscape and vital to a healthy economy.

Mr. Chairman, I will stop there. I look forward to questions from

you and the other members of the Committee.

Thank you.

Mr. POMBO. Thank you.

Mr. Cantrell?

STATEMENT OF SHAWN CANTRELL, NORTHWEST REGIONAL

DIRECTOR, FRIENDS OF THE EARTH

Mr. CANTRELL. Thank you.

My name, for the record, is Shawn Cantrell. I am the Regional

Director for Friends of the Earth, based in Seattle, although I

would note that I am originally from the State of Idaho. My father

still lives here. So it is nice to be back home. I was born near

Mullen, Idaho, in Mrs. Chenoweth’s district, I believe.

And I would also note that my wife’s family is from Puerto Rico.

So it is a nice, interesting mix here this morning, unexpected but

enjoyable. So thank you for giving me the opportunity to speak.

Mr. ROMERO-BARCELO ́. I haven’t met anybody from Puerto Rico.

Mr. CANTRELL. My wife is from there, and my in-laws are currently back there visiting right now. So it may be wiser that I go

back with you to enjoy.

Anyway, to address the subject matter at hand, I would like to

begin by just highlighting a couple points from my written testimony. I won’t go through all of them. But suffice it to say that my

organization, and many others, have very significant problems with

the National Marine Fisheries Service and their implementation or

lack of implementation of the Endangered Species Act.

I would note just three basic points. One, that they have had 7

years since the first Snake River fish was listed, and they have yet

to develop a recovery plan. What they have done is a series of biological opinions that we feel are wholly inadequate for actually restoring the fish. And even those inadequate biological opinions

have not fully been implemented. And I could refer you to the testi-
254

mony and be happy to answer questions about those specific concerns.

But in the broader context of today’s hearing regarding H.R.

4335, while we are not a fan of NMFS’s actions to-date on ESA,

we do not think that this bill would actually improve the Federal

Government’s ability to implement the Endangered Species Act and

actually restore fish runs in the Pacific Northwest.

We are concerned, as Mr. Crapo was having some discussion

with Mr. Stuart on the last panel, in regards to the delays that this

bill may produce into the 1999 decision. That would be our single

biggest concern about this bill.

If there is a way to have the Fish and Wildlife Service take over

responsibility and still guarantee that the 1999 decision was made

on time and then implemented in an expedient way, that would go

along with addressing our concerns about this specific bill.

But I have serious concerns that the bill could actually allow that

1999 decision, both the decision itself and then implementation to

take place in a timely way. So that is probably our biggest concern.

In my written testimony I equate this bill to—it reminds me

somewhat of the adage rearranging deck chairs on the Titanic. Because while the ship is sinking we may put this agency in charge

or that agency in charge, and then it doesn’t necessarily help save

any of the fish or the passengers on board. So that would be our

biggest concern about the bill.

We do recognize the concerns that Mrs. Chenoweth and others

have expressed on the idea of overlapping management authority.

We have heard a number of concerns from previous witnesses. And

we think that there are more direct, more straightforward ways of

addressing that in a way that would actually streamline the system.

In my testimony, the written testimony, I note in the State of

Washington, there is a process called JARPA, which is the Joint

Aquatic Resource Permitting Application, where you have four different State agencies that previously had separate permitting processes for a single activity. And they have come up with a single

joint application.

I don’t know if that is an exact transferable piece, but I think

it points to the type of things that can be done while separate

agencies maintain their own jurisdiction or responsibility that can

streamline the process, that is, in fact, the intent of the bill. So I

would point the Committee to look at those sort of examples if that

is the intent of the legislation.

As far as how to actually make sure that fish are restored, I was

very pleased to hear every single member of the Committee this

morning in your opening comments, say that that is, in fact, your

goal of seeing the Northwest salmon runs, and the fish runs in particular in the Idaho basins coming out of the Snake River, see them

restored.

We would offer three specific suggestions. The first, as Mr. Stelle

says, science does not provide absolute answers, but it tends to provide better answers than a pure political process. And we are concerned that more often than not politics is being substituted for

science on many decisions.
255

And we would point to a number of documents that highlight

what can work and what cannot work or at least have more indications. Particularly the ISAB, the Independent Science Advisory

Board, their return to the river, while not a blueprint for detailed

restoration, I think is the direction I would urge the Committee to

try to make sure the Federal agencies follow.

Second is to hold the administration accountable, make sure that

they, in fact, make the 1999 decision, that it does not slip, whether

the Army Corps or the National Marine Fisheries Service or any

other agencies find reasons or excuses to setting aside the questions for another 3 or 4 or 5 years, or even 3 or 4 or 5 more

months.

We will not get a definitive, absolute silver-bullet answer, but I

think that there will be ample information and evidence to make

informed decisions in 1999 and would encourage this Committee to

make sure that the administration sticks with that time line.

Including—I would add that by helping make sure that the appropriations process that will be decided in the next month, each

of you can help influence to make sure that the studies for the

John Day and Lower Snake River decisions on those studies in the

appropriation bill are, in fact, approved.

And the third and final point that I would mention here is that

on the broader level beyond the specifics of the Snake River, if you

are hoping to improve the Endangered Species Act while me and

my organization probably will have a number of differences with

members of the Committee on a range of issues, I would think that

on one area that we could probably have significant agreement is

that the benefit of providing more tax incentives for individual

landowners on areas where if you find an endangered species on

your property, instead of shoot, shovel, and shut up, that there is

an incentive for the landowner to actually report that species.

I think that the vast majority of property owners, whether they

be farmers or loggers or anybody else who own property that has

endangered species on it shut up that and that there are incentive

to want to comply with the law. But right now, oftentimes, there

is a disincentive to comply.

We would encourage the Committee to consider ways, particularly using tax incentives, to make sure that landowners do fully

comply and report and encourage that through tax incentives.

With that, I will close and thank the Committee for the opportunity to testify. And I will be happy to answer questions.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Cantrell may be found at end of

hearing.]

STATEMENT OF JIM LITTLE, IDAHO CATTLE ASSOCIATION

Mr. LITTLE. Good afternoon, Mr. Chairman. I am representing

the Idaho Cattle Association and the National Cattlemen’s Beef Association. I am an ICA past president, former chairman of the

NCBA Private Property and Environmental Management Committee, and I recently completed a 3-year term as Idaho’s obligatory member on the Pacific Fisheries Management Council.

I am a forest grazing permittee with a cattle and horse grazing

permit in Bear Valley in central Idaho, in Valley County, I might
256

add, where there are listed species that are administered by both

the National Marine Fisheries Service and the U.S. Fish and Wildlife Service.

After glancing at the list of cosponsors for this legislation, I can

tell it is an attempt to bring much needed common sense into the

bureaucratic administration of an overly repressive Federal law. It

is worthwhile to consider whether or not one Federal agency could

do the job that two are currently charged with. With that in mind,

I want to share some of my personal examples and some hopefully

constructive comments on the pending legislation.

In the late 1980’s, U.S. Forest Service did an environmental assessment on my grazing allotment to address the concerns about

the spawning grounds for the Snake River spring chinook salmon.

We cooperated in that assessment and came up with a mutually acceptable plan.

In 1992, the spring chinook was listed by NMFS as threatened

and through the consultation process with the Forest Service, it

was decided that an extensive monitoring plan would be put into

place to determine whether we were achieving the desired results.

This was done with a strong commitment from the Forest Service

that if it didn’t work, then we would be removed from that allotment.

After 5 years of extensive and extremely expensive monitoring

and a comprehensive review by the National Riparian Service

Team, it has been determined that our riparian areas are functioning at risk and in an improving trend. The Boise National Forest has spent in excess of $100,000 per year in monitoring three

Bear Valley allotments.

To pay for this, the Boise Forest has been forced to use approximately 70 percent of its entire range betterment budget among

other funding sources. Supposedly, range betterment funds are intended for use across the forest for improvements directly related

to livestock usage with traditional projects like water troughs and

fencing.

The bad news is that NMFS refuses to let the Forest Service off

the hook for this costly monitoring and because the monitoring effort is such a deficit operation dollarwise, I feel that our future on

that allotment is very limited.

This past spring, the U.S. Fish and Wildlife Service listed the

bull trout as an endangered species. And just over a month ago, the

Forest Service had a collaborative team meeting in Bear Valley to

look at habitat for both the spring chinook and the bull trout. This

collaborative team consisted of Forest Service officials, grazing permittees, representatives from both NMFS and the Fish and Wildlife Service and the interested public.

Some observations: The management scheme or our allotment is

being cast in stone and inflexibly applied to a neighboring allotment with somewhat different conditions. Even though the bull

trout habitat in the Bear Valley Basin is in good to excellent condition overall, there are still some restrictive conditions that are

being mandated, in my opinion, only to satisfy an overarching court

decision regarding consultation on any new listed species.

Another bit of information that I learned at this collaborative 3-

day team meeting is that the Fish and Wildlife Service has not
257

been at the table throughout the Governor of Idaho’s formation of

a Bull Trout Action Plan that was designed to forego listing of the

bull trout. The reason that they give is that there was no money

to fund participation in that extensive effort still going on by the

State of Idaho.

Some thoughts and concerns that I have of the proposed bill H.R.

4335:

It is my opinion that some of the conflicts with people on the

ground and the administering agencies are personality conflicts

and arrogance by the administrators of the Endangered Species

Act. In one area I hear people railing against NMFS and in another it is the high-handedness of the Fish and Wildlife Service.

In preparing for this testimony, I contacted the presidents of two

other northwest cattlemen’s associations. And one thought this bill

was a great idea and they should go for it. The other did not want

to give Bruce Babbitt any more power of any kind. I tried to make

the argument that Secretary Babbitt would be with us forever, but

I made no headway in changing that strong opinion.

Idaho was given two seats on the Pacific Fisheries Management

Council because of our anadromous fish habitat. At the present

time, all of our anadromous fish are listed as threatened or endangered. So Idaho has virtually no impact through the council process

in their management. The listing has done nothing to help the fish

stocks.

1998 was supposed to, in Bear Valley, be a high fish return year.

While it was above the low year average, it was still nearly 20 percent lower than the last spike 5 years ago. So we haven’t turned

the corner at all yet.

I am becoming more convinced that we need a change in our natural rearing conditions in the ocean before any appreciable improvements in returning numbers will take place. When and if that

happens, everybody will take credit for the improving fish numbers.

Another area that I have some questions about is whether U.S.

Fish and Wildlife Service has the people and expertise to deal with

potential listing of ocean species. Pardon the pun, but they may be

a fish out of water on this complex subject.

In summary, there are many problems that need to be solved in

the authorizing language and in the administration of the Endangered Species Act. The Forest Service is whipsawed every which

way by the ESA in general, and they are very uneasy in challenging the edicts that come to them from NMFS or the Fish and

Wildlife Service.

Neither NMFS or the Fish and Wildlife Service are authorities

in livestock management, but they assume that role rather hastily

at times. One thing for certain, the lowly forest user is the loser.

Thank you, Mr. Chairman.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Little may be found at end of

hearing.]
258

STATEMENT OF MITCH SANCHOTENA EXECUTIVE DIRECTOR,

IDAHO STEELHEAD AND SALMON UNLIMITED

Mr. SANCHOTENA. Thank you, Mr. Chairman, members of the

panel. I represent Idaho Steelhead and Salmon Unlimited. We are

primarily a sport fishing organization consisting of about 2,300

members.

I will go through this and maybe pick up a little time for us. If

I understand correctly, our purpose here is to discuss the question

whether the Fish and Wildlife Service is better suited to deal with

endangered anadromous salmonids in freshwater than NMFS.

Let me add, NMFS bashing in Idaho is preceded only by Clinton.

It is easy to say that NMFS is a bigger part of the problem than

they are the solution. But the Fish and Wildlife Service’s track

record on endangered species actions isn’t much better, if any.

It would have been informative to have a witness from the U.S.

Fish and Wildlife Service share with this Committee and the region’s stakeholders their views on how to better implement the

ESA for salmon and steelhead.

Presently, there is such a hodgepodge of ESA listings occurring—

some with recovery plans, most without—that one hand doesn’t

know what the other is doing. Continuing a piecemeal approach to

ESA recovery—even with a singular authority—is doomed to fail

for most species.

Singular plans for salmon, steelhead, bull trout, sea lions, seals,

terns, wolves, eagles, and so on are expensive and poorly coordinated. Add to this problem continual intimidation and manipulation by politicos and you have a formula for economic destruction

and species collapse.

Therefore, it makes both scientific and economic sense to have a

singular entity in authority. Also, the time has come for multispecies recovery plans. A plan should balance man’s and nature’s

needs. It should consider marine mammals in the estuary at one

end of the Columbia Basin and fishing and ranching at the other,

then make adjustments that provides balance to both.

The legislation you are considering giving authority to a single

entity has value. It also has risks. Representative Chenoweth,

given some of your past reputation and comments on salmon and

steelhead protection, ISSU questions why this legislation at this

time? We hope you will be able to erase some of our skepticism.

If transferring ESA’s authority for steelhead and salmon away

from NMFS and giving it to the Fish and Wildlife Service is

Congress’s wish, then some explicit assurances must be accorded

society that the transfer is a resolution to the declining salmon and

steelhead problem.

A final version of legislation transferring authority away from

NMFS should contain explicit language directing the new authority

to adhere to the 1999 decision time line for a final salmon recovery

plan. Any delay in this decision point is unacceptable.

All full-time employees and all appropriated funding for completion of the 1999 should be transferred as well. It seems to many

of us it is easier for Congress to manipulate Interior’s budget than

Commerce’s and NOAA’s budgets. Therefore, there must be explicit

assurances in any new legislation that recovery plan funding will

be provided.
259

If you get all that done, then I would suggest that we all just

step out of the way and let this entity do its job.

I would like to wrap this up by simply pointing out that there

are already a multitude of laws passed by Congress to protect

Snake River salmon and steelhead. In the past, these fish have

provided economies from Alaska to Stanley, Idaho. They can quickly do so again if we adhere to past laws and promises.

So obey the laws that Congress has passed and fulfill mitigation

promises you have made and you probably will not have to burden

yourselves with trying to come up with new laws. Congress’ track

record of following existing law leaves us with little optimism another law on top of the magnitude of salmon laws already in place

will solve the problem for our fishery or for society.

Thank you very much.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Sanchotena may be found at end

of hearing.]

Mr. POMBO. Mr. Sanchotena, in your statement, the final part

here left me a little bit confused. You said, ‘‘Your track record of

following existing laws leaves us with little optimism another law

on top with multitude’’—what do you mean our track record with

following existing law?

Mr. SANCHOTENA. Mr. Chairman, there are laws ranging from

the Endangered Species Act to the Lower Snake River Compensation Plan that protect Idaho’s wild steelhead and salmon. They also

protect and were designed to provide continued supplies of fish for

fishing.

As you know, all of our steelhead and salmon are virtually now

on the Endangered Species List. And Idaho has not had a general

statewide salmon season since 1978, 3 years after Lower Granite

was completed.

So the track record of implementing the laws that are there to

provide mitigation to the fishermen. Believe me, I can find—I have

got some sympathy with others who are now looking at having

their jobs mitigated. Mitigation has not been very effective for

Idaho fishermen. I was a fishing guide from 1980 to 1991 and

watched our runs decline dramatically and have watched many in

the fishing community in Idaho and throughout the Pacific Northwest go out of business.

Mr. POMBO. So who do you blame for not abiding by those laws?

Mr. SANCHOTENA. Well, I think the burden has to fall on Congress there. I think that you are our elected officials to ensure that

the laws that you pass are administered. I am not saying you in

the personal sense, but you as the U.S. Congress.

If you pass a law, and you have no intent of following up to assure that the Northwest Power Act is being implemented or the

Lower Snake River Compensation Plan is being implemented, the

fault must lie on you. If I am wrong——

Mr. POMBO. I don’t disagree with you so far. You are right. I

heard a statement earlier that was repeated back to me by a reporter that said that—someone had made the statement that this

was a—that holding hearings like this was a delaying tactic—and

was trying to change the subject more or less from that.
260

But it appears to me that our responsibility—and I do blame

Congress for this. When NMFS doesn’t do its job, ultimately, it is

the—you know, the executive branch’s responsibility that they are

not implementing the laws correctly.

But it is Congress’ fault for not holding oversight hearings like

this and not saying, ‘‘If you don’t do your job, we are going to take

it away from you and give it to somebody who will.’’ And I am no

big fan of the Fish and Wildlife by any stretch of the imagination.

But at the same time, it is very apparent from people in all quarters of this debate that there is a problem up here. And NMFS is

the one that is responsible for implementing this part of the law

today. And if they are not implementing this part of the law, it is

Congress’ responsibility to find out why. And if they can’t do it to

give it to somebody else to make sure it gets done.

And I think that that debate started this legislation as part of

that. And I think the authors of the legislation would be the first

to admit that this is the first step in the process of finding out how

we change this so that we do have some action and that we don’t

have the kind of dislocation and the fights that we have had in recent years.

Mr. SANCHOTENA. May I make a statement?

Mr. POMBO. Yes.

Mr. SANCHOTENA. I guess our concern is that does this legislation

get at the root of the problem or is there another vehicle that Congress has available to come at the very problems that we are discussing?

The purpose of the Lower Snake River Compensation Plan was

to mitigate fisheries, and the Northwest Power Act was to create

equality. And I don’t have to go through the laws. You all know

them. But is this the right vehicle to do that? If so—you know,

Congressman Crapo has heard us say before that this is probably

the place we should start.

But today we question is this the right vehicle or is there another vehicle to get at NMFS and at the entities in this? Because

we are not getting them. We have had hearings on this issue over

and over and the followup is another hearing. And the fish continue to go extinct and so appreciate our frustration.

Mr. POMBO. I appreciate your frustration, believe me, it is on

both counts, in that nothing is being done and that all we have is

a lot of talk. I can appreciate that.

One other thing about your statement, you make the statement

in your written testimony about being invited by the Minority to

speak. Just so you understand, all witnesses are invited by the

Committee to attend.

The process that we go through as a consultation process between the Minority and the Majority to determine an adequate representation of people to be present; there are no, and there never

are, any witnesses that are strictly Minority or Majority witnesses.

It is a collaborative effort, and we make every effort that we can

to have that kind of collaboration.

That is the normal way that it has been handled. And in every

committee that I have chaired, that is the way it has been done.
261

Mr. SANCHOTENA. I appreciate that. Please keep in mind I am a

native Idahoan. I like to be asked to do things by native Idahoans.

And I am always going to be a native Idahoan and so——

Mr. POMBO. Well, you were, because that is who is on the Committee. Thank you.

Mr. CRAPO. Mr. Chairman, may I have unanimous consent to go

next since I have got to leave soon?

Mr. ROMERO-BARCELO ́. Of course.

Mr. POMBO. No objection, Mr. Crapo.

Mr. CRAPO. Thank you, Mr. Chairman, and I appreciate the

Ranking Member, Mr. Romero-Barcelo ́, for agreeing to let me go

next.

Mr. Stelle, in the few moments I have, you and I have had a lot

of discussion over this issue and I won’t go back over all of those.

But with the opportunity I have here, I just wanted to discuss with

you one of the concerns that I have had.

As you know, Idaho has been developing this spread-the-risk policy and has been developing a lot of consensus in the region to

move toward that policy. And it was my understanding that, in the

last season, NMFS has ultimately agreed to at least move toward

this spread-the-risk policy and leave more of the fish in the river

for an opportunity to see if we couldn’t get a handle on some of the

dates that we were seeking to get to evaluate these options. That

is what I thought the understanding was, the decision under the

Bi-Op.

But then from the data I got as a result of last year’s operations,

it appears that that was not done and that virtually all of the

fish—well, I won’t say all, but something like 80 percent of the fish

ended up being barged.

Is that data correct? And if so, why did we not pursue this

spread-the-risk policy?

Mr. STELLE. Thank you, Congressman. First, after all, yes, we

have had good constructive discussions. And actually, I appreciate

them a lot. You focus hard on substance and that is good.

In response to the issue, this spread-the-risk issue in 1997, which

you, I know, track very closely. I made the decision in consultation

with the implementation team and the States and tribes participating to refer the issue of how many fish in the barge and how

many fish in the river to the Independent Science Advisory Board.

In recognition of the continuing debate about what the science is

and in the belief that that referral in soliciting advice from the

board would help—would be constructive in trying to come together

on agreement on this. The board issued—our request to the board

went, I think, in November of last year.

In January of this year, it issued its report to us on the issue

of how many were in the river and how many in the barges and

did adopt the spread-the-risk or recommend to us to so adopt it.

And we did so.

At the beginning of the migration season this year, that was the

overall program that the implementation team was given to design

weekly operations. I do not—so in answer to the question, was that

the overall direction, the answer is yes.

Mr. CRAPO. That was my understanding.
262

Mr. STELLE. I do not honestly know what the numbers are as

they are playing out through the end of August and now into September. The migration season is just about done now. I would be

happy—if there are more fish transported than a targeting 50–50

objective overall through the entirety of the season, my guess is it

may have been because of the very high extreme temperatures in

the lower Snake in August.

I would be happy to get you those numbers, those precise numbers. I will do it as soon as I can. And then if you want to discuss

them further, I can do so either on the telephone or in writing.

Mr. CRAPO. All right. I appreciate that.

Mr. Sanchotena, do you have information—are you aware of the

impact of this year’s operation in terms of how many fish were

barged or how many were left in the river?

Mr. SANCHOTENA. Well, as Mr. Stelle has alluded to, overall migration is just winding down. I think a lot of the concern has to

focus around the spring migrants. And at the end of the spring migration period for spring chinook, summer chinook, steelhead, the

ecological valuable stock of the Snake Basin, that number came out

nearly 88 percent in the barges with about 12 percent being left in

the rivers.

Mr. CRAPO. That is the reason I asked, because that is the number that I picked up on and was focused on.

And Mr. Stelle, at least through the spring migration, why would

that be the case if, in fact, NMFS had adopted the spread-the-risk

policy that we have been debating over for the last couple of years?

Mr. STELLE. I honestly don’t know whether or not those are the

numbers. That actually sounds very high to me.

Mr. CRAPO. It sounds pretty high to me, too.

Mr. STELLE. Again, I am not ducking this. But let me find out

what the numbers are, and then I will be prepared to answer that

question.

Mr. CRAPO. All right. Thank you very much.

Mr. STELLE. What they are and why.

Mr. CRAPO. Those are all the questions I have, Mr. Chairman.

Mr. POMBO. Thank you, Mr. Crapo.

Mr. Romero-Barcelo ́?

Mr. ROMERO-BARCELO ́. Thank you, Mr. Chairman. I just wanted

to thank you, Mr. Chairman, and Chairman Young for having held

these hearings. These 2 days have really been an education for me

in two major issues. One major issue is the implementation of the

Endangered Species Act and also in the interrelationship between

both conservationists and those who are looking forward only to the

interests of the people and population and the business interest.

During these 2 days, we have had people testifying from all areas

of interest. We have had fishermen, commercial and sports fishermen. We have had conservationists. We have had businessmen. We

have had farmers. We have had cattlemen. Everyone that is involved here in Idaho and Washington.

The only one, unfortunately, we have not heard from are the

salmon. It reminds of an anecdote I don’t know if you have heard.

But American humorist Robert Benchley, he was studying history

at Harvard University and they gave him a test. They asked him
263

to discuss the farm and fisheries either from the British point of

view or from the American point of view.

And he answered that he didn’t know much about the British

point of view, nor about the American point of view. But he was

going to discuss it from the point of view of the fish.

So I guess if we could hear from the salmon, we might even

know better what would help them along to have healthy runs. I

think it is something that all of us are interested in, even those of

us that don’t live in the area. We have been eating salmon, which

is not only a delicious fish but also a very healthy fish to eat, so

it is of interest with the economy.

And as I said, I have learned a lot, but I still feel that I have

even more to learn. And the issue is not easy, but there is a lot

of interest. I know that Representatives Helen Chenoweth and

Dick Pombo, who is our chairman, and Chairman Young and all of

the members of the Resource Committee are interested in finding

something that would help this along.

I just wanted to make those comments and thank you once

again, all of you, for being here and testifying and thank the Committee for this opportunity.

Mr. POMBO. Thank you.

Mrs. Chenoweth?

Mrs. CHENOWETH. Thank you, Mr. Chairman.

And I also want to thank you, Mr. Romero-Barcelo ́, and your

lovely wife for joining us in our city.

Mr. ROMERO-BARCELO ́. Thank you.

Mrs. CHENOWETH. I hope you enjoy your time here.

Mr. ROMERO-BARCELO ́. What little we have seen of it we like

very much.

Mrs. CHENOWETH. Mr. Chairman, before I move on to my questioning, I would like to enter into the record the written testimony

of Dewitt Moss on behalf of the Northside Canal Company and the

Twin Falls Canal Company and the Committee of Nine, Water District 1.

Mr. POMBO. Without objection.

[The prepared statement of Mr. Moss may be found at end of

hearing.]

Mrs. CHENOWETH. Thank you.

I wanted to ask Mr. Stelle, were you in the room when Ms.

Olivia James gave her testimony?

Mr. STELLE. No, ma’am, I wasn’t.

Mrs. CHENOWETH. She testified that she has a floatboat operation.

Mr. STELLE. Actually, I did catch the tail end of that. I am sorry,

yes.

Mrs. CHENOWETH. She indicated that the document, the take

document, was taken back and so the fact that a redd moving from

its spawning area for more than 20 minutes no longer applied. And

one redd that moved from its spawning area for just 10 minutes

or 12 minutes was sufficient to impact the floatboat operations.

I wanted to give you a chance—that is so bizarre to me. I wanted

to give you a chance to address that. What do you know about

that?
264

Mr. STELLE. I don’t know anything about that. To be honest with

you, I don’t know about the take statement and disturbance times

and that kind of stuff. I would be happy to check——

Mr. POMBO. If we could yield for a minute. I am going to have

the staff compile the testimony that she gave and the question and

answer period and give those to you. Because I not only find it bizarre; I find it completely ridiculous. And I would like to have some

kind of a statement back from you guys explaining to the Committee exactly what is going on.

Mr. STELLE. Absolutely.

Mr. POMBO. She works up there every day and she didn’t seem

to be able to explain to me in common-sense terms why it is happening. So if you guys have some kind of answer for it, I would appreciate it.

Mr. STELLE. Yes, absolutely.

Mrs. CHENOWETH. Mr. Stelle, right now we are operating under

a biological opinion that has not taken into consideration the impacts of the bull trout. Right? And let me ask you, there are some

other species, the cutthroat trout that may be listed, does the biological opinion take into consideration those other species?

Mr. STELLE. The reason I am pausing, Representative

Chenoweth, my recollection is that we have actually two biological

opinions governing the operation of the hydropower system, which

is what I assume you are referring to, a 1995 one and then a subsequent one in 1998 to respond to the steelhead listing.

My recollection is that 1998 biological opinion, I thought was a

joint opinion with us and the Fish and Wildlife Service that did not

take into account bull trout but I am not sure. Absolutely, bull

trout impact and sturgeon impacts as we do those biological opinions on steelhead. So that, for instance, sturgeon has been listed

by the Fish and Wildlife Service for quite a while below Kootenai.

And the operations that we adopted in the 1995 and in the 1998

biological opinions for the hydropower system very much took into

account both the impacts on and the needs for sturgeon as well as

steelhead. So there is a very intentional, conscious effort to look at

the multiple needs of whatever species may be listed and try to

blend them as you formulate recommendations.

But to your question on bull trout, I think it was a joint opinion

in 1998, but I am not sure.

Mrs. CHENOWETH. I looked for it. I couldn’t find it.

Mr. STELLE. OK.

Mrs. CHENOWETH. I appreciate your followup on it.

Mr. STELLE. Sure.

Mrs. CHENOWETH. You know, last year our studies showed that

there was about 719,850 adult salmonids passing over the fish ladder at Bonneville. And that is 100,000 more adult salmonids than

the 60-year average for that dam. Of the Dalles Dam passed

425,716, that is in 1997, and it is below the 41-year average.

Now, the devastating difference of nearly 300,000 adult

salmonids lost between the two dams is linked to many things;

predators, of course, but in large part, the gill netting. And, you

know, it looks like there has been a large number of fish that have

been taken because of the gill netting.
265

Now, I notice that the National Marine Fisheries Service has just

authorized tribes to gill-net more chinook salmon this fall, which

seems to be outside the ceremonial and cultural tribal time of fishing, which has historically been in the spring.

So on the one hand, you know, Ms. Olivia James can’t float her

boat over a certain area because it might disturb a redd. And yet

you are authorizing gill netting. And these are the inconsistencies

that we are dealing with here. And it seems so very baffling to us

and the questions that we do need to have answered. Would you

care to address that?

Mr. STELLE. Yes. It is a fair point and an important issue on how

you balance sort of the allocation impacts as you are trying to reduce overall mortalities here.

First and foremost, on this floatboating issue, the most basic fact

of floatboating and redds, particularly in that drainage, is that

those are the survivors. Those fish have made it back. They are the

most important fish to protect, because they are the link to the

next generation.

And we work very hard to try to develop—working with the Forest Service and the floatboating industry on an arrangement that

can protect the redds and also continue to provide opportunities for

floatboating in an important part of the tourist season. And we understand that, and we have put a lot of effort into it. I will answer

the detailed questions once I get them from the Committee.

On the issue of fishing in the main stem zone, what we call Zone

6, it is fundamentally an issue of honoring our obligations under

a Federal court-imposed settlement called U.S. v. Oregon, whereby

the States, the Federal fish managers, and the tribal salmon managers must come together every year and reach agreements on who

gets to catch what fish where. And every year we do so for the fisheries in that main stem area.

The basic rule that we have, ma’am, is that there is a division

of the overall available fish pie that we have agreed to, under the

Columbia River Fish Management Plan, which has been approved

by the court. So those negotiations take place under that Oregon

court-approved plan.

The fishery, it is a healthy fishery that originates in the Hanford

Reach. It is a good robust fishery. The numbers are quite high.

They can be 80,000 or so and can support a fishery. It is the last

bread-and-butter fishery for the Columbia River salmon tribes.

Their spring and summer chinook fishery is gone. It has been

gone for years. And it is really their last fishery. We worked very

hard to authorize reductions or changes in fishing patterns on that

healthy fall chinook population to reduce impacts on spring summer chinook and on steelhead in the Snake. And I think we are

successful in that effort.

But fundamentally, the authorization is for the last healthy tribal fishery on the last healthy fall chinook population of the main

stem of Columbia. It is not a risk to those populations in that all

of those fish are there and the fishery can sustain it.

Mrs. CHENOWETH. The case that you are referring to, the decision, did the decision specifically address the fall chinook gill netting?
266

Mr. STELLE. No. The gill netting is simply a technique that the

tribes use.

Mrs. CHENOWETH. Did they specifically address the fall chinook

fishery?

Mr. STELLE. Absolutely. The Columbia River Fish Management

Plan absolutely lays out agreements on how to allocate the fall chinook fishery.

Mrs. CHENOWETH. The plan does, but did that decision?

Mr. STELLE. Yes. The plan sets the overall framework. And then

every year, fishery managers get together and negotiate the specific

numbers based on that overall allocation pie.

Mrs. CHENOWETH. The Oregon case that you referred to?

Mr. STELLE. Yes.

Mrs. CHENOWETH. Did the judge specifically?

Mr. STELLE. Every year, the judge generally approves the agreement that the parties reach for the numbers for that particular

year. And in the case of the fall chinook fishery for this year, the

parties were before the court yesterday. And I don’t believe he approved it yesterday, but we are expecting a court order today any

time.

Mrs. CHENOWETH. For sure approval for this was given several

weeks ago, wasn’t it?

Mr. STELLE. The negotiations under U.S. v. Oregon with all of

the state and tribal fish managers have been going on pretty much

through the summer. I think the final negotiation was reached,

tentative agreement, maybe 3 weeks ago. And then we had a court

date with a judge who oversees the implementation of the plan yesterday.

Mrs. CHENOWETH. Thank you.

Mr. STELLE. You are welcome.

Mrs. CHENOWETH. That answered my question. Thank you.

Mr. POMBO. Just to followup on that, a question popped into my

mind. You said the State fish agencies—State and Federal fish

agencies and the tribes, is there anyone else involved?

Mr. STELLE. Yes, the National Marine Fisheries Service and the

Fish and Wildlife Service. So it is the Federal, State, tribal fish

managers.

Mr. POMBO. Are there any FGOs or other stakeholders that are

involved with those discussions?

Mr. STELLE. No, sir. This overall framework really originated in

litigation between the State fishery managers, the Federal Government, and the tribes, oh, 15 years or so ago. So that is——

Mr. POMBO. So there are no outside FGOs or other stakeholders

that are involved with the discussions? It is just the intergovernmental groups?

Mr. STELLE. The meetings, I believe, are public, though a lot of

them are very tedious. I warn everybody. But the actual parties to

the agreement are——

Mr. POMBO. I don’t know what tedious means. Let me ask you

a question. We had a county commissioner, Mr. Kerr, testify earlier. And I don’t know if you were present when he testified.

But in February 1997, they met with representatives of the U.S.

Forest Service, Federal Highway Administration, National Marine

Fisheries, U.S. Fish and Wildlife, Idaho Department of Lands, the
267

timber industry, private landowners, and others to get together to

come up with a plan consistent with the needs of the communities

as well as of the requirements of the regulatory agencies.

And again, I say this was February 1997 they met to do some

work on a road that had washed out. As of this date, there has

been no action by the National Marine Fisheries. I am led to believe that all of the other Federal and State agencies had signed

off on a plan.

He goes on to quote a letter from a forest supervisor, David Alexander, who wrote to a Ms. Elizabeth Gaar at the National Marine

Fisheries Service. And he quotes, ‘‘I am very concerned that after

17 months of discussion, analysis, and meetings and almost 3

months after we jointly reached agreement which resulted in a

four-party memorandum of understanding outlining the resolution

of this issue, we are continuing to see delays in the issuance of the

biological opinion.’’

It appears the National Marine Fisheries is the one that has

been holding us up for what has gone on 19, 20 months in getting

this work done. Is there any explanation why they are holding that

up when it appears that the other Federal agencies, environmental

and otherwise, signed off on the plan?

Mr. STELLE. I am sure there is, Mr. Chairman. Let me offer a

couple of thoughts on it. First of all, I am not that close to this specific road repair work. I believe, if my memory serves me correctly,

that the road repair effort really consisted of the short-term emergency work and then some longer-term restoration work.

Short-term emergency work was necessary to move through

quickly. And I think the approval has occurred and that work has

been done. I read his testimony this morning. I saw that reference

to the letter from David Alexander to Elizabeth Gaar. I don’t know

about this specific biological opinion.

Again, I would be happy to find out about it and actually call

him if that is appropriate, or call you.

Mr. POMBO. I would like you to report back to Congresswoman

Chenoweth’s office what you find out on this, as well as call Commissioner Kerr.

Mr. STELLE. Sure. I would be happy to.

Mr. POMBO. And let him know when he expects approval on this.

It is obviously an issue of great concern on this. In reviewing the

testimony, if you go on, they have had additional meetings that included the Congressman’s office and it appears that it did not result in anything happening. It is issues like this that cause the

kind of legislation that we are talking about today to be introduced.

Mrs. Chenoweth?

Mrs. CHENOWETH. I would like to ask Mr. Little a question. I

would like to know the types of monitoring that NMFS has required of the U.S. Forest Service that you are involved with as a

cattleman and also the types of activity that you and other permittees have done to try to satisfy NMFS.

Mr. LITTLE. Yes. Thank you, Congresswoman. We, in cooperation

with the Forest Service, put together a grazing scheme to establish

utilization patterns not to exceed and seasons of use that were,

early in the season, along the creek that is the spawning ground

for the spring chinook. And then with a listing of the fish, the
268

measure of the success was the stream bank’s ability and changes

in it.

And they showed improvement every year from the time they

started the monitoring except one. In that year, they had some interns go out with very little training and do the monitoring. And

so they were concerned that that may have skewed what was going

on. But, be that as it may, we showed a consistent improvement

and the range con monitors, what we do and it helps us to verify

that we don’t exceed the utilization standards.

The other monitoring they do involve the—we have got two different divisions of the Forest Service doing the monitoring. And

they are the ones that are doing the work and assimilating all of

the data. And so they have done it. This national riparian review

team came in and looked at the data, looked at the stream banks

and agreed that they were, as I stated in my testimony, that they

were an improving trend.

They did recommend that they continue monitoring whether livestock were there or not. Well, that sounds grand and noble. But

you know when the livestock are gone—and if you keep up, we will

be gone. I would be real surprised if we lasted another year there,

because the Forest Service just can’t continue to rape all of the

budgets and put that into just a small specific area.

But the National Review Team said to continue monitoring.

Without us monitoring funding will be low on their budgeting

scheme. Once we are gone, it just won’t happen. But anyhow, if

they had backed off and said, just continue the utilization to see

that we are in compliance with the plan, because we have shown

the trend that we were making the changes. We could live with

that.

We are about the only resource use left in the area. We have

half-a-million cubic yard blowout from the upper end of the valley

that filled all of the rearing pools. While the source of that blowout

has been repaired, it will take time for the pools to reestablish. But

we are still there. And I think it is just the nature of the beast that

they have got to regulate who is there. And, of course, there is no

recreation monitoring.

The height of concern for me is that we have got so many different agencies. We have got the tribes. We have got the Fish and

Game. We have got the Forest Service. We have got the National

Marine Fisheries. I swear to God, they are getting more traffic now

along the stream bank, than we were when the cattle were

unmanaged. It just blows my mind. But that is basically the gist

of it.

Mrs. CHENOWETH. Is this the traditional spawning habitat?

Mr. LITTLE. Oh, yes.

Mrs. CHENOWETH. So the salmon has been there for years?

Mr. LITTLE. It has huge spawning numbers. And there is real

good documentation that shows the declining number of redds that

are just a direct opposite, when you graph them, compared to the

increase in the hydroelectric units on the Columbia or the lower

Snake and Columbia. And as those hydroelectric units come up, the

redd count goes down. It is just in direct contrast.

There is no question that we were doing some things wrong. We

now have turned the corner and know how to manage the livestock.
269

But while the grazing impacts on the fish have been negated,

there is such a lag time until the spawning numbers turn around

and get better, we are going to long since be history. There is too

many restrictions based on the numbers of fish that are currently

there. When the streams were just trampled to death at the turn

of the century—well, you hear stories of fish climbing over each

other to get up that creek.

There is a real good evidence of that in history. And of course,

it is prime, spawning habitat for the wild fish. There are no hatchery fish in that basin.

Mrs. CHENOWETH. Mr. Stelle, would you like to respond to that?

It seems as though, judging from Mr. Little’s comments that grazing has had—especially grazing practices today—have had negligible impacts on the returning salmon. What is your plan for the

future with regards to grazing on public lands?

Mr. STELLE. I would be happy to. First of all, I would like to note

that I think it is my recollection that we were at a hearing here

with you probably 2 years or 3 years ago that I think then helped

lead to some further discussions amongst the agencies in June

along this whole subject. And a lot of folks worked pretty hard on

it.

On the issue of monitoring dollars, I think those are Forest Service monitoring dollars. And to be honest with you, I am not quite

sure whether or not the issue is whether or not to ease up on monitoring requirements, and if so, how that has been presented or

worked through. I just don’t know, Jim.

Mr. LITTLE. It is my understanding that these monitoring dollars

don’t serve us. Like I say, it is almost raping the Forest Service

range betterment fund budget to the detriment of other forest users

in the rest of Boise Forest. And the Forest Service just can’t in

good conscience spend that kind of money for these three allotments, as you know, have taken so much money compared to the

dollars that they have received in return.

And if you are going to make our grazing fee get up to do that

you are probably talking $30, $40, $50 a day in rent. It is just incredible. The number I had put to me was $120,000 a year.

Mrs. CHENOWETH. Is this being done through a memorandum of

understanding?

Mr. STELLE. I don’t think anything so formal.

Jim, correct me if I am wrong. I do think it represented an

agreed upon strategy for—a multiyear strategy for grazing on these

allotments worked out between the forest, Jim, and the State and

Federal fish and game agencies. I don’t think it was formalized in

some formal way.

Mrs. CHENOWETH. All right. Thank you, Mr. Chairman.

Mr. POMBO. Thank you.

I want to thank this panel for your testimony and for answering

our questions. Again, there may be additional questions that will

be submitted to you in writing. If you can answer those in writing

for the Committee, it would be appreciated.

[The information referred to may be found at end of hearing.]

Mr. POMBO. As always, it was a very valuable hearing. The insights that you brought to the Committee, we will keep with us
270

and we will take back. I think it is an educational process for us

all.

I want to thank all of the members of the audience for being

here, all of the people who had the opportunity to testify.

The Committee hearing record will be held open for those people

who wish—who did not have an opportunity to testify but wish to

submit testimony to the Committee. That can be submitted to the

House Resources Committee, and it will be included in the record.

[The information referred to may be found at end of hearing.]

Mr. POMBO. Thank you all very much for being here. The hearing

is adjourned.

[Whereupon, at 1:24 p.m., the Committee was adjourned.]

[Additional material submitted for the record follows.]
271

STATEMENT OF THOMAS W. KERR, COMMISSIONER, VALLEY COUNTY, IDAHO

Mr. Chairman and Members of the Committee:

Thank you for inviting me to speak to you about the role of the National Marine

Fisheries Service (NMFS) in implementing the U.S. Endangered Species Act of

1973, as amended.

I am Tom Kerr, County Commissioner, Valley County, Idaho. I was born in 1937

in McCall, Idaho, educated in the McCall-Donnelly school system and went on to

earn a Bachelor of Science degree in Mining Engineering from the University of

Idaho in 1961. My wife and I returned to McCall in 1973 and I have worked as a

professional land surveyor in Valley County since that time. In the course of running my business, I have surveyed in every portion of Valley County and am very

familiar with its people, conditions and needs. I have served on the Board of County

Commissioners since 1997.

In today’s testimony I am not only representing the views of my colleagues on the

Valley County Board of Commissioners. My observations and comments were also

prepared in conjunction with the Idaho Association of Counties, a non-profit, nonpartisan association dedicated to improving county government for the people of

Idaho and representing each of the elected officials in all forty-four of Idaho’s counties. I do not believe that my views on NMFS are in any sense unusual, but, on

the contrary, are typical of those of my colleagues around this great state.

Allow me to tell you a bit about an ongoing project, the course of which has decisively shaped our view of the role of NMFS in fulfilling its responsibilities under

the Endangered Species Act.

The Warren-Profile Gap Road was built prior to the establishment of the Payette

National Forest and as such is a public right-of-way under the jurisdiction of Valley

County as established under both state and Federal law. The road is maintained

by the U.S. Forest Service pursuant to an agreement between Valley County and

the Forest Service.

In 1994, debris torrents washed out a 500 foot segment of the road along Elk

Creek. During the Chicken Complex Fire later in 1994, emergency funds were used

to repair this damage. Unfortunately we experienced unusually heavy rainstorms

during the year following the fire. The resulting high runoff caused the destruction

of two bridges and seriously damaged portions of the road along a one-and-half mile

section of the road. Further storms and flooding caused even more serious damage

to the road in the winter of 1996-97.

In February of 1997, the Valley County Commission met with representatives

from the U.S. Forest Service, Federal Highway Administration, NMFS, U.S. Fish

and Wildlife Service, Idaho Department of Lands, the timber industry and private

landowners to put together an action plan for the repair of the road which would

be consistent with the needs of the community as well as requirements of the regulatory agencies. I am disappointed to report that the plan we agreed to in February

of 1997 has yet to come to fruition. There is no question that its failure is largely

due to the action—or, rather, inaction—of the National Marine Fisheries Service.

Throughout the process NMFS has consistently taken an inordinate amount of

time to complete the analysis necessary for repair work to proceed. When it finally

does come back to us with its review, it asserts that it needs still more information

to issue a Biological Opinion, even when it has already received sufficient data. This

view is shared by our local Forest Supervisor, David Alexander, who wrote in his

June 9, 1998, letter to Ms. Elizabeth Gaar of NMFS regarding their delay in the

issuance of a Biological Opinion:

‘‘I am very concerned that after 17 months of discussion, analysis and meetings,

and almost three months after we jointly reached agreement which resulted in

a four-party memorandum of understanding outlining the resolution of this

issue, we are continuing to see delays in the issuance of a Biological Opinion.’’

Rather than participating throughout in an open and straightforward way, making its requirements explicit, NMFS seems only to take pot-shots at the successive

plans submitted for its approval. It would seem logical for them to identify all of

the specific conditions needing mitigation at one time, rather than picking out a new

one later.

In addition to being slow, I have observed that to the extent that NMFS has participated in planning the repairs of the Warren-Profile Gap Road, its representatives

have not had sufficient authority to speak for the agency. On at least one occasion,

the NMFS representative admitted that he had not really read the report that was

to be the subject of a meeting at NMFS’s office in Boise with the Federal Highways,

U.S. Forest Service, U.S. Fish and Wildlife, Valley County Commissioners, and a

representative from Rep. Chenoweth’s office, most of whom had to travel to Boise

for the meeting. Since NMFS has not seen fit to send actual decision-makers to the
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table, we are left with the clear impression that talking to the locals is a low priority indeed, and that our point of view is not being fairly represented or even taken

seriously.

Nevertheless, we are not convinced that even were NMFS officials of sufficient

stature participating in the process that the outcome would be any different. NMFS

representatives have made it abundantly clear that they do not share our concerns.

In fact, they remain quite indifferent to the public whose agents they are meant to

be. On one occasion we were actually told by a NMFS representative that they did

not really care what the costs and inconveniences of NMFS’s actions might be to

the public. As long as NMFS has an institutional culture so resistant to public scrutiny, accountability and cooperation, it is hard to imagine that this situation could

improve.

Meanwhile, the road remains unrepaired, local landowners are without access to

their property, the State of Idaho has not been able to proceed with a timber sale

approved years ago, the U.S. Forest Service has limited access for forest management, and United States taxpayers continue to foot the bill for more NMFS delays.

The greatest irony is that past delays in repairing the road have caused more erosion and delivery of dirt and debris to the stream to the detriment of fish spawning

and rearing habitat. No doubt, the continued delays will cause more unnecessary

erosion, not to mention the increase in the cost of construction to the taxpayers each

year.

Therefore, the Board of Commissioners of Valley County and the Idaho Association of Counties urges you to support H.R. 4335 to amend the Endangered Species

Act in order to transfer the authority of the Secretary of Commerce under the Act

to the Secretary of the Interior. While we are not always thrilled with the positions

taken by the U.S. Fish and Wildlife Service pursuant to the Act, our experience has

been that it is more responsive and cognizant of our concerns, participates more

openly in discussions of proposed actions and is generally more timely and efficient

in reaching conclusions than is the National Marine Fisheries Service.

Again, thank you for inviting me to speak on this important issue.

STATEMENT OF SHERL L. CHAPMAN, EXECUTIVE DIRECTOR, IDAHO WATER USERS

ASSOCIATION

I am Sherl L. Chapman, Executive Director of the Idaho Water Users Association.

The Association is a non-profit volunteer organization consisting of over 180 irrigation districts and canal companies, more than 100 agri-businesses and professional

firms and several hundred individuals interested in managing, administering and

protecting the water resources of the State of Idaho. Our members deliver nearly

all of the irrigation storage water impounded in the State of Idaho. Today you have

before you H.R. 4335 titled ‘‘The Endangered Species Consolidation Act.’’ The stated

purpose of the bill is to convey ESA responsibilities solely to the U.S. Fish and Wildlife Service for administration primarily because of mismanagement by the National

Marine Fisheries Service. We wholeheartedly agree that the National Marine Fisheries Service has mismanaged the salmon restoration program in Idaho as well as

other ESA programs around the nation. Unfortunately, the issue today is not one

of whose name is attached to ESA responsibilities but of Federal irresponsibility and

incompetence in administering a program to restore salmon in the Pacific Northwest. There are as many as five (5) Federal agencies and Tribal entities involved

in efforts to restore salmon and their appears to be little, if any, coordination or effort to increase the efficiency or cost effectiveness of restoration programs. It is our

belief that Congress must take control of the program by requiring, even demanding

that the Federal agencies involved evaluate restoration programs on the basis of

science, effectiveness of restoring salmon runs, cost effectiveness and efficiency. For

the last several years over one-half billion dollars has been spent in the region each

year in salmon recovery efforts. There is little oversight of where the funds are

spent, what they are used for and in many cases the very entities receiving the

funds are those who have personnel making decisions on disbursement of the funds.

It appears to be an incestuous relationship and unless there is immediate control

many more billions of dollars will be spent on this program without oversight or a

chance of success. If the private sector were to operate in this manner any company

functioning like NMFS would very quickly go bankrupt. There appears to be no

oversight, project management or analysis of the effectiveness of the programs by

NMFS or other Federal agencies such as the Corps of Engineers, the Bureau of Reclamation and the Bonneville Power Administration. For these reasons the Idaho

Water Users Association urges Congress to immediately commission a GAO audit
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of the NMFS salmon restoration programs to determine where the money is going,

the management relationships and to determine the efficacy of the programs.

The National Marine Fisheries Service has attempted to characterize irrigated agriculture in Idaho as being responsible for the decline in salmon runs in the Columbia-Snake River system by blaming the industry for reduced flows in the Snake

River system. In a Biological Opinion issued in 1997 related to the Inland Land Development Program in Oregon NMFS stated ‘‘A. But for irrigation withdrawals,

summer flow objectives would be met every year (100 percent) (with reservoirs operated for flow augmentation) whereas with withdrawals summer flow objectives are

met less than of the time.’’ These statements would seem to indicate that NMFS

believes that survival of the Snake River Chinook Salmon cannot be achieved unless

the NMFS flow objectives are met and since NMFS states that ‘‘Irrigation withdrawal is the principle reason for missing flow objectives in the Snake River’’ they

also apparently believe irrigation withdrawal must be curtailed. Historical and current data, however, clearly contradict the NMFS rhetoric. A review of the U.S. Geological Survey records for the Weiser gage on the Snake River near Weiser, Idaho

since 1911 clearly show that the average runoff from the Snake River basin has not

significantly changed since 1911. Additionally, as can be shown in the attached figure taken from a report written by Karl Dreher, Director of the Idaho Department

of Water Resources depicts what has actually happened in the hydrologic system.

The figure shows the average flows in the Snake River at Lower Granite Dam

where NMFS has set the current flow targets for the Snake River system. The blue

portion of the graph shows the average Snake River flows from April 10 to June

20, the spring flow target period and the tan portion of the graph shows the average

flows from June 21 to August 31, the summer flow target period. The red vertical

bars show the irrigated acreage in the Snake River basin above Lower Granite Dam.

The most interesting aspects of the figure, however, are the trend lines that are depicted on the graph and show the average flows for the period of record since 1916.

These trend lines demonstrate what actually has happened to Snake River flow at

Lower Granite Dam during the 144 day period that NMFS claims is critical to salmon recovery. The upper trend line declines from about 130,000 cubic feet per second

to about 120,000 cubic feet per second during the spring since 1916. This is not the

result of diversion to irrigated acres but merely operations for flood control and storage of spring runoff to preserve water for use later in the season. Irrigators divert

very little water during this spring period. The reduction has been less than eight

(8) percent of the Snake River flow during the spring months. The more interesting

portion of the graph, however, is the trend line from 1916 to 1996 for the summer

flow target period when irrigation should have the most significant impact on Snake

River flows if, in fact, there is an impact at all. This trend line indicates an increase

in flow since 1916 from about 38,000 cubic feet per second to about 41,000 cubic

feet per second, a net increase of about eight (8) percent during the period of time

NMFS claims irrigation withdrawals are adversely affecting Snake River flows and

the salmon. While the graph clearly does not take into account the impact of irrigation development prior to 1916 both, NMFS and the Idaho Department of Fish and

Game has repeatedly asserted that there were viable fish runs in the 1950’s and

both were allowing major harvest until 1978. If the fish were viable in 1950 then

certainly they were viable in 1916. My reason for explaining this contradiction in

NMFS policy and science is to again point out that NMFS would rather speculate

about salmon recovery and ignore science in an effort to force Idaho to increase

instream flows to meet other agendas.

NMFS has insisted on water being taken from Idaho for flow augmentation since

the early 1990’s. The Northwest Power Planning Council was forced into a water

budget regime in 1990 and ever increasing blocks of water have been taken from

Idaho ever since. Over the last six (6) years from 1.6 to over 2.5 million-acre feet

of water have been sent downstream by Idaho each year in an effort to recover fish.

Part of this water has been provided by Idaho irrigators under a cooperative agreement in an effort to assist the agency in a flow augmentation experiment to determine whether or not there were any real benefits to salmon from flow augmentation. The rest has been taken without consideration for Idaho’s economy or resident

fisheries and without the concurrence of the state. While there are a myriad of scientific reports all over the board on this issue, the general consensus appears to be

that no significant benefit can be directly attributed to flow for salmon restoration.

In spite of this, NMFS appears to be continuing its efforts to take even more water

out of Idaho. NMFS has insisted through the U.S. Army Corps of Engineers that

the Bureau of Reclamation investigate the impact to Idaho if an additional one million-acre feet of water were to be taken each year for salmon restoration and flow

augmentation. Preliminary drafts of the study indicate that under the worst case

scenario (a series of dry years) use of an additional one million-acre feet of water
274

out of Idaho would result in over 700,000 acres of irrigated land in Idaho being

dried up. This would result in an average, direct economic impact to Idaho of at

least five hundred million dollars per year. This, of course, would have major secondary economic impacts throughout the entire state. The recreation and sports

fishing community is also impacted. Exceedence curves developed for the study by

the Bureau of Reclamation indicate that under the worst case scenario many of the

major reservoirs in Idaho would be dry or without usable storage approximately five

(5) to eight (8) percent of the time. Since Idaho has numerous blue ribbon trout fisheries below these reservoirs (South Fork Snake River, Henry’s Fork Snake River,

South Fork Boise River, Deadwood River, Boise River) the fishing and recreational

opportunities and the resident fisheries established in the reservoirs and those

streams would be decimated. In addition to fishing opportunities the white water

rafting industry would also be largely destroyed since, in most cases, water released

for irrigation during the summer months provide the flows necessary for an industry

that contributes millions of dollars to the state economy. All of this for a program

that clearly will not restore or recover Idaho’s salmon.

I could provide many other examples of NMFS’s inability to manage the programs

to recover Snake River stocks of salmon. I’m sure that during the two field hearings

held by this Committee that you have heard of other flagrant examples of inefficiency and incompetence. The National Marine Fisheries Service is now moving toward the adoption of a 1999 Biological Opinion. This opinion is supposed to incorporate the data and information obtained over the last several years and propose

a reasonable salmon recovery effort. However, during conversations with NMFS personnel it is clear that they intend to continue to focus on flow augmentation, irrespective of the data and the studies that show little, if any, correlation between flow

and survival. They continue to ignore or minimize the issues of predation, dam

modification, harvest and other alternative opportunities for salmon recovery that

could be initiated within one or two years. Because of their incompetence the region

has been forced into a useless debate of dam breaching versus flow augmentation

with little opportunity to discuss the issues that can really affect salmon recovery.

Just as an example, 10-20 million smolts per year are eaten as they reach the Columbia River estuary by Caspian terns nesting on an artificial island in the Columbia River. If that one colony were eliminated 10-20 million more smolts per year

that have already made the 900 mile downstream journey would reach the ocean.

We believe that this is just one example of an opportunity to do something quickly

that will, in fact, assist salmon recovery.

If the National Marine Fisheries Service continues blindly down the path of flow

augmentation there will certainly be a major confrontation with the State of Idaho

and the rest of the region, which ultimately will result in litigation and opposition

resulting in stalemate and ultimately salmon extinction. It does not make sense to

precipitate such a confrontation over a scientifically unsound program of flow augmentation. We urge you as a Committee and the Congress as a whole to initiate

significant oversight of the National Marine Fisheries Service and force the agency

to react to science and implement reasonable and prudent programs to restore salmon and move away from the flow augmentation which is scientifically unsound but

politically expedient for the agency. After fighting with the agency for nearly a decade we believe that only Congress will get their attention and force them to do what

is right.

I appreciate the opportunity to present this testimony to the Committee and

would be happy to respond in writing to additional questions if requested.
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276

STATEMENT OF MARK LIMBAUGH, EXECUTIVE DIRECTOR, PAYETTE RIVER WATER

USERS ASSOCIATION, INC.

My name is Mark Limbaugh. I am a native Idahoan and a fourth-generation

farmer from Fruitland, Idaho. I am also the Watermaster for the Payette River

Basin in Idaho, delivering storage and natural flow from the Payette River to over

150,000 acres of prime Idaho farmland. I also represent the Payette River Water

Users Association as their executive director, whose members encompass practically

all of the irrigated acres in the basin. Today, I represent those members, who are

extremely concerned about their irrigation water supplies for the future of their

farms and families.

As I understand it, the question posed by the Committee today is whether the National Marine Fisheries Service (NMFS) is implementing the Endangered Species

Act (ESA) consistent with the authority granted in the ESA, whether their activities

overlap or are consistent with those of the Fish and Wildlife Service and whether

their implementation is being conducted in a cost effective manner.

Ladies and gentlemen, under the current implementation of the ESA by NMFS,

our time honored water rights in this state are currently under attack. NMFS continues to promulgate recovery measures requiring more and more Idaho water be

dumped from our reservoirs to augment flows on the lower Snake River at Lower

Granite Dam for the purpose of aiding endangered salmon migration. The flow augmentation experiment the State of Idaho agreed to participate in during the past

several years has not worked, with very little biological evidence to support this

misallocation of Idaho water. In contrast to the limited effectiveness of flow augmentation as a recovery measure, the economic trade-offs are immense for the State

of Idaho.1

In this experiment, Idaho has voluntarily provided approximately 2.0 to 2.8 million acre feet of stored water for annual flow augmentation from both willing sellers

and U.S. Army Corps of Engineers-managed projects in an attempt to meet flow targets set by NMFS at Lower Granite Dam downstream on the lower Snake River.

One of the main problems with the NMFS flow targets is that they are set artificially too high, resulting in target flows not being met and a call for additional

water from Idaho in an attempt to meet these impossible target flows.

A recent USBR hydrologic regulation study demonstrated that NMFS flow targets

cannot be met in all months (that affect seasonal averages), specifically during low

or average water years, because they require more water than the hydrologic system

can provide—with or without net irrigation depletions from the Snake-Columbia

River Basin.2 In fact, the past 1OO-years of irrigation development in Idaho have

not significantly decreased flows during the spring and summer time periods NMFS

has set flow targets for on the lower Snake River.3 Yet, as directed by NMFS, the

U.S. Army Corps of Engineers has asked the U.S. Bureau of Reclamation to study

the hydrologic, economic and social implications of acquiring an additional one million acre-feet of Idaho water for enhanced flow augmentation on the lower Snake

River.

If this additional one million acre-feet of Idaho water were added to the water currently flowing from our storage reservoirs, the estimated annual economic benefits

lost to Idaho would range from $40 million to $70 million in direct net economic

valued.4 This huge economic loss, which does not include secondary economic effects,

would devastate the economy of the State of Idaho, and wipe out most of our agricultural communities whose very existence relies upon irrigated agriculture. In

order to acquire this additional million acre-feet of Idaho water, estimates call for

between 200,000 and 500,000 acres of productive farmland to be dried-up and over

1.4 million acre-feet of storage space be reassigned or reacquired from irrigators.5

The result: an annual irrigation shortfall of up to 500,000 acre-feet for the remaining irrigated acreage, which would fallow an additional 100,000 to 150,000 acres of

farmland, significant additional reservoir level reductions during peak recreational

and irrigation use, and higher river flows during peak summer recreational use.6

Idaho would experience a serious adverse impact to its recreational industries due

to the reduced summertime reservoir levels and higher river flows, which would further reduce the overall usefulness of our reservoirs for regional fisheries and flatwater recreation and our rivers for whitewater recreation. Also, hydropower production efficiencies would be impacted due to these higher river flows, which may exceed productive capacities at several facilities on the river.

All these negative impacts to irrigators, recreation, hydropower, and the Idaho

economy and we would still only meet the NMFS artificial target flows at Lower

Granite Dam 35 percent of the time (on average).7 Given these facts, a NMFS recovery plan which includes an additional one million acre-feet of Idaho water would,
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in my opinion, decimate the economy of the state, destroy entire Idaho communities,

create widespread unemployment, and abrogate Idaho water law in the process.

And what do the endangered salmon and steelhead receive in return for all this

hydrologic and economic chaos? Flow augmentation, as I stated earlier in my testimony, has been something of a ‘‘grand experiment.’’ The State of Idaho agreed to

voluntarily participate in the NMFS flow augmentation project until 1999, allowing

up to 427,000 acre-feet of Idaho stored water from the upper Snake River Basin to

be used in this experiment on a willing seller basis. Since 1995, Idaho has experienced above-average water years, and 427,000 acre-feet have been released from the

upper Snake in an attempt to meet flow targets in the lower Snake River every

year. In addition to this amount of upper Snake River water, stored flows have been

released from the Corps-operated Dworshak Reservoir in Northern Idaho and from

Brownlee Reservoir by Idaho Power Company in order to provide an annual total

of approximately 2.0 to 2.8 million acre-feet of flow augmentation. In voluntarily allowing these waters to leave the state for flow augmentation, our state has already

felt substantial negative impacts to resident fisheries, flat-water recreation, and reduced availability of storage water for other uses (municipal, industrial, managed

groundwater recharge, water quality and irrigation needs, to name a few). The State

of Idaho has given up these opportunities in order to permit current flow augmentation efforts by NMFS to occur using Idaho water under their 1995 Biological Opinion.

But what has NMFS accomplished with all of this Idaho water? Assuming that

NMFS is trying to increase water particle velocities in the lower Snake River with

current flow augmentation strategies, we need to take a look at how effective they

have been in accomplishing this feat. If NMFS is attempting to restore average predam water particle travel times and equivalent average velocities, the volume of

water necessary to meet these velocities would be equal to over four times the total

average annual runoff from Idaho’s river basins.8 It is obvious that it would be futile

to attempt to mimic pre-dam velocities and water particle travel times when there

is not enough water in the system to accomplish this task.

So what do NMFS flow targets do to water particle travel times and velocities?

Meeting the current NMFS flow objective of 55,000 cubic feet per second (cfs) at

Lower Granite Dam, during an average water year, increases the effective average

velocity by about 0.1 miles per hour.9 This overall increase in velocity still results

in a water particle travel time about 7 times greater and a velocity 7 times less than

pre-dam flows, and an inconsequential incremental improvement to in-river flow velocity.10

Do the fish notice these (albeit small) improvements to velocities? Recent studies

indicate that spring-migrants benefit very little, if at all, from current flow augmentation efforts, while fall-migrants are affected more variably, with a high level

of uncertainty and with other variables (such as migration timing and fish size

through the upper river system) having a more predictable effect on species recovery

than flow-survival data.11 In other words, current flow augmentation efforts have

not resulted in any significant improvements to the survival of ESA-listed salmon

smelt on their way to the ocean. Yet NMFS water policy, through its flow targets/

augmentation program, is being developed within the Snake/Columbia River drainage on the premise of ‘‘no net loss,’’ or no further development of water resources

within the basin.

In effect, through ESA implementation, this NMFS policy challenges state authority to grant any future water rights for municipal, industrial, and irrigation uses,

as well as attempting to challenge existing state-granted water rights as to their

effect on instream flows for salmon migration. This cannot be allowed to continue,

using Federal tax dollars and the seemingly infinite overall power of the Endangered Species Act to invalidate existing, state-protected water rights that tax-paying

Idaho citizens have relied upon for their very existence for generations, while doing

very little, if anything, for the endangered fish runs.

As to the question of H.R. 4335, in my opinion, National Marine Fisheries Service

is probably doing what U.S. Fish and Wildlife Service would do in their stead. The

problem is the improper use of Federal agency discretion in implementing the ESA

while ignoring the ‘‘best scientific and commercial data available.’’ 12 The power of

the ESA is immense, and unfortunately, the Federal courts will probably decide

what will be done under the ESA. In my mind, it is doubtful that vesting all ESA

responsibilities with the Secretary of Interior will effect better results for irrigators

and the citizens of Idaho. The Secretary of Interior has authority over not only the

Fish and Wildlife Service, but the Bureau of Reclamation as well, which holds in

trust many storage and natural flow water rights for Idaho farmers. Our concerns

about ESA implementation would probably escalate if the Department of Interior

took charge of salmon and steelhead recovery, as interdepartmental decisions would
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take the place of adversarial consultation proceedings on the operation of Idaho’s

Federal storage reservoirs under the ESA, putting our water supply even more at

risk.

Recently, there has been much talk about removing dams on the lower Snake

River, as well as talk about drying up many Idaho farms to provide additional flow

augmentation efforts, all in the name of the endangered salmon and steelhead.

These options, both currently being studied by Federal agencies, seem to be the extreme positions, promoting measures that are questionable in bringing about the recovery of endangered salmon and steelhead runs, but which would carry a great and

immeasurable cost to our society.

In my opinion, there is uncharted middle ground that needs to be explored before

we allow any of these extreme measures to be debated. NMFS has ignored improved, ‘‘salmon-friendly’’ hydroelectric turbines that, if installed at the dams, would

improve fish passage. Improved transportation efforts, possibly past the Columbia

River estuary (another variable to salmon smelt survival) should be further explored

and implemented. There is a need for additional study and improvements to in-river

and in-reservoir predation mortality. NMFS cannot tell us how many juvenile salmon and steelhead are being killed in the reservoirs as a result of predation. Caspian

terns at the estuary are happily consuming from 10 to 15 million smelt annually.

Sea lions protected by NMFS attack almost one-third of all returning adult salmon

in the river, wounding or killing many of the endangered adults headed to Idaho

to reproduce.

Finally, real reform in harvest mortality, holding the fishermen and tribes just

as accountable for salmon protection as river users are held in protecting redds

(salmon nests) upstream on the tributaries. While admittedly not the ‘‘primary’’

cause for salmon and steelhead decline, harvest does play a role in decline of these

fish stocks. For example, under the court-ordered Columbia River Fish Management

Plan (CRFMP) adopted in 1988, up to 15 percent of A-run steelhead and 30 percent

of B-run steelhead, both of which are protected under ESA, can be harvested legally.

Why is NMFS still operating under a 10-year old plan for harvest level management

when they should be more responsible in rebuilding endangered salmon and

steelhead runs? CRFMP has been the critical variable during the last ten years in

reducing rather than increasing the production of wild salmon and steelhead.13 And

NMFS is party to this court-sanctioned agreement, which puts the agency in a box,

making it powerless in shaping Columbia River fisheries to protect listed fish.

If any or all of these variables were controlled, made more fish-friendly, or

changed to reflect current situations, then possibly salmon runs would begin to improve without implementing other extreme, sweeping changes to the river system

and the Pacific Northwest so eagerly called for by many environmental and fisheries

advocates.

In conclusion, the main focus I want to leave with you today is that NMFS and

its flow targets/augmentation policies are threatening irrigated agriculture’s very

existence in Idaho. The many small communities historically connected to those

farms, both economically and socially, are at risk of disappearing, displacing thousands of people from their homes they have owned for generations. Irrigated agriculture is the main reason why we have such an abundance of fresh and processed

fruits and vegetables in our grocery stores today. Without irrigation, we would not

have the seasonal stability necessary to produce sustainable food supplies needed

for the 21st century. Irrigated agriculture, agricultural services and food processing

are the nation’s ‘‘quiet industry,’’ steadily and reliably producing up to $60 billion

annually in Western income,14 and Idaho’s irrigated agricultural industries are a

large part of this national food source. Allowing a Federal agency to abrogate state

water laws, undermine a stable water supply, and force farmers off their lands

using the ESA, with little proven benefit to the protected fish, will negatively impact

our communities and our state, and eventually undermine the stability of our nation’s food supply. The challenge before the Committee today is not necessarily

which Federal agency should implement the ESA, but how misguided agency discretion in implementing the Act can be realigned in order to protect a state’s right to

appropriate and protect its valuable water resources for its citizens and its future.

Thank you for the opportunity to testify before the Committee, and I would be

happy to stand for questions.

————— 1 The Columbia-Snake River Flow Targets/Augmentation Program: A White

Paper Review With Recommendations for Decision Makers, Darryll Olsen, Ph.D.,

James Anderson, Ph.D., Richard Zabel, Ph.D., John Pizzimenti, Ph.D. and Kevin

Malone, MS, February 1998. 2 Attachment No. 1, Columbia River Water Flows and Targets Analysis Chart.
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3 A View on Idaho’s Experience with Flow Augmentation, Karl J. Dreher, Director,

Idaho Department of Water Resources, May 1998. Also, see Attachment No. 1. 4 Attachment No. 2, Estimated Economic Benefits of Water Use for Major Sectors

and Types of Economic Sector Trade-Offs (Direct Net Economic Value Estimates). 5 U.S. Bureau of Reclamation, One Million Acre-Feet Study, Hydrology and Economics Meeting, Boise, Idaho, July 31, 1998. 6 U.S. Bureau of Reclamation, One Million Acre-Feet Study, Hydrology and Economics Meeting, Boise, Idaho, July 31, 1998. 7 U.S. Bureau of Reclamation, One Million Acre-Feet Study, Hydrology and Economics Meeting, Boise, Idaho, July 31, 1998. 8 A View on Idaho’s Experience with Flow Augmentation, Karl J. Dreher, Director,

Idaho Department of Water Resources, May 1998. 9 Ibid. 10 Ibid. 11 The Columbia-Snake River Flow Targets/Augmentation Program: A White

Paper Review With Recommendations for Decision Makers, Darryll Olsen, Ph.D., et

al., February 1998. 12 Endangered Species Act of 1973, Section 7. 13 All Species Review, 1997. 14 Western Irrigation Economic Benefits Review. Irrigated Agriculture’s Role for

the 21st Century: A Policy White Paper for Decision Makers, Darryll Olsen, Ph.D.

and Houshmand Ziari, Ph.D., June 1998.
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STATEMENT OF DAVID DOERINGSFELD, MANAGER, PORT OF LEWISTON

Implementation of the Endangered Species Act was initially carried out with the

best of intentions. However, the complex and often conflicting requirements of ESA

have made it almost impossible to produce a fish recovery plan which can be implemented and which produces win-win solutions.

Yesterday, you heard from one of the ports on the Mid-Columbia River concerning

the implementation of ESA by the NMFS. I would like to echo some of those concerns. Once a species is listed as endangered, the only option available is to develop a

recovery plan without any regard to cost, social or economic impacts. While the people of the Northwest want to save anadromous fish, they are not willing to do it

at any cost, and they don’t want to be part of empty gestures or false promises for

the fish.

Our Northwest lifestyle is built around the remarkable Columbia/Snake River

System. The many benefits we receive have shaped our communities, our culture

and are a vital part of the Northwest economy.

Approximately 90 percent of our region’s agricultural products are exported. We

all rely on the Northwest’s unique integrated system of growing, processing, storing

and transporting food for export. Losing one link in the chain would have serious

effects and our lives would be drastically different without it.

Over 40 percent of all the wheat grown in the United States is exported through

the Columbia/Snake River System. River barges carry essential cargo 465 miles

from Lewiston, Idaho, to Astoria, Oregon, stopping at 25 ports along the way. This

extraordinary river system creates a safe river passage and has made the Pacific

Northwest the market basket of the world.

Yet today, we have a black cloud hanging over the economic future of the Pacific

Northwest and NMFS appears to be the only agency in charge of whether we will

have prosperity or disaster.

When ESA gives a single Federal agency the power to control public and private

land use, throw out state conservation plans, and dictate the amount of water that

flows in our rivers, common sense would indicate that we have gone too far.

I believe that we need open discussions in which to develop a river governance

framework whereby the region retains control over ESA implementation. The governors of ID, MT, OR and WA are currently exploring river governance options. We

are hopeful that a broadened Northwest Power Planning Council will be given the

authority to oversee ESA implementation.

I don’t pretend to be an expert on fish, but if we have learned anything by now,

it is that there is no magic solution to the fish problems in the Northwest. Fish runs

all along the west coast are in decline, not just the fish that encounter dams. The

people in the Northwest don’t want lose-lose schemes like destroying dams or massive flow augmentation, especially when its not known whether these efforts would

return even a single fish.

When we consider whether transferring ESA enforcement responsibilities from

one Federal agency to another (as outlined in H.R. 4335), it is difficult to ascertain

which agency would be more effective. Single agency control seems to make sense.

Currently, we have Federal biologists from NMFS, USFWS and the COE all working on fish recovery. Centralizing the authority and expertise would provide for a

clear mission and reduce conflicting goals.

So here’s the bottom line in this whole debate. Along with other North Westerners, we want to preserve the things we value most about living in the Pacific

Northwest—a rural culture and strong regional economy capable of supporting families and communities for years to come.

Our dams are a vital link in the structure of the Northwest’s economy. We have

grown to depend on them to provide dependable, low-cost power to our homes, deliver our goods to world markets, protect ourselves from floods and provide recreational opportunities.

We simply want common-sense solutions that really work. We deserve a win-win

solution for everyone connected with the river—one that allows the fish to thrive,

but preserves the benefits of our remarkable river system for future generations.

STATEMENT OF HAROLD G. [JERRY] KLEMM, ROCKY MOUNTAIN, REGION PRESIDENT,

PULP AND PAPERWORKERS RESOURCE COUNCIL AND REPRESENTING UNITED PAPERWORKERS INTERNATIONAL UNION LOCAL 712

Mr. Chairman, Members of the Committee, ladies and gentlemen, my name is

Jerry Klemm. I am before you today in my capacity as president of the Rocky Mountain Region of the Pulp and Paperworkers Resource Council or PPRC. Our over
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400,000 members across the United States are deeply committed to the conservation

of America’s natural resources in ways that benefit people and protect the wild community.

I am alarmed at the building power of small regulatory agencies to circumvent

and reinvent the law of the land to meet very narrow goals established in far lessthan perfect legislation. What I believe are unintended consequences of those narrow goals are not mitigated by that same legislation. I do not believe, for example,

that the authors of the Endangered Species Act knew that the National Marine

Fisheries Service [NMFS] would use the Act to circumvent individual and state

water rights in pursuit of their aims. This is especially troubling when dealing with

issues like flow augmentation where the working hypothesis is unworkable. NMFS

believes massive flow augmentation will help fish. Idaho Fish and Game Director

Steve Mealey says ‘‘flow augmentation will not recover the fish and it places large

burdens on vital state interests.’’ While I don’t like Mr. Mealey’s solution I do agree

that flow augmentation is not the answer.

But flow augmentation is a perfect vehicle for NMFS to use to take water rights

in an attempt to wrest control of water in the west to meet their own ends away

from states and individuals and use that water. I am not suggesting there is a malicious conspiracy at work here to take western water. I am saying that a small regulatory agency with veto power over Federal, state, and private land management

has interpreted the law in such a way that the net result is the taking of western

water without due process.

While NMFS has been busily engaged following its own narrow path, her sister

agency in the Department of Interior, the U.S. Fish and Wildlife Service, is engaged

in its own efforts to meet the same ends, but not always by the same means. How

painful it must be for leadership in these two agencies, both charged with implementing and enforcing the ESA, to have to work around, over, and through each

other and everyone else to implement the Act. Their experience and training are

often in conflict. Their political bosses answer to different drummers for different

reasons. Their histories and clientele are so different. Their veto power and willingness to use that power are shaped by their experience.

I absolutely support H.R. 4335 to consolidate those agencies that hold such power

over the rest of us. While more sophisticated populations in cities far removed from

Lewiston may think this is much ado about nothing, the time will come when they

will appreciate what you’re trying to do here. The first time busy big city mayors

go up against Will Stelle and the gang they’ll realize it was the right thing to do

after all. Wasn’t it Will Stelle who said (12/15/97) ‘‘Science will not give us the answers, although many pretend otherwise?’’ If not science, who? The answer is, Will

Stelle and NMFS, unbridled by the democratic process or the principles of republican forms of governance. Ridiculous, you say? When NMFS and the USFWS vote,

who may vote them down? When they enforce this flawed and often ruinous law,

who may veto them? To whom are these people accountable?

The answer of course is that you, Mr. Chairman, and your colleagues may ultimately veto those agencies. But you cannot prevail against an administration so

dedicated to sacrificing human and community needs. You, in good faith, enacted

this law to help endangered species. You could not know that your intent would so

mutate as to be unrecognizable today from the legislation enacted so long ago. Who

could foresee the dueling agencies and cross-purposes? Who could predict that the

administration would so cynically use the law to further their own dark ends over

the very particular rights of individuals and states?

Stelle’s recent hostile takeover of the issuance of the 4d rule for spotted owl in

Oregon demonstrates NMFS cannot be trusted to work cooperatively in an administration supposedly dedicated to collaboration. It’s time to muzzle the hounds and

bring some management to chaos. It’s time to either bind the two agencies together

or make them one, or, if that’s not possible, to limit NMFS authority to the ocean

and USFWS inland. Make the boundary the coastline.

I’m not a biologist and I don’t pretend to have all the answers. I do know something about organizing to get something done. A prophet said we cannot serve two

masters (Luke 16:13). I believe him.

STATEMENT OF DELL RAYBOULD, CHAIRMAN, ON BEHALF OF THE COMMITTEE OF

NINE, WATER DISTRICT 1, STATE OF IDAHO

My name is Dell Raybould. I am a farmer and businessman from Rexburg, Idaho.

I was born in Idaho and have lived here all of my life. I grow, process, pack and

ship Idaho Potatoes. I farm in Fremont and Madison Counties, and irrigate my

crops with River water, including water stored in various Snake River reservoirs.
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I currently serve as Chairman of the Committee of Nine, the advisory committee

elected by the water users of Water District Number 01 to represent the water users

and advise the watermaster in the affairs of the district. Water District 01 is the

largest water district in the United States comprising 15 thousand water users irrigating 1.2 million acres of farmland. I am also an elected director of the Consolidated Farmers Canal Co. and a director of the North Fork Reservoir Co. owner of

Henry’s Lake, a private irrigation reservoir known world wide for the famous Cutthroat Trout fishery at the headwaters of Henry’s Fork of the Snake River.

I am here today to express the concerns of the thousands of irrigators, industrial

water users, and municipalities that depend on irrigated agriculture in Southern

and Eastern Idaho. Your request for comments on the implementation of the Endangered Species Act by National Marine Fisheries Service (NMFS) under the authority

granted in the Act, and whether there is and overlap of activities with Fish and

Wildlife (USFWS) is difficult to assess. Both Federal agencies have their own agenda, and are approaching solutions to the recovery of endangered Salmon from their

own point of view. USFW has not had the responsibility for preparing the Biological

Opinion that will govern the next phase of the salmon recovery program, and yet

they certainly have been involved and have an overall interest in this matter.

NMFS, on the other hand, has been charged with developing a recovery plan and

they have avoided making the tough decision required to protect salmon, but have

instead shifted from a recovery plan to efforts in seeking water for flow augmentation.

During the past four years the State of Idaho has permitted a maximum of

427,000 acre feet of stored water to be taken out of the state annually through the

state water district rental pools. Fortunately most of this water has come from willing sellers of storage water. It is important to note that this has been accomplished

only because of water years providing full reservoirs and above average stream

flows. The years prior to 1994 were generally below average water years and no

water would have been available for flow augmentation under this policy adopted

by the State Legislature for a five year test program that expires at the end of 1999.

This has been a very expensive and totally unproductive experiment. Currently, the

BOR is studying the economic impacts of taking an additional one million acre feet

of Idaho water, to meet flow targets which have little or no biological justification.

We water users are not only concerned about the use of water for irrigation, but

are vitally concerned about our local economies, resident fisheries, and the beautiful

recreation areas that have been created over the years by our reservoir systems.

Henry’s Lake is a good example of the cooperative effort of irrigators in establishing

an outstanding recreation area and resident fishery. Prior to the completion of Palisades dam, Henry’s Lake was utilized fully almost every year for supplemental irrigation water for the owner canal companies. After Palisades came into the system,

enough storage water was available to allow water exchanges between Henry’s Lake

and other reservoirs on the system. This allowed water to be kept at a high level

in the lake during the summer for fish and recreation with a payback to the exchanging reservoirs the following storage season. If an additional one million acre

feet of water is required for flow augmentation for salmon, this water exchange will

be limited and offer no stability for the resident fishery. This will undoubtedly affect

the fishery of the entire Henry’s Fork of the Snake River and the tourism of Eastern

Idaho. In a presentation by the BOR which offered to address the economic impacts

to Idaho of taking additional water, down stream beneficial storage exchanges were

not even considered in evaluating impacts. This is not an isolated example of the

bias and incomplete evaluation efforts of the flow augmentation theory. There are

many water based recreation areas like Henry’s Lake in the state that would be affected to some degree by questionable activities of NMFS, USFWS, and the BOR.

Almost one half billion dollars are being spent by Federal agencies each year to

study and implement these flawed experiments. There has been no willingness to

admit that it is because of conditions beyond the control of man that the recovery

of salmon, to the extent desired by sport fishermen, Indian tribes, and conservation

groups, may not be possible without climatic changes in the Pacific Ocean.

The overall demise of the salmon in Idaho is not due to any one factor. There are

many contributing factors that have diminished the migration and return of the

salmon to Idaho in numbers great enough to support recreational fishing enjoyed

in the past. The climatic conditions in the Pacific Ocean have been so detrimental

in several areas that sustain life to the salmon, that minute tinkering with the river

system, at huge expense to electric rate payers and taxpayers is, in our opinion, a

tragic waste of time, human resources, and money. The loss of the productive food

chain in the ocean estuaries, the migration of predators from the southern borders

of California, and the inability to protect both the smolts going to the ocean and

the adult salmon returning to our rivers from these vast numbers of predators, is
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a far greater cause of the salmon problem than the flows through the Snake River

system.

I refer to a recent study by scientists at the Scripps Institution of Oceanography,

at San Diego, Calif. (Published in the Journal of Science, Vol. 281, 10 July 1998)

The study clearly outlines climatic ocean changes that occurred in the mid 1970’s

and that these changes in ocean conditions are cyclical, they have occurred in the

past and will occur in the future. The major result of these dramatic ocean temperature changes has been to shift the salmon populations north into the gulf of Alaska.

The study states; ‘‘The most spectacular shifts upward (to the Gulf of Alaska from

Oregon, Washington, and B.C) were those of the sockeye and pink salmon’’. Again

I quote from this study concerning the decrease in the availability of salmon in the

ocean after the 1970’s sea surface temperature shifts. ‘‘These decreases began well

before the onset of the regime shift. Catches of Coho and Chinook salmon along the

southern coast of British Columbia, Washington and Oregon, areas in the bifurcation

zone of the West Wind Drift, have decreased markedly since about 1978. These

sharp declines have been attributed to changes in the survivorship of

young and juveniles in the open ocean after the regime shift.’’ This most recent scientific study reinforces the technical data available to NMFS for several

years that the 2 degree rise in sea surface temperatures in 1977 resulted in major

biological changes in the ocean including a 70 percent decline in zoo plankton, a

major link in the natural food chain important to salmon. Yet these important scientific facts are being ignored by the Federal agencies in favor of tinkering with the

river system and wanting to ‘‘commandeer’’ our precious water supplies.

Is it any wonder that many in the water community believe that the Federal Government is using the Endangered Species Act as a vehicle to control Idaho’s water?

It is obvious that experiments such as flow augmentation and dam removal are premature at best and probably useless in any recovery process until the major conditions conducive to salmon welfare in the ocean return to a more normal state. And

yet NMFS forges ahead with developing programs to use Idaho’s water with no apparent concern for the welfare of those who use it.

As to H. R. 4335, transferring the functions of the Secretary of Commerce and

the National Marine Fisheries Service under the Endangered Species Act to the Secretary of Interior, I can see no real advantage one way or the other. As one water

user I questioned said, ‘‘If the cannibals are going to eat you, does it matter which

pot you are boiled in or which tribe does the cooking?’’ For my own thoughts on this,

I will have to say that I have had excellent relations with the Bureau of Reclamation over the years. This has to be tempered by the present philosophy in the Department of Interior in Washington DC. If the regional people in the BOR are left

responsible for decisions pertaining to our water I would be comfortable with the

change. If left to bureaucrats in Washington I see no advantage in any change.

In summing up the situation we are facing here in Idaho, the Endangered Species

Act is not being administered in the best interests of restoring salmon runs. It

seems that we are being stampeded into implementing measures to try and restore

salmon just for the sake of expediency. For several years millions and millions of

dollars have been spent trying to find the magic bullet that would restore the endangered salmon, when the major culprit is oceanic conditions that affect two-thirds

of the salmon’s life cycle. Even though our reservoir company has been the recipient

of some of the rental money from BOR for flow augmentation water, I do not believe

that it was money well spent by the Federal Government. It certainly can not be

justified by the results. Nor will removal of the dams on the lower Snake accomplish

recovery. We have done the augmentation test, it failed. There should be no further

attempt to secure water for flow augmentation. The potential result to local economies, resident fisheries, recreation, agriculture and the disruption of thousands of

lives clearly is not justified by the results. The waste of money for no achieved result is abhorrent, but it will continue unless Congress reigns in the abuses of regulations supposedly granted to these agencies under ESA.

I recommend that your Committee look deeply into the funding of this program.

Where is the money coming from for NMFS to continue these exploratory experiments? Where in the BOR budget has the money come from to purchase water? To

Rent Water? Where in the Endangered Species Act is authority given for NMFS to

Require BOR to abrogate their bona fide contracts with reservoir space holders to

acquire this 1,427,000 acre feet of water? We don’t think they have that right or

authority. The Fifth Circuit Court of Appeals has ruled that ESA cannot require another agency to do anything outside the authority specifically granted to that agency

in carrying out their responsibility under the enabling legislation that created that

agency. Here we have one agency, NMFS, requiring another agency, BOR, to evaluate the possibility of acquiring 1.427 million acre feet of water from reservoirs that
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are totally subscribed to in bona fide contracts with water users. Is this right? Is

this the intent of Congress to renege on previous commitments?

Idaho needs its agricultural base, and especially the potato industry that creates

thousands of jobs, both in production and in the processing of the raw product. This

industry, as we know, it could very well be lost. We need the local recreation industry that has flourished around the reservoirs that store our irrigation water. Efforts

to save salmon under the present ESA could very well be the demise of our agricultural based economy as we now know it in Idaho.

The recovery of salmon under the direction of NMFS has been an abysmal failure.

While they have had nearly unlimited resources and the best scientific knowledge

available, salmon runs have continued to decline. Water District 1, has had none

of these advantages, but has prepared a recovery plan that is guaranteed to show

better results than the program NMFS has been following. Our plan requires no

water out of Idaho, and will return more fish the first year than NMFS Programs

have returned since the Snake River runs were listed. I have attached a summary

of this plan for your review.

Thank you for the invitation to testify before your Committee. It has been a pleasure to be with you today.

A NEW PROPOSAL BY SNAKE RIVER WATER DISTRICT 1 FOR RECOVERING

SNAKE RIVER SALMON

Currently there is no plan for recovering Snake River Salmon, although the Federal agencies would like us to believe they have a plan and know what they are

doing. There is a biological opinion prepared by the Bureau of National Marine

Fisheries (NMFS) that allows 80 percent of the migrating salmon to be ‘‘incidentally

taken’’ by any number of factors including predators, dams and fishermen, yet prevents floaters from floating certain reaches of the river because there may be Redds

that may be disturbed by such activities. The rate payers and Federal Government

have expended billions of dollars on activities that were supposed to be directed at

preserving and enhancing Snake River Runs. None of these activities have shown

any signs of success. The fact is, the current salmon recovery efforts have wasted

huge amounts of money and resources in the activities of, talking, meeting, tagging,

studying, barging, paying for dead squaw fish, in addition to the general disruption

to peoples lives. The millions of hours and billions of dollars expended have not, to

date, saved a salmon. Perhaps it is time that some different approaches be considered. We are proposing an approach that is guaranteed to cost less money, and have

better results than any of the approaches tried to date.

First it is time to at least consider that some of the listed species are not recoverable and that they are effectively extinct. We wish to use an analogy in offering a

thesis that needs to be considered, even though such a consideration is not politically correct. (We also need to recognize that salmon recovery efforts have been driven more by than by science.)

Computer technology has changed rapidly during the past two decades. Consequently in the Water District office, we have some ancient 8 inch floppy disks,

boxes of 51⁄2 inch floppy disks containing software for obsolete computers. We have

boxes of 31⁄2 inch floppies from the next generation of computers and now we have

stacks of CD’s. It is easy to tell the different kinds of disks apart but, without the

labels all of the 51⁄2 inch disks appear to be identical, as do the 31⁄2 inch and the

CD’s. However, everyone of these disks contain digital information designed to do

something unique. When these disks are read and the information they contain is

loaded into a computer each of these will enable the computer to perform the unique

functions the program designer had in mind. From time to time we have had disks

that did not properly transfer information to the computer and, as a result, the intended program did not do what it was expected to do. A small amount of lost information made the digital code on that disk worthless. Recently we had a computer

crash. It would not do anything, even though every program loaded in the disk

memory remained unchanged and intact. It was not until we had someone who

knew how to replace a few specific strings of digital information come and replace

the lost information that the computer would again function properly. There are

some things we know about computer programs. First, they do not just happen. We

can call a computer disk anything we want, but unless there was intelligent construction of the digital code, the label is meaningless. We can copy the digital code

from one disk to another, but we can not ever expect windows 95 to show up on

a blank disk, no matter how long we have it sitting on the shelf.

The genetic information contained in the cells of living organisms is not unlike

the code on a computer disk. There are data available that not only support this
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thesis but appear to reflect the long-term loss of genetic information in Snake River

salmon. Figures 1 and 2 represent some of these data.

Given the lack of success that has been demonstrated by on-going salmon recovery

activities, perhaps it is time to test some different hypotheses. We would propose

the following hypothesis be tested as part of a plan to recover Snake River runs.

Hypothesis 1: The level of genetic sophistication, and the amount of genetic information contained in the Snake River Salmon gene pool was at a maximum in the past

and must be restored to get fishable runs in Idaho. Genetic information has been

lost from this gene pool and currently there is inadequate genetic information available to recover salmon runs or to cause current salmon runs to perform predictably.

This loss of genetic information was accelerated and exacerbated by commercial

fishing pressure which started in the 1860’s. The loss in genetic information can be

expected to follow a typical geometric decay curve, if there are not intentional, intelligent actions to restore the lost information. While the data in Figures 1 and 2 may

represent a general loss of genetic information in all Columbia River stocks, it is

likely that the loss is exacerbated by distance fish must travel to reach spawning

areas. Clearly loss of habitat is not proportional to the declines in Snake River salmon stocks.

If a sufficient amount of the genetic information originally programmed into the

genes of Salmon that caused them to migrate up the Columbia and Snake Rivers

to spawn and die in Idaho has been lost over the past century, all of the expensive

and extraordinary measures we decide to finance will never recover these stocks.

The prevailing thinking has led to the conclusion that the biggest impediment to

salmon recovery is smolt mortality. There is a growing belief that if we remove

dams and get back to a ‘‘normative’’ river, smolt mortality will be reduced and we

will begin to see a resulting increase in the number of salmon returning to Idaho.

The fact is, that if there is not the ‘‘desire’’ to return to Idaho runs will never recover. Proposal to test Hypothesis 1. At the present time the majority of the salmon harvested in the world are raised in net-pens in the ocean. In order to test the propensity of Snake River salmon to return to Idaho, Idaho salmon need to be protected

fish while they are in the Pacific Ocean. Since we know we can raise salmon in

ocean pens it seems reasonable to incorporate this technology in the current salmon

recovery efforts. Rather than barging smolts to the estuary and dumping them, we

propose to collect smolts near Lower Granite and transport them to net pens in the

ocean where they would be maintained for some time to protect them through the

vulnerable juvenile stage before letting them escape to the ocean. While it is likely

that there will be some increase in vulnerability because of this protection from

predators and the artificial feeding, overall losses should be significantly reduced by

protecting the juvenile fish through their period of highest vulnerability. If this effort should be successful and the number of adults returning to Idaho from this

group increases it would provide valuable information about ocean losses and the

genetic pool available for recovering these runs.

HYPOTHESIS 2: Pinnipeds in the estuary at the mouth of the Columbia river are

responsible for approximately 50 percent of the mortality in returning adult salmon.

Current data indicate that nearly 50 percent of the adult salmon reaching Bonneville dam show injuries attributable to pinniped attacks. This does not include a

similar number of salmon that are killed before reaching Bonneville dam. The fact

is, if these losses are controlled the number of returning adult salmon reaching Bonneville dam should double.

Proposal to Test Hypothesis 2: Immediately reduce the number of pinnipeds in and

near the Columbia River estuary by 90 percent.

HYPOTHESIS 3: Gill net and tribal fishing on the Columbia results in the loss

of important Snake River brood stock.

The gill nets and other fishing by Indian tribes along the Columbia result in the

continued loss of important genetic information necessary for the recovery of Snake

River salmon and steelhead runs. The ESA has prohibitions against the taking of

listed species.

Proposal to Test Hypothesis 3: Place a five-year moratorium on all tribal salmon

fishing on the Columbia river.

HYPOTHESIS 4: The implementation of the ESA by the Federal agencies is, itself

responsible for the continued declines in salmon.

We believe it is clear that the number of agencies and the clouded authorities and

lack of coordination has done nothing but waste money and resources.

Proposal to Test Hypothesis 4: Congress should immediately cut all funding for all

ESA activities. Specific, non-ESA funding should be appropriated for appropriate

agencies to implement the specific tests outlined in this plan. Barging, hatchery operations and other programs associated with salmon production that were in place
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prior to the listing of Snake River runs should be funded by Congress and continued

by the appropriate agencies.

We submit that this relatively simple and inexpensive recovery plan will accomplish more results, and will provide more information related to salmon recovery

than all of the activities undertaken to date. We also believe that it will provide

the basis for the enactment of a replacement for the Endangered Species Act, which

has expired, that will not result in the obscene waste of resources we have seen,

and may actually result in the recovery of an endangered species.
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STATEMENT OF SHAWN CANTRELL, NORTHWEST REGIONAL DIRECTOR, FRIENDS OF THE

EARTH

Good morning Chairman Young and members of the Committee on Resources. My

name is Shawn Cantrell, and I am Northwest Director for Friends of the Earth

based in our regional office in Seattle, Washington. I appreciate the opportunity to

testify today regarding implementation of the Endangered Species Act (ESA) and to

share our views on H.R. 4335, a bill to transfer to the Secretary of the Interior the

functions of the Secretary of Commerce and the National Marine Fisheries Service

(NMFS) under the Endangered Species Act.

Friends of the Earth is a national environmental membership organization, including approximately 1,500 individual members in the three Pacific Northwest

states. Our staff and volunteers have worked on ESA and salmon related issues in

the Columbia and Snake River basins for over 20 years.

I would like to begin my testimony today by commenting on NMFS’ activities in

implementing the ESA, particularly regarding development and implementation of

recovery measures for listed Snake River salmon and steelhead populations.

Snake River sockeye were listed under the ESA in 1991, followed by Snake River

chinook in 1992 and Snake River steelhead in 1997. Seven years after the first of

these listings, NMFS has failed to develop a recovery plan for restoring these

threatened and endangered fish, despite requirements under ESA to do so. The only

‘‘plan’’ issued by NMFS to date has been a series of three biological opinions which

detail what actions Federal agencies must take to insure that operations of Federal

dams in the Columbia River basin don’t create further jeopardy for the listed fish.

Unfortunately the measures called for in these biological opinions are completely inadequate to protect the dwindling fish runs from being further decimated. Listed

Snake River salmon and steelhead stocks continue to decline and in fact are in

worse shape than when first ‘‘protected’’ under ESA.

Moreover, NMFS has not even enforced the inadequate measures which were included in its biological opinions. Among the major actions which NMFS has failed

to require the Federal dam operators to implement include:

• meeting the established minimum water flows for the river during the annual

juvenile migration seasons;

• providing water from upstream storage reservoirs as called for in the plans;

• meeting the established optimum river temperatures;

• meeting the standards for spilling juvenile fish safely over the dams spillways

instead of through the turbines;

• keeping the water level of the reservoir behind John Day dam at its minimum

operating pool.

It is in this context that we would like to offer our thoughts on H.R. 4335, the

‘‘Endangered Species Consolidation Act.’’ While Friends of the Earth has been and

continues to be extremely critical of NMFS’ track record in implementing the ESA

regarding endangered fish runs in the Northwest, we do not feel this bill would improve the results of fish restoration activities in the Snake River basin. We are concerned that H.R. 4335 would in fact lessen the effectiveness of Federal efforts to protect and restore endangered salmon and steelhead.

If H.R. 4335 were to be enacted, the likely outcome would be to further delay development and implementation of a sound salmon and steelhead recovery strategy.

Recovery decisions and actions would be postponed as the Federal agencies undergo

a bureaucratic reshuffling of responsibilities and staff. This bill would likely push

back key decisions and actions as Interior Department staff ‘‘got up to speed’’ on

the pending issues.

In addition, the Interior Department and USFWS have demonstrated similar

shortcomings to NMFS’ in implementing the ESA. Simply shifting responsibility

from one troubled agency to another would do nothing to actually help restore endangered species. The failure by NMFS to adequately protect and restore endangered Snake River fish runs is indicative of the wider problems within the Clinton

Administration on ESA. Transferring ESA functions of NMFS to USFWS is reminiscent of the adage regarding rearranging the chairs on the deck of the Titanic.

Friends of the Earth believes that NMFS remains the Federal agency best equipped

with the staff resources and expertise to oversee the major decisions on Snake River

salmon runs scheduled for late 1999.

Friends of the Earth recognizes the concern of some individuals and businesses

which may currently need to obtain permits for certain activities under ESA from

both NMFS and the U.S. Fish and Wildlife Service (USFWS). There are, however,

more effective straight-forward ways to address the issue of overlapping management authority than a meat ax approach as proposed in H.R. 4335. For instance,

Washington state has streamlined many of its environmental permitting processes
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by consolidating four separate agency reviews into one overall application. Known

as JARPA, or Joint Aquatic Resources Permit Application, this combined application

reducing the duplication of effort and unnecessary bureaucracy and red tape faced

by individuals and businesses while maintaining the distinct authority and responsibility of the separate agencies.

How then can Congress improve implementation of the ESA and efforts to restore

endangered Snake River salmon and steelhead runs? Friends of the Earth offers the

Committee several suggestions.

First, it is vital that Congress ensure that politics not be substituted for sound

science in developing and implementing a recovery strategy for these listed fish

runs. The single biggest obstacle to restoring Snake River salmon and steelhead has

been an unwillingness by the Administration and Congress to follow the recommendations of countless scientific panels and reviews which have called for phasing out technological solutions (such as transporting juvenile fish in barges and

trucks) and restoring more natural river conditions for the fish. The Independent

Science Advisory Board’s report Return to the River is indicative of the emerging scientific consensus which should guide the Snake River recovery efforts.

Second, Congress should hold the Administration to its promised schedule to select long-term recovery measures by late 1999. Congress can assist by appropriating

the full funding needed in Fiscal Year 1999 to complete the engineering, biological

and economic analyses by the U.S. Army Corps of Engineers of proposed recovery

actions. This will ensure that NMFS has the appropriate information needed for the

1999 decision.

In addition, as Congress considers how best to improve endangered species protection, both in the Columbia River basin and across the nation, Friends of the Earth

believes an expanded use of tax incentives offers an excellent opportunity to make

progress on protecting endangered species. By granting tax relief to property owners

who find endangered species on their land, the Federal Government could encourage

landowners to welcome the discovery of an endangered plant or animal on their

property.

The benefits would go beyond individual animals and plants. With people willing

to report the presence of endangered species, scientists would gain a much greater

understanding of the true range of their habitat and movement patterns. Currently,

very little is known about the conditions and status of many endangered species on

private lands. Such knowledge would help improve species recovery plans—often expensive undertakings when a species is so close to extinction—or help keep other

species from reaching such drastically low numbers. As a result, taxpayers would

save significant money in avoided costs.

In summary, while we are deeply concerned with the Federal Government’s lack

of action to date to restore Snake River salmon and steelhead runs under the ESA,

Friends of the Earth believes that the best way to improve the effectiveness of Federal agencies is to ensure that the 1999 decision on long term recovery measures

is made on time and is based on sound science.

Thank you again for the opportunity to present our views, and I would be happy

to respond to any questions the Committee may have.

STATEMENT OF JIM LITTLE, IDAHO CATTLE ASSOCIATION

Good Morning Mr. Chairman,

My name is Jim Little and I am representing the Idaho Cattle Association (ICA)

and the National Cattlemens Beef Association (NCBA). I am an ICA Past President,

former chairman of the NCBA Private Property and Environmental Management

Committee and I recently completed a three year term as Idaho’s obligatory member

on the Pacific Fisheries Management Council. I am a forest grazing permittee with

a cattle and horse grazing permit in Bear Valley in central Idaho where there are

listed species that are administered by both the National Marine Fisheries Service

(NMFS) and the U.S. Fish and Wildlife Service (USFWS).

After glancing at the list of cosponsors for this legislation, I can tell it is an attempt to bring some much needed common sense into the bureaucratic administration of an overly repressive Federal law. It is worthwhile to consider whether or not

one Federal agency could do the job that two are currently charged with. With that

in mind, I want to share some of my personal examples and some hopefully constructive comments on the pending legislation.

In the late 1980’s, the U.S. Forest Service (USFS) did an Environmental Assessment on my grazing allotment to address the concerns about the spawning grounds

for the Snake River Spring Chinook Salmon. We cooperated in that assessment and

came up with a mutually acceptable plan. In 1992, the spring chinook was listed
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by NMFS as threatened and through the consultation process with the USFS it was

decided that an extensive monitoring plan would be put into place to determine

whether we were achieving the desired results. This was done with a strong commitment from the USFS that if it didn’t work, then we would be removed from the

allotment.

After five years of extensive and expensive monitoring and a comprehensive review by the National Riparian Service Team, it has been determined that our riparian areas are ‘‘functioning at risk’’ and in an improving trend. Based on these requirements, it is estimated that the Boise National Forest has spent in excess of

$100,000 per year on the three Bear Valley allotments. To pay for this, the Boise

Forest has been forced to use approximately 70 percent of its entire range betterment budget among other funding sources. Supposedly, range betterment funds are

intended for use across the forest for improvements directly related to livestock

usage with traditional projects like water troughs and fencing.

The bad news is that NMFS refuses to let the Forest Service off the hook for this

costly monitoring and because the monitoring effort is such a deficit operation dollar

wise, I feel that our future on that allotment is very limited.

This past spring, the USFWS listed the Bull Trout as an endangered species, and

just over a month ago the forest service had a ‘‘collaborative team’’ meeting to look

at habitat for both the spring chinook and the bull trout. This collaborative team

consisted of Forest Service officials, grazing permitters, representatives from both

NMFS and USFWS and the interested public. Some observations—the management

scheme for our allotment is being cast in stone and inflexibly applied to a neighboring allotment with somewhat different conditions. Even though the bull trout

habitat in the Bear Valley basin is in good to excellent condition overall, there are

still some restrictive conditions that will be mandated, in my opinion only to satisfy

an overarching court decision regarding consultation on any new listed species.

Another bit of information that I learned at this collaborative three day team

meeting is that the USFWS has not been at the table throughout the Governor of

Idaho’s formation of a ‘‘Bull Trout Action Plan’’ that was designed to forego listing

of the bull trout. The reason that they give is no money to fund participation in that

extensive effort still going on by the State of Idaho.

Some thoughts and concerns that I have with the proposed bill H.R. 4335:

It is my opinion that some of the conflicts with people on the ground and the administering agencies are personality conflicts and arrogance by the administrators

of the Endangered Species Act (ESA). In one area I hear people railing against

NMFS and in another it is the high handedness of the USFWS. In preparing for

this testimony, I contacted the presidents of two other northwest cattlemen’s associations. And one thought this bill was a great idea and the other did not want to

give Bruce Babbitt any more power of any kind. I tried to make the argument that

Secretary Babbitt would not be with us forever, I made no headway in changing

that strong opinion.

Idaho was given two seats on the Pacific Fisheries Management Council because

of our anadromous fish habitat. At the present time all of our anadromous fish are

listed as threatened or endangered so Idaho has virtually no impact through the

council process in their management. This listing has done nothing to help the fish

stocks yet and I am becoming more convinced that we need a change in the natural

rearing conditions in the ocean before any appreciable improvements in returning

fish numbers will take place. When and if that happens, everybody will take credit

for the improving fish numbers. Another area that have some question about is

whether USFWS has the people and expertise to deal with potential listing of ocean

species? Pardon the pun but they may be like a fish out of water on this complex

subject.

In summary, there are many problems that need to be solved in the authorizing

language and in the administration of the Endangered Species Act. The forest service is whipsawed every which way by the ESA in general and they are very uneasy

in challenging the edicts that come to them from NMFS or USFWS. Neither NMFS

or the USFWS are authorities in livestock management, but they assume that role

rather hastily at times. One thing for certain, the lowly forest user is the loser.

Thank you, Mr. Chairman.

STATEMENT OF MITCH SANCHOTENA, EXECUTIVE DIRECTOR, IDAHO STEELHEAD &

SALMON UNLIMITED

My name is Mitch Sanchotena, I am the Executive Director for Idaho Steelhead

and Salmon Unlimited.
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Idaho Steelhead and Salmon Unlimited was formed in 1984 by a diverse group

of businessmen, guides, conservationists, sports fishermen, and concerned citizens

from throughout the Columbia River Basin. ISSU is a scientific, educational, charitable organization committed to the restoration, and protection of Idaho’s anadromous resources. ISSU represents approximately 2,300 members.

Before I begin my testimony on the issue of whether The National Marine Fisheries Service or the U.S. Fish and Wildlife Service is better prepared to deal with

endangered Snake River steelhead and salmon, I have a statement for Idaho’s Congressional Members. Idaho sports fishermen are extremely concerned by the fact

that we were totally ignored by our elected Representatives as witnesses for this

hearing. Idaho sportsmen and especially Idaho anglers are primary stakeholders in

this issue. To require that Idaho’s fishermen be forced to go outside the State of

Idaho to seek a seat from the Minority Party at this hearing begs the question, how

concerned are either of you about the $90 million a year steelhead fishing industry

that occurs in Idaho and a potentially equal salmon fishery? Idaho sportsman have

been leaders in the Columbia and Snake River’s steelhead and salmon issues since

1984. It’s not like we just learned there is an anadromous fisheries problem. We

hope both of you will provide ISSU with an explanation as to why you chose to ignore Idaho’s sportsmen as stakeholders at this hearing.

If I understood correctly our purpose here today is to discuss the question, is the

U.S. Fish and Wildlife Service better suited to deal with endangered anadromous

salmonids in fresh water than is the National Marine Fisheries Service?

NMFS bashing in Idaho is preceded only by President Clinton. It’s easy to say

that NMFS is a bigger part of the problem than they are the solution. But the Fish

and Wildlife Service’s track record on endangered species actions isn’t much better,

if any. It would be informative to have a witness from the U.S. Fish and Wildlife

Service share with this Committee, and the Region’s stakeholders their views on

how to better implement the ESA for salmon and steelhead. Presently there is such

a hodge podge of ESA listings occurring . . . some with recovery plans, most without

. . . that one hand doesn’t know what the other is doing. Continuing a piece meal

approach to ESA recovery . . . even with a singular authority . . . is doomed to fail

for most species. Singular plans for salmon, steelhead, bull trout, sea lions, seals,

terns, wolves, eagles, and so on, are expensive and poorly coordinated. Add to this

problem continual intimidation and manipulation by politicos and you have a formula for economic destruction and species collapse.

Therefore it makes both scientific and economic sense to have a singular entity

in authority. Also the time has come for multi-species recovery plans. A plan should

balance man’s and nature’s needs. It should consider marine mammals in the estuary at one end of the Columbia Basin and fishing and ranching at the other end.

Then make adjustments that provides balance to both.

The legislation you are considering giving authority to a single entity has value.

It also has risks. Given Representative Chenoweth’s past reputation on salmon and

steelhead protection, ISSU questions why this legislation at this time? We hope

Representative Chenoweth will erase our skepticism.

If transferring ESA authority for steelhead and salmon away from NMFS and giving it to the U.S. Fish and Wildlife Service is Congress’ wish, then some explicit

assurance must be accorded society that the transfer will result in resolution to the

declining salmon and steelhead problem. A final version of legislation transferring

authority away from NMFS should contain explicit language directing the new authority to adhere to the 1999 decision time line for a final salmon recovery plan.

Any delay in this decision point is unacceptable. All FTE’s and all appropriated

funding for completion of the 1999 decision should be transferred as well. It seems

to many of us it’s easier for Congress to manipulate Interior’s budget than Commerce’s and NOAA’s budget. Therefore there must be explicit assurances in any new

legislation that recovery plan funding will be provided. If you get all that done, Congress then needs to step out of the way and let the managing authority do it’s job.

I would like to wrap this up by simply pointing out there are already a multitude

of laws passed by Congress to protect Snake River salmon and steelhead. In the

past these fish provided economic fisheries from Alaska to Stanley, Idaho. They can

quickly do so again by just adhering to past laws and promises. Obey the laws you

have passed and fulfill the mitigation promises you have made and you will not

have to keep burdening yourselves with new laws. Your track record of following

existing law leaves us with little optimism another law on top of the multitude of

salmon laws already in place will solve the problem for our fishery or for society.

Thank you, and I will try and answer any questions you may have.
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STATEMENT OF DEWITT MOSS, ON BEHALF OF NORTHSIDE CANAL COMPANY, TWIN

FALLS CANAL COMPANY, AND COMMITTEE OF NINE, WATER DISTRICT 1

My name is DeWitt Moss. I am a farmer from Jerome, Idaho. I currently serve

as a member of the Board of Directors of the North Side Canal Company, a nonprofit irrigation water delivery company in South Central Idaho. The North Side

Canal Company delivers storage and natural flow water from the Snake River to

165,000 acres of farm land in the Jerome, Idaho area. The Twin Falls Canal Company of Twin Falls, Idaho is also a nonprofit company delivering storage and natural flow water to 202,000 acres from the common diversion with the North Side

Canal Company at Milner Dam. They have requested that I represent them on this

issue. I, also, am a member of the Committee of Nine, the official advisory committee of Water District 01, a district encompassing 1.2 million irrigated farm acres

above Milner Dam on the Snake River. The Chairman of the Committee of Nine,

Mr. Del Raybould, is presenting testimony to you today and it is my intent that the

following comments will support and supplement his testimony.

The Endangered Species Consolidation Act, H.R. 4335, proposes the ‘‘transfer of

functions under the Endangered Species Act of 1973 from the Secretary of Commerce to Secretary of Interior.’’

Many of us who follow the Pacific Northwest’s regional salmon and steelhead

anadromous fish recovery effort are totally dissatisfied, disillusioned, dismayed and

disappointed with the National Marine Fisheries Service (NMFS) administration of

the regional recovery program. In the opinion of many, it is poorly managed, unduly

expensive, unproductive and generally unsuccessful. It is unproductive and unsuccessful because the NMFS recovery program is focusing on system modifications and

flow augmentation to produce minor incremental improvements of smolt-to-adult return ratios (SAR’s) or at the other extreme, the removal of dams. It will be extremely difficult to, politically and societally, build a consensus to remove dams and

thereby expose the region to extended and divisive conflict. Salmon recovery cannot

be built only on minor SAR improvements and unproven experiments. Today’s

Snake River salmon and steelhead SAR’s are in the 0.4 to 0.7 percent range. SAR’s

of 2 to 6 percent are needed for recovery. Therefore, an increase of SAR’s of somewhere between 400 percent and 1200 percent are needed to recover the fish. Just

to maintain survival (avoid extinction) the SAR’s need to improve between 250 percent and 400 percent. None of NMFS’s programs hold any promise of meeting the

necessary SAR improvements.

This sorry state of affairs exists after 6-10 years of intensive focused recovery efforts. The region has spent close to $4.0 billion for research, system improvements

and foregone power costs and the Snake River fish SAR’s are continuing to decline

towards extinction. The annual expenditures for Columbia River salmonids are in

the $400-$450 million range. This compares with the total estimated expenditure of

about $190 million for all other endangered species throughout the entire nation.

Since 1984, we have increased Columbia River flow augmentation (which includes

the Snake River contribution) from 3.75 million acre feet to 13-16 million acre feet.

Yet, fish populations continue to decline. The recovery program is admittedly complex and difficult, but we conclude that we are not getting any ‘‘bang-for-our-buck’’.

NMFS (the lead organization of the Northwest salmonid recovery program) and 5

other Federal agencies (COE, BOR, BPA, USFWS, and EPA); 5 states; 2 nations;

13 sovereign tribes and 60-80 special interest group are involved and/or effected.

No doubt, a daunting endeavor confronts NMFS to consider all the parties concerned. Unfortunately, other Federal agencies that are involved have not exhibited

stellar talent or demonstrated experience that is required to successfully manage

the Northwest’s salmonid recovery program.

Any successful program and its administration will need to address and remedy

recovery plan deficiencies which include the following, but are not necessarily totally

inclusive: an accepted single recovery plan (there are 3 plans for the region;

NMFS—1995 Biological Opinion, 1994 Northwest Power Planning Council and 1995

Spirit of the Salmon-Tribal); competent project management, cost schedule and results focused; excessive costs; program redundancy between the Federal Agencies,

States and Tribes; too many committees; too many unproductive meetings; overlapping jurisdictions; diffuse responsibility; poorly defined program structure; ineffective program management structure; lack of an effective Quality Assurance program

and Quality Control implementation; little or no accountability for program results

or costs; poor program justifications; and no one in charge. The above deficiencies

are all exacerbated by poor, untimely or non-existent, reporting requirements. It is

impossible for Congress to meaningfully follow or oversee the recovery program

plans, results and costs when there is no reporting system.
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There are several actions that we suggest this Committee can and should direct

the selected management agency to implement in an attempt to improve the success

of the salmonid recovery program; namely:

1. Begin an aggressive program to eliminate piscivorous (fish eating) predators

in the Snake and Columbia River and Columbia River Estuary. The predators

include Northern Squawfish, Walleye and Catfish. It is estimated that in excess

of 2 million piscivorous fish of predation size exist and consume somewhere

around 25 percent of salmonid juveniles.

2. Begin an aggressive program to eliminate avain predators (fish eating birds)

in the river system. Caspian Terms (about 8,000 nesting pairs) on Rice Island

are estimated to consume 6 to 20 million salmonid juveniles in the Columbia

River Estuary. The Caspian Tern population of Rice Island, one of eight (8)

major water fowl colonies in the Columbia River Estuary, has increased 641

percent over the past 12 years. A Double Crested Cormorant colony (6,000 nesting pairs) specializing in salmonid juvenile consumption, has increased in population by 168 percent over the past 5 years. In the Tri-Cities area, over 35,000

nesting pairs of seagulls were estimated in 1996. In 1986, gulls were estimated

to have consumed 2 percent of the total spring migration of salmon at one dam,

Wanapum. There exist over 20 major dams in the region.

3. Address the pinniped (Harbor Seals and Sea Lions) marine mammal predation. These mammals now reside in the Columbia River clear to the base of

Bonneville Dam. The Snake River Salmon Recovery Team (SRSRT) in 1993 estimated the Columbia River population to exceed 3,500. The west coast pinniped

population in 1994 was estimated between 161,000 and 181,000, increasing annually at a 5 to 7 percent rate. They eat, kill and injure the most valuable product of this multi hundred million per year program—returning adults. Some, including SRSRT, have expressed the concern that pinniped predation mortality

may be equal to commercial and sport harvesting. The SRSRT in 1993 noted

pinniped damage to adult salmonids at Lower Granite ranging from 2 percent

to 70 percent.

4. Screen all diversions of the river systems that could entrap juvenile

salmonids. 1997 data show that 28 percent of the diversions are unscreened and

37 percent inadequately screened. This simple mechanical fix should be remedied.

5. Harvesting of wild stocks must be curtailed and preferably stopped. Harvesting should be curtailed at the Columbia River mouth ‘‘region,’’ in the Columbia River estuary and above Bonneville except on fish healthy tributaries

and at terminal hatcheries until salmonid recovery is assured. Oregon State

University estimates that 80 percent of the fall chinook Columbia River stocks

are harvested, including incidental takes. A lesser harvest of other stocks probably exists, but these stocks are in significant, perilous decline. It appears difficult to effectively reduce commercial and recreational fishing when Oregon

and Washington fish and game departments rely on fish licenses for funding

and NMFS historically promotes and regulates commercial ocean fisheries.

Lastly, Idaho provides about 2 million acre feet of water annually from its rivers

and reservoirs for flow augmentation in the Columbia and Snake Rivers. The region,

at the request of NMFS, has begun the process of analyzing the impacts to the

Upper Snake River Basin (above Brownlee Reservoir) of taking an additional 1.0

million acre feet for flow augmentation. The Bureau of Reclamation has been able

to meet the current Bi-Op commitment of providing 427,000 acre feet annually,

under a willing seller provision, primarily due to four consecutive good water years.

However, the provision of an additional 1 MAF annually, will undoubtedly cause irrigated land to be removed from agricultural production; maybe as much as 500,000

acres, and, more, if back-to-back dry years occur. The estimated impacts to lost production and communities will be in the several hundreds of millions of dollars. It

has recently been estimated that the total annual income generated by irrigated agriculture in Idaho exceeds $2 billion, or $400 per acre foot of water consumption.

This additional water will benefit salmon recovery minimally, if at all. Some sanity

must be restored to this program. Otherwise, we in the region may need Congress’

assistance to terminate this devastating attempt at a major water ‘‘grab’’ under the

ESA.

I conclude with the following:

A demonstrated, experienced program manager with a functional program

structure, approved unanimously by the 4 State Governors, the Tribal

Sovereigns and the Federal Agencies should considered. A detailed audit of the

program should be considered to identify the deficiencies of the past 6-10 years.

We also suggest that an evaluation and proposed program structure be solicited
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from the best engineering-management consulting talent that exists in the

United States. This would likely prevent us from continuing what many of us

perceive as a failed program.

Before the region today, there exist some 6 different regional governance schemes

and H.R. 4335 is one. Until some of the program inadequacies and deficiencies are

addressed we cannot point to any one of them as outstanding or preferable. We only

note that H.R. 4335 does nothing to remove or reduce the many concerns and program faults denoted above. A new and unproven management agency, structured

like the existing agency, offers very little comfort to an Idaho irrigator who potentially could lose his water, income and livelihood.

STATEMENT OF DONNA DARM, REGIONAL ADMINISTRATOR FOR PROTECTED

RESOURCES, NATIONAL MARINE FISHERIES SERVICE, NORTHWEST REGION

Mr. Chairman, thank you for the opportunity to appear before you today. Your

letter of invitation suggests I focus my testimony on the National Marine Fisheries

Service’s (NMFS) implementation of the Endangered Species Act (ESA), whether

NMFS’ ESA program overlaps or is consistent with the Fish and Wildlife Service’s

ESA program, and whether our implementation of the ESA is cost-effective. Finally,

you asked for my views on H.R. 4335, which proposes to transfer the Department

of Commerce’s responsibilities for conserving threatened and endangered marine

and anadromous species to the Department of the Interior. In my testimony, I will

address these issues from a regional perspective, since our salmon program in the

Northwest is a significant part of NMFS’ ESA program. I will also raise several additional national concerns relevant to the proposed transfer of responsibilities.

Since these hearings are being held in the Pacific Northwest, we have focused our

comments on NMFS’ efforts to protect and recover imperiled salmon throughout this

region. Clearly, Pacific salmon listings have affected almost every watershed on the

West Coast and the interior Columbia Basin. Without a doubt, these listings have

a more far-reaching impact than previous ESA listings. Salmon listings, proposals

to list, and associated actions affect almost every ecoregion of the West Coast north

of Los Angeles. These salmon listings affect one of the most precious and precarious

resources of the West: water. The salmon’s life cycle is complex and its migration

vast. Hundreds of human activities have destroyed salmon habitat and brought

salmon populations to the brink of extinction: timber harvest, farming, mining, irrigation and water development, road-building, urbanization, damming, dredging, hydropower operations, fishing, fish culture . . . the list is quite long.

As you know, the ESA imposes a number of duties on the Secretaries of Commerce and the Interior. Whenever Federal agencies take actions that affect listed

salmonids, they must consult with NMFS or the Fish and Wildlife Service, whose

job it is to advise whether the Federal action will jeopardize the continued existence

of the listed species. This determination is a complex and difficult one when it

comes to salmon because the interacting effects of so many human activities threaten salmon’s very existence.

In the Northwest Region; NMFS has established a large program to help Federal

agencies meet this consultation requirement. NMFS has reviewed Federal actions

as geographically broad as the Northwest Forest Plan and as local as a scientific

permit for a very localized Forest Service activity. Since 1991, with the first salmon

listings in Idaho, NMFS has completed review of several thousand activities. NMFS

has taken steps to make the consultation process more efficient. For example, we

encourage Federal agencies to conduct ‘‘programmatic’’ consultations. That is, we

ask them to consult with us on broad programs and policies. In this sort of consultation, we can jointly develop general principles and procedures to apply to individual

actions. When individual actions are consistent with those principles and procedures, we can move very quickly through them. This approach was recently upheld

by the Federal district court in Western Washington in reviewing NMFS’ consultations on Northwest Forest Plan actions. We entered into a Memorandum of Understanding to coordinate consultation on operation of the Federal Columbia River

Power System that required the operating agencies to submit only one biological assessment from which both NMFS and Fish and Wildlife Service developed their respective biological opinions.

Simply gearing up to take all of the actions required by the ESA has been a tremendous challenge for NMFS. It takes many biologists a considerable amount of

time to sort through and understand the status of individual populations of a species, how various actions affect them, and whether the fish populations can withstand the impacts and remain viable. To help us do our job, since 1991 Congress

has increased the total NMFS budget for salmon by $16.5 million. This has allowed
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us to increase the regional staff from some 50 employees in Portland and Seattle

in 1991 to 150 employees spread throughout the region today. With the help of Congress, and to be more responsive to constituents throughout the region, we opened

field offices in Boise, Olympia, and Roseburg.

Over the past twenty years, NMFS has developed a world class salmon science

program covering a number of areas crucial to the Pacific Northwest. Our salmon

science program consists of a major, nationally-renowned program on fish passage

and survival research in the Federal Columbia River Power System that is absolutely vital to evaluating the effects of Federal dams on salmon recovery. That program has been in place since the mid 1970s and now consists of roughly sixty scientists. Our salmon science program also consists of a major conservation biology

division which provides the risk assessments that support: (a) our listing and recovery programs; (b) habitat and chemical contaminations research programs that may

be used in support of cleanup and restoration efforts for hazardous wastes sites by

EPA and the Federal natural resource trustees; and (c) salmon rearing and fish disease research that is helping chart the path for improved hatchery practices in the

Pacific Northwest. Finally, with funding from the Bonneville Power Administration,

we have launched a major research effort into the ocean and estuarine survival of

salmonids to better understand the role of ocean and estuarine conditions on salmon

survival and recovery.

The success of our salmon science program also can be measured in terms of its

ability to understand the factors that put salmon at risk. We have developed over

the last twenty years of effort world class expertise to evaluate the impacts of differing human activities on the salmon life cycle (e.g., dam operations and fish passage; fishing activities; fish husbandry; and general pollution of the marine and estuarine environment). We are developing state-of-the-art techniques for examining

the cumulative impacts of various types of activities and mitigation measures and

indicating the degree to which these create a risk to a local salmon population. We

can use the state-of-the-art science and technology to look at various types of impacts and mitigation measures and indicate the degree to which risk will be increased or lessened.

Probably the most difficult task in implementing the ESA for a species like salmon is trying to calculate how to allocate the conservation responsibility when there

are many factors that have caused salmon to decline throughout the West. All of

these factors must be addressed if we want to restore salmon. The status quo is literally driving salmon runs to extinction, and we must make basic changes in how

we approach salmon and their habitat if our salmon are to remain part of the heritage of the Pacific Northwest.

To respond to your second request, I’d like to talk about coordination between the

two Services to ensure consistency. Even before coastal salmon stocks were listed,

NMFS began working with the U.S. Fish and Wildlife Service to ensure that Federal agencies, states, tribes and private citizens could count on the agencies to be

efficient and consistent in their responses. For example, the Services worked together on the Federal technical team that developed the Northwest Forest Plan to

ensure it was adequate for all aquatic species, including salmon. We also started

working with the Fish and Wildlife Service after realizing that landowners in Oregon, Washington and California were developing habitat conservation plans for the

threatened northern spotted owl and wanted assurance that any plan they developed for owls would address salmon as well. To provide landowners with ‘‘one-stop

shopping,’’ NMFS and the Fish and Wildlife Service established a joint office in

Olympia, Washington, where biologists from both services collaborated on the development and review of habitat conservation plans. That office was instrumental in

developing the Washington DNR and mid-Columbia PUD Habitat Conservation

Plans.

The Services have taken other actions to be certain we implement the ESA consistently and efficiently for Federal agencies and private landowners. Some of the

more obvious actions are our joint regulations and policies on consultations and

habitat conservation plans. We are issuing a number of joint policies for private

landowners, including the ‘‘no surprises,’’ ‘‘candidate conservation agreement,’’ and

‘‘safe harbors’’ policies that give landowners greater future certainty when entering

into conservation agreements with the Services. To make certain our staffs adhere

to consistent procedures when dealing with the public and other Federal agencies,

we have issued joint policy and guidance documents, such as the Section 7 Consultation Handbook and Habitat Conservation Handbook. We have issued a number of

other joint technical policies such as our artificial propagation policy. Whenever one

of the Services takes a major action or faces a novel situation, we communicate with

each other at the regional and national level to ensure our approaches to the ESA

are consistent. We are currently working on future, joint policies, like one on can-
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didate conservation agreements, that will ensure a consistent level of service between NMFS and the Fish and Wildlife Service.

Although NMFS and the Fish and Wildlife Service coordinate our activities to provide the same level and kind of service to other agencies and the public, each agency

brings different strengths to the Federal ESA program. Our strengths—NMFS with

extensive marine expertise and the Fish and Wildlife Service with extensive freshwater and terrestrial experience—are complementary in the ESA program. Both

NMFS and the Fish and Wildlife Service implement the ESA on rivers and streams

in the Pacific Northwest despite clearly divided responsibility for different listed

species. To take care of listed Pacific salmon from their cradle to their graves,

NMFS has had to add expertise on freshwater ecosystems to its existing marine expertise. Although this freshwater expertise and responsibility appears to ‘‘overlap’’

with the Fish and Wildlife Service, it is absolutely necessary to provide a coherent

service for the people, communities, and industries that depend on salmon for their

economic and social well being. There is no duplication of costs between our ESA

programs; in fact, NMFS’ ESA program is extremely cost-effective.

Finally, you asked for my views on H.R. 4335, which is your proposal to transfer

NMFS’ ESA responsibilities to the Fish and Wildlife Service. NMFS’ largest ESA

program is for salmon, which is where this proposal would have the greatest impact.

The Administration opposes H.R. 4335 for the reasons discussed below.

The Pacific Northwest is in the midst of a major challenge to recover salmon runs

that face extinction. Meeting this challenge will affect major facets of northwest life:

power; water resources; fishing; forest and agricultural land management; and the

like. This region is on the brink of some very important decisions on the Columbia

River power system. We are also gearing up for major re-licensing efforts for many

big hydropower projects, including some in Idaho.

The National Marine Fisheries Service is unquestionably dedicated to the recovery of salmon in the Pacific Northwest. Our leadership of and involvement in many

of the key salmon efforts is substantial—from the Columbia River Power System to

the Oregon Salmon Plan to the growing efforts of Washington communities to prepare for salmon listings in Puget Sound. The challenges associated with joint administration of the ESA in this region are significant but resolvable; the benefits of

shifting salmon responsibilities would be fewer than anticipated, while the disruption, confusion, and delays associated with the transfer of ESA responsibilities

would be very substantial.

That said, we must ask ourselves what problem this legislative proposal is intended to solve and is this proposal the best solution. Is there concern that other

Federal agencies and private parties are ‘‘overloaded’’ trying to deal with two separate Services protecting at least two (but usually more) different species? If so, such

a transfer might address that concern because there would be only a single ESA

agency. There are other ways to address this concern such as steps the Services

have already taken, that are not as disruptive. Earlier I provided examples of joint

consultations, joint HCPs, and co-location of offices that has helped provide ‘‘onestop’’ shopping services to Federal agencies and applicants. We are exploring other

administrative ways of coordinating NMFS’ and Fish and Wildlife Service’s ESA

programs like joint processing of Federal agency actions that affect threatened or

endangered species, which has streamlined the Corps of Engineers’ permitting program elsewhere in the country.

Is the main concern duplication of effort, that is, several biologists analyzing the

same action? Right now, there is very little duplication of effort. The number of biologists working on a consultation depends on the geographic scope of the action,

the number and diversity of species involved in the consultation, and the probable

environmental significance of the action. Right now, if an action affected bull trout,

chinook salmon, and grizzly bears, NMFS and Fish and Wildlife Service would have

to assign both fishery and wildlife biologists to evaluate the action. With the proposed transfer of ESA responsibilities, the Fish and Wildlife Service would still require both fishery and wildlife biologists to evaluate the action so there probably

would not be an appreciable reduction in the number of biologists required to implement the ESA.

Some will argue that the main problem is that NMFS is too protective of species

in its application of the ESA, and the best solution is eliminating us from the program. Others would argue that we are not protective enough. We respect those

views as part of the public dialogue associated with the difficult task of protecting

salmon and clean, healthy water. The Administration has said many times, salmon

throughout the West are in deep trouble, and it is the full range of human actions

that have put them there. We cannot keep doing business in the Northwest the way

we have been and expect salmon to survive in the wild. The Fish and Wildlife Serv-
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ice, with its proud legacy of environmental stewardship, would give you the same

answer. Shifting NMFS’ ESA responsibilities to the FWS would create confusion and

delays that could last for years. I mentioned earlier what NMFS has done to prepare for the special challenge of managing salmon issues in the Pacific Northwest.

It has taken us some years to get to a point where we can implement our salmon

program efficiently. We have gathered a lot of expertise on salmon science and salmon management, and we have invested a lot of resources to develop working relationships with the hydropower industry (public and private) to address salmon

issues. We now have a good staff organized and equipped to administer the ESA

to conserve salmon species cost-effectively. Our organization is fairly simple, our

numbers are lean, and our people are skilled at their jobs.

If NMFS’ ESA responsibilities were transferred to the Fish and Wildlife Service,

they would have to repeat what we did—organize to get the job done, locate and

train new staff, find space, and request appropriations. In addition to preparing to

handle salmon in freshwater ecosystems, the Fish and Wildlife Service would have

to gear up for new marine responsibilities based on this proposed legislation. Based

on our experience, we estimate that they would need a minimum of about 150 new

FTEs and about $16.5 million in new money just to start handling the additional

workload necessary to protect Pacific salmon. The confusion and delays associated

with the transfer you propose would create major inconveniences and delays to private landowners, fishing communities, and timber interests—all whose lives are affected by listed salmon. It would, therefore, substantially disrupt ongoing efforts

throughout the Pacific Northwest in salmon recovery at the worst possible time. If

the transfer occurs without providing the Fish and Wildlife Service the personnel

and funding to handle the new workload, the difficulties will become much larger.

Finally, I think we need to examine what the other consequences of transferring

authority to the Fish and Wildlife Service might be. Right now, people engaged in

marine fisheries only deal with one Federal management agency; transferring ESA

responsibility will require them to deal with two agencies where listed species are

involved. Hence, transferring ESA responsibility to the Fish and Wildlife Service

solves a perceived problem for people on land, but creates new problems for people

who make their living from the sea.

Would the benefits of this proposal outweigh the consequences? As I said, I think

the main perceived benefit is to other Federal agencies and individuals who work

on rivers and forests and now must deal with two Services. On the other hand, people who earn their living from the sea and now deal only with NMFS, would have

to deal with NMFS and the Fish and Wildlife Service. There are trade-offs to either

approach: who benefits, who loses? My agency and I look forward to engaging the

Congress, and the region, on that question.

Although most of my testimony, up to this point, has involved the extensive efforts undertaken by NMFS to meet its responsibilities to protect endangered and

threatened species of Pacific salmonids, H.R. 4335 would reach far beyond these

troubled species.

Under the Endangered Species Act, in addition to listed salmonids, NMFS is responsible for many other marine species, including the Arctic bowhead whale, the

Pacific and Atlantic humpback whales, the blue whale, the Steller sea lion, the Hawaiian monk seal, seven species of sea turtles. Even if NMFS’ ESA responsibilities

were transferred, NMFS and its parent agency, the National Oceanic and Atmospheric Administration (NOAA), would continue to have significant responsibilities to

protect and recover these animals pursuant to the Marine Mammal Protection Act,

the Magnuson-Stevens Fishery Conservation and Management Act, the Whaling

Convention Act, the National Marine Sanctuaries Act, and statutes implementing

a dozen international conservation agreements, in addition to our other authorizing

legislation. With respect to whales, sea lions, sea turtles and ESA-listed species of

marine fish, H.R. 4335 would increase, rather than decrease, the need for interagency coordination and would give rise to more, not less, duplication of effort and

expertise.

Setting aside the issue of salmonids for the moment, NMFS and NOAA strongly

object to transferring ESA authority to Interior since NMFS and NOAA would still

have to address the relevant ESA concerns in managing marine fisheries, marine

mammals, and aboriginal whaling that have the potential to adversely affect other

marine species such as whales, dolphins, seals, sea lions and sea turtles.

To name just a few of the ongoing ESA issues that would be made more complicated by enactment of H.R. 4335, the management of the Alaskan groundfish

fisheries, now handled by the Regional Fishery Management Councils and NMFS,

must take into account the needs of the Steller sea lions. Management of the lobster

fishery and the gillnet fisheries in New England must also take into account the
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needs of the right and humpback whales. So too must management of the salmon

gillnet fisheries in Alaska and recreational activities in the Hawaiian Humpback

Whale National Marine Sanctuary must take into account the needs of the humpback whales that migrate from Alaska to Hawaii. Under H.R. 4335, Interior would

be granted much greater control over these fisheries.

Even more significantly, NMFS’ national and international responsibilities to protect sea turtles from incidental take in shrimp fisheries would not go away if responsibility for endangered species were transferred from NMFS to Interior, since

sea turtles are considered ‘‘fish’’ under the definitions of the Magnuson-Stevens Act.

As should be obvious, the above issues concerning the interaction of marine fisheries and species protected under the Endangered Species Act, the Marine Mammal

Protection Act and the National Marine Sanctuaries Act are all quite controversial.

NMFS and NOAA have more than two and one-half decades of experience in coordinating conservation programs for living marine resources. NOAA is the Nation’s

oceans agency. The Department of the Interior could not easily acquire our expertise.

Even with respect to Pacific salmonids, NMFS and the other NOAA agencies

would have to remain involved in ESA matters as a result of our broad ocean fishery resource management responsibilities, including the Federal Power Act, the Fish

and Wildlife Coordination Act, the Coastal Zone Management Act, as well as the

new requirements of the Sustainable Fishery Act that requires the Regional Fishery

Management Councils, in cooperation with NMFS, designate essential fish habitat,

which for salmonids at least, will cover much the same river basins as are now covered by our ESA programs. In short, even if NMFS’ current ESA responsibilities

were transferred to Interior only with respect to anadromous species, NOAA and

NMFS would not be relieved of work and the public would not have fewer Federal

agencies to deal with.

Mr. Chairman, thank you again for the opportunity to testify. I look forward to

answering any questions you may have.
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