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95–051 PDF 2004

S. HRG. 108–636

NEZ PERCE-SNAKE RIVER WATER RIGHTS ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON

S. 2605

TO DIRECT THE SECRETARY OF THE INTERIOR AND THE HEADS OF

OTHER FEDERAL AGENCIES TO CARRYOUT AN AGREEMENT RESOLVING MAJOR ISSUES RELATING TO THE ADJUDICATION OF WATER

RIGHTS IN THE SNAKE RIVER BASIN, IDAHO

JULY 20, 2004

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

DANIEL K. INOUYE, Hawaii, Vice Chairman

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

PAUL MOOREHEAD, Majority Staff Director/Chief Counsel

PATRICIA M. ZELL, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

S. 2605, text of ......................................................................................................... 2

Statements:

Bogert, Michael, counsel, Office of Governor Kempthorne ........................... 33

Craig, Hon. Larry, U.S. Senator from Idaho .................................................. 31

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice chairman, Committee on Indian Affairs ............................................................................... 1

Johnson, Anthony, chairman, Nez Perce Tribal Executive Committee ....... 28

Ling, Roger, counsel, Ling, Robinson & Walker ............................................ 36

Olsen, Michael, counselor to the assistant secretary, Indian Affairs, Department of the Interior ............................................................................... 25

Riley, Jim, executive director, Intermountain Forest Association ............... 39

APPENDIX

Prepared statements:

Johnson, Anthony (with attachment) ............................................................. 54

Kempthorne, Dirk, Governor, Idaho ............................................................... 47

Ling, Roger ........................................................................................................ 49

Olsen, Michael .................................................................................................. 73

Riley, Jim .......................................................................................................... 51

Additional material submitted for the record:

Mediator’s Term Sheet ..................................................................................... 78

(1)

NEZ PERCE-SNAKE RIVER WATER RIGHTS

ACT

TUESDAY, JULY 20, 2004

U.S. SENATE,

COMMITTEE ON INDIAN AFFAIRS,

Washington, DC.

The committee met, pursuant to notice, at 10 a.m. in room 485,

Russell Senate Building, Hon. Daniel K. Inouye (vice chairman of

the committee) presiding.

Present: Senator Inouye.

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM

HAWAII, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

Senator INOUYE. The committee meets this morning to receive

testimony on S. 2605, the Snake River Water Rights Act of 2004.

S. 2605 was introduced by Senator Craig for himself and Senator

Crapo on June 24 of this year. The bill was referred to the Committee on Indian Affairs and this hearing on the bill was scheduled.

The legislation is intended to resolve the water rights claims of

the Nez Perce Tribe of Idaho as those claims have been asserted

in the general stream adjudication known as the Snake River

Basin Adjudication.

The committee looks forward to receiving the testimony on this

measure today. We know that the sponsors of this measure, as well

as the Nez Perce Tribe and the other parties to the settlement are

anxious to have the bill move forward to the full Senate at the earliest possible time.

[Text of S. 2605 follows:]
2

1

II

108TH CONGRESS

2D SESSION S. 2605

To direct the Secretary of the Interior and the heads of other Federal

agencies to carry out an agreement resolving major issues relating to

the adjudication of water rights in the Snake River Basin, Idaho, and

for other purposes.

IN THE SENATE OF THE UNITED STATES

JUNE 24, 2004

Mr. CRAIG (for himself and Mr. CRAPO) introduced the following bill; which

was read twice and referred to the Committee on Indian Affairs

A BILL

To direct the Secretary of the Interior and the heads of

other Federal agencies to carry out an agreement resolving major issues relating to the adjudication of water

rights in the Snake River Basin, Idaho, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Snake River Water

5 Rights Act of 2004’’.

6 SEC. 2. PURPOSES.

7 The purposes of this Act are—
3

2

•S 2605 IS

1 (1) to resolve some of the largest outstanding

2 issues with respect to the Snake River Basin Adju3 dication in Idaho in such a manner as to provide im4 portant benefits to the United States, the State of

5 Idaho, the Nez Perce Tribe, the allottees, and citi6 zens of the State;

7 (2) to achieve a fair, equitable, and final settle8 ment of all claims of the Nez Perce Tribe, its mem9 bers, and allottees and the United States on behalf

10 of the Tribe, its members, and allottees to the water

11 of the Snake River Basin within Idaho;

12 (3) to authorize, ratify, and confirm the Agree13 ment among the parties submitted to the Snake

14 River Basin Adjudication Court and provide all par15 ties with the benefits of the Agreement;

16 (4) to direct—

17 (A) the Secretary, acting through the Bu18 reau of Reclamation, the Bureau of Land Man19 agement, the Bureau of Indian Affairs, and

20 other agencies; and

21 (B) the heads of other Federal agencies

22 authorized to execute and perform actions nec23 essary to carry out the Agreement;

24 to perform all of their obligations under the Agree25 ment and this Act; and
4

3

•S 2605 IS

1 (5) to authorize the actions and appropriations

2 necessary for the United States to meet the obliga3 tions of the United States under the Agreement and

4 this Act.

5 SEC. 3. DEFINITIONS.

6 In this Act:

7 (1) AGREEMENT.—The term ‘‘Agreement’’

8 means the document titled ‘‘Mediator’s Term Sheet’’

9 dated April 20, 2004, and submitted on that date to

10 the SRBA Court in SRBA Consolidated Subcase

11 03–10022 and SRBA Consolidated Subcase 67–

12 13701, with all appendices to the document.

13 (2) ALLOTTEE.—The term ‘‘allottee’’ means a

14 person that holds a beneficial real property interest

15 in an Indian allotment that is—

16 (A) located within the Nez Perce Reserva17 tion; and

18 (B) held in trust by the United States.

19 (3) CONSUMPTIVE USE RESERVED WATER

20 RIGHT.—The term ‘‘consumptive use reserved water

21 right’’ means the Federal reserved water right of

22 50,000 acre-feet per year, as described in the Agree23 ment, to be decreed to the Tribe and the allottees,

24 with a priority date of 1855.
5

4

•S 2605 IS

1 (4) PARTIES.—The term ‘‘parties’’ means the

2 United States, the State, the Tribe, and any other

3 entity or person that submitted, or joined in the sub4 mission, of the Agreement to the SRBA Court on

5 April 20, 2004.

6 (5) SECRETARY.—The term ‘‘Secretary’’ means

7 the Secretary of the Interior.

8 (6) SNAKE RIVER BASIN.—The term ‘‘Snake

9 River Basin’’ means the geographic area in the

10 State described in paragraph 3 of the Commence11 ment Order issued by the SRBA Court on November

12 19, 1987.

13 (7) SPRINGS OR FOUNTAINS WATER RIGHT.—

14 The term ‘‘springs or fountains water right’’ means

15 the Tribe’s treaty right of access to and use of water

16 from springs or fountains on Federal public land

17 within the area ceded by the Tribe in the Treaty of

18 June 9, 1863 (14 Stat. 647), as recognized under

19 the Agreement.

20 (8) SRBA.—The term ‘‘SRBA’’ means the

21 Snake River Basin Adjudication litigation before the

22 SRBA Court styled as In re Snake River Basin Ad23 judication, Case No. 39576.

24 (9) SRBA COURT.—The term ‘‘SRBA Court’’

25 means the District Court of the Fifth Judicial Dis-
6

5

•S 2605 IS

1 trict of the State of Idaho, In and For the County

2 of Twin Falls in re Snake River Basin Adjudication.

3 (10) STATE.—The term ‘‘State’’ means the

4 State of Idaho.

5 (11) TRIBE.—The term ‘‘Tribe’’ means the Nez

6 Perce Tribe.

7 SEC. 4. APPROVAL, RATIFICATION, AND CONFIRMATION OF

8 AGREEMENT.

9 (a) IN GENERAL.—Except to the extent that the

10 Agreement conflicts with the express provisions of this

11 Act, the Agreement is approved, ratified, and confirmed.

12 (b) EXECUTION AND PERFORMANCE.—The Secretary

13 and the other heads of Federal agencies with obligations

14 under the Agreement shall execute and perform all ac15 tions, consistent with this Act, that are necessary to carry

16 out the Agreement.

17 SEC. 5. BUREAU OF RECLAMATION WATER USE.

18 (a) IN GENERAL.—As part of the overall implementa19 tion of the Agreement, the Secretary shall take such ac20 tions consistent with the Agreement, this Act, and water

21 law of the State as are necessary to carry out the Snake

22 River Flow Component of the Agreement.

23 (b) MITIGATION FOR CHANGE OF USE OF WATER.—

24 (1) AUTHORIZATION OF APPROPRIATIONS.—

25 There is authorized to be appropriated to the Sec-
7

6

•S 2605 IS

1 retary $2,000,000 for a 1-time payment to local gov2 ernments to mitigate for the change of use of water

3 acquired by the Bureau of Reclamation under sec4 tion III.C.6 of the Agreement.

5 (2) DISTRIBUTION OF FUNDS.—Funds made

6 available under paragraph (1) shall be distributed by

7 the Secretary to local governments in accordance

8 with a plan provided to the Secretary by the State.

9 (3) PAYMENTS.—Payments by the Secretary

10 shall be made on a pro rata basis as water rights

11 are acquired by the Bureau of Reclamation.

12 SEC. 6. BUREAU OF LAND MANAGEMENT LAND TRANSFER.

13 (a) TRANSFER.—

14 (1) IN GENERAL.—The Secretary shall transfer

15 land selected by the Tribe under paragraph (2) to

16 the Bureau of Indian Affairs to be held in trust for

17 the Tribe.

18 (2) LAND SELECTION.—The land transferred

19 shall be selected by the Tribe from a list of parcels

20 of land managed by the Bureau of Land Manage21 ment that are available for transfer, as depicted on

22 the map entitled ‘‘North Idaho BLM Land Eligible

23 for Selection by the Nez Perce Tribe’’ dated May

24 2004, on file with the Director of the Bureau of

25 Land Management, not including any parcel des-
8

7

•S 2605 IS

1 ignated on the map as being on the Clearwater River

2 or Lolo Creek.

3 (3) MAXIMUM VALUE.—The land selected by

4 the Tribe for transfer shall be limited to a maximum

5 value in total of not more than $7,000,000, as deter6 mined by an independent appraisal of fair market

7 value prepared in accordance with the Uniform

8 Standards of Professional Appraisal Practice and

9 the Uniform Appraisal Standards for Federal Land

10 Acquisitions.

11 (b) EXISTING RIGHTS AND USES.—

12 (1) IN GENERAL.—On any land selected by the

13 Tribe under subsection (a)(2), any use in existence

14 on the date of transfer under subsection (a) under

15 a lease or permit with the Bureau of Land Manage16 ment, including grazing, shall remain in effect until

17 the date of expiration of the lease or permit, unless

18 the holder of the lease or permit requests an earlier

19 termination of the lease or permit, in which case the

20 Secretary shall grant the request.

21 (2) AVAILABILITY OF AMOUNTS.—Amounts

22 that accrue to the United States under a lease or

23 permit described in paragraph (1) from sales, bo24 nuses, royalties, and rentals relating to any land

25 transferred to the Tribe under this section shall be
9

8

•S 2605 IS

1 made available to the Tribe by the Secretary in the

2 same manner as amounts received from other land

3 held by the Secretary in trust for the Tribe.

4 (c) DATE OF TRANSFER.—No land shall be trans5 ferred to the Tribe under this section until the waivers

6 and releases under section 10 take effect.

7 SEC. 7. WATER RIGHTS.

8 (a) HOLDING IN TRUST.—

9 (1) IN GENERAL.—The consumptive use re10 served water right shall be held in trust by the

11 United States for the benefit of the Tribe and

12 allottees.

13 (2) SPRINGS OR FOUNTAINS WATER RIGHT.—

14 The springs or fountains water right of the Tribe

15 shall be held in trust by the United States for the

16 benefit of the Tribe.

17 (b) WATER CODE.—

18 (1) IN GENERAL.—The consumptive use re19 served water right shall be subject to section 7 of

20 the Act of February 8, 1887 (25 U.S.C. 381; 24

21 Stat. 390, chapter 119).

22 (2) ENACTMENT OF WATER CODE.—Not later

23 than 3 years after the date of enactment of this Act,

24 the Tribe shall enact a water code, subject to any

25 applicable provision of law, that—
10

9

•S 2605 IS

1 (A) manages, regulates, and controls the

2 consumptive use reserved water right; and

3 (B) includes, subject to approval of the

4 Secretary—

5 (i) a process by which an allottee, or

6 any successor in interest to an allottee,

7 may request and be provided with an allo8 cation of water for irrigation use on allot9 ted land of the allottee; and

10 (ii) a due process system for the con11 sideration and determination of any re12 quest by an allottee, or any successor in in13 terest to an allottee, for an allocation of

14 water, including a process for appeal and

15 adjudication of denied or disputed distribu16 tions of water and for resolution of con17 tested administrative decisions.

18 (3) RIGHTS OF ALLOTTEES.—Any provision of

19 the water code and any amendments to the water

20 code that affect the rights of the allottees shall be

21 subject to the approval of the Secretary, and no such

22 provision or amendment shall be valid until approved

23 by the Secretary.

24 (4) INTERIM ADMINISTRATION.—The Secretary

25 shall administer the consumptive use reserved water
11

10

•S 2605 IS

1 right until such date as the water code described in

2 paragraph (2) has been enacted by the Tribe and

3 approved by the Secretary.

4 (c) SATISFACTION OF CLAIMS.—

5 (1) IN GENERAL.—The water rights and other

6 benefits granted or confirmed by the Agreement and

7 this Act shall be in full satisfaction of all claims for

8 water rights and injuries to water rights of the

9 allottees.

10 (2) SATISFACTION OF ENTITLEMENTS.—Any

11 entitlement to water of any allottee under Federal

12 law shall be satisfied out of the consumptive use re13 served water right.

14 (d) ABANDONMENT, FORFEITURE, OR NONUSE.—

15 The consumptive use reserved water right and the springs

16 or fountains water right shall not be subject to loss by

17 abandonment, forfeiture, or nonuse.

18 (e) LEASE OF WATER.—

19 (1) IN GENERAL.—The Tribe, without further

20 approval of the Secretary, may lease water to which

21 the Tribe is entitled under the consumptive use re22 served water right through any State water bank in

23 the same manner and subject to the same rules and

24 requirements that govern any other lessor of water

25 to the water bank.
12

11

•S 2605 IS

1 (2) FUNDS.—Any funds accruing to the Tribe

2 from any lease under paragraph (1) shall be the

3 property of the Tribe, and the United States shall

4 have no trust obligation or other obligation to mon5 itor, administer, or account for any consideration re6 ceived by the Tribe under any such lease.

7 SEC. 8. TRIBAL FUNDS.

8 (a) DEFINITION OF FUND.—In this section, the term

9 ‘‘Fund’’ means—

10 (1) the Nez Perce Tribe Water and Fisheries

11 Fund established under subsection (b)(1); and

12 (2) the Nez Perce Tribe Domestic Water Sup13 ply Fund established under subsection (b)(2).

14 (b) ESTABLISHMENT.—There are established in the

15 Treasury of the United States—

16 (1) a fund to be known as the ‘‘Nez Perce

17 Tribe Water and Fisheries Fund’’, to be used to pay

18 or reimburse costs incurred by the Tribe in acquir19 ing land and water rights, restoring or improving

20 fish habitat, or for fish production, agricultural de21 velopment, cultural preservation, water resource de22 velopment, or fisheries-related projects; and

23 (2) a fund to be known as the ‘‘Nez Perce Do24 mestic Water Supply Fund’’, to be used to pay the

25 costs for design and construction of water supply
13

12

•S 2605 IS

1 and sewer systems for tribal communities, including

2 a water quality testing laboratory.

3 (c) MANAGEMENT OF THE FUNDS.—The Secretary

4 shall manage the Funds, make investments from the

5 Funds, and make amounts available from the Funds for

6 distribution to the Tribe consistent with the American In7 dian Trust Fund Management Reform Act of 1994 (25

8 U.S.C. 4001 et seq.), this Act, and the Agreement.

9 (d) INVESTMENT OF THE FUNDS.—The Secretary

10 shall invest amounts in the Funds in accordance with—

11 (1) the Act of April 1, 1880 (25 U.S.C. 161;

12 21 Stat. 70, chapter 41);

13 (2) the first section of the Act of June 24,

14 1938 (25 U.S.C. 162a; 52 Stat. 1037, chapter 648);

15 and

16 (3) subsection (c).

17 (e) AVAILABILITY OF AMOUNTS FROM THE

18 FUNDS.—Amounts made available under subsection (h)

19 shall be available for expenditure or withdrawal only after

20 the waivers and releases under section 10 take effect.

21 (f) EXPENDITURES AND WITHDRAWAL.—

22 (1) TRIBAL MANAGEMENT PLAN.—

23 (A) IN GENERAL.—The Tribe may with24 draw all or part of amounts in the Funds on

25 approval by the Secretary of a tribal manage-
14

13

•S 2605 IS

1 ment plan as described in the American Indian

2 Trust Fund Management Reform Act of 1994

3 (25 U.S.C. 4001 et seq.).

4 (B) REQUIREMENTS.—In addition to the

5 requirements under the American Indian Trust

6 Fund Management Reform Act of 1994 (25

7 U.S.C. 4001 et seq.), the tribal management

8 plan shall require that the Tribe spend any

9 amounts withdrawn from the Funds in accord10 ance with the purposes described in subsection

11 (b).

12 (C) ENFORCEMENT.—The Secretary may

13 take judicial or administrative action to enforce

14 the provisions of any tribal management plan to

15 ensure that any amounts withdrawn from the

16 Funds under the plan are used in accordance

17 with this Act and the Agreement.

18 (D) LIABILITY.—If the Tribe exercises the

19 right to withdraw amounts from the Funds,

20 neither the Secretary nor the Secretary of the

21 Treasury shall retain any liability for the ex22 penditure or investment of the amounts.

23 (2) EXPENDITURE PLAN.—

24 (A) IN GENERAL.—The Tribe shall submit

25 to the Secretary for approval an expenditure
15

14

•S 2605 IS

1 plan for any portion of the amounts made avail2 able under subsection (h) that the Tribe does

3 not withdraw under this subsection.

4 (B) DESCRIPTION.—The expenditure plan

5 shall describe the manner in which, and the

6 purposes for which, amounts of the Tribe re7 maining in the Funds will be used.

8 (C) APPROVAL.—On receipt of an expendi9 ture plan under subparagraph (A), the Sec10 retary shall approve the plan if the Secretary

11 determines that the plan is reasonable and con12 sistent with this Act and the Agreement.

13 (D) ANNUAL REPORT.—For each Fund,

14 the Tribe shall submit to the Secretary an an15 nual report that describes all expenditures from

16 the Fund during the year covered by the report.

17 (g) NO PER CAPITA PAYMENTS.—No part of the

18 principal of the Funds, or of the income accruing in the

19 Funds, shall be distributed to any member of the Tribe

20 on a per capita basis.

21 (h) AUTHORIZATION OF APPROPRIATIONS.—There

22 are authorized to be appropriated—

23 (1) $60,100,000 to the Nez Perce Tribe Water

24 and Fisheries Fund; and
16

15

•S 2605 IS

1 (2) $23,000,000 to the Nez Perce Tribe Do2 mestic Water Supply Fund.

3 SEC. 9. SALMON AND CLEARWATER RIVER BASINS HABITAT

4 FUND.

5 (a) ESTABLISHMENT OF FUND.—

6 (1) IN GENERAL.—There is established in the

7 Treasury of the United States a fund to be known

8 as the ‘‘Salmon and Clearwater River Basins Habi9 tat Fund’’ (referred to in this section as the

10 ‘‘Fund’’), to be administered by the Secretary.

11 (2) ACCOUNTS.—There is established within the

12 Fund—

13 (A) an account to be known as the ‘‘Nez

14 Perce Tribe Salmon and Clearwater River Ba15 sins Habitat Account’’, which shall be adminis16 tered by the Secretary for use by the Tribe sub17 ject to the same provisions for management, in18 vestment, and expenditure as the funds estab19 lished by section 8; and

20 (B) an account to be known as the ‘‘Idaho

21 Salmon and Clearwater River Basins Habitat

22 Account’’, which shall be administered by the

23 Secretary and provided to the State as provided

24 in the Agreement and this Act.

25 (b) USE OF THE FUND.—
17

16

•S 2605 IS

1 (1) IN GENERAL.—The Fund shall be used to

2 supplement amounts made available under other law

3 for habitat protection and restoration in the Salmon

4 and Clearwater River basins, including projects and

5 programs intended to protect and restore listed fish

6 and their habitat in the Salmon and Clearwater ba7 sins, as specified in the Agreement and this Act.

8 (2) NO ALLOCATION REQUIREMENT.—The use

9 of the Fund shall not be subject to the allocation

10 procedures under section 6(d)(1) of the Endangered

11 Species Act of 1973 (16 U.S.C. 1535(d)(1)).

12 (3) RELEASE OF FUNDS.—The Secretary shall

13 release funds from the Clearwater River Basins

14 Habitat Account in accordance with section 6(d)(2)

15 of the Endangered Species Act (16 U.S.C.

16 1535(d)(2)).

17 (c) AVAILABILITY OF AMOUNTS IN THE FUND.—

18 Amounts made available under subsection (d) shall be

19 available for expenditure or withdrawal only after the

20 waivers and releases under section 10(a) take effect.

21 (d) AUTHORIZATION OF APPROPRIATIONS.—There

22 are authorized to be appropriated—

23 (1) $12,666,670 to the Nez Perce Tribe Salmon

24 and Clearwater River Basins Habitat Account; and
18

17

•S 2605 IS

1 (2) $25,333,330 to the Idaho Salmon and

2 Clearwater River Basins Habitat Account.

3 SEC. 10. TRIBAL WAIVER AND RELEASE OF CLAIMS.

4 (a) WAIVER AND RELEASE OF CLAIMS IN GEN5 ERAL.—

6 (1) CLAIMS TO WATER RIGHTS; CLAIMS FOR IN7 JURIES TO WATER RIGHTS OR TREATY RIGHTS.—Ex8 cept as otherwise provided in this Act, the United

9 States on behalf of the Tribe and the allottees, and

10 the Tribe, waive and release—

11 (A) all claims to water rights within the

12 Snake River Basin (as defined in section 3(b));

13 (B) all claims for injuries to such water

14 rights; and

15 (C) all claims for injuries to the treaty

16 rights of the Tribe to the extent that such inju17 ries result or resulted from flow modifications

18 or reductions in the quantity of water available

19 that accrued at any time up to and including

20 the effective date of the settlement, and any

21 continuation thereafter of any such claims,

22 against the State, any agency or political sub23 division of the State, or any person, entity, cor24 poration, municipal corporation, or quasi-mu25 nicipal corporation.
19

18

•S 2605 IS

1 (2) CLAIMS BASED ON REDUCED WATER QUAL2 ITY OR REDUCTIONS IN WATER QUANTITY.—The

3 United States on behalf of the Tribe and the

4 allottees, and the Tribe, waive and release any claim,

5 under any treaty theory, based on reduced water

6 quality resulting directly from flow modifications or

7 reductions in the quantity of water available in the

8 Snake River Basin against any party to the Agree9 ment or this Act.

10 (3) NO FUTURE ASSERTION OF CLAIMS.—No

11 water right claim that the Tribe or the allottees have

12 asserted or may in the future assert outside the

13 Snake River Basin shall require water to be supplied

14 from the Snake River Basin to satisfy the claim.

15 (4) EFFECT OF WAIVERS AND RELEASES.—The

16 waivers and releases by the United States and the

17 Tribe under this subsection—

18 (A) shall be permanent and enforceable;

19 and

20 (B) shall survive any subsequent termi21 nation of any component of the settlement de22 scribed in the Agreement or this Act.

23 (5) EFFECTIVE DATE.—The waivers and re24 leases under this subsection take effect on the date

25 on which the Secretary causes to be published in the
20

19

•S 2605 IS

1 Federal Register a statement of findings that the ac2 tions set forth in section IV.L of the Agreement—

3 (A) have been completed, including

4 issuance of a judgment and decree by the

5 SRBA court from which no further appeal may

6 be taken; and

7 (B) have been determined by the United

8 States on behalf of the Tribe and the allottees,

9 the Tribe, and the State of Idaho to be consist10 ent in all material aspects with the Agreement.

11 (b) WAIVER AND RELEASE OF CLAIMS AGAINST THE

12 UNITED STATES.—

13 (1) IN GENERAL.—In consideration of perform14 ance by the United States of all actions required by

15 the Agreement and this Act, including the appro16 priation of all funds authorized under sections 8(h)

17 and 9(d)(1), the Tribe shall execute a waiver and re18 lease of the United States from—

19 (A) all claims for water rights within the

20 Snake River Basin, injuries to such water

21 rights, or breach of trust claims for failure to

22 protect, acquire, or develop such water rights

23 that accrued at any time up to and including

24 the effective date determined under paragraph

25 (2);
21

20

•S 2605 IS

1 (B) all claims for injuries to the Tribe’s

2 treaty fishing rights, to the extent that such in3 juries result or resulted from reductions in the

4 quantity of water available in the Snake River

5 Basin;

6 (C) all claims of breach of trust for failure

7 to protect Nez Perce springs or fountains treaty

8 rights reserved in article VIII of the Treaty of

9 June 9, 1863 (14 Stat. 651); and

10 (D) all claims of breach of trust arising

11 out of the negotiation of or resulting from the

12 adoption of the Agreement.

13 (2) EFFECTIVE DATE.—The waiver and release

14 contained in this subsection take effect on the date

15 on which the funds authorized under sections 8(h)

16 and 9(d)(1) of this Act have been appropriated as

17 authorized by this Act.

18 (c) RETENTION OF RIGHTS.—

19 (1) IN GENERAL.—The Tribe shall retain all

20 rights not specifically waived or released in the

21 Agreement or this Act.

22 (2) DWORSHAK PROJECT.—Nothing in the

23 Agreement or this Act constitutes a waiver by the

24 Tribe of any claim against the United States relat-
22

21

•S 2605 IS

1 ing to non-water-based injuries resulting from the

2 construction and operation of the Dworshak Project.

3 (3) FUTURE ACQUISITION OF WATER RIGHTS.—

4 Nothing in the Agreement or this Act precludes the

5 Tribe, or the United States as trustee for the Tribe,

6 from purchasing or otherwise acquiring water rights

7 in the future to the same extent as any other entity

8 the State.

9 SEC. 11. MISCELLANEOUS.

10 (a) GENERAL DISCLAIMER.—The parties expressly

11 reserve all rights not specifically granted, recognized, or

12 relinquished by the settlement described in the Agreement

13 or this Act.

14 (b) DISCLAIMER REGARDING OTHER AGREEMENTS

15 AND PRECEDENT.—

16 (1) IN GENERAL.—Except as expressly provided

17 in this Act, nothing in this Act amends, supersedes,

18 or preempts any State law, Federal law, Tribal law,

19 or interstate compact that pertains to the Snake

20 River or its tributaries.

21 (2) NO ESTABLISHMENT OF STANDARD.—Noth22 ing in this Act—

23 (A) establishes any standard for the quan24 tification of Federal reserved water rights or

25 any other Indian water claims of any other In-
23

22

•S 2605 IS

1 dian tribes in any other judicial or administra2 tive proceeding; or

3 (B) limits the rights of the parties to liti4 gate any issue not resolved by the Agreement or

5 this Act.

6 (3) NO ADMISSION AGAINST INTEREST.—Noth7 ing in this Act constitutes an admission against in8 terest against any party in any legal proceeding.

9 (c) TREATY RIGHTS.—Nothing in the Agreement or

10 this Act impairs the treaty fishing, hunting, pasturing, or

11 gathering rights of the Tribe except to the extent expressly

12 provided in the Agreement or this Act.

13 (d) OTHER CLAIMS.—Nothing in the Agreement or

14 this Act quantifies or otherwise affects the water rights,

15 claims, or entitlements to water, or any other treaty right,

16 of any Indian tribe, band, or community other than the

17 Tribe.

18 (e) RECREATION ON DWORSHAK RESERVOIR.—

19 (1) IN GENERAL.—In implementing the provi20 sions of the Agreement and this Act relating to the

21 use of water stored in Dworshak Reservoir for flow

22 augmentation purposes, the heads of the Federal

23 agencies involved in the operational Memorandum of

24 Agreement referred to in the Agreement shall imple-
24

23

•S 2605 IS

1 ment a flow augmentation plan beneficial to fish and

2 consistent with the Agreement.

3 (2) CONTENTS OF PLAN.—The flow augmenta4 tion plan may include provisions beneficial to rec5 reational uses of the reservoir through maintenance

6 of the full level of the reservoir for prolonged periods

7 during the summer months.

8 (f) JURISDICTION.—

9 (1) NO EFFECT ON SUBJECT MATTER JURIS10 DICTION.—Nothing in the Agreement or this Act re11 stricts, enlarges, or otherwise determines the subject

12 matter jurisdiction of any Federal, State, or Tribal

13 court.

14 (2) CONSENT TO JURISDICTION.—The United

15 States consents to jurisdiction in a proper forum for

16 purposes of enforcing the provisions of the Agree17 ment.

18 (3) EFFECT OF SUBSECTION.—Nothing in this

19 subsection confers jurisdiction on any State court

20 to—

21 (A) enforce Federal environmental laws re22 garding the duties of the United States; or

23 (B) conduct judicial review of Federal

24 agency action.

Æ
25

Senator INOUYE. Our first witness is Senator Larry Craig. Is he

here? We will set aside time for him. May I now call upon the counselor to the assistant secretary for Indian Affairs of the Department of the Interior, Michael Olsen.

Mr. Olsen, please.

STATEMENT OF MICHAEL OLSEN, COUNSELOR TO THE ASSISTANT SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT

OF THE INTERIOR

Mr. OLSEN. Thank you. Good morning, Mr. Vice Chairman.

My name is Michael Olsen. I am a counselor to the assistant secretary for Indian Affairs. Before I start, I would like to apologize

on behalf of Commissioner Keyes, who until late yesterday afternoon was scheduled to be here to testify, and because of health reasons is not able to be here. I will be pinch hitting for him.

I appreciate the opportunity to present testimony on behalf of the

Administration in support of the Snake River Water Rights Act of

2004. This legislation helps ensure certainty not only for the Nez

Perce Tribe, but also for Idaho cities, farmers, ranchers and individual landowners. It provides numerous conservation benefits and

relieves the Federal Government of the obligation to litigate the

tribe’s water rights claims.

The legislation and the settlement that it implements lays the

groundwork for resolving longstanding and contentious water

rights issues in the Snake River basin in Idaho. The result of several years of formal mediation and negotiations, the settlement provides a just resolution to protracted litigation, while protecting the

interests of all parties. The settlement fully determines the Nez

Perce Tribe’s water rights, provides for in-stream flows that protect

the habitat of endangered species, and protects valid existing rights

to water and land use.

The Snake River basin adjudication involves over 150,000 claims

to water from the Snake River and its tributaries. The adjudication

covers all or part of 38 of Idaho’s 44 counties. In 1993, the United

States filed, on behalf of the tribe, several claims including instream flow claims to support the tribe’s treaty-based fishing

rights, claims to support the tribe’s consumptive use, and claims to

springs in the area ceded by the tribe in 1863.

The settlement agreement which is the result of the parties’ creative and collaborative work contains three main components. The

first is resolution of the Nez Perce Tribe’s water rights. The second

is a section addressing in-stream flow and Endangered Species Act

issues within the Salmon and Clearwater River basins, and a component covering in-stream flows and flow augmentation from the

Upper Snake River basin to benefit threatened or endangered fish.

As a package, these three provisions resolve the tribe’s water

rights claims, ensures that the water has enough water to meet

present and future needs, and allows water users in Idaho to participate in voluntary programs to maintain, improve and restore

fish habitat.

S. 2605 directs the Federal Government to implement the settlement. It also confirms the tribe’s right to 50,000 acre-feet of water

annually to meet on-reservation water needs. It confirms the tribe’s

right to water from springs on Federal land surrounding the res-
26

ervation and authorizes Federal funds for domestic and municipal

water, sewer treatment facilities, and projects related to water and

fisheries resources.

The bill also directs the BLM to transfer land valued at up to $7

million to the BIA to be held in trust for the tribe.

S. 2605 also authorizes funding for habitat protection and restoration in the Salmon and Clearwater basins, which is one of the

most important areas of spawning and rearing habitat for anadromous fish in the Columbia River system. The legislation authorizes the Secretary to carry out the Upper Snake River basin flows

component of the agreement, including reclamations flow augmentation program to benefit anadromous fish.

The bill also authorizes a one-time mitigation payments to local

governments that may be affected by the Bureau of Reclamation’s

acquisition of up to 60,000 acre-feet of consumptive natural flow

rights from the Snake River.

Finally, the settlement agreement anticipates that the parties

will address a number of Endangered Species Act issues through

existing statutory and regulatory authorities. S. 2605 would enable

the settlement to proceed and implementation would result in Federal actions that would be subject to the consultation provisions of

section 7 of the Endangered Species Act.

However, neither S. 2605 nor the settlement agreement would affect the review of those Federal actions, pre-judge the outcome of

that review, provide for pre-enforcement review, or limit the ability

of any party to challenge the outcome of that review through existing administrative or judicial avenues.

Further, S. 2605 would not alter the procedural or substantive

requirements of the National Environmental Policy Act [NEPA] or

any other Federal law.

The settlement approved by S. 2605 is an example of creativity

in resolving contentious water rights disputes in the West. We believe that the Federal participation and contribution contemplated

in the legislation is appropriate to resolve the tribe’s claims and

the related issues in the settlement agreement.

This concludes my statement. I would be happy to answer any

of your questions.

[Prepared statement of Mr. Olsen appears in appendix.]

Senator INOUYE. I thank you very much, Mr. Olsen.

In looking over your measure, we note that your measure does

not include any schedule for the payment to the fund that will be

necessary to carryout the activities set forth in the agreement. Will

these terms be provided to the committee before we act on the bill?

Mr. OLSEN. Certainly. We would be willing to work with the committee to the extent that the committee would like to see those. As

you mentioned, the bill is silent on payment. The Administration

figures that the majority of the money that is provided for in the

settlement will be paid out over the course of approximately 10

years from the final passage of legislation and execution and so

forth.

The Department, of course, will include in its budget sufficient

amounts to comply with the terms of the term sheet, and then we

contemplate that at that point it would be up to Congress in the

appropriations process. But to the extent the committee would like
27

to work with the Department on some sort of provision for payment

of funds, we can certainly do that. At this point we intend to include the amounts necessary in our budget and then leave it up to

the appropriations process.

Senator INOUYE. We gather that the Indian leaders are very

much in need of the funds to carry on the activities. I think it

might help if all three parties sat down and discussed this matter.

So I will have the staff initiate this with your office?

Mr. OLSEN. Okay.

Senator INOUYE. What is the legal status of this agreement, also

known as the mediator’s term sheet? Does it have the effect of law

that overrides any existing statutes, such as the Endangered Species Act that may conflict with it? Or is it merely a contract that

binds the signatories, without changing existing law or affecting

the rights of non-parties?

Mr. OLSEN. It would be the latter. It does not have the binding

effect of law. This is one very important first step in the process

and there will need to be Federal legislation and State legislation,

as well as Endangered Species Act documents produced as part of

this.

As I mentioned in my oral statement, there is no conflict in this

settlement with existing law and it is not intended to trump or

override existing environmental laws.

Senator INOUYE. This agreement contains language that seems to

appear to require the parties, including the United States, to seek

amendment to the Endangered Species Act and Clean Water Act

if it becomes necessary, because of the conflict between the agreement and those existing statutes. My question is, can the Congress

lawfully enact a statute that binds the executive branch to seek the

enactment of new legislation?

Mr. OLSEN. Could you repeat the question one more time for me?

Senator INOUYE. This bill is an agreement.

Mr. OLSEN. Right.

Senator INOUYE. It contains language appearing to require the

parties, which includes the Government of the United States, to

seek an amendment to the Endangered Species Act or the Clean

Water Act if such be, quote, ‘‘necessary.’’ My question is, can we in

the Congress lawfully enact a statute that binds the executive

branch to seek an enactment of legislation such as this.

Mr. OLSEN. The language that you are referring to, I believe,

well, let me take a step back. The settlement requires the Federal

Government to do several things, some of which require additional

statutory authority. That authority is provided in the legislation,

but other things that are required to carryout the legislation, we

do have statutory authority for, for example, the Bureau of Reclamation’s current practice, which it has been doing for approximately 10 years, of flow augmentation.

We also have authority to do everything that is required under

the Clean Water Act and the Endangered Species Act. The legislation is in no way, as I said, intended to modify those two acts, and

I am not certain and will have to, go back to the Department and

do some reviewing with attorneys about specifics of your question.

We do not view that there is going to be a need for modification

of the Endangered Species Act or the Clean Water Act, but we do
28

need authority to perform some of the Federal functions or Federal

actions upon which we will consult under section 7 of the Endangered Species Act.

For example, we would need funding for a section 6 of the Endangered Species Act program, which is contemplated in the settlement. We will also need payment of mitigation for flow augmentation.

We do not believe that there is going to be a need to modify or

amend the Endangered Species Act. We will certainly look more

into that to the extent there is a concern.

Senator INOUYE. Can the court order the President or the Secretary of the Interior to lobby Congress to change existing law if

that becomes, quote, ‘‘necessary’’ to allow the fulfillment of the

terms of the agreement?

Mr. OLSEN. Like I said, we do not believe that that would be necessary to fulfill the terms of the agreement. I would have to consult

with our attorneys on exactly what lobbying can be done. Our position, at this point, is that we do not believe that any modification

is going to be necessary.

Senator INOUYE. Because of the technicalities involved, Mr.

Olsen, may we submit to your office questions to clarify some of

these?

Mr. OLSEN. Absolutely. We would be happy to address any questions you have.

Senator INOUYE. I appreciate that. In order to expedite this, and

as you know we just have a few days left in the session, but I think

we can if we apply ourselves get this measure through both Houses

and to the President. So let’s work on it.

Mr. OLSEN. Very well.

Senator INOUYE. Thank you very much.

Mr. OLSEN. Thank you.

Senator INOUYE. Now may I call upon Anthony Johnson, chairman of the Nez Perce Tribal Executive Committee of Lapwai,

Idaho. Chairman Johnson, welcome, sir.

STATEMENT OF ANTHONY JOHNSON, CHAIRMAN, NEZ PERCE

TRIBAL EXECUTIVE COMMITTEE

Mr. JOHNSON. Thank you, Senator Inouye.

Good morning. Thank you, Vice Chairman Inouye and members

of this Committee on Indian Affairs and your staff members for

agreeing to bring S. 2605, the Snake River Water Rights Act of

2004 to a hearing so quickly after introduction. I am Anthony

Johnson, chairman of the Nez Perce Tribal Executive Committee.

I appreciate the opportunity to provide testimony today on this legislation, which would implement the proposed Snake River Nez

Perce water settlement.

I also add my appreciation of the efforts and leadership of Senator Craig and Senator Crapo in sponsoring this legislation.

Before I go on, I would like to say how much your leadership as

vice chairman of this committee and your service as chairman as

well have meant to the Nez Perce Tribe and to Indian country. As

you prepare at the end of this Congress to step down as vice chairman, I want to express our deep appreciation for your many efforts
29

on behalf of Indian people over the years and the strong affection

the Nez Perce people have for the Senior Senator from Hawaii.

This proposed settlement should be considered in the light of the

history of my people and their connection to water and fish. Since

time immemorial, the Nez Perce people occupied a geographic area

encompassing a large part of what is today Idaho, Washington, and

Oregon. The territory exclusively occupied by the Nez Perce, over

13 million acres, stretched from the continental divide forming the

border between Idaho and Montana in the Bitterroot Mountains, to

the Blue Mountains of northeast Oregon and southeast Washington.

I have brought with me a map that shows the aboriginal area of

the Nez Perce, and the boundary lines of the 1855 and 1863 treaties with the United States. When you consider the equities of this

proposed settlement for the Nez Perce Tribe as well as other parties, I hope you consider the vast expanse of land that was my people’s and the portion of the Northwest United States it occupies

today.

We understood that our promises to cede millions of acres of land

to the United States were forever. We expect the United States’

promise to protect the Nez Perce homeland and our fishing, hunting, pasturing and gathering rights was forever as well. This agreement maintains that promise. Nothing in this proposed settlement

changes any of those rights.

The Nez Perce culture revolved and revolves still around water

and fish, most notably salmon. Nez Perce people define themselves

in terms of their relationship to water and fish. This is a lesson

that has been taught to my people by our elders over many generations. Water and fish are essential to the Nez Perce in declines in

their availability due to human alteration and restrictions on access have had devastating effects on our people and culture.

We did not choose to take our water rights to court. The Snake

River Basin Adjudication, or SRBA, began in Idaho in 1987 as a

comprehensive state court proceeding. Because of the McCarran

Amendment, in 1993 we filed three categories of water rights

claims together with the United States as our trustee. These are,

first, claims to water for consumptive use on tribal lands within the

reservation, traditionally known as Winter’s rights; second, claims

for access and use of springs and fountains in the 1863 treaty

ceded area; and third, claims for in-stream flows based on the 1855

treaty fishing right.

The springs and fountains claims are unique. They are based on

article 8 of the Nez Perce Treaty of 1863, which expressly reserved

for the Nez Perce people access to and use of springs and fountains

in the ceded area in common with non-Indians. The in-stream flow

claims are in fulfillment of the fishing right reserved by the tribe

under the Treaty of 1855 and preserved by the Treaty of 1863.

The tribe’s claims are based on the simple concept that to fulfill

the purpose of the reservation of fishing rights, a water right must

be implied to provide habitat for fish to ensure that there are fish.

These claims are supported by the U.S. Supreme Court’s recognition that water rights must be implied, regardless of the silence of

treaties, to fulfill the purpose of Indian reservations and by the
30

several Federal courts that have recognized the existence of Indian

water rights necessary to fulfill the purpose of treaty fishing rights.

The litigation process changed fundamentally for us when the

SRBA court ordered confidential mediation of our claims beginning

in late 1998. Only since the parties’ public announcement on May

15, 2004 have the complex details of the proposed agreement been

permitted to be revealed to the public, including our tribal public.

This proposed settlement can be described accurately as a hybrid

of Indian water rights resolutions and related Endangered Species

Act agreements. Other witnesses before you today will describe its

ESA provisions. For the tribe, the proposed settlement at its core

is about ensuring water for fish and water for the Nez Perce people

in fulfillment of the 1855 and 1863 treaties with the United States.

For the tribe, the resolution of its water rights claims in SRBA—

decreeing Winter’s rights on our reservation, as well as the rights

to springs on Federal public lands in the 1863 ceded territory

would provide, along with other provisions of the settlement, various important benefits for our people. There would be in-stream

flows established under State law on approximately 200 streams of

importance to the tribe in our aboriginal territory; BLM lands on

the reservation transferred in trust to the tribe; Federal fish hatchery agreements; and a new flow-release agreement at Dworshak

Dam on the North Fork Clearwater River.

There would be appropriations of Federal funds in consideration

of tribal waivers that would enable our people to make needed improvements to drinking water and sewer systems on our reservation; and land and fish habitat improvements throughout our aboriginal territory. And I will say again how critical it is that nothing in this proposed settlement changes our treaty fishing, hunting,

pasturing, and gathering rights.

The settlement of the tribe’s SRBA claims involves difficult compromises for us. Other parties have made compromises and it is the

collective offerings made by all parties to which the tribe looks in

examining the overall merit of the proposed agreement.

It is the same set of collective provisions to which all residents

of Idaho and the Pacific Northwest will look for ultimate benefits

to salmon population recovery. In important respects, this proposed

settlement offers a new model for future conduct in our relationship with the State of Idaho in particular, when compared to the

expensive, time consuming and uncertain path of litigation. A mutual respect between the state and tribe as sovereign governments

underlies this proposed agreement in ways that contrasts with the

hostility of litigation.

It has taken a certain amount of courage and commonsense on

the part of all parties to make it to this point, and I respect that

and hope you do as well. The path of continued fighting in court

begun 17 years ago could well continue for another decade if this

effort were to fail.

The parties to the proposed settlement have committed to each

other a final completion and approval date of March 31, 2005. By

that date, a number of things need to occur, including the final approval of all three sovereigns: the United States, the Nez Perce

Tribe and the State of Idaho.
31

A final Nez Perce decision will occur through NPTEC or a decision of the tribe’s general council, or some coordination of those

governing bodies. We are involved in an ongoing process of informing our tribal members that will take several months. We are committed to taking the time necessary to ensure that tribal members

are fully informed and have their questions answered before a final

decision is made.

Because we have just emerged from a 5-year period of confidential mediation, our public information process is particularly important. At the same time, because of your busy schedule, particularly

in this election year, we are here to inform you and gain your support at this relatively early point in the final approval process.

When we look forward to March 31, 2005 and set out the work

needed to complete the settlement, we know that we must be here

today informing you and answering your questions to have a

chance of meeting that goal. Much work remains, work that we are

actively engaged in, but that will take several months more to complete—implementing parts of the proposed agreement that require

additional detail, answering questions of the Indian and non-Indian

public in Idaho, and reaching out to the downriver tribes and non–

Indian public in Oregon and Washington. I do not underestimate

the work ahead in passing this bill through Congress.

I thank you for your time and willingness to listen, and for the

opportunity to provide you with these comments and my written

statement. I am pleased to answer any questions you may have.

[Prepared statement of Mr. Johnson appears in appendix.]

Senator INOUYE. Thank you very much, Mr. Chairman.

Before asking questions, I have the honor of presenting and calling upon my colleague, the illustrious Senator from Idaho, Senator

Craig.

STATEMENT OF HON. LARRY CRAIG, U.S. SENATOR FROM

IDAHO

Senator CRAIG. Mr. Chairman, thank you. I say that, Mr. Chairman, Ranking Member, but always chairman of this committee and

the fine work you have done, Senator, on behalf of Native Americans in the work of this committee.

I am here only briefly, but I did want to catch the comments of

Chairman Johnson, and thank you very much, Mr. Chairman, for

the work of the Nez Perce and cooperating with the State of Idaho

and the Federal Government in getting us to this point with S.

2605.

I welcome all who are here today on behalf of this legislation. We

are moving it as quickly as we can, having received it from the negotiators very recently. I thank them for the work they have done

over the last good number of years.

I think in my statement this is probably the thought that brings

me here and brings most Idahoans collectively to this point. Once

this legislation is enacted, and the chairman referenced this, years

of protracted litigation that has caused considerable uncertainty

and drained life from Idaho’s economy, can come to a close.

Though much I think still needs to be done across the State, and

the chairman spoke of informing his members. Certainly, that will
32

be true of all Idahoans, whether it be at the State level or tribal

government levels.

The important thing is that officially this will end litigation

when enacted. I think most importantly, it is a milestone in the

State’s 114-year quest to control its water destiny. It has been done

at home in the State of Idaho by the interested parties involved,

where it should be. But because of the magnitude of it and the

character of it, we collectively, Mr. Chairman, have to put the final

stamp of approval on it.

In Idaho, this is not unanimously received by all parties. There

are concerns and frustrations, but all I think recognize the importance of bringing this issue to a resolution and the legislation does

so. So we thank you for the timely movement of this committee in

the short session that we are in, and hope that able to complete

it this year.

Thank you, Mr. Chairman.

Senator INOUYE. As the saying goes in our Senate, what Larry

Craig wants, Larry Craig gets. [Laughter.]

I was impressed by your statement, Mr. Chairman, that for 5

years you have had mediation that members of your tribe and the

community were not aware of.

Mr. JOHNSON. Mr. Chairman, that was the 5-years of negotiations.

Confidential negotiation ordered by the SRBA court.

Senator INOUYE. In this city, if you said something now, we

would give you 5 minutes and it would be leaked out. You have

kept yours secret for 5 years? Congratulations. [Laughter.]

I know this will be a success if you can do that.

Are there any details of the bill that remain to be resolved by

the parties before everything can be addressed action? I assume

that the bill itself does not end.

Mr. JOHNSON. No; it does not. In fact, we have, as stated in the

testimony, until March 31, 2005, where there are many processes

in motion at this time, not just the Senate bill, but agreements on

hatcheries. There are many technical people within our organization, the State of Idaho and the other parties to bring this all on

line and provide by March 31, 2005 when all parties must make

a decision, to have everything in place. Should that decision be to

go forward by all parties, then everything would be put in motion

all at once.

So you have hatchery agreements. You have people looking at

the land transfer and prioritizing right now. So many of the things

spoken of in this testimony and many of the things that are more

important on the term sheet are presently ongoing and will require

a lot of work up to completion of this process

Senator INOUYE. Are the discussions ongoing now? Or are they

waiting for the passage of this bill?

Mr. JOHNSON. No; this is a machine that has many parts ongoing

right now.

Senator INOUYE. Well, I can assure you, Mr. Chairman, that this

committee will do its best to work on this measure and pass it, so

you will have some resolution.

Mr. JOHNSON. Thank you very much.
33

Senator INOUYE. This will be our Christmas present to you, sir.

Mr. JOHNSON. Okay. Thank you very much, Mr. Chairman. If

there is anything more?

Senator INOUYE. No; we have another panel here. I would suggest you may want listen to what they have to say.

Mr. JOHNSON. Okay. Thank you very much, Mr. Inouye. Thank

you, Senate Committee on Indian Affairs.

Senator INOUYE. Thank you very much, sir.

Our final panel consists of the counsel of the Office of Governor

Kempthorne of Boise, ID, Michael Bogert; the counsel of Ling, Robinson and Walker of Rupert, ID, Roger Ling; and the executive director of the Intermountain Forest Association of Coeur d’Alene,

ID, Jim Riley.

Shall we begin with Mr. Bogert? Welcome, gentlemen.

STATEMENT OF MICHAEL BOGERT, COUNSEL, OFFICE OF

GOVERNOR KEMPTHORNE

Mr. BOGERT. Mr. Vice Chairman, thank you for having us. I

bring greetings from Governor Kempthorne, who with great disappointment could not be with the committee today. He is chairing

his final day as chairman of the National Governors Association in

Seattle. As you know, Senator and others, one of his joys is to come

back to the Senate and visit with his former colleagues and friends.

He sends his regrets that he could not be with us here today.

Senator INOUYE. Would you tell the Governor we miss him here?

Mr. BOGERT. He will be pleased to hear that, Mr. Vice Chairman.

Mr. Vice Chairman, the agreement that is before this committee

today is the result, as you have already heard, of several years of

difficult discussions and compromise. As already mentioned by Senator Craig, water is very important in our arid State of Idaho and

even more important to our people is the protection of it.

Having said that, the parties to the negotiations over the Nez

Perce Tribe’s water rights claims were able to reach a settlement

agreement, while remaining true to their fundamental beliefs over

water and protection of endangered species. There have been times

during the past few years when the path we were on seemed to be

leading away from the negotiating table and back into the courtroom. Time and again, we decided to come back to the table and

keep the discussions moving forward.

The result is that we have formed, and Chairman Johnson

touched upon this, stronger bonds with each other and between our

respective governments so that the path now leads from a celebration several weeks ago in Boise to our appearance before you today

in this committee.

Mr. Vice Chairman, in order to provide a bit more insight into

Idaho’s perspective on this settlement, let me give you a brief bit

of background on the SRBA. In 1985, the Idaho legislature laid out

a process to adjudicate the water rights claims that ultimately concluded in this agreement in the Snake River Basin known as the

Snake River Basin Adjudication, or as we have been referring to

it today, the SRBA.

As you can imagine, adjudicating or resolving all of the competing interests for Idaho water has been a monumental task. In the

beginning, there were nearly 150,000 water rights in question, and
34

we had contested claims of 38 of Idaho’s 44 counties. The Nez Perce

Tribe, as they were entitled to do under the SRBA, filed their

claims in the adjudication.

When the Governor took office over 5 years ago, one of his priorities was to tackle the tribe’s claims head-on and come to a muchneeded resolution. The Governor’s directive to the State’s negotiators to make progress on the tribe’s claims was clear. Any resolution had to maintain our state sovereignty. It had to protect our

State water rights, and it had to protect state water law by resisting any federally-reserved water rights.

After 5 years of back and forth, and frankly sometimes intense

negotiations, we reached the agreement that is before you today

that has accomplished, we believe, Mr. Chairman, all of these

goals. The benefits of this agreement for Idaho are that we have

protected our State sovereignty, provided long-term certainty for

our agriculture interests in our state, and provided future opportunity for Idaho and her stakeholders to chart their own destiny

under the Endangered Species Act.

This agreement protects Idaho’s sovereignty by maintaining our

system of water law and our existing water rights and water rights

holders, which is a process familiar to this committee in traditional

tribal water rights settlements. It provides certainty for the Nez

Perce Tribe by resolving their water rights, and as mentioned by

Senator Craig, the end of protracted litigation through the SRBA,

as well as certainty for our Idaho water user community and important stakeholders in our natural resource-based economy because of the protections contained in the agreement for the next 30

years.

It provides opportunity by setting forth a new way of going about

protecting endangered species, while preserving access to state and

private timberlands for our resource-based industries and the rural

communities that depend on Idaho’s forests.

We will speak about this more in depth, but one opportunity

worth highlighting in particular as a result of this agreement is

that in some key parts of our state that support important, ESAlisted fish habitat, irrigators may now have a choice to forego water

they would otherwise be entitled to fully divert under their state

water rights, in exchange through a program that we are still

working on as we speak, for protection under the Endangered Species Act.

Mr. Vice Chairman, this is an innovation in a State like Idaho

5 years ago, if we could have predicted that this would have been

a possible outcome, would have boggled our minds. In this instance,

there is a real possibility of a win-win for our agriculture community as well as ESA-listed fish.

Finally and importantly, almost $200 million will be authorized

in this legislation for the State of Idaho, the tribe and Federal

agencies to implement the agreement.

Mr. Vice Chairman and members of the committee, this legislation is of no small significance for the State of Idaho and for state,

Federal and tribal government-to-government relations. This process has spanned four Administrations in Idaho and two Administrations in the White House. The state, the Nez Perce Tribe, numerous Federal agencies, water user organizations and some of our
35

state’s largest and most important irrigation districts came to the

table, many times at the behest of the Governor in his office, to

overcome their differences and achieve a solution that is best for

the entire State and our stakeholders.

There has been some discussion about the process. Admittedly,

I think everyone who will be before the committee today will testify

that the agreement before you is a compromise and thus is inherently imperfect. But we are extremely confident, Mr. Vice Chairman, that the process we undertook was all that we could have

asked of ourselves, of the people that we represent and our stakeholders that we are trying to protect and defend.

As we have traveled about the State and discussed this with the

people who are wondering what is in this agreement, we have

found and we have related stories of the fact that we went beyond

our mere negotiating positions in these discussions. We took the

time, Mr. Vice Chairman, to understand what our interests were.

That is the only reason that we stayed at the table for the 5 years

of this process. It was important to us. We understood what was

important to the tribe, and the tribe, to their great credit, understood what was important to agriculture in Idaho and our resourcebased industries. For that, we have great respect for the tribe.

As this committee reviews the agreement you have asked to approve, we believe you will find that it could very well be a national

model for future tribal water settlements of this type. Now that we

have agreed to these terms, there is still work ahead. Governor

Kempthorne is working closely with Senators Craig and Crapo, and

he looks forward to partnering with them, as well as the members

of this committee, as this legislation now moves through Congress.

Mr. Vice Chairman, we appreciate the work of the committee

staff, particularly Marilyn Bruce, your committee’s chief clerk, to

help us get ready for the hearing today. Governor Kempthorne

wants to again publicly thank Chairman Johnson and his predecessor Sam Penny for their leadership, and again acknowledge publicly the commitment from the Nez Perce Tribe to proceed forward

with this settlement.

The Governor greatly appreciates Idaho’s water users and the

countless others who agreed that working together for a solution

was a better outcome than litigation and uncertainty.

Not to belabor the thank yous, Mr. Vice Chairman, but we especially appreciate the efforts of Ann Klee of the Department of the

Interior who was the lead Federal negotiator on this, as well as

Clive Strong from the Idaho Attorney General’s Office who was our

lead negotiator as well.

We are grateful for the opportunity to describe for you what we

think is one of the most important and exciting developments in

the Indian water rights area in the country, and we are proud of

what we have accomplished and the partnerships that have developed as a result of this process.

We know that the next few weeks bring great challenges if we

are to succeed in this legislative session of Congress, but we also

know that with great challenges come great opportunities. We look

forward to working with you in the days ahead to provide your and

your staff with the information you need to help us achieve the
36

promise of this agreement so important for the people of Idaho and

so important for the tribe.

Thank you, Mr. Vice Chairman.

[Prepared statement of Mr. Kempthorne appears in appendix.]

Senator INOUYE. I thank you very much, Mr. Bogert. I will call

on the other members of the panel before asking questions.

May I now call upon Mr. Roger Ling.

STATEMENT OF ROGER LING, COUNSEL, LING, ROBINSON &

WALKER

Mr. LING. Thank you, Vice Chairman Inouye. It is an honor and

pleasure to appear before the Senate Committee on Indian Affairs,

especially you whom I have heard much about, but have not had

the pleasure of testifying before your committee prior to today. I

appear today as a representative of the water users of the Upper

Snake River in southern Idaho in support of S. 2605.

A brief review of the efforts of water users in the Upper Snake

Plain may be helpful to obtain a proper perspective on my comments. In 1987, the State of Idaho commenced what is known as

the Snake River Basin Adjudication, a general river adjudication of

the entire watershed of the Snake River from where it enters the

State from Wyoming on the east to where it leaves the State near

Lewiston, ID on the west.

Under this general adjudication, claims were required to be filed

by all water users, claiming a right to divert or use water from the

Snake River and its tributaries, as well as claims to any reserved

water rights by the Federal Government and Indian tribes within

the state, including the Nez Perce Tribe.

As the result of claims filed in the SRBA by the Federal Government in its own right and as trustee for the Nez Perce Tribe, a

group of claimants in the SRBA consisting primarily of irrigation

districts, canal companies, water districts and advisory committees

of water districts formed a Federal claims coalition to address Federal and Nez Perce tribal claims.

In July 1998, claimants represented by the Federal claims coalition, the State of Idaho, United States, and Nez Perce Tribe tentatively agreed to proceed with a mediation of Federal and tribal

claims. Mediation was ultimately ordered by the district court of

the Fifth Judicial District of the State of Idaho in and for the county of Twin Falls, which has been designated as the SRBA court,

and mediation ultimately culminated in a term sheet dated April

20, 2004, which is the subject matter of S. 2605.

The full significance of the mediator’s term sheet and the interests of the Federal claims coalition may not be fully appreciated

without some understanding of the Snake River and the interests

of water users making a claim for use of the Snake River and its

tributaries. The Upper Snake River Basin is generally divided into

two segments. The first segment is being that portion of the Snake

River and its tributaries above Milner Dam near Twin Falls, ID,

which is a diversion structure used to divert all of the Snake River

not previously diverted upstream by senior appropriators.

Anadromous fish have never existed in this portion of the Snake

River. There are approximately 1,717,580 irrigated acres above this

point, which include acres irrigated with groundwater which is
37

hydrologically connected to the Snake River. There are approximately one million acres irrigated from the Snake River and its

tributaries below Milner Dam to the mouth of the Weiser River,

with diversions primarily from the Snake River and the Boise,

Payette and Weiser River tributaries.

As a part of the significant agriculture development relying upon

the Snake River and its tributaries, there have been developed active storage facilities of approximately 7 million acre-feet, 6.3 million acre-feet of which are used for irrigation. Unfortunately, this

storage space is not filled each and every year and substantial

shortages can and do occur in times of drought similar to the

drought we have experienced over the last 5 years.

It is therefore readily apparent that the agricultural community

depending upon water for irrigation has significant and real concerns when there are additional claims made to the use of the

water they have appropriated. The significant appropriation of the

Snake River resulting in zero flows at Milner Dam does not tell the

whole story. The Snake River begins to replenish itself below Milner from spring waters known as the Thousand Springs reach. As

the result of these inflows to the river, the Snake River is soon replenished to a flow of approximately 5,000 cubic feet per second,

and the flow increases to an average of 10,000 cubic feet per second

at the Weiser gauge, which is generally considered to be below the

last significant diversions from the Upper Snake River for irrigation.

Substantial litigation has occurred in the SRBA involving Federal and tribal claims to reserved water rights. It has become apparent to all concerned that negotiated settlements are the preferred method for resolving these claims, both from a financial perspective and for reaching finality and certainty in the outcome.

In the mediation of the Federal and tribal claims, however, it became apparent that a settlement of these claims would not necessarily result in finality as to the claims to the use of the water

of the Snake River as additional demands could arise under the

Endangered Species Act and Clean Water Act for which no claims

would be filed in the adjudication.

Through the significant efforts of all parties concerned and their

committed cooperation and desire to reach a resolution of these

issues, the mediator’s term sheet was ultimately agreed upon.

Under the Snake River flow component of the mediator’s term

sheet, it is agreed by all parties, including water users represented

by the Federal claims coalition, that the minimum in-stream flows

established by the Swan Falls Agreement would be decreed in the

SRBA to the Idaho Water Resource Board.

These minimum in-stream flows of 3,900 cfs average daily flow

from April 1 to October 31 and 5,600 cfs average daily flow from

November 1 to March 31 were affirmed to protect an in-stream

power right senior to all rights acquired after July 1, 1985. It was

also agreed in the mediator’s term sheet that a term-of-the-agreement flow augmentation program would be implemented following

in most respects the flow augmentation program that had been implemented, which allows for water to be leased on a willing lessorlessee basis and for water right acquisitions to provide flow augmentation of up to 427,000 acre-feet per year from the Upper
38

Snake River. I would like to add, actually up to 487,000 acre-feet

in good years.

Many terms of the flow augmentation program to be established

are contained in the mediator’s term sheet. It was further agreed

that biological opinions will be issued for the term of the agreement, that is 30 years, which will provide incidental take coverage

if necessary for all Federal actions and related private actions, including Bureau of Reclamation action in the Upper Snake River

and related private depletionary effects as they may affect listed

anadromous fish and listed resident species.

The mediator’s term sheet provides that to the maximum extent

practicable the United States shall be responsible for managing

water acquired or rented pursuant to the agreement to meet needs

of all species covered by the agreement, and in a manner that will

not result in the violation of any permit, applicable water quality

rule and regulation or other requirements of the Clean Water Act,

and in a manner that will not cause jeopardy to other species in

the State of Idaho or result in significant adverse impacts to recreational uses of the water in the Snake and its tributaries within

the State of Idaho.

The mediator’s term sheet describes the proposed Federal action

for which consultation will take place under the Endangered Species Act. On the other hand, it provides that in the event that the

services fail to issue no-jeopardy biological opinions and to provide

incidental-take coverage, or if the services require terms or conditions inconsistent or not contained in the Upper Snake component,

this component of the agreement shall be terminated upon written

notice by the state or private parties to the agreement.

Finally, the Federal agencies which are parties to the agreement

may seek additional Endangered Species Act flow measures from

the Snake River Basin upon certain conditions that are set forth

in the agreement. It is not conceded by the State of Idaho nor the

private parties to the Snake River Flow component of the agreement that, by entering into the agreement, the flows identified will

benefit the listed species; that BOR operations in the Upper Snake

require ESA consultations, or that BOR operations in the Upper

Snake are subject to modifications to meet ESA requirements or

concerns, or that diversions, storage or use of water in the State

of Idaho are subject to modification to meet ESA requirements or

concerns. I might add, though, we are committed, however, to our

conditions and our obligations under the agreement.

Of equal importance to the Federal claims coalition are the general conditions applicable to the entire agreement. Under these

general conditions, certain Endangered Species Act and Clean

Water Act assurances are provided under certain conditions and

the Nez Perce Tribe and the United States waive and release all

claims to water rights within the Snake River Basin in Idaho, injuries to such water rights, and injuries to the tribe’s treaty rights,

except to the extent provided in the mediator’s term sheet.

I have not attempted to address all of the significant issues addressed by the mediator’s term sheet, nor have I attempted to identify all terms that are extremely important to the Federal claims

coalition. It is believed by the Federal claims coalition and all of

the parties represented by the coalition that the mediator’s term
39

sheet is an appropriate settlement of claims in the SRBA and provides water users in the Upper Snake River in the State of Idaho

with some degree of certainty and finality in regard to future

claims under the Endangered Species Act and Clean Water Act. It

is for these reasons that we urge the passage of S. 2605 and the

early implementation of the provisions in that bill.

Again, I would like to thank the vice chairman for the opportunity to present our views on S. 2605, and I am willing to answer

questions to the extent my ability and knowledge allow.

Thank you.

[Prepared statement of Mr. Ling appears in appendix.]

Senator INOUYE. I thank you very much, Mr. Ling.

May I call upon Mr. Riley.

STATEMENT OF JIM RILEY, EXECUTIVE DIRECTOR,

INTERMOUNTAIN FOREST ASSOCIATION

Mr. RILEY. Thank you, Mr. Vice Chairman. I am Jim Riley. I am

the president and CEO of the Intermountain Forest Association in

Coeur d’Alene, Idaho. We represent the forest businesses of our

State, as well as the forest landowners.

I, too, am honored and gratified to be here today to express our

support for S. 2605 and for this historic agreement that has

brought to this spot. I am particularly proud of the collaboration

of the colleagues that are on this panel and the work we have done

with Chairman Johnson and the members of the Nez Perce Tribe

to arrive at this point.

This agreement is unique. It is unique both in terms of its substance and of the people of the State of Idaho who collaborated to

make it happen. It represents a significant change in our approach

to public policy as it relates to water and natural resources. The

fundamental premise here, which was really the vision of our Governor, Governor Kempthorne, is if we could not work together as

Idahoans to refocus our energies and our investments on what

could be possible, rather than in endless debates through the

courts as to what is minimally required or minimal entitlements

under law. In doing so, I think we have achieved a framework for

benefits to publicly held fisheries resources, as well as private interests throughout the State.

Others on this panel before me have talked about the important

water elements of this proposal as far as the State and tribal elements of this. I want to focus my attention on the forest and fisheries elements which are admittedly a minor, but integral part of

what is before you today.

Just as a little bit of background, I want to advise the committee

members that all forest management in Idaho is regulated and has

been for some time by our state Forest Practices Act, which sets

mandatory minimum requirements for forestry and forest-related

activities on all forest lands throughout the State. This Act, as well

as the performance of forestry in our State, makes Idaho’s forestry

some of the most environmentally and economically advanced anywhere in the world.

This agreement is not about providing fundamental threshold

protections for endangered species under the Endangered Species

Act in our State, because those requirements are being fully and
40

completely met by forestry today. What this agreement is all about

is establishing a program for voluntary enrollment of landowners

and forestry operations to provide additional benefits to species

that might be diminished for one reason or another.

What is included in this agreement I call the forestry and fisheries component of the Snake River Basin Adjudication, are some

important elements that build upon the fundamental threshold of

the Idaho Forest Practices Act. The agreement in the term sheet

outlines specific provisions agreed to by forestry interests, the State

of Idaho and Federal fisheries experts from the Department of the

Interior and from NOAA Fisheries as providing significant opportunities beyond those required by the Endangered Species Act to benefit fish species in forested habitats of Idaho covered by this agreement.

There are four essential elements of the forestry and fisheries

provisions. The first and foremost platform, as it is in other elements of this program, is that participation is voluntary for landowners. It is voluntary because it establishes standards for forest

management which go well beyond the requirements of current

law. But we believe that these voluntary standards will be addressed and bring additional benefits to fish. Our initial expectation, based on preliminary feedback from potentially enrolling landowners is that this program will attract broad participation.

Second, there are specific standards articulated that will change

the practice of forestry over time in Idaho, particularly as it relates

to forest practices and forest operations in riparian areas, areas immediately adjacent to fish-bearing streams, and secondly as it relates to the construction of roads or other infrastructures in the forest. These standards are described in detail in the agreement term

sheet, which the committee can review in some detail.

Third, there are recognized processes under this agreement for

assessing existing forest facilities and infrastructures to identify

those that are potentially limiting fish productivity in our State

and mechanisms to replace and improve those limiting conditions

where it is warranted. That is an important provision in our view

in providing the elements of this agreement. The experts have

agreed that we can provide more benefit to fish in Idaho by focusing our attentions first and foremost on historically evolved infrastructure that might be limiting fish productivity, than on additional measures on new activities that have yet to occur.

Last and perhaps also most importantly are the agreed upon provisions for adaptive management processes to continuously improve

our collective understanding of the interaction between forestry

and fisheries, and to improve the applications of the management

practices over time. In this, all forest interests in our state are

working together in a scientific framework to understand better

what the implications are of various management practices on fisheries.

Over time, our expectations are for widespread enrollment of Idaho’s private forest landowners, both small and large, as they come

to understand the opportunities to enhance fish species consistent

with the fundamental objectives for which they own their land and

to gain the benefits afforded by this agreement.
41

Implementing the specific elements of the agreement’s fisheries

and forestry components is going to be accomplished principally

through administrative channels currently authorized by law. We

look forward to the good-faith efforts of the Federal agencies in carrying out their commitments to seeing this agreement through in

the forestry and fisheries portion as well.

However, S. 2605 is needed for two very important reasons.

First, forestry is just one part of this multi-party complex agreement. It is an integral part and the success or the failure of this

entire agreement rises and falls upon the success or failure of the

individual parts. So we fully support the parts of S. 2605 that

might not directly support forestry.

Second is that the full benefits to the fish and forestry programs

to be realized by this agreement need to be accomplished within

the context of the agreement, including those authorized by S.

2605, and that the funding for the habitat restoration fund in the

projects will be used in many cases to improve the infrastructure

on forested lands.

In conclusion, Senators, I want to fully endorse S. 2605 as it authorizes important programs which benefit both the people of Idaho

and the Nez Perce Tribe, but also is nationally justified as it provides essential support to species recognized as threatened or endangered under the Endangered Species Act.

This agreement is borne by a unique multi-party collaboration

described in this hearing today, and I am honored to be part of the

coalition which is before you.

I would be happy to answer any questions at this time.

[Prepared statement of Mr. Riley appears in appendix.]

Senator INOUYE. Thank you very much, Mr. Riley.

If I may go back to Mr. Bogert, there is a provision in this act

that seems to obligate the parties, including the United States, to

call upon the Congress to amend certain environmental laws in

order to carryout the terms of the agreement.

My question would be, how do you enforce this against the government of the United States? How do you force them to do something like this?

Mr. BOGERT. Mr. Vice Chairman, that was your question to the

prior panel. I can tell you what the intent of the parties was in

terms of our acknowledgement and understanding of the legal

framework for the negotiations. I reference my answer by indicating that there is perhaps no former or current United States Senator with as much background of reforming the Endangered Species Act as Governor Kempthorne.

The side-bars and the ground rules for these negotiations, Mr.

Vice Chairman, were that we would work within the existing confines of the Endangered Species Act and the Clean Water Act. The

issues of implementation that I think you have pointed to in the

agreement itself point to breathing life into the agreement through

separate statutory enactments. For example, one of our obligations

in Idaho, and Mr. Ling referred to that in his testimony, is that

pursuant to our state law, the Bureau of Reclamation has the authority, and they have had such authority for the past several

years, to obtain from willing buyers and willing sellers of water so

that they can otherwise resolve their Endangered Species Act obli-
42

gations through the Bureau of Reclamation projects for flow augmentation.

The particular clause, Mr. Vice Chairman, that you referenced a

moment ago on Mr. Olsen’s panel, we have interpreted that as

being a requirement that the State’s obligation and the Governor’s

obligation to introduce legislation and in good faith advocate for a

change in our existing State law is a part of the agreement.

I can tell you that having been through several of these negotiating sessions, the agreement itself, the term sheet that we have

been discussing today, was negotiated within the current structures of the Endangered Species Act and the Clean Water Act. We

would view it very problematic and I would think that this would

be a constitutional law professor’s dream question on an exam, if

any judge could order the executive branch to introduce legislation

and have enforcement of the agreement hinge on an act of Congress.

I think the legislation itself, Mr. Vice Chairman, speaks to what

certainly the intent of the parties is by moving forward with the

agreement. On page 21 of the legislation, lines 17–21, and this was

negotiated, I might add, Mr. Vice Chairman, with the Department

of the Interior, the Federal agencies with responsibilities. The reference in subsection B(1) says, nothing in this act is intended to

amend, supersede or preempt any State law, Federal law, tribal

law, or interstate compact.

Mr. Vice Chairman, it was the intent of all of the negotiators not

only within the term sheet, as well as those of us who are before

you today on the Senate bill, that there would be no separate substantive amendments of any of the existing Federal laws that otherwise are impacted by this agreement.

Senator INOUYE. But there is another phrase before that saying,

except as expressly provided in this act. Is there anything expressly

provided in this Act that would say you can amend, supersede or

preempt any State, Federal law, or tribal law?

Mr. BOGERT. Mr. Vice Chairman, that is correct, and the operative provision of the bill as we see it is in section 4, page 5, lines

9–10. The act of this legislation in this Senate bill is to approve,

ratify and confirm the agreement itself. So we have viewed the legislation, S. 2605, as being self-contained both in terms of approving

the agreement itself and then expressly intending through the language itself that there shall be no effort or interpretation of this

bill to amend the Endangered Species Act or the Clean Water Act.

Senator INOUYE. Thank you.

Mr. BOGERT. Mr. Vice Chairman, I apologize. We would be

pleased to followup with you and your staff in terms of clarifying

that that it is indeed the intent of this legislation.

Senator INOUYE. I hope you will, sir.

Is there anything in this bill that remains to be negotiated, or

have you finished negotiations?

Mr. BOGERT. Mr. Vice Chairman, as Chairman Johnson indicated, we are in the throes of many pieces of implementation.

There are discussions as we speak about some of the Endangered

Species Act understandings and section six agreements as contemplated in the term sheet. Those are ongoing as we speak.

Senator INOUYE. So you agree with the Chairman?
43

Mr. BOGERT. Yes; we do.

Senator INOUYE. Mr. Ling, in your testimony you note that the

State and private parties may terminate the agreement if it becomes impossible to obtain a no-jeopardy statement for species listed under the Endangered Species Act. If you terminate the agreement, what options would be available to you and other parties?

Would you then be required to obtain incidental-take permits

under section 10 of the ESA?

Mr. LING. Mr. Vice Chairman, those provisions, and I might note,

I have been involved in the negotiations from the very beginning

on behalf of water users. We recognized at the beginning that there

was no way that we could negotiate any kind of a change to the

Endangered Species Act or the Clean Water Act. We had to couch

an agreement consistent with those acts.

We think that we have done that, and that the agreement will

be consistent with the obligations of NOAA Fisheries and the Bureau of Reclamation under the Clean Water Act and certainly

under the Endangered Species Act. But in order to provide relief,

because we have not agreed that our commitments are something

that are actually required, and that is something that we are going

to provide those things, but we have not agreed that they are necessary.

So our only alternative would be if in fact under the Endangered

Species Act it should be determined that what we have agreed to

do is not sufficient, and incidental-take is a fact as a result of the

operation of the Upper Snake or some substantial effects on critical

habitat is a result of the operation of the Upper Snake operations

of the Bureau of Reclamation. Then that is a whole new ball game

because now we have a commitment that we had not anticipated.

The only thing we could do is say that we then want out of our

agreement.

I guess we would have to go back and negotiate in the event

there was, say, a court decision which said we have not done

enough, or we would litigate that issue to prove that maybe we do

not have any obligation at all. But that was the only relief that we

could have because we are not going to bind any agency under

their obligations under existing acts.

It goes the same way to the question you previously asked on

whether or not we anticipated there would be any obligation to

amend the ESA or the Clean Water Act. We particularly refrained

from doing that, knowing that that would not be possible for us to

agree to and no agency could agree to that. We do say that we

ought to have necessary legislation and everybody has to work to

that and to implement the agreement. That would be like the Bureau of Reclamation, how much it can pay for the lease of water

to meet its obligation under the agreement may need congressional

approval.

Whether or not they can mitigate properly, and we would expect

that if there are any questions about their ability to mitigate the

loss of power production for reserve power users, for instance by

using powerhead water for augmentation, we want to make sure

that, and we have provided that they would seek legislation to assure that could be done within the terms of the agreement.
44

Senator INOUYE. My final question is to Mr. Riley. This bill has

a planned cooperative agreement under section 6 of the Endangered Species Act. Does that agreement permit private parties to

the agreement to obtain incidental-take permits under that act?

Mr. RILEY. We understand that under section 6 of the Endangered Species Act, the State would be provided the authority by the

Federal Government to enroll private landowners who wish to step

up and enroll and to obtain a permit for inclusion under a State

permit for incidental take.

The interesting conundrum of the Endangered Species Act today

is that a private landowner who wishes to act in a way that will

increase the viability of a listed population of species on their own

land has then attracted to themselves quite a liability under a risk

of future litigation as to whether they harm the very species that

they helped create.

That is the fundamental problem we are trying to overcome here,

Senator. So section 6 would be used to establish a cooperative

agreement between the Federal Government and the State, which

is expressly what section 6 is for, which would allow the State to

establish a programmatic process to enroll landowners, with which

to embrace the supplemental measures, and therefore obtain incidental-take permit authority if there was any alleged harm to the

species they help benefit.

Senator INOUYE. That is a rather clever move, that cooperative

agreement.

Mr. RILEY. I think that it is not only clever, it is quite insightful.

It has changed the application of endangered species law or seeks

to in Idaho, from rather than just trying to stimulate private parties to do the minimum necessary, to truly embrace the notion that

if you act to benefit species, that you will not be jeopardized by

having taken those actions, and that you can do so in a way which

adds value to your ownership and your asset base.

Senator INOUYE. I ask those questions as a preface to the statement I am about to make.

It is the committee’s understanding that the parties have identified certain provisions of the bill that are incomplete or that need

modification or correction. You have indicated that you are still in

the process of negotiation.

Therefore, may I call upon the parties to assure that the committee is provided with an agreed-upon final product as soon as possible so that we can have a markup in September. A markup is

when the committee acts upon the bill.

We will be suspending our activities for the August recess beginning this Saturday, because on Sunday the Democrats go to Boston

for their convention and all of August members go back to their

States. At the end of August, the Republicans go to New York for

theirs and we return on September 7. So if you could have a product that has been agreed to by all parties, we promise you we will

act upon it as soon as we can.

Is that okay?

Mr. BOGERT. Mr Vice Chairman, absolutely.

Mr. LING. It is certainly fine for the water users.

Mr. RILEY. We should have it to you by next week, in my view.

Senator INOUYE. Mr. Chairman, would that be all right with you?
45

Well, with that assurance we will look forward to receiving your

work product in September.

[Whereupon, at 11:15 a.m. the committee was adjourned, to reconvene at the call of the Chair.]

(47)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF DIRK KEMPTHORNE, GOVERNOR, IDAHO

Mr. Chairman and distinguished members of the committee, it is with great pride

that I submit this testimony in support of your consideration of S. 2605, the Snake

River Water Rights Act of 2004.

This bill is the result of a monumental collaborative effort by the State of Idaho

with the Nez Perce Tribe, the Bush administration, our resource industries, and our

water user community.

In Idaho, when you can have the intensity of the negotiations we have had involving water over the last few years and leave the table with a deep, and abiding respect for each other, that is a great accomplishment.

We certainly have a great respect for the Nez Perce Tribe as our partners in this

process, and this agreement represents a remarkable success story.

We announced the agreement on May 15, 2004, and before describing what the

agreement means to us, let me provide some background on how we arrived at this

moment.

In 1985, the Idaho Legislature laid out a process to adjudicate water rights claims

in the Snake River Basin, known as the Snake River Basin Adjudication, or the

SRBA.

The first claims in the SRBA were filed 2 years later.

As you can imagine, adjudicating—or resolving—all of the competing interests for

Idaho water has been a monumental task.

In the beginning, there were nearly 150,000 water rights in question. There were

contested claims in 38 of Idaho’s 44 counties.

After some early jurisdictional issues were resolved in the SRBA, Idaho is now

on the verge of adjudicating the water rights of many of our State’s. most important

water users, including several of our Native American governments.

Over those years, much work has been done.

With renewed emphasis, more than 80 percent of the claims were resolved by

early 2002, the majority of which have taken place in the last 5 years.

Add to the mix the settlement of the claims of the Nez Perce Tribe, and we can

truly see the light at the end of the tunnel for finishing up this important water

adjudication which has received national attention.

The beginning of the water rights settlement now before your committee began

in 1993, when the Nez Perce Tribe filed its claims as part of the adjudication process.When I became Governor over 5 years ago, one of my priorities was to tackle

these claims head-on and come to a much-needed resolution of them through the

SRBA.

I directed my Office and the Attorney General’s Office to begin negotiations in

earnest with all parties.

When we began, our goal was simple.

In the context of negotiating a settlement for the Nez Perce Tribe’s water rights,

we challenged ourselves to develop a framework that would provide protection not
48

only for the tribe, but for our most significant water user interests that are impacted by any adjudication of water in our State.

My directive to the State’s negotiators to resolve these claims was clear.

Any resolution had to:

• Maintain State sovereignty;

• Protect State water rights; and

• Protect State water law by resisting any federally reserved water rights.

After 5 years of back-and-forth and, frankly, sometimes intense negotiations, we

reached an agreement that accomplishes all those goals.

Water is the lifeblood of Idaho, and harnessing this valuable resource has allowed

our State to prosper.

The major interest protected in S. 2605 Idaho for is water.

There is no more important issue to the future of our State than water, and this

legislation represents one of the single most critical milestones in our State’s 114-

year crusade to control its water.

What we achieved in this agreement is:

• Sovereignty;

• Certainty; and

• Opportunity for Idaho and her stakeholders to chart their own destiny under

the Endangered Species Act.

This is as it should be.

This agreement protects Idaho’s sovereignty by maintaining our system of water

law and our existing water rights, which is a process familiar to this committee in

traditional water rights settlements.

It provides certainty for the Nez Perce Tribe by resolving their water rights, as

well as certainty for our Idaho water user community and important stakeholders

in our natural resource economy because of the protections contained in the agreement for the next 30 years.

It provides opportunity by setting forth a new way of going about protecting endangered species while preserving access to State and private timber lands for our

resource-based industries and the rural communities that depend on Idaho’s forests.

Importantly, almost 200 million dollars will be provided to the State, Tribe, and

Federal agencies to implement the agreement.

The promise of this agreement is that the farmer in Rexburg, ID will know that

he won’t lose water that he was counting on to irrigate his crops for decades to

come.

The logger in Orofino knows he’ll have access to State or private timber lands to

provide a livelihood for his family, but under a negotiated framework that protects

important fish and wildlife.

And the Port of Lewiston will remain a viable gateway to the world for Idaho

products for the foreseeable future.

Many individuals and groups have devoted countless hours to get where we are

today.

This process has spanned four administrations in Idaho, and two administrations

in the White House.

The State of Idaho, the Nez Perce Tribe, numerous Federal agencies, water user

organizations, including the committee of Nine, the Federal Claims Coalition, and

some of our State’s largest and most important irrigation districts came to the

table—many times in my office—to overcome their differences and achieve a solution that’s best for the entire State.

I know that as you review the agreement you are asked to approve through this

legislation, you will find that it could very well be a national model for future settlements of this type.

Now that we have agreed to these terms, there is still more work ahead of us.

This agreement requires your approval.

We are working closely with Senators Craig and Crapo, and I look forward to

partnering with them as this legislation moves through Congress.

State legislation is also needed, and I intend to have a package of bills drafted

and ready for the next session of the Idaho Legislature.

The Nez Perce Tribal government also needs to ratify the agreement.

Once those actions are completed, all parties will seek approval by the SRBA

court.

Mr. Chairman and members of the committee, this legislation is of no small significance for the State of Idaho and for State, Federal, and tribal government-togovernment relations.
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When we announced the agreement on May 15 in Boise, I paused and observed

the parties who joined us on that day.

I saw them enjoying the moment and each other in celebration of what was

achieved through this agreement.

These were parties who were once adversaries.

I thought then as I do now that the alternative—several more years of litigation

with the prospect that the ultimate outcome could be resolved by the U.S. Supreme

Court—was no alternative at all.

I want to thank Chairman Johnson and his predecessor Sam Penny for their leadership, as well as the commitment from the Nez Perce Tribe to proceed with this

settlement.

I greatly appreciate Idaho’s water users and countless others who agreed that

working together for a solution was a better outcome than litigation and uncertainty.

I want to thank the dedication of the Bush administration; Secretary Norton and

her team, including Ann Klee; also John Keys, Commissioner of the Bureau of Reclamation; Bob Lohn of NOAA Fisheries; Clive Strong from the Idaho Attorney General’s Office as well as Michael Bogert, Jim Yost, and Jim Caswell from my Office.

Mr. Chairman and distinguished members, I am grateful for the opportunity to

describe for you what we think is one of the most exciting developments in the Indian water rights area in our country.

Again, I am proud of what we have accomplished and the partnerships that have

developed as a result of this process.

We know that the next few weeks bring great challenges if we are to succeed in

this legislative session of Congress.

But with great challenges come great opportunities.

I look forward to working with you in the days ahead to provide you and your

staff with the information you need to help us achieve the promise of this agreement.

Thank you.

PREPARED STATEMENT OF ROGER D. LING ON BEHALF OF FEDERAL CLAIMS

COALITION UPPER SNAKE RIVER WATER USERS

It is an honor and pleasure to appear today before the Senate Committee on Indian Affairs as a representative of water users in the upper Snake River plain of

Southern Idaho in support of S. 2605. A brief review of the efforts of water users

in the upper Snake River plain may be helpful to obtain a proper perspective of my

comments. In 1987, the State of Idaho commenced what is known as the Snake

River Basin Adjudication [SRBA], a general river adjudication of the entire watershed of the Snake River from where it enters the State from Wyoming on the east

to where it leaves the State near Lewiston, ID on the west. Under this general adjudication, claims were required to be filed by all water users claiming a right to divert or use water from the Snake River and its tributaries, as well as claims to any

reserved water rights by the Federal Government and Indian tribes within the

State, including the Nez Perce Tribe. As the result of claims filed in the SRBA by

the Federal Government in its own night and as trustee for the Nez Perce Tribe,

a group of claimants in the SRBA consisting primarily of irrigation districts, canal

companies, water districts and advisory committees of water districts formed a ‘‘Federal claims coalition’’ to address Federal and Nez Perce Tribal claims. In July 1998,

claimants represented by the Federal claims coalition, State of Idaho, United States,

and Nez Perce Tribe tentatively agreed to proceed with a mediation of Federal and

tribal claims. The mediation was ultimately ordered by the District Court of the

Fifth Judicial District of the State of Idaho, in and for the county of Twin Falls,

which had been designated as the SRBA Court. Mediation ultimately culminated in

a ‘‘term sheet’’ dated April 20, 2004, which is the subject matter of S. 2605.

The full significance of the Mediator’s Term Sheet and the interests of the Federal

claims coalition may not be fully appreciated without some understanding of the

Snake River and the interests of water users making a claim to use of the Snake

River and its tributaries.

The Snake River basin is general divided into two segments, the first being that

portion of the Snake River and its tributaries above Milner Dam near Twin Falls,

Idaho, which is a diversion structure used to divert all of the Snake River not previously diverted upstream by senior appropriators. Anadromous fish have never existed in this portion of the Snake River. There are approximately 1,717,580 irrigated

acres above this point, which include acres irrigated with ground water which is

hydrologically connected to the Snake River. There are approximately 1,042,460
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acres irrigated from the Snake River and its tributaries below Milner Dam with diversions primarily from the Snake River and the Boise, Payette and Weiser River

tributaries. As a part of the significant agricultural development relying upon the

Snake River and its tributaries, there has been developed active storage facilities

of approximately 7 million acre-feet, 6.3 million acre-feet of which is used for irrigation. Unfortunately, this storage space does not fill each and every year and substantial shortages can and do occur in times of drought similar to the drought that

we have experienced over the last 5 years. It is therefore readily apparent that the

agricultural community depending upon water for irrigation has significant and real

concerns when there are additional claims made to the use of the water they have

appropriated.

The significant appropriation of the Snake River resulting in zero (0) flows at Milner Dam does not tell the whole story. The Snake River begins to replenish itself

below Milner from spring waters known as the Thousand Springs reach. As the result of these inflows to the river, the Snake River is soon replenished to a flow of

approximately 5,000 cubic feet per second (cfs), and the flow increases to approximately 10,000 cfs at the Weiser gauge which is generally considered to be below the

last significant diversions from the upper Snake River for irrigation.

Substantial litigation has occurred in the SRBA involving Federal and tribal

claims to reserved water rights. It has become apparent to all concerned that negotiated settlements is the preferred method for resolving these claims, both from a

financial perspective and for reaching finality and certainty in the outcome. In mediation of the Federal and tribal claims however, it became apparent that a settlement of these claims would not necessarily result in finality as to the claims to the

use of water of the Snake River, as additional demands could anise under the Endangered Species Act [ESA] and Clean Water Act, for which no claims would be

filed in the adjudication. Through the significant efforts of all parties concerned and

their committed cooperation and desire to reach a resolution of these issues, the Mediator’s Term Sheet was ultimately agreed to.

Under the Snake River flow component of the Mediator’s Term Sheet, it was

agreed to by all parties, including water users represented by the Federal claims

coalition, that the minimum instream flows established by the Swan Falls Agreement would be decreed in the SRBA to the Idaho Water Resource board. These minimum instream flows of 3900 cfs average daily flow from April 1 to October 31 and

5600 cfs average daily flow from November 1 to March 31 were affirmed to protect

an instream power water right senior to all rights acquired after July 1, 1985. It

was also agreed in the Mediator’s Term Sheet that a term-of-the-agreement flow

augmentation program would be implemented following in most respects the flow

augmentation program that had been implemented, which allows for water to be

leased on a willing lessor-lessee basis and for water right acquisitions to provide

flow augmentation of up to 427,000 acre-feet per year from the upper Snake River.

Many terms of the flow augmentation program to be established are contained in

the Mediator’s Term Sheet. It was further agreed that biological opinions will be

issued for the term of the agreement (30 years) which will provide incidental take

coverage, if necessary, for all Federal actions and related private actions, including

Bureau of Reclamation [BOR] action in the upper Snake River and related private

depletionary effects as they may affect listed anadromous fish and listed resident

species. The Mediator’s Term Sheet provides that, to the maximum extent practicable, the United States shall be responsible for managing water acquired or

rented pursuant to the agreement to meet needs of all species covered by the agreement, and in a manner that will not result in the violation of any permit, applicable

water quality rule and regulation or other requirements of the Clean Water Act, and

in a manner that will not cause jeopardy to other species in the State of Idaho or

result in significant adverse impacts to recreational uses of the water in the Snake

River and its tributaries within the State of Idaho. The Mediator’s Term Sheet describes the proposed Federal action for which consultation will take place under the

Endangered Species Act. On the other hand, it provides that in the event that the

services fail to issue no-jeopardy biological opinions and to provide incidental-take

coverage, or if the services require terms or conditions inconsistent or not contained

in the upper Snake component, this component of the agreement shall be terminated upon written notice by the State or private parties to the agreement.

Finally, the Federal agencies which are parties to the agreement may seek additional Endangered Species Act flow measures from the Snake River basin upon certain conditions that are set forth in the agreement. It is not conceded by the State

of Idaho nor the private parties to the Snake River Flow Component of the agreement that, by entering into the agreement, the flows identified will benefit the listed

species, that BOR operations in the upper Snake require ESA consultations, that

BOR operations in the upper Snake are subject to modification to meet ESA require-
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ments or concerns, or that diversions, storage or use of water in the State of Idaho

are subject to modification to meet ESA requirements or concerns.

Of equal importance to the Federal claims coalition are the general conditions applicable to the entire agreement. Under these general conditions, certain Endangered Species Act and Clean Water Act, assurances are provided under certain conditions, and, the Nez Perce Tribe and the United States waive and release all claims

to water rights within the Snake River basin in Idaho, injuries to such water rights,

and injuries to the tribe’s treaty rights, except to the extent provided in the Mediator’s Term Sheet.

I have not attempted to address all of the significant issues addressed by the Mediator’s Term Sheet, nor have I attempted to identify all terms that are extremely

important to the Federal claims coalition. It is believed by the Federal claims coalition and all of the parties represented by the coalition that the Mediator’s Term

Sheet is an appropriate settlement of claims in the SRBA, and provides water users

in the upper Snake River in the State of Idaho with some degree of certainty and

finality in regard to future claims under the Endangered Species Act and Clean

Water Act. It is for these reasons that we urge the passage of S. 2605 and the early

implementation of the provisions in that bill.

Again, I would like to thank the committee for the opportunity to present our

views on S. 2605, and I am willing to answer questions to the extent of my ability

and knowledge.

PREPARED STATEMENT OF JAMES S. RILEY, PRESIDENT, INTERMOUNTAIN FOREST

ASSOCIATION

Mr. Chairman and members of the committee, I am James S. Riley, president and

CEO of Intermountain Forest Association [IFA] headquartered in Coeur d’Alene, ID.

Our association represents forest land owners and forest businesses of Idaho.

IFA has a long history of developing and implementing solution-oriented policies

for forest stewardship and conservation of our Idaho’s remarkable and abundant forest lands. In addition, IFA provides expertise and creative opportunities for member

landowners and businesses to develop cooperative relationships with other interests

in forest policy.

I am honored to be here today to express our support for S. 2605, and present

our views on this unique and historic agreement among the diverse interests of

Idaho and the Nez Perce Tribe concerning water rights, fisheries, and forestry in

Idaho. The agreement we have reached, among ourselves and with the Federal Government, is a remarkable accomplishment. All of the members represented by IFA—

are proud of our role in securing this accomplishment. We are also proud of the successful collaboration we have formed with the other Idaho organizations and interests represented at this hearing today.

The legislation before this committee is the product of many years of work, much

innovation, and much compromise by all involved. S. 2605 includes the essential legislative components of a broader Agreement referred to by sec. 4 the legislation.

Other parts of the agreement will be accomplished administratively. Overall the

Agreement resolves a long standing dispute over the water, fisheries and related resources of our state. This Agreement involves private, tribal, state, and Federal Government interests.

This Agreement is unique—both in terms of its substance and in terms of the diverse coalition of interests which have come together on the terms. As it is implemented it will bring significant benefits to the public wildlife resources, stability to

the private sector by relieving the risk of continuous litigation, and support for the

Nez Perce tribal fisheries programs. With the support of Congress, implementation

of this Agreement and its component programs will allow land owners, resource

managers for all sectors, and private and public interests to focus their energies and

investments on management of our natural resources in a manner which brings significant benefits to fisheries resources, and allows for the continuation of free enterprise and resource economies of our State.

Others on this panel will discuss the important water user, tribal, and State elements of this proposal. I will focus my attention on the forestry-fisheries provisions,

which are an integral part of this overall agreement.

The geographic areas covered by this agreement are the vast Clearwater and

Salmon River basins of Idaho. This is the heart of our State and includes more than

20 million acres of land, of which 65 percent is forested. Seventy-five percent of the

Clearwater Basin forest land, and nearly all of the Salmon Basin forests, are managed by the Federal Government as National Forests. Yet within the Clearwater

basin there are 1 million acres of private forest lands, and an additional 336,000
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acres of forest managed by the State of Idaho. The private forest lands are owned

by both large commercial forest landowners, managed for sustained production of

timber and related resources, and by small non-industrial landowners managed for

a variety of purposes but commonly including timber harvest where this use meets

the landowners’ personal objective.

Forest management in Idaho is among the most environmentally and economically advanced anywhere in the world. All forestry activities are regulated by the

Idaho Forest Practices Act which sets mandatory standards for all forest operations,

including related activities such as road construction, road maintenance, and reforestation. The Idaho Forest Practices Act [FPA] standards are established by a board

of experienced natural resource management professionals for the explicit purpose

of ensuring forest stewardship and the long term sustainability of our forests, land,

and water.

Forestry operations in Idaho are carefully and continuously monitored to ensure

absolute compliance with the FPA standards, and to collect data for continuous improvement of those standards. The State of Idaho conducts periodic effectiveness

monitoring with the Idaho Department of Environmental Quality and includes the

Federal agencies responsible for certain wildlife and fisheries species. Data from

this monitoring demonstrate and ensure that forestry in Idaho protect the fish species listed as threatened or endangered under the Endangered Species Act.

This Agreement is not about providing fundamental threshold protections for

these species as required by law, because that requirement is being fully met by existing practices. This Agreement is all about providing a program for forest owners

to provide additional support for listed fish species, beyond the minimums required

by law.

The forestry-fisheries component of the Agreement uses the Idaho Forest Practices Act framework as a base for providing additional forestry measures to benefit

fish in forested habitats. The additional measures are made available to voluntarily

enrolling landowners who will then benefit from participation in the habitat improvement programs authorized by this agreement, secure protection from subsequent litigation over management of ESA listed fish species, and consequently add

value to their lands. The agreement terms outline specific provisions agreed to by

forestry interests, the State of Idaho, and Federal fisheries experts in the Department of the Interior and NOAA Fisheries, as providing additional significant opportunities, beyond those minimally required by the ESA, to benefit fish species in forested habitats.

Briefly there are four essential elements of the forestry-fisheries portion of this

agreement.

First, and foremost, it is voluntary for private landowners. It is voluntary because

it establishes standards for forest management which go well beyond the requirements of current law. Consequently land owners are provided an opportunity and

incentives to participate. The initial expectation, based on preliminary feed-back

from potentially enrolling landowners, is that this program will attract broad participation.

Second, there are specifically articulated standards for:

No. 1. Forestry operations in riparian areas;

No. 2. Road construction, particularly for stream crossings.

These standards are described in detail in the Agreement term sheet and will be

mandatory for any voluntarily enrolling landowner.

Third, there are recognized processes for assessing existing forest facilities and infrastructures that are potentially limiting fish productivity, and mechanisms to replace or improve these limiting conditions when, identified.

Last, there are agreed upon ‘‘adaptive management’’ processes to continuously improve both our collective understanding of the interaction between forestry and fisheries, and to improve the application of the management practices.

Over time the expectation is for wide-spread enrollment from Idaho’s private forest landowners, both large and small, as they come to understand the opportunities

to enhance fish species, consistently with the fundamental objectives for which they

own the land, and to gain the benefits afforded by this agreement. Today, private

forestry interest in enhancing ESA fish populations is severely limited due to the

increased exposure to litigation over alleged future harm to the very species a landowner helps promote.

Implementing the specific elements of the Agreement’s forestry-fisheries component is being, accomplished administratively, using the current authorities of sec.

6 of the Endangered Species Act, and the State authorities provided under the

Idaho Forest Practices Act and related Idaho law. However, S. 2605 is needed for

two important reasons. First, forestry is just one part of this multi-party, complex

Agreement. S. 2605 gives important recognition to the entire agreement, and au-
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thorizes essential non-forestry components. For the fall benefits of the forestry-fisheries program to be realized, this program needs to be accomplished within the context of all the other components this Agreement, including those authorized by S.

2605.

Second, the funding authority established by this legislation will be available for

qualifying forest habitat projects. The habitat improvement funding is essential to

accomplish existing fish-limiting infrastructure improvements, and to maximize support for broad voluntary landowner participation.

Senators, S. 2605 will authorize important programs which benefit both the people of Idaho and the Nez Perce Tribe, but also is nationally justified as it provides

essential support to species recognized as threatened or endangered under the Endangered Species Act. It is born by the unique multi-party agreement described in

this hearing today. I am honored to be part of the Coalition which is before you

today. IFA strongly and fully supports this Agreement and we urge its timely consideration and passage by this Congress.
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