a

GAO

United States General Accounting Office

Report to Committee on Indian Affairs, 

U.S. Senate

June 2004 COLUMBIA RIVER 

BASIN

A Multilayered 

Collection of 

Directives and Plans 

Guides Federal Fish 

and Wildlife Activities

GAO-04-602
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Highlights of GAO-04-602, a report to the 

Committee on Indian Affairs, United States 

Senate 

June 2004

COLUMBIA RIVER BASIN 

A Multilayered Collection of Directives 

and Plans Guides Federal Fish and 

Wildlife Activities 

Federal responsibilities for protecting, mitigating, and enhancing fish and 

wildlife resources in the basin, as well as involving the tribes in the process, 

are defined by a multi-layered collection of laws, treaties, executive orders, 

and court decisions. Nationwide, basin-specific, and agency mission-specific 

laws create responsibilities for federal agencies to mitigate the impacts of 

federal activities that could potentially harm fish, wildlife, and their habitat. 

For example, the Endangered Species Act establishes nationwide 

responsibilities for agencies to protect listed species, while the Northwest 

Electric Power Planning and Conservation Act (Northwest Power Act) 

establishes responsibilities in the basin to mitigate the impacts of 

hydropower development, and each agency has mission-related 

responsibilities to fish and wildlife, such as the Forest Service’s 

responsibilities under the National Forest Management Act. Regarding 

tribes, federal agencies must consult and collaborate with Indian tribes on 

fish and wildlife activities that may impact tribal rights established under 

various treaties and executive orders. Federal responsibilities and activities 

under these laws, treaties, and executive orders have been defined and 

clarified over the years through numerous court decisions. 

Federal agency fish and wildlife activities in the basin are guided by 

numerous plans and programs, but the majority of fish and wildlife activities

are driven by the Northwest Power Act and the Endangered Species Act. 

Under the Northwest Power Act, the Columbia River Basin Fish and Wildlife 

Program addresses all fish and wildlife impacted by the Federal Columbia 

River Power System, and under the Endangered Species Act, agencies are 

guided by the biological opinions developed by the National Marine 

Fisheries Service and the U.S. Fish and Wildlife Service for the protection of 

threatened and endangered species, as well as two other related 

collaborative plans. Agency participation in these key efforts varies widely, 

from mandatory funding of fish and wildlife activities to voluntary 

collaboration on the design of activities, but interagency collaboration is 

essential to successful implementation of these activities. In addition, other 

laws and specific agency missions drive numerous other collaborative and 

individual fish and wildlife activities. 

We provided copies of our draft report to the Departments of Agriculture, 

Commerce, Defense, the Interior, as well as Bonneville and the 

Environmental Protection Agency. Bonneville and the Departments of 

Agriculture and Commerce provided official written comments. The 

comments were generally technical in nature and we made changes to the 

report, where appropriate. The Department of Defense and the 

Environmental Protection Agency had no comments on the report. The 

Department of the Interior did not provide comments in time to be included 

in this report. 

Numerous federal agencies 

conduct water, power, or resource 

management activities affecting the 

fish and wildlife of the Columbia 

River Basin, as well as the 13 tribes 

residing there. These agencies, 

such as the Bonneville Power 

Administration (Bonneville), Army 

Corps of Engineers, and Forest 

Service, and regulatory agencies, 

such as the National Marine 

Fisheries Service, are also 

responsible for protecting, 

sustaining, and enhancing fish and 

wildlife resources in the basin and 

involving the tribes in the process. 

Recently, Bonneville’s financial 

position deteriorated significantly, 

and some tribes in the basin 

challenged Bonneville’s actions 

modifying funding of fish and 

wildlife activities in federal court. 

In this context, GAO agreed to (1) 

identify and describe the laws, 

treaties, executive orders, and 

court decisions that define federal 

responsibilities to perform 

activities benefiting fish and 

wildlife in the basin and involve the 

tribes, and (2) describe the plans 

and programs that guide these 

respective fish and wildlife 

activities. In accordance with our 

policy to refrain from addressing 

matters that are in litigation, GAO 

did not examine any issues that are 

before the court. 
Page i GAO-04-602 Columbia Basin Fish and Wildlife Activities

Contents

Letter 1

Results in Brief 3

Background 4

A Multilayered Collection of Directives Defines Federal 

Responsibilities to Fish, Wildlife, and Tribes in the Columbia River 

Basin 10

Multiple Plans and Programs Guide Federal Fish and Wildlife 

Activities in the Basin 18

Agency Comments and Our Evaluation 32

Appendixes

Appendix I: Scope and Methodology 34

Appendix II: Laws, Treaties, and Executive Orders Guiding Agency 

Activities Affecting Columbia River Basin Fish and 

Wildlife 36

Appendix III: Laws and Executive Orders Guiding Agency Activities 

Affecting Columbia River Basin Tribes 44

Appendix IV: Court Decisions Guiding Agency Activities Affecting 

Columbia River Basin Fish, Wildlife, and Tribes 46

Appendix V: Plans and Programs Implemented by Federal Agencies to 

Manage Columbia River Basin Fish and Wildlife Activities 49

Appendix VI: Comments from the Bonneville Power Administration 52

Appendix VII: Comments from the Department of Agriculture 54

Appendix VIII: Comments from the Department of Commerce 56

Appendix IX: GAO Contacts and Staff Acknowledgments 59

GAO Contacts 59

Acknowledgments 59

Tables Table 1: The 13 Columbia River Basin Indian Tribes, Reservation 

Size, and Enrollment 6

Table 2: Treaties Establishing Reservations and Reserving Hunting 

and/or Fishing Rights of Six Columbia River Basin 

Tribes 14

Table 3: Executive Orders Establishing Reservations for Six 

Columbia River Basin Tribes 15
Contents

Page ii GAO-04-602 Columbia Basin Fish and Wildlife Activities

Table 4: Nationwide Laws Guiding Agency Activities Affecting 

Columbia River Basin Fish and Wildlife 36

Table 5: Basin-specific Laws Guiding Agency Activities Affecting 

Columbia River Basin Fish and Wildlife 39

Table 6: Mission-specific Laws Guiding Agency Activities Affecting 

Columbia River Basin Fish and Wildlife 41

Table 7: Treaties Guiding Agency Activities Affecting Columbia 

River Basin Fish and Wildlife 42

Table 8: Executive Orders Guiding Agency Activities Affecting 

Columbia River Basin Fish and Wildlife 43

Table 9: Laws Guiding Agency Activities Affecting Columbia River 

Basin Tribes 44

Table 10: Executive Orders and Presidential Memorandum Guiding 

Agency Activities Affecting Columbia River Basin 

Tribes 45

Table 11: Court Decisions Guiding Agency Activities Affecting 

Columbia River Basin Fish and Wildlife 46

Table 12: Court Decisions Guiding Agency Activities Affecting 

Columbia River Basin Tribes 47

Table 13: Plans and Programs That Guide Federal Fish and Wildlife 

Activities in the Columbia River Basin 49

Figures Figure 1: Map of the Columbia River Basin 5

Figure 2: Landholders in the Columbia River Basin 8

Figure 3: Federal and Tribal Collaboration on Key Fish and Wildlife 

Plans and Programs Driven by the Northwest Power Act 

and the Endangered Species Act 20

Figure 4: Federal and Tribal Collaboration on Selected Fish and 

Wildlife Plans and Programs Driven by Other Directives 

and Agency Missions 27
Contents

Page iii GAO-04-602 Columbia Basin Fish and Wildlife Activities

Abbreviations

BIA Bureau of Indian Affairs

BLM Bureau of Land Management

EPA Environmental Protection Agency

ESA Endangered Species Act

FCRPS Federal Columbia River Power System

FWS U.S. Fish and Wildlife Service

NMFS National Marine Fisheries Service

NRCS Natural Resources Conservation Service

USGS U.S. Geological Survey

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Page 1 GAO-04-602 Columbia Basin Fish and Wildlife Activities

United States General Accounting Office

Washington, D.C. 20548

A

June 4, 2004 Letr

The Honorable Ben Nighthorse Campbell

Chairman

The Honorable Daniel K. Inouye

Vice Chairman

Committee on Indian Affairs

United States Senate

The Columbia River Basin encompasses approximately 258,000 square 

miles of mountains, forests, rangeland, and coastline extending 

predominantly through the Western states of Washington, Oregon, Idaho, 

and Montana and into Canada. Although the basin is home to an abundance 

of fish and wildlife, some species are in danger of extinction, in part, 

because of the extensive hydropower development of the Columbia River 

and its tributaries. Endangered species include fish, such as some species 

of salmon and steelhead; birds, such as the marbled murrelet; and certain 

species of caribou, deer, and rabbit. The basin is also home to 13 Indian 

tribes, some of which have treaties with the United States, dating from the 

mid-1800s, that explicitly recognize hunting and fishing rights. The tribes 

rely on the fish and wildlife of the basin for sustenance and to maintain 

their cultural traditions.

Numerous federal agencies conduct activities within the basin that affect 

the fish and wildlife of the basin, as well as the tribes. For example, the 

Bonneville Power Administration (Bonneville), the U.S. Army Corps of 

Engineers (Corps), and the Department of the Interior’s Bureau of 

Reclamation (Reclamation) manage and operate the Federal Columbia 

River Power System, composed of 31 power-generating dams on the 

Columbia River and its tributaries. Bonneville collects the revenues from 

the Federal Columbia River Power System and uses a portion of those 

revenues to fund many of the fish and wildlife activities in the basin. The 

Department of Agriculture’s Forest Service manages 81,000 square miles of 

forest in the basin, and Interior’s Bureau of Land Management manages 

33,000 square miles of rangeland. 

Along with their primary water or land management responsibilities, these 

agencies, as well as regulatory agencies such as the National Oceanic and 

Atmospheric Administration’s National Marine Fisheries Service and the 

Environmental Protection Agency, are responsible under various laws, 

treaties, executive orders, and court decisions for protecting, mitigating, 

and enhancing fish and wildlife resources in the basin, as well as involving 
Page 2 GAO-04-602 Columbia Basin Fish and Wildlife Activities

the tribes in the process. In addition, the Northwest Power and 

Conservation Council, established pursuant to the Pacific Northwest 

Electric Power Planning and Conservation Act (Northwest Power Act), 

develops the Columbia River Basin Fish and Wildlife Program to mitigate 

the effects of hydroelectric dams on basin wildlife.

Recently, Bonneville’s financial position deteriorated significantly, raising 

questions about its ability to meet its fish and wildlife responsibilities.1

Subsequently, several tribes in the basin challenged the legality of actions 

by Bonneville and the Northwest Power and Conservation Council 

regarding the funding of fish and wildlife activities in the United States 

Court of Appeals for the Ninth Circuit. In this context, we agreed to (1) 

identify and describe the laws, treaties, executive orders, and court 

decisions that define the responsibilities of Bonneville and other federal 

agencies to perform activities benefiting fish and wildlife in the Columbia 

River Basin and involve tribes in the process, and (2) describe the fish and 

wildlife plans and programs that Bonneville and other federal agencies 

have developed to guide these respective fish and wildlife activities. In 

accordance with our policy to refrain from addressing matters that are in 

litigation, we did not examine any issues that are before the court. In 

conducting our work, agency officials, tribal representatives, and others 

brought to our attention concerns about the implementation of various fish 

and wildlife plans and programs in the basin, and we have included 

information regarding these concerns in this report.

To address the objectives of this report, we updated information in our 

prior report on federal salmon and steelhead recovery activities in the 

Columbia River Basin.2

 To update the information and identify directives, 

plans, and programs for other fish and wildlife species, we met with 

officials of the 11 federal agencies identified in that report: Bonneville, the 

Forest Service and Natural Resources Conservation Service within the 

Department of Agriculture, the Bureau of Indian Affairs, Bureau of Land 

Management, U.S. Fish and Wildlife Service, U.S. Geological Survey and 

1

U.S. General Accounting Office, Bonneville Power Administration: Obligations to Fish 

and Wildlife in the Pacific Northwest, GAO-03-844T (Washington, D.C.: June 4, 2003), and 

Bonneville Power Administration: Long-Term Fiscal Challenges, GAO-03-918R

(Washington, D.C.: July 1, 2003).

2

U.S. General Accounting Office, Columbia River Basin Salmon and Steelhead: Federal 

Agencies’ Recovery Responsibilities, Expenditures, and Actions, GAO-02-612 (Washington, 

D.C.: July 26, 2002).
Page 3 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Reclamation within the Department of the Interior, the Corps within the 

Department of Defense, the National Marine Fisheries Service within the 

Department of Commerce, and the Environmental Protection Agency. We 

also met with representatives of 10 of the 13 Columbia River Basin tribes to 

confirm the directives identified by the 11 federal agencies and to 

determine how the tribes participate in the fish and wildlife plans and 

programs. Appendix I provides further details about the scope and 

methodology of our review. We conducted our work from August 2003 

through April 2004 in accordance with generally accepted government 

auditing standards.

Results in Brief Federal responsibilities for protecting, mitigating, and enhancing fish and 

wildlife resources in the Columbia River Basin, and for involving the tribes 

in the process, are defined by a multilayered collection of laws, treaties, 

executive orders, and court decisions. At the national level, federal laws 

such as the Endangered Species Act and the Clean Water Act create a 

responsibility for federal agencies to mitigate the impacts of agency 

activities that could potentially harm fish, wildlife, and their habitat. At the 

basin level, certain federal laws create agency responsibilities that are 

specific to the fish and wildlife within the basin. For example, under the 

Northwest Power Act, Bonneville, the Corps, and Reclamation must work 

together to mitigate the effects of the Federal Columbia River Power 

System on fish and wildlife. At the mission level, many agencies that 

operate within the basin have fish and wildlife responsibilities under laws 

that are unique to their own activities, such as the Federal Land Policy and 

Management Act of 1976 for the Bureau of Land Management and the 

National Forest Management Act for the Forest Service. At the tribal level, 

6 of the 13 tribes in the basin have treaty hunting and fishing rights, and 

various laws and executive orders provide that federal agencies are to 

consult and collaborate with Indian tribes on the management of fish and 

wildlife in the basin. Agencies have developed internal agency orders to 

implement this guidance. Federal responsibilities under these multilayered 

directives are continually being clarified through court decisions, and cases 

such as United States v. Oregon and United States v. Washington have 

confirmed tribal treaty fishing rights and the extent of those rights.

Multiple plans and programs guide agency fish and wildlife activities in the 

basin. Agencies design and implement these plans and programs both 

collaboratively and independently, but the majority of fish and wildlife 

activities are driven by the Northwest Power Act and the Endangered 

Species Act. The Columbia River Basin Fish and Wildlife Program, 
Page 4 GAO-04-602 Columbia Basin Fish and Wildlife Activities

developed pursuant to a requirement of the Northwest Power Act, outlines 

a collaborative strategy for protecting, mitigating impacts to, and 

enhancing fish and wildlife affected by the construction and operation of 

hydroelectric dams. The Northwest Power and Conservation Council 

spearheads the development and revision of the program. In addition to 

developing the program, the Council is also involved with developing plans 

for subbasins using watershed-level input from federal agencies, state and 

local governments, and tribes. Bonneville funds the implementation of the 

program through contracts with federal and state agencies, tribes, and 

private organizations, and funds the development of the subbasin plans. In 

response to the Endangered Species Act, biological opinions have been 

developed that set forth reasonable and prudent measures/alternatives to 

minimize the impacts of agency actions on certain fish species—salmon, 

steelhead, bull trout, and white sturgeon—affected by the federal 

hydropower system and other federal actions. The National Marine 

Fisheries Service and the U.S. Fish and Wildlife Service developed these 

biological opinions collaboratively. In addition, they have collaborated with 

other federal agencies on the development of the Basin-wide Salmon 

Recovery Strategy, which outlines a conceptual salmon recovery plan. 

Agencies also implement fish and wildlife plans and programs that are 

driven by agency-specific missions. For example, the Corps utilizes Project 

Management Plans to ensure that agency activities follow proper guidelines 

for protecting and allowing for fish passage through its hydropower 

projects on the Columbia River. 

Bonneville and the Departments of Agriculture and Commerce provided 

technical comments on this report and we made changes, where 

appropriate. The Department of Defense and the Environmental Protection 

Agency had no comments on the report. The Department of the Interior did 

not provide comments in time to be included in this report.

Background The Columbia River Basin, the nation’s fourth largest, extends through 

seven Western states—Oregon, Idaho, Montana, Nevada, Utah, Washington, 

and Wyoming—and into Canada. (See fig. 1.) Twelve major tributaries, the 

longest of which is the Snake River, feed the Columbia River. The basin 

contains over 250 reservoirs and about 150 hydroelectric projects, 

including 18 dams on the Columbia and Snake Rivers. 
Page 5 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Figure 1: Map of the Columbia River Basin

The basin is home to many species of fish and wildlife, some of which are 

listed under the Endangered Species Act (ESA) as threatened or 

endangered, in part as a result of the extensive hydropower development of 

the basin rivers. Endangered fish in the basin include certain species of 

salmon, steelhead, and white sturgeon; bull trout are listed as threatened. 

Threatened and endangered wildlife in the basin include birds such as the 

marbled murrelet and northern spotted owl, and other animals such as 

certain species of caribou, deer, lynx, and rabbit. The basin is also home to 

13 Indian tribes, which by treaty, executive order, or other authority, reside 

on reservation lands within the basin. As shown in table 1, nearly 45,000 

Source: U.S. Army Corps of Engineers.
Page 6 GAO-04-602 Columbia Basin Fish and Wildlife Activities

members are enrolled in the tribes with reservation lands in the basin. Fish 

and wildlife are of critical importance to these tribes, as the tribes rely on 

them for sustenance as well as preservation of their cultural traditions. For 

example, salmon are part of the spiritual and cultural identity of most of 

the basin’s tribes, and are frequently used in tribal religious services. 

Table 1: The 13 Columbia River Basin Indian Tribes, Reservation Size, and Enrollment 

Sources: U.S. Department of the Interior and U.S. Department of Commerce.

a

Includes Indian and non-Indian land.

b

Tribe members residing both on and off reservation lands in 2001.

Numerous federal agencies, including the following, conduct activities 

within the basin that affect fish and wildlife, as well as the Columbia River 

Basin Indian tribes. Many of these agencies are responsible for managing 

water resources, the power generated by hydroelectric projects, or land 

resources, such as forests, grazing lands, and wildlife refuges.

Tribe

Acreage encompassed within 

reservation boundariesa

Number of enrolled 

tribal membersb

Coeur D’Alene Tribe of the Coeur D’Alene Reservation, Idaho 345,000 1,493

Kootenai Tribe of Idaho 250 121

Nez Perce Tribe of Idaho 750,000 3,300

Shoshone-Bannock Tribes of the Fort Hall Reservation of 

Idaho 544,000 4,535

Confederated Salish and Kootenai Tribes of the Flathead 

Reservation, Montana 1,244,000 6,950

Shoshone-Paiute Tribes of the Duck Valley Reservation, 

Nevada 289,819 1,888

Burns Paiute Tribe of the Burns Paiute Indian Colony of 

Oregon 11,466 295

Confederated Tribes of the Umatilla Reservation, Oregon 172,140 2,140

Confederated Tribes of the Warm Springs Reservation of 

Oregon 643,570 3,831

Confederated Tribes of the Colville Reservation, Washington 1,400,000 8,842

Kalispel Indian Community of the Kalispel Reservation, 

Washington 4,629 329

Spokane Tribe of the Spokane Reservation, Washington 154,898 2,305

Confederated Tribes and Bands of the Yakama Reservation, 

Washington 1,372,000 8,624

Total 6,931,772 44,653
Page 7 GAO-04-602 Columbia Basin Fish and Wildlife Activities

• Bonneville Power Administration (Bonneville) provides power 

transmission services and markets the electricity generated by the 31 

Corps and Reclamation dams comprising the Federal Columbia River 

Power System (FCRPS). In doing so, it must provide treatment to fish 

and wildlife equitable to the other purposes for which the FCRPS is 

operated.

• U.S. Army Corps of Engineers (Corps) designs, builds, and operates civil 

works projects to provide electric power, navigation, flood control, and 

environmental protection. 

• Bureau of Reclamation (Reclamation) designs, constructs, and operates 

water projects for multiple purposes, including irrigation, hydropower 

production, municipal and industrial water supply, flood control, 

recreation, and fish and wildlife. 

• U.S. Forest Service (Forest Service) manages national forests and 

grasslands under the principles of multiple use and sustained yield, and 

ensures that lands will be available for future generations.

• Bureau of Land Management (BLM) administers public lands and 

subsurface mineral resources, and sustains the health, diversity, and 

productivity of public lands for the use and enjoyment of future 

generations. 

• U.S. Fish and Wildlife Service (FWS) manages wildlife refuges, 

conserves, protects, and enhances fish, wildlife, and plants, and 

implements the ESA for terrestrial species, migratory birds, certain 

marine mammals, and certain fish.

• Bureau of Indian Affairs (BIA) encourages and assists American Indians 

to manage their own affairs under the trust relationship with the federal 

government. It develops forestlands, leases assets on these lands, 

directs agricultural programs, protects water and land rights, and 

undertakes other responsibilities in cooperation with the tribes.

Together, these federal agencies and the 13 basin tribes manage over half of 

the portion of the Columbia River Basin located within the United States. 

The Forest Service and BLM manage about 81,000 square miles of forest 

and grasslands, and 33,000 square miles of rangeland, or about 37 percent 

and 15 percent of the basin’s U.S. land area, respectively. Reservation land 

totals about 5 percent. All other agencies combined manage about 3 
Page 8 GAO-04-602 Columbia Basin Fish and Wildlife Activities

percent of the U.S. portion of the basin. Figure 2 illustrates the federal and 

tribal land ownership patterns. 

Figure 2: Landholders in the Columbia River Basin

Note: Area shown within reservation boundaries includes both Indian and non-Indian land.

In addition to the water, power, and land resource management agencies, 

several other federal agencies have regulatory, resource protection, and 

research responsibilities in the basin.

Columbia River

Williamette River

Snake River

Colville

Indian Reservation

Yakama

Indian Reservation

Flathead

Indian Reservation

Nez Perce

Indian Reservation

Burns Paiute

Indian Colony

Warm Springs

Indian Reservation

Fort Hall

Indian Reservation

Coeur d'Alene

Indian Reservation

Duck Valley

Indian Reservation

Umatilla

Indian Reservation

Spokane

Indian Reservation

Kalispel

Indian Reservation

Kootenai

Indian Reservation

Washington

Montana

Idaho

Oregon

Columbia River Basin

Major Rivers

Tribal

BLM

Reclamation

Forest Service

FWS

Other Federal

Source: U.S. Fish and Wildlife Service.
Page 9 GAO-04-602 Columbia Basin Fish and Wildlife Activities

• National Marine Fisheries Service (NMFS) conserves, protects, and 

manages living marine resources so as to ensure their continuation as 

functioning components of marine ecosystems, and to afford economic 

opportunities. NMFS also implements the ESA for marine and 

anadromous (migratory fish such as salmon and steelhead) species.

• Environmental Protection Agency (EPA) protects human health and 

safeguards the natural environment by protecting the air, water, and 

land. It administers the Clean Water Act and Clean Air Act.

• Natural Resources Conservation Service (NRCS) assists farmers, 

ranchers, and other landowners in developing and carrying out 

voluntary efforts to protect the nation’s natural resources. 

• U.S. Geological Survey (USGS) conducts objective scientific studies and 

provides information to address problems dealing with natural 

resources, geologic hazards, and the effects of environmental conditions 

on human and wildlife health.

Along with their primary water, power, resource, and other management 

and regulatory responsibilities, these agencies are responsible under 

various laws, treaties, executive orders, and court decisions for protecting, 

mitigating, and enhancing fish and wildlife resources in the basin, as well as 

involving the tribes in the process. One of the main drivers of such 

activities is the Northwest Power Act, which provided for the 

establishment of the Northwest Power and Conservation Council. Under 

the act, the Council develops the Columbia River Basin Fish and Wildlife 

Program to mitigate the effects of hydroelectric dams on basin fish and 

wildlife, and Bonneville assists in implementation and is the principal 

source of funding for the program.

Bonneville recently experienced a substantial deterioration of its financial 

condition, in part because of drought conditions, rising costs of providing 

power, and lower than projected revenue from selling surplus power. For 

example, as we reported in July 2003, its end of year cash reserves fell from 

$811 million to $188 million from fiscal year 2000 to 2002.3

 Bonneville’s 

financial difficulties caused concern about its ability to meet its fish and 

wildlife funding responsibilities under the Northwest Power Act. The 

Yakama tribe filed two petitions in June 2003, and the Upper Columbia 

3

GAO-03-918R.
Page 10 GAO-04-602 Columbia Basin Fish and Wildlife Activities

United Tribes filed a petition in December 2003, in the United States Court 

of Appeals for the Ninth Circuit to review Bonneville’s budgeting, 

accounting, and contracting processes, and in the case of the Yakama, the 

Northwest Power and Conservation Council’s recommendations, regarding 

fish and wildlife funding. As of now, the two Yakama filings and the Upper 

Columbia United Tribes filing are being discussed in separate settlement 

negotiations. In accordance with our policy to refrain from addressing 

matters that are in litigation, we did not address the issues before the court 

in this report.

A Multilayered 

Collection of 

Directives Defines 

Federal 

Responsibilities to 

Fish, Wildlife, and 

Tribes in the Columbia 

River Basin

Federal responsibilities for protecting, mitigating, and enhancing fish and 

wildlife resources in the basin, as well as involving the tribes in the process, 

are defined by a multilayered collection of laws, treaties, executive orders, 

and court decisions. Nationwide, basin-specific, and agency 

mission-specific laws create responsibilities for federal agencies to 

mitigate the impacts of their activities on fish, wildlife, and their habitat. In 

addition, various laws, treaties, executive orders, court decisions, and 

agency policies require agencies to consider the rights of tribes in the 

basin. Federal responsibilities and activities under these layers of 

directives have been defined and clarified over the years through numerous 

court decisions. Appendix II lists laws, treaties, and executive orders 

identified by federal agencies as guiding their fish and wildlife 

responsibilities in the basin. Appendix III lists laws, treaties, and executive 

orders identified by federal agencies as guiding their tribal responsibilities 

in the basin. Appendix IV lists court decisions that have helped define or 

clarify agency responsibilities to fish, wildlife, and tribes under these 

directives. Each appendix includes the citation for every law, treaty, 

executive order, and court case listed.

Agency Responsibilities Are 

Defined by Nationwide, 

Basin-specific, and 

Mission-specific Fish and 

Wildlife Directives

Federal agencies are responsible under nationwide, basin-specific, and 

agency mission-specific laws for mitigating the impacts of their activities 

that could potentially harm fish, wildlife, and their habitat. At the national 

level, federal environmental and fish and wildlife protection laws create 

broad responsibilities for federal agencies in addition to each agency’s 

mission-specific responsibilities. These laws guide the fish and wildlife 

activities of federal agencies nationwide, in some cases, under the 

oversight and enforcement authority of regulatory agencies such as EPA 

and NMFS. Federal agencies identified the following nationwide laws, 

among others, as guiding their fish and wildlife activities:
Page 11 GAO-04-602 Columbia Basin Fish and Wildlife Activities

• Clean Water Act—Authorizes EPA to establish effluent limitations and 

requires permits for the discharge of pollutants from a point source to 

navigable waters. EPA approves state and tribal limits for the maximum 

amount of a pollutant that a water body can receive and still meet water 

quality standards for specified purposes, including fish and wildlife.

• Endangered Species Act—Provides for the conservation and recovery 

of species of plants and animals that FWS and NMFS determine to be in 

danger or soon to become in danger of extinction.

• National Environmental Policy Act—Requires federal agencies to 

examine the impacts of proposed major federal actions significantly 

affecting the environment.

At the basin level, certain federal laws create agency responsibilities that 

are specific to the fish and wildlife there. These laws guide the fish and 

wildlife activities of agencies such as Bonneville, the Corps, and 

Reclamation that are to be conducted in conjunction with their water and 

power responsibilities within the basin. Federal agencies identified the 

following basin-specific laws, among others, as guiding their fish and 

wildlife activities:

• Pacific Northwest Electric Power Planning and Conservation Act 

(Northwest Power Act)—Provides for the formation of the Northwest 

Power and Conservation Council and directs it to develop a program to 

protect, mitigate, and enhance the fish and wildlife of the Columbia 

River Basin. Requires Bonneville’s administrator to use Bonneville’s 

funding authorities to protect, mitigate, and enhance fish and wildlife 

affected by the development and operation of the FCRPS and to do so in 

a manner consistent with the Council’s program while ensuring the 

Pacific Northwest an adequate, efficient, economical, and reliable 

power supply. 

• Fisheries Restoration and Irrigation Mitigation Act of 

2000—Directs the Secretary of the Interior to establish a program to 

implement projects, such as installation of fish screens and fish passage 

devices, to mitigate impacts on fisheries associated with irrigation 

systems in Idaho, Montana, Oregon, and Washington.

• Mitchell Act—Directs the Secretary of Commerce to carry on activities 

for the conservation of fishery resources in the Columbia River Basin.
Page 12 GAO-04-602 Columbia Basin Fish and Wildlife Activities

At the mission level, many agencies that operate within the basin have fish 

and wildlife responsibilities under laws that are unique to their activities. 

These laws guide the fish and wildlife activities of agencies such as the 

Forest Service, BLM, FWS, and BIA that are to be conducted in conjunction 

with their resource management responsibilities. The following laws were 

among the numerous mission-specific laws that federal agencies identified 

as guiding their fish and wildlife activities:

• National Forest Management Act—Mandates multiple uses for lands 

managed by the Forest Service to include outdoor recreation, range, 

timber, watershed, wildlife and fish, and wilderness purposes.

• Federal Land Policy and Management Act of 1976—Directs the 

Secretary of the Interior to develop and maintain land use plans using a 

systematic interdisciplinary approach to achieve the integrated 

consideration of physical, biological, and economic factors.

• National Wildlife Refuge System Administration Act of 

1966—Establishes the National Wildlife Refuge System and directs the 

Secretary of the Interior in the overall management of the refuge system 

to maintain the biological integrity, diversity, and environmental health 

of the system, and prepare a comprehensive conservation plan for each 

refuge.

• National Indian Forest Resources Management Act—Directs the 

Secretary of the Interior to undertake management activities on Indian 

forest lands with tribal participation.

Treaties and executive orders also establish federal agency responsibilities 

for fish and wildlife. Federal agencies identified two treaties guiding their 

fish and wildlife activities in the basin—the Columbia River Treaty, which 

defines the relationship between the United States and Canada concerning 

the operation of Columbia River dams and reservoirs, and the Pacific 

Salmon Treaty, which governs the harvest of certain stocks in the fisheries 

of Northwest states (including Alaska) and Canada. Federal agencies also 

identified three executive orders guiding their activities with regard to 

floodplain management, protection of wetlands, and protection of 

migratory birds. The most recent of these, Executive Order 13186, January 

10, 2001, titled Responsibilities of Federal Agencies To Protect Migratory 

Birds, directs executive agencies to take certain actions to further 

implement the Migratory Bird Treaty Act for the conservation of migratory 

birds and their habitats. Executive Order 11988, May 24, 1977, requires 
Page 13 GAO-04-602 Columbia Basin Fish and Wildlife Activities

certain actions related to floodplain management, and Executive Order 

11990 of the same date requires certain actions related to the protection of 

wetlands.

Various Laws, Treaties, and 

Executive Orders Require 

Agencies to Consider the 

Rights of Tribes

Laws, treaties, and executive orders create federal responsibilities to 

Indian tribes and guide federal agency activities that affect the tribes of the 

Columbia River Basin. Federal laws, including the following, create a 

responsibility for federal agencies to support tribal self-government, 

facilitate tribal participation in federal activities, and assist in the 

management of tribal resources.

• Indian Reorganization Act—Enacts measures to protect ownership 

of Indian lands, restore lands to tribal ownership, and grants rights of 

self-government to Indians.

• Indian Self-Determination and Education Assistance Act—Enacts 

measures that promote a policy of Indian self-determination by assuring 

maximum Indian participation in educational and other federal services 

to Indian communities, generally provided through the Departments of 

the Interior and Health and Human Services programs for Indians.

• Snyder Act—Authorizes appropriations and expenditures through BIA 

for the benefit; care; and assistance of Indians, such as education, 

health, and other purposes.

Treaties between the United States and six basin tribes document the 

agreements reached between the federal government and the tribes in 

exchange for ceding most of their ancestral lands. Federal agencies have a 

general trust responsibility to protect tribal rights reserved under these 

treaties. Typically, each treaty describes the boundaries of the tribal lands 

ceded, the boundaries of lands reserved for habitation by the tribe, 

payments to be made to the tribe, and certain rights of the tribe under the 

treaty, including specific hunting and/or fishing rights, as shown in table 2.
Page 14 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Table 2: Treaties Establishing Reservations and Reserving Hunting and/or Fishing Rights of Six Columbia River Basin Tribes

Source: GAO analysis.

a

Off-reservation hunting, fishing, and other rights were relinquished in a supplemental treaty of 

November 15, 1865.

Presidential executive orders were used by the U.S. government to reserve 

lands for six other Columbia River Basin tribes, as shown in table 3.4

Similar to treaties, these executive orders describe the lands reserved for 

habitation by the tribes, but unlike treaties, do not explicitly state each 

tribe’s right to fish and/or hunt. Nevertheless, the federal government has 

respected nontreaty rights to hunt and fish on tribal lands. 

Treaty Tribe Hunting and/or fishing rights

Treaty with the Wallawalla, Cayuse, etc. 

(12 Stat. 945) June 9, 1855

Confederated Tribes of the Umatilla Indian 

Reservation, Oregon

The exclusive right of taking fish in the streams 

running through and bordering the reservation 

and at all other usual and accustomed stations 

in common with citizens of the United States, 

and the privilege of hunting, gathering roots, 

and pasturing their stock on unclaimed lands 

in common with citizens. 

Treaty with the Yakama

(12 Stat. 951) June 9, 1855

Confederated Tribes and Bands of the 

Yakama Reservation, Washington

Treaty with the Tribes of Middle Oregon 

(12 Stat. 963) June 25, 1855a

Confederated Tribes of the Warm Springs 

Reservation of Oregona

Treaty with the Nez Perces 

(12 Stat. 957) June 11, 1855

Nez Perce Tribe of Idaho

Treaty with the Flatheads, etc. 

(12 Stat. 975) July 16, 1855

Confederated Salish and Kootenai Tribes 

of the Flathead Reservation, Montana

Treaty with the Eastern Band Shoshoni 

and Bannock (15 Stat. 673) July 3, 1868

Shoshone-Bannock Tribes of the Fort Hall 

Reservation of Idaho

The right to hunt on the unoccupied lands of 

the United States so long as game may be 

found thereon.

4

Unlike the other 12 Columbia Basin tribes, the Kootenai Tribe of Idaho has neither a treaty 

nor an executive order establishing reservation lands. The Kootenai Reservation in Idaho 

was established in 1894, consisting of allotments on the public domain.
Page 15 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Table 3: Executive Orders Establishing Reservations for Six Columbia River Basin 

Tribes

Source: GAO analysis.

a

The April executive order was superseded by a July 2, 1872, executive order that redefined the 

reservation boundaries. In a May 9, 1891, agreement, the Indians ceded about 1.5 million acres of the 

reservation, referred to as the “North Half”, to the United States. Under the agreement, the tribe 

retained the right to hunt and fish on those lands. Congress ratified the agreement in an act of June 21, 

1906, 34 Stat. 325, 377-8, and the Supreme Court upheld the hunting and fishing rights retained 

against state regulation in Antoine v. Washington, 420 U.S. 194 (1975). Although the 1891 agreement 

was not ratified until 1906, Congress opened up the North Half of the reservation for settlement in an 

act of July 1, 1892, 27 Stat. 62.

b

The reservation was subsequently dissolved in 1883; lands were purchased as a subsistence 

homestead in 1934, under Title II of the National Industrial Recovery Act of 1933.

c

Composed of lands reserved for Indians by an executive order of June 14, 1867.

d

A treaty of October 1, 1863, between the United States and the Western Bands of Shoshonee 

Indians, authorized the President to establish a reservation when deemed necessary, and the bands 

received an annuity as full compensation and equivalent for the loss of game and the rights and 

privileges conceded.

Three other executive orders, as well as a presidential memorandum, were 

identified by federal agencies as providing guidance in their 

intergovernmental relationships with tribes while performing their 

missions. 

• Executive Order 12866 (September 30, 1993), Regulatory 

Planning and Review—Establishes a program to reform and make 

more efficient the regulatory process, including making the process 

more accessible and open to the public. Provides that wherever feasible, 

agencies shall seek views of appropriate state, local, and tribal officials 

before imposing regulatory requirements that might significantly or 

uniquely affect them.

• Executive Order 12875 (October 26, 1993), Enhancing the 

Intergovernmental Partnership—Prohibits executive agencies, to 

the extent feasible, from promulgating any regulation not required by 

Executive

order date Tribe

April 9, 1872 a Confederated Tribes of the Colville Reservation, Washington

Sept.12, 1872b Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon

Nov. 8, 1873 c Coeur D’Alene Tribe of the Coeur D’Alene Reservation, Idaho

April 16, 1877d Shoshone-Paiute Tribes of the Duck Valley Reservation, Nevada

Jan.18, 1881 Spokane Tribe of the Spokane Reservation

March 23, 1914 Kalispel Indian Community of the Kalispel Reservation, Washington
Page 16 GAO-04-602 Columbia Basin Fish and Wildlife Activities

statute that creates a mandate upon a state, local, or tribal government, 

unless funding for the direct costs is provided or the agency consults 

with the affected government.

• Executive Order 13175 (November 6, 2000), Consultation and 

Coordination with Indian Tribal Governments—Requires executive 

agencies to respect Indian tribal self-governance and sovereignty, honor 

tribal treaty and other rights, and strive to meet the responsibilities that 

arise from the unique legal relationship between the federal government 

and tribal governments. Provides that each agency shall have an 

accountable process to ensure meaningful and timely tribal input in the 

development of regulatory policies that have tribal implications.

• Memorandum for the Heads of Executive Departments and 

Agencies (April 29, 1994), Government to Government Relations 

with Native American Tribal Governments—Requires, among other 

things, that executive agencies operate within a government to 

government relationship with federally recognized tribal governments; 

consult to the greatest extent possible with tribal governments before 

taking actions that affect tribal governments; and assess the impact of 

federal government plans, projects, programs, and activities on tribal 

trust resources and ensure that tribal rights and concerns are 

considered in developing them.

In addition to these executive orders, some federal agencies have internal 

orders and memorandums to guide their actions with tribes. For example, 

Secretarial Order 3206, jointly issued by the Secretary of the Interior and 

the Secretary of Commerce in 1997, clarifies the responsibilities of the 

departments, their agencies, offices, and bureaus when actions taken under 

the authority of the ESA affect or may affect Indian lands, tribal trust 

resources, or the exercise of tribal rights. The order acknowledges the trust 

responsibility and treaty obligations of the United States toward Indian 

tribes and tribal members and its government to government relationship 

in dealing with the tribes. Accordingly, activities of the Departments of 

Commerce and the Interior under the ESA should harmonize trust 

responsibilities, tribal sovereignty, and the agency missions, and strive to 

ensure that Indian tribes do not bear a disproportionate burden for the 

conservation of listed species. In its 1996 Tribal Policy, Bonneville outlines 

the foundation for its trust responsibility as a federal agency and provides a 

framework for a government to government relationship with the 13 

federally recognized Columbia River Basin tribes. In addition, FWS cited its 

Native American Policy of 1994, EPA cited its Tribal Consultation 
Page 17 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Framework of 2001, and NMFS cited the Department of Commerce’s 

American Indian and Alaska Native Policy of 1995, as providing agency 

guidance for meeting responsibilities to the tribes.

Court Decisions Define and 

Clarify Agency 

Responsibilities

Federal responsibilities and activities under laws, treaties, and executive 

orders are continually being defined and clarified through court decisions. 

These decisions provide guidance regarding the fish and wildlife activities 

of federal agencies such as Bonneville, the Corps, and NMFS. The following 

court decisions were among those that federal agencies identified as 

guiding their fish and wildlife activities in the basin:

• National Wildlife Federation v. National Marine Fisheries 

Service—Remanded NMFS’ 2000 biological opinion for ESA-listed 

salmon and steelhead in the Columbia and Snake Rivers to NMFS to 

resolve deficiencies identified by the court.5

• National Wildlife Federation v. United States Army Corps of 

Engineers—Remanded a decision regarding dam operations in the 

FCRPS to the Corps to address compliance with its obligations under 

the Clean Water Act.6

• Northwest Environmental Defense Center v. Bonneville Power 

Administration—Interpreted Bonneville’s responsibility to provide 

“equitable treatment” for fish and wildlife in conducting its power 

marketing activities under the Northwest Power Act.7

Court decisions have also defined and clarified the responsibilities of 

federal agencies to tribes, regarding both the extent of the federal 

government’s trust responsibilities to tribes under laws, treaties, and 

executive orders, and, more specifically, the extent of Columbia River 

Basin treaty tribes’ fishing rights. Regarding the extent of federal agency 

trust responsibilities for Indian tribes, case law defines the trust 

responsibility of the federal government to protect the rights of tribes as 

established in treaties and other agreements. For example, in Seminole 

5

No. CV 01-640-RE, 2003 WL 21077450 (D. Or. May 7, 2003).

6

132 F. Supp.2d 876 (D. Or. 2001).

7

117 F.3d 1520 (9th Cir. 1997).
Page 18 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Nation v. United States, the Supreme Court said that the government’s 

conduct in carrying out its obligations to Indians should be “judged by the 

most exacting fiduciary standards,”8

 and in Pyramid Lake Paiute Tribe of 

Indians v. Morton, a federal district court found that the Secretary of the 

Interior was required to assert his statutory and contractual authority “to 

the fullest extent possible” 9

 to fulfill the government’s trust 

responsibilities. 

Regarding Columbia River Basin tribes, federal agencies identified two 

court cases that have helped to identify and define treaty rights to fish for 

four treaty tribes—the Confederated Tribes of the Umatilla Reservation, 

Oregon; the Confederated Tribes and Bands of the Yakama Reservation, 

Washington; the Confederated Tribes of the Warm Springs Reservation of 

Oregon; and the Nez Perce Tribe of Idaho. In 1968, 14 Yakama tribal 

members filed suit to prevent the State of Oregon from interfering with 

their off-reservation treaty fishing rights. The court found that the state’s 

authority to regulate Indian fishing for conservation purposes was limited 

as treaties reserved to the Columbia River tribes an absolute right to a fair 

share of the fish produced by the Columbia River system.10 In the second 

case, United States v. Washington, a federal district court in Washington 

found that the Indians were entitled to the opportunity to take up to 50 

percent of the harvestable number of fish that can be taken.11

Multiple Plans and 

Programs Guide 

Federal Fish and 

Wildlife Activities in 

the Basin

Federal agency fish and wildlife activities in the basin are guided by 

numerous plans and programs, but the majority of fish and wildlife benefits 

are achieved through a few key collaborative plans, driven by the 

Northwest Power Act and the ESA. Under the Northwest Power Act, the 

Columbia River Basin Fish and Wildlife Program outlines a collaborative 

strategy for benefiting fish and wildlife affected by the development and 

operation of hydroelectric dams in the Columbia River Basin, and under 

the ESA, agencies are guided by biological opinions developed 

8

316 U.S. 286, 297 (1942).

9

354 F. Supp. 252, 256 (D.D.C. 1973).

10Sohappy v. Smith, 302 F. Supp. 899, 911 (D. Or. 1969), consolidated with United States v. 

Oregon, Civil No. 68-513 (1969) initiated by the United States as trustee of tribes against the 

State of Oregon.

11United States v. Washington, 384 F. Supp. 312, 343 (W.D. Wash. 1974).
Page 19 GAO-04-602 Columbia Basin Fish and Wildlife Activities

collaboratively by FWS and NMFS for the recovery of threatened and 

endangered species, as well as by two other related collaborative plans. 

Additional laws and specific agency missions drive numerous other 

collaborative and individual fish and wildlife plans and programs. 

Appendix V provides descriptions of selected plans and programs 

identified by federal agencies in the basin. 

The Northwest Power Act 

and the Endangered Species 

Act Drive Key Collaborative 

Plans and Programs

The key collaborative fish and wildlife plans and programs in the basin are 

driven by responsibilities created under the Northwest Power Act and the 

ESA. Agencies collaborate on both the development, as well as the 

implementation, of these key plans and programs. The lead agencies and 

federal and tribal collaborators in the development and implementation of 

the plans and programs are summarized in figure 3.
Page 20 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Figure 3: Federal and Tribal Collaboration on Key Fish and Wildlife Plans and Programs Driven by the Northwest Power Act and 

the Endangered Species Act

Note: Figure does not include significant state, local, and private entity participation in plan 

development and implementation.

a

The Northwest Power and Conservation Council, which is led by representatives from four states, was 

created by the Northwest Power Act to assist Bonneville in fulfilling its federal responsibilities to fish 

and wildlife. 

b

The recovery plans for salmon are still under development. This figure reflects expected agency 

contributions to the implementation of recovery plans.

Northwest Power Act-Driven 

Plans and Programs

Under the Northwest Power Act, the Northwest Power and Conservation 

Council (Council) has a duty to prepare and adopt the Columbia River 

Basin Fish and Wildlife Program (Fish and Wildlife Program) to protect, 

mitigate, and enhance fish and wildlife, including related spawning grounds 

and habitat, on the Columbia River and its tributaries for impacts of all 

federal and nonfederal hydroelectric projects in the basin. In preparing the 

Fish and Wildlife Program, the Council periodically solicits 

recommendations from federal and state fish and wildlife agencies, Indian 

tribes, and others concerning the needs of fish and wildlife in the basin. The 

Council then develops a draft Amendment to the Fish and Wildlife Program 

that incorporates the recommendations received, and releases the draft for 

public comment. After reviewing comments received on the draft, and 

balancing the needs of fish and wildlife with the region’s hydropower 

needs, the Council issues the Fish and Wildlife Program, which provides 

guidance and recommendations on mitigating the impacts of hydropower 

on the region’s fish and wildlife. 

Bonneville (through

the Council a)

FWS and NMFS

NMFS

NMFS

Columbia River Basin Fish

and Wildlife Program

FCRPS Biological Opinions

Basin-wide Salmon

Recovery Strategy

Recovery plans for salmonb

BLM

Corps

FWS

NMFS

USGS

Tribes

Contribute to development Contribute to implementation

Plan/program Lead agency Forest Service

EPA

NRCS

Reclamation

BIA

Bonneville

BLM

Corps

Forest Ser

FWS

NMFS

USGS

Tribes

vice

EPA

NRCS

Reclamation

BIA

Bonneville

Source: GAO analysis.
Page 21 GAO-04-602 Columbia Basin Fish and Wildlife Activities

To incorporate local planning for the more than 50 subbasins in the 

Columbia River Basin into the Council’s development of the Fish and 

Wildlife Program, the Council initiated subbasin planning in 2001. The 

Council expects to complete the first round of subbasin plans in May 2004, 

review and take comments on the plans through the fall, and then amend 

them into the program by January 2005. The plans will then form the basis 

from which projects will be solicited and selected. Federal agencies, 

including the Corps, Forest Service, Reclamation, BLM, EPA, FWS, NMFS, 

NRCS, and USGS, are providing watershed-level information and technical 

assistance, and some Columbia River Basin tribes are among those taking 

the lead in coordinating and managing development of specific subbasin 

plans. A few of the tribes reported that subbasin planning is an important 

step to including local input in the Fish and Wildlife Program, but 

expressed concern that challenges to the successful implementation of 

subbasin plans exist. For example, one tribal representative expressed 

concern with the consistency of funding and contracting procedures, while 

another expressed concern at the level of local commitment to subbasin 

fish and wildlife priorities. 

The Northwest Power Act directs Bonneville to fund the protection, 

mitigation, and enhancement of fish and wildlife in a manner consistent 

with the act. To meet this requirement, Bonneville takes actions and enters 

into agreements with other entities to meet the goals and objectives 

outlined by the Council. Bonneville receives assistance in this process from 

the Columbia Basin Fish and Wildlife Authority, composed of federal, state, 

and tribal fish and wildlife officials, which provides recommendations 

regarding fish and wildlife projects proposed by contractors. The Council’s 

Independent Scientific Review Panel reviews proposed projects to ensure 

that they are consistent with the goals of the Fish and Wildlife Program. As 

shown in the following examples, other federal agencies and tribes also 

collaborate with Bonneville in implementing the Fish and Wildlife Program, 

affording Bonneville access to additional knowledge and technical 

capabilities, as well as access to resources needed for mitigation activities. 

• FWS and NMFS provide Bonneville with assistance on issues such as 

fish passage and population monitoring. In addition, Bonneville 

provides direct funding to FWS for the operation and maintenance of 

certain hatcheries.

• The Corps and Reclamation manage in-river mitigation at hydropower 

facilities, such as fish screens, with direct funding from Bonneville.
Page 22 GAO-04-602 Columbia Basin Fish and Wildlife Activities

• Federal agencies such as the Forest Service and BLM, as well as state, 

tribal, and private landowners, receive direct funding or contract with 

Bonneville for habitat mitigation activities. 

• Tribes contract with Bonneville to provide mitigation activities such as 

habitat improvement, hatchery management, and habitat acquisition 

projects both on and off reservation. 

Recently, Bonneville revised its Fish and Wildlife Program project budget, 

accounting, and contracting policies, raising concerns among federal 

agencies, the Council, and the tribes. For example, in 2002, Bonneville 

decided that it should not be the primary source of funding for off-site 

mitigation projects on federal lands, and placed a temporary hold on 

funding for land purchases and easements for off-site mitigation while it 

reviewed its financial condition and liquidity position. In addition, 

Bonneville changed its budgeting and planning methods from obligations to 

accruals in November 2002. Federal agencies, the Council, and some tribes 

reported that Bonneville’s processes for project submittal, approval, and 

contract renewal and management are inconsistent and constantly 

changing. As such, many project managers at the tribes who serve as 

contractors to Bonneville reported spending as much time learning and 

adapting to changing processes as implementing projects on the ground. 

According to Bonneville, the changes were based in part on the 

recommendations of a 1997 accounting firm review of program 

implementation, and were necessary to improve program implementation, 

keep Fish and Wildlife Program costs on target, and align its fish and 

wildlife budgeting approach with its other program budgets.12

Endangered Species Act-Driven 

Plans and Programs

Under the ESA, agencies must use their authorities to conserve endangered 

and threatened species and make sure that their actions do not jeopardize 

the continued existence of listed species. In the Columbia River Basin, 

agencies collaborate on several concurrent and sometimes overlapping 

plans towards this end, including biological opinions, the proposed 

recovery plans for salmon, and the Basin-wide Salmon Recovery Strategy. 

While different in their specific focus and scope, all of these plans promote 

the continued existence of threatened and endangered species in the basin.

12Moss Adams, LLP, Columbia River Basin Fish and Wildlife Program Management 

Review of Contracting Processes (Portland, Oregon: Dec. 1997). The report is available at 

http://www.nwppc.org/library/1998/98-1.htm. Site last visited on May 14, 2004.
Page 23 GAO-04-602 Columbia Basin Fish and Wildlife Activities

As the regulating agencies for endangered and threatened species, FWS 

and NMFS are the lead agencies on most fish and wildlife plans driven by 

the ESA. Section 7 of the ESA requires agencies to consult with FWS and 

NMFS to ensure that actions are not likely to jeopardize listed species. 

Based on these consultations, FWS and NMFS are required to produce 

biological opinions that prescribe reasonable and prudent 

measures/alternatives for proposed federal actions that may adversely 

affect listed species. Bonneville, the Corps, and Reclamation consult with 

FWS and NMFS on the impacts that operation of the FCRPS has on 

endangered and threatened species. In response to these consultations, 

NMFS develops biological opinions for anadromous species impacted by 

the FCRPS, while FWS develops biological opinions for resident fish and 

wildlife impacted by the FCRPS.13

NMFS first issued a Biological Opinion for the FCRPS for salmon and 

steelhead in 1992, and developed subsequent versions, such as a 1998 

supplement that added steelhead. The most recent Biological Opinion for 

the FCRPS for salmon and steelhead was issued in 2000. In 2003, however, 

a federal court remanded the 2000 Biological Opinion after ruling it 

deficient, due to reliance on federal mitigation actions that had not 

undergone section 7 consultations, as well as reliance on off-site 

nonfederal mitigation activities that were not reasonably certain to occur.14

A new salmon and steelhead Biological Opinion for the FCRPS is due in 

June 2004. FWS developed a Biological Opinion for resident fish impacted 

by the FCRPS, including bull trout and white sturgeon. The first FCRPS 

Biological Opinion for white sturgeon was developed by FWS in 1995. 

To develop the reasonable and prudent measures/alternatives outlined in 

the FCRPS Biological Opinions, FWS and NMFS rely on technical input 

from several agencies, as well as information contained in other fish and 

wildlife plans:

• Bonneville, the Corps, and Reclamation consult with FWS and NMFS in 

developing reasonable and prudent measures/alternatives for 

hydropower operation that can reasonably be implemented;

13While the FCRPS is composed of 31 federal projects, the biological opinions only address 

the 14 projects participating in coordinated power operations.

14National Wildlife Federation v. National Marine Fisheries Service, No. CV 01-640-RE, 

2003 WL 21077450 (D. Or. May 7, 2003).
Page 24 GAO-04-602 Columbia Basin Fish and Wildlife Activities

• Forest Service and BLM contribute information used to develop the 

reasonable and prudent measures/alternatives that address off-site 

habitat; and

• To the extent possible, NMFS has incorporated information from the 

Council’s subbasin planning in their development of the Biological 

Opinions due in June.

Notwithstanding this collaboration, several agencies and groups, such as 

the Council and tribes, expressed a desire for increased participation in 

developing the Biological Opinions. These groups indicated that they have 

important technical information and experience that could help inform the 

development of the Biological Opinions. 

Responsibility for implementing the Biological Opinions lies with the 

operators and managers of the FCRPS—Bonneville, the Corps, and 

Reclamation—known as the Action Agencies. In fulfilling this 

responsibility, the Action Agencies create Biological Opinion 

Implementation Plans, which provide guidance on how the Biological 

Opinions should be implemented. The Action Agencies create 1-Year 

Implementation Plans, which outline annual goals for meeting reasonable 

and prudent measures/alternatives, as well as 5-Year Implementation Plans, 

which address longer-term goals for meeting the measures. The 

development of Implementation Plans typically involves significant input 

from other agencies. For example, Bonneville and the Council work 

together to support ESA objectives by integrating the implementation of 

the Biological Opinions with subbasin planning and the Fish and Wildlife 

Program’s administrative process. In addition, implementation of the 

Biological Opinions has evolved as the Action Agencies continue to 

incorporate new information from ESA recovery planning processes.

Many basin agencies provide input to the Action Agencies on the 

implementation of hydrosystem operations and configuration under the 

Biological Opinions through the Regional Forum (Forum). Key members of 

the Forum include Bonneville, the Corps, and Reclamation, as well as FWS 

and NMFS, and the states of Oregon, Washington, Idaho, and Montana. The 

Forum is composed of five committees that make decisions concerning the 

FCRPS in accordance with the Biological Opinions, facilitating regional 

communication and coordination towards fulfillment of the Biological 

Opinions. Forum meetings are open to all entities, and interagency 

collaboration is an essential element of the Forum. However, some tribal 

representatives indicated that they would like to have more sovereign 
Page 25 GAO-04-602 Columbia Basin Fish and Wildlife Activities

representation on the Forum. They feel that the meetings neither provide 

for a collaborative, balanced exchange of information between federal 

agencies and the tribes, nor satisfy the requirement for 

government-to-government consultation with tribes on matters that affect 

them.

As further required by the ESA, NMFS is currently developing recovery 

plans for salmon (recovery plans) for various regions within the Columbia 

River Basin, which outline programs for the recovery of endangered or 

threatened salmon and steelhead in the basin. Specifically, the recovery 

plans are designed to organize, coordinate, and prioritize recovery actions 

for salmon and steelhead, as well as outline objective measurable criteria 

that will be used to determine when they no longer need the protection of 

the ESA. In addition, recovery plans communicate the vision for salmon 

and steelhead recovery to other agencies and the public. 

NMFS’ development of the recovery plans has been enhanced by 

collaboration and information sharing with other agencies and groups, 

including tribes. NMFS is using the Council’s subbasin planning as a 

framework for developing the various recovery plans. While NMFS is not 

required to collaborate with the Council on this effort, working through the 

subbasin framework affords NMFS access to local watershed information. 

Although the recovery plans have yet to be completed— the first recovery 

plan is due in December 2005—NMFS hopes they will be implemented 

through interagency collaboration using the subbasin plans. 

Separate from the recovery plans, the Basin-wide Salmon Recovery 

Strategy provides an interim conceptual, collaborative plan for the 

recovery of salmon and steelhead in the basin, until recovery plans are 

complete. Referred to as the “All-H Paper” because it addresses the four 

“H’s” of fish management—hatcheries, habitat, harvest, and 

hydropower—it is a blueprint for collaboration among federal agencies in 

the basin seeking to restore aquatic habitat and achieve recovery objectives 

for endangered and threatened salmon and steelhead.

Development of the All-H paper involved input from nine federal agencies, 

collectively known as the Federal Caucus—Bonneville, the Corps, Forest 

Service, Reclamation, BIA, BLM, EPA, FWS, and NMFS. Agency 

participation in the development varied according to agencies’ missions 

and expertise:
Page 26 GAO-04-602 Columbia Basin Fish and Wildlife Activities

• Bonneville, the Corps, and Reclamation provided input on recovery 

activities related to hydropower, and Reclamation provided input on 

irrigation; 

• Forest Service and BLM provided input on recovery concerns related to 

habitat;

• FWS and NMFS provided input on the role of annual harvest allocations 

in recovery;

• FWS and NMFS provided extensive input and guidance on the role of 

hatcheries in recovery; and

• EPA provided input and recommendations related to habitat and 

hydropower.

After input from the nine agencies had been collected, and the All-H was 

completed, agencies memorialized their collaboration through a 

Memorandum of Agreement that outlined how agencies could cooperate on 

implementation of the All-H. Overall, interagency collaboration on the 

development of the All-H was well regarded, and the four “H’s” have 

contributed to decision making on other plans in the basin. In addition, 

NMFS has relied on information outlined in the All-H Paper as a framework 

for developing the forthcoming recovery plans. 

Implementation of the measures by the nine federal agencies as outlined in 

the All-H Paper is voluntary; while agreed to by members of the Federal 

Caucus, the paper establishes expectations, but does not establish specific 

obligations for individual agencies. Actual implementation of the 

recommendations has varied across agencies, and across the different 

categories of recovery—hatcheries, habitat, harvest, and hydropower. 

Nonetheless, the comprehensive approach to species management outlined 

in the All-H Paper has informed and guided agencies’ work on other plans. 

For example, the Council now uses information contained in the All-H 

Paper in its development of the Fish and Wildlife Program, and the Action 

Agencies use the four “H’s” in the Biological Opinion Implementation Plans.
Page 27 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Other Directives and 

Agency Missions Drive 

Additional Collaborative 

and Independent Plans and 

Programs

Additional fish and wildlife plans and programs are driven by other 

directives, such as the Clean Water Act and court decisions based on treaty 

rights, as well as by each agency’s unique mission. Agencies develop and 

implement these plans and programs through collaborative and 

independent agency efforts. The lead agencies and federal and tribal 

collaborators in the development and implementation for selected plans 

and programs are summarized in figure 4.

Figure 4: Federal and Tribal Collaboration on Selected Fish and Wildlife Plans and Programs Driven by Other Directives and 

Agency Missions

Note: Figure does not include significant state, local, and private entity participation in plan 

development and implementation.

Clean Water Act-Driven 

Programs

The Clean Water Act established the basic structure for regulating 

discharges of pollutants into the waters of the United States. As the 

regulating agency for the Clean Water Act, EPA has the authority to

BLM

Corps

FWS

NMFS

USGS

Tribes

Contribute to development Contribute to implementation

Lead agency

NMFS and

FWS

Corps

Plan/program

Clean Water Act General Assistance

Grant Program to Tribes

Clean Water Act Section 319

Grant Program

Clean Water Act Section 106

Grant Program

Forest Service

EPA

NRCSReclamation

EPA

EPA

EPA

U.S. v. Oregon

Management Plans

Project Management

Plans

Research and

Monitoring Programs

Reclamation

Northwest Forest

Plan 

Forest Service

and BLM

Land and Resource

Management Plans

Forest Service

District Resource

Management Plans

Environmental Quality

Incentive Program

BLM

NRCS

BIA

Bonneville

BIA

BLM

Bonneville

Corps

EPAForest Service

FWS

NMFS

NRCS

Reclamation

USGS

Tribes

Source: GAO analysis.
Page 28 GAO-04-602 Columbia Basin Fish and Wildlife Activities

implement pollution control programs such as setting wastewater 

standards for industry. The Clean Water Act also provides for states and 

tribes to set water quality standards for all contaminants in surface waters. 

EPA also manages grant programs designed to assist agencies, tribes, and 

others to comply with this guidance. 

In the Columbia River Basin, EPA manages several grant programs that 

indirectly benefit fish and wildlife by promoting water and environmental 

quality on tribal lands. EPA manages these programs collaboratively with 

tribes and other organizations to identify water quality needs in the basin, 

as well as suitable projects to address these needs. Grant programs in the 

basin identified by EPA include the following:

• Clean Water Act General Assistance Grant Program to 

Tribes—Provides general assistance grants to Indian tribal 

governments and intertribal consortia to build capacity to administer 

regulatory and multimedia programs addressing environmental issues 

on Indian lands. 

• Clean Water Act Section 319 Grant Program—Provides funding to 

states and Indian tribes for a wide variety of nonpoint source activities, 

including technical and financial assistance, education, training, 

technology transfer, demonstration projects, and monitoring.

• Clean Water Act Section 106 Grant Programs—Assists Indian 

tribes and states in carrying out effective water pollution control 

programs, including water quality planning and assessments, 

development of water quality standards, and water quality monitoring. 

Implementation of these grant projects is handled by grant recipients, with 

minimal assistance from EPA beyond the initial discussions concerning 

project design and funding. According to EPA, the grant programs work 

well and allow the tribes to fully incorporate their technical knowledge and 

experience into water quality planning.

Court Decision-Driven Plans and 

Programs

In addition to federal environmental protection laws, such as the Clean 

Water Act, tribal treaty rights and clarifying court decisions have also 

resulted in plans to manage basin fish and wildlife. For example, the 1969 

United States v. Oregon and 1974 United States v. Washington court 

decisions ruled that certain Columbia River Basin tribes have a right to 50 

percent of the annual harvestable catch of fish at all usual and accustomed 

fishing areas. A subsequent court ruling in 1977 ordered FWS, NMFS, state 
Page 29 GAO-04-602 Columbia Basin Fish and Wildlife Activities

fish and wildlife agencies, and the tribes to develop a collaborative plan for 

managing the annual harvest of the fisheries affected by United States v. 

Oregon. In addition, BIA assists the tribes in negotiations with federal 

agencies and development of the plan. Known as the Five Year Columbia 

River Fish Management Plan, the plan sets forth harvest allocation terms, 

as well as efforts to rebuild and enhance fish runs. Since that plan expired 

in 1982, harvest allocation under United States v. Oregon has been 

alternately managed by additional multiyear collaborative plans and annual 

court-ordered negotiations that seek to balance tribal harvest, nontribal 

harvest, and species protection. According to FWS and NMFS, their input 

on United States v. Oregon negotiations must balance both their trust 

responsibilities to tribes, as well as their responsibilities to endangered and 

threatened species that are affected by the United States v. Oregon

decision. At present, United States v. Oregon harvest allocation is decided 

by annual court-ordered negotiations, although the parties are seeking to 

develop a new long-term collaborative plan, to be known as the Columbia 

River Fish Management Agreement. Otherwise, the parties will continue 

to revisit harvest and fish management decisions for the Columbia River 

through annual negotiations. 

Implementation of measures agreed to in United States v. Oregon

negotiations or plans is handled collaboratively by federal, state, and tribal 

parties. For example, FWS and NMFS are responsible for implementing 

measures, such as hatchery enhancement, to rebuild depressed fish stocks. 

State agencies are responsible for publishing and regulating annual harvest 

levels. The five Columbia River Basin tribes that are parties to United 

States v. Oregon are responsible for abiding by annual harvest levels. 

According to NMFS, the implementation of United States v. Oregon

negotiations or plans affect fisheries in a number of important areas, 

including habitat, production, and hatchery management. Furthermore, the 

decisions reached during the negotiations serve as guidelines for the 

various decisions made on the Regional Forum committees. For example, 

agreements concerning harvest levels that are reached with tribes during 

the United States v. Oregon negotiations serve as the baseline for 

discussions of harvest management and monitoring at the Regional Forum. 

Agency Mission-Driven Plans 

and Programs

Agency missions also drive fish and wildlife plans in the basin. Specifically, 

the water and resource management responsibilities of the Corps, 

Reclamation, Forest Service, BLM, and NRCS require these agencies to 

create plans that address the fish and wildlife impacts of their activities. 

Some of these plans are collaborative in their design or implementation, 

and represent agency efforts to more fully meet their mission with 
Page 30 GAO-04-602 Columbia Basin Fish and Wildlife Activities

assistance from other agencies. Others are designed and implemented 

independently by individual agencies, and represent agency efforts to 

benefit fish and wildlife through mission activities. 

The Corps uses Project Management Plans to ensure that their internal 

agency activities follow appropriate guidelines for protecting fish passage 

and mitigating barriers to it along the Columbia River. The scope of Project 

Management Plans varies widely, but each plan includes a fish protection 

and mitigation component. Development and implementation of Project 

Management Plans is handled independently by the Corps. Information 

contained within Project Management Plans informs the Corps’ 

participation in other plans in the basin, and thus influences the activities 

of other agencies. For example, the Corps reported that the content of 

Project Management Plans is frequently used in developing the annual and 

5-year Biological Opinion Implementation Plans for the FCRPS.

Reclamation uses Research and Monitoring Programs to independently 

fund, develop, and implement a wide range of discretionary efforts, 

including research and monitoring efforts that focus on fish and wildlife. 

Funding for the Research and Monitoring Programs is distributed annually 

from Reclamation’s Commissioner’s office, and projects are selected from 

across a variety of departments. According to Reclamation officials, 

Research and Monitoring Programs are important tools for incorporating 

fish and wildlife activities into internal agency policies.

The collaborative efforts of the Forest Service and BLM have yielded the 

Northwest Forest Plan, an effort to facilitate a collaborative interagency 

approach to ecosystem management on federal lands located within the 

range of the threatened northern spotted owl. In addition, the Northwest 

Forest Plan includes an Aquatic Conservation Strategy designed to 

promote the recovery of listed endangered and threatened species, as well 

as nonlisted aquatic species. As land management agencies, Forest Service 

and BLM take the lead on developing and implementing measures for the 

long-term health of forests, wildlife, and waterways on their lands. 

Nonetheless, several other federal agencies provided input on the design of 

the Northwest Forest Plan through a Memorandum of Understanding 

signed by the Corps, Forest Service, BIA, BLM, EPA, FWS, NMFS, USGS, 

and the National Park Service. In addition, federal agencies, as well as 

state, local, and tribal governments, continually collaborate on the 

implementation of the Northwest Forest Plan. For example, the Regional 

Interagency Executive Committee, which is comprised of representatives 

from the federal agencies, facilitates the prompt and coordinated 
Page 31 GAO-04-602 Columbia Basin Fish and Wildlife Activities

implementation of the Northwest Forest Plan at the regional level. In 

addition, the Intergovernmental Advisory Committee, which is comprised 

of representatives from federal, state, county, and tribal governments, 

provides a vehicle for input from the states, counties, and tribes, and 

promotes the integration and coordination of forest management activities 

among federal and nonfederal entities. 

The Forest Service also develops Land and Resource Management Plans, 

commonly referred to as Forest Plans, to manage each specific National 

Forest. Forest Plans, developed through the National Environmental Policy 

Act public comment process, address a variety of forest management 

concerns but contain objectives and standards/guidelines that specifically 

address conservation and restoration of fish and wildlife habitat integrated 

with other resource management needs. According to the Forest Service, 

Forest Plans were the primary vehicle for integrating fish and wildlife 

concerns with other management objectives. Forest Plans do not set forth 

determinations on the type and number of actions to be implemented, but 

provide sideboards and guidance for the design of site-level actions. 

Development and implementation of these plans are primarily handled by 

the Forest Service, although NMFS, FWS, and tribes provide some input. 

The Forest Service coordinates with BLM on the development of Forest 

Plans where BLM lands lie adjacent to National Forests. BLM and Forest 

Service also collaborate on species management, including habitat 

management and aquatic management strategies. Through consultations 

with the Forest Service, Columbia River Basin tribes provide input on the 

design and implementation of Forest Plans, and also participate in 

cost-share fish and wildlife activities on National Forest System lands. 

According to one Forest Service official, securing cost-share funding for 

activities benefiting nonlisted fish is an ongoing challenge because 

endangered and threatened species fish tend to receive the most attention 

and funding. 

BLM uses District Resource Management Plans to guide agency activities. 

Resource Management Plans outline general management guidelines for all 

agency activities, and also contain specific management guidelines for 

protecting fish and wildlife. Although Resource Management Plans address 

internal management guidelines for BLM, they are developed through the 

National Environmental Policy Act public comment process. As such, they 

receive significant public attention and input, and BLM must incorporate 

the comments into their development of the plans.
Page 32 GAO-04-602 Columbia Basin Fish and Wildlife Activities

NRCS uses its Environmental Quality Incentive Program to fund projects 

that indirectly benefit fish and wildlife through environmental 

improvements to irrigation, erosion, water quality, and agriculture. 

Operated collaboratively with tribes, NRCS funds these projects on a 

cost-share basis, providing a minimum of 2.6 percent of the total funds. 

According to NRCS, tribes are an excellent vehicle for gaining access to 

lands previously inaccessible to environmental improvements because the 

tribes are continually purchasing land from private sellers, and because 

they are willing to partner with NRCS on land rehabilitation. 

In conjunction with their agency missions, and in recognition of their trust 

responsibilities to tribes, federal agencies also have the opportunity to 

participate in the development and implementation of tribally managed fish 

and wildlife plans. For example, representatives from the Nez Perce, 

Umatilla, Warm Springs, and Yakama tribes, as well as staff from the 

Columbia River Inter-Tribal Fish Commission, compiled the 

Wy-Kan-Ush-Mi Wa-Kish-Wit, which outlines a framework for restoring 

anadromous fish stocks in the Columbia River Basin. This tribal plan 

outlines the cultural context for the tribes’ salmon restoration efforts, as 

well as technical and institutional recommendations and watershed 

restoration actions. According to the tribes, however, federal agency 

collaboration on tribe-led plans is minimal, and there is significant room for 

increased participation from agencies on tribal fish and wildlife plans. 

In addition to opportunities for collaboration on tribal plans, agencies also 

have opportunities to fulfill agency missions and other responsibilities 

through collaboration on state-managed plans. For example, one agency 

reported collaborating with the state of Washington on their “Extinction Is 

Not an Option” plan, which provides a framework for the recovery of 

endangered species in the state. Agencies also collaborate with the state of 

Oregon on the Plan for Salmon and Watersheds. According to some federal 

agency representatives, collaboration on federal and state fish and wildlife 

plans is important in ensuring that overall fish and wildlife goals in the 

basin are met.

Agency Comments and 

Our Evaluation

We provided copies of our draft report to the Departments of Agriculture, 

Commerce, Defense, the Interior, as well as Bonneville and EPA. 

Bonneville and the Departments of Agriculture and Commerce provided 

official written comments. (See apps. VI through VIII, respectively, for the 

full text of the comments received from these agencies and our responses.) 

The comments were generally technical in nature with few comments on 
Page 33 GAO-04-602 Columbia Basin Fish and Wildlife Activities

the report’s overall findings. We made changes to the report, where 

appropriate, based on the technical comments provided by the three 

entities that commented on the report. The Department of Defense and 

EPA had no comments on the report. The Department of the Interior did 

not provide comments in time to be included in this report.

Bonneville commented that the draft would benefit from the inclusion of 

additional information regarding the federal government’s trust 

responsibilities to the tribes in the Columbia River Basin. Within the scope 

of our review, we believe the topic is adequately and accurately described 

in the report. The Department of Agriculture objected to our assertions in 

figures 3 and 4 that the Forest Service contributes to the development or 

implementation of certain plans, and that BLM contributes to the 

development and implementation of Forest Service Land and Resource 

Management Plans, respectively. The figures are intended to demonstrate 

the collaborative nature of fish and wildlife plans and programs in the 

basin. While we recognize that in many cases agencies do not have official 

roles or responsibilities in specific plans, we believe our figures accurately 

highlight both formal and informal contributions from agencies and tribes, 

as described to us by agency officials, tribal representatives, and others.

We are sending copies of this report to the Secretaries of Agriculture, 

Commerce, Defense, the Interior, and the Administrators of Bonneville and 

EPA, appropriate congressional committees, and other interested Members 

of Congress. We will also make copies available to others upon request. In 

addition, the report will be available at no charge on the GAO Web site at 

http://www.gao.gov.

If you or your staff have questions about this report, please contact me at 

(202) 512-3841. Key contributors to this report are listed in appendix IX.

Barry T. Hill

Director, Natural Resources

 and Environment
Page 34 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Appendix I

Scope and Methodology ApApenednxidexiIs

To identify and describe the laws, treaties, executive orders, and court 

decisions that define the responsibilities of the Bonneville Power 

Administration (Bonneville) and other federal agencies to perform 

activities benefiting fish and wildlife in the Columbia River Basin and 

involve tribes in the process, we reviewed our prior report on salmon and 

steelhead recovery activities in the Columbia River Basin for 11 agencies 

with significant responsibility for fish and wildlife in the Pacific 

Northwest.1

 These agencies were Bonneville; the Forest Service and 

Natural Resources Conservation Service (NRCS) within the Department of 

Agriculture; the Bureau of Indian Affairs (BIA), Bureau of Land 

Management (BLM), Bureau of Reclamation (Reclamation), U.S. Fish and 

Wildlife Service (FWS), and U.S. Geological Survey (USGS) within the 

Department of the Interior; the U.S. Army Corps of Engineers (Corps) 

within the Department of Defense; the National Marine Fisheries Service 

(NMFS) within the Department of Commerce; and the Environmental 

Protection Agency (EPA). We reviewed the directives identified by the 

agencies in the report as defining their responsibilities for salmon and 

steelhead in the basin, and requested confirmation from each agency on 

these directives. In addition, we asked each agency to identify any 

additional directives that define their responsibilities for other fish and 

wildlife, and to identify any directives applicable to Columbia River Basin 

tribes that create fish and wildlife responsibilities for agencies. We also 

requested input from the 13 Columbia River Basin tribes on the directives 

that define federal responsibilities for fish and wildlife in the basin. Based 

on the responses provided by agencies and tribes, we compiled a summary 

of directives that define agency responsibilities for fish and wildlife in the 

basin. We collected documentation on these directives from the agencies, 

discussed the directives with agency, tribal, and other representatives for 

clarification. 

To identify and describe the fish and wildlife plans and programs that 

Bonneville and other federal agencies have developed to guide their fish 

and wildlife activities, we reviewed our prior report on salmon and 

steelhead recovery activities in the Columbia River Basin. We then 

reviewed the plans and programs identified by the agencies in the report as 

guiding their recovery activities for salmon and steelhead, and requested 

confirmation from each agency on these plans and programs. In addition, 

1

U.S. General Accounting Office, Columbia River Basin Salmon and Steelhead: Federal 

Agencies’ Recovery Responsibilities, Expenditures, and Actions, GAO-02-612 (Washington, 

D.C.: July 26, 2002).
Appendix I

Scope and Methodology

Page 35 GAO-04-602 Columbia Basin Fish and Wildlife Activities

we asked agencies to identify any additional plans and programs used to 

fulfill agency responsibilities for fish and wildlife in the basin, and we 

interviewed agency officials to gather additional information on the 

implementation of fish and wildlife plans and programs. We also 

interviewed staff and officials of the Northwest Power and Conservation 

Council and the Columbia Basin Fish and Wildlife Authority, in order to 

gather information on their roles in assisting federal agencies with the 

design and implementation of fish and wildlife plans and programs. To 

gather the tribal perspective on fish and wildlife plans and programs, we 

met with representatives from 10 of the 13 federally recognized tribes in the 

basin, as well as representatives from the Columbia River Inter-Tribal Fish 

Commission, and the Upper Columbia United Tribes. In addition, 10 of the 

13 tribes submitted written comments on tribal participation in federal fish 

and wildlife plans in the basin. 

During our information collection, agencies, organizations, and tribes 

highlighted a number of concerns regarding the implementation of fish and 

wildlife plans and programs in the basin, which we included in this report. 

In accordance with our policy to refrain from addressing matters that are in 

litigation, we did not examine or report on any issues that are before the 

court.

We performed our work from August 2003 through April 2004, in 

accordance with generally accepted government auditing standards.
Page 36 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Appendix II

Laws, Treaties, and Executive Orders Guiding 

Agency Activities Affecting Columbia River 

Basin Fish and Wildlife ApendxiI

Tables 4, 5, and 6 list the nationwide, basin-specific, and mission-specific 

laws reported by federal agencies as guiding their actions to protect, 

mitigate, and enhance fish and wildlife in the Columbia River Basin.

Table 4: Nationwide Laws Guiding Agency Activities Affecting Columbia River Basin Fish and Wildlife

Nationwide law Citation Description 

Anadromous Fish 

Conservation Act

16 U.S.C. §§ 757a-757f Authorizes the Secretaries of Commerce and of the Interior to enter 

into cooperative agreements for the development, conservation, and 

enhancement of anadromous (migratory) fish resources.

Bald Eagle Protection Act 16 U.S.C. §§ 668-668d Prohibits the taking or possession of and commerce in bald and 

golden eagles, with limited exceptions.

Clean Air Act 42 U.S.C. §§ 7401-7671q Requires EPA to set limits on air pollutants and approve state 

implementation plans to reduce pollutants that exceed limits, and 

requires federal activities to comply with limits.

Federal Water Pollution 

Control Act (commonly 

referred to as the Clean 

Water Act)

33 U.S.C. §§ 1251-1387 Provides for the restoration and maintenance of the Nation’s waters. 

Authorizes EPA to establish effluent limitations and requires permits 

for the discharge of pollutants from a point source to navigable waters. 

EPA approves state and tribal limits for the maximum amount of a 

pollutant that a water body can receive and still meet water quality 

standards for specified purposes, including fish and wildlife. 

Coastal Zone Management 

Act of 1972

16 U.S.C. §§ 1451-1465 Directs federal agencies to cooperate with state and local 

governments to control polluted runoff in coastal waters and to 

otherwise generally protect, develop, and restore the resources of the 

nation’s coastal zone, including fish and wildlife and their habitats. 

Comprehensive 

Environmental Response, 

Compensation, and Liability 

Act of 1980

42 U.S.C. §§ 9601-9675 Provides for the cleanup of hazardous waste by imposing liabilities and 

duties on responsible parties, including federal agencies, and by 

authorizing the federal government to take cleanup actions in 

response to releases or threatened releases of hazardous substances.

Endangered Species Act 16 U.S.C. §§ 1531-1544 Provides for the conservation and recovery of species of plants and 

animals that the National Marine Fisheries Service or the U.S. Fish 

and Wildlife Service determines to be in danger of or soon to become 

in danger of extinction. Includes measures to protect the habitats of 

these species.

Federal Water Project 

Recreation Act

16 U.S.C. §§ 460l-12 to l-21 Declares that recreation and fish and wildlife enhancement should be 

given full consideration as purposes of federal water development 

projects.

Fish and Wildlife 

Conservation Act of 1980

16 U.S.C. §§ 2901-2912 Provides for financial and technical assistance to states for 

development and implementation of conservation plans and programs 

for nongame fish and wildlife.

Fish and Wildlife 

Coordination Act 

16 U.S.C. §§ 661-666c Authorizes the Secretary of the Interior to, among other things, provide 

assistance to, and cooperate with, federal, state, and public or private 

agencies and organizations in the development, protection, rearing, 

and stocking of all species of wildlife and their habitat, in minimizing 

damages from overabundant species, and in providing public shooting 

and fishing areas.
Appendix II

Laws, Treaties, and Executive Orders 

Guiding Agency Activities Affecting 

Columbia River Basin Fish and Wildlife

Page 37 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Nationwide law Citation Description 

Flood Control Acts E.g. Flood Control Act of 1970, 

Pub. L. No. 91-611, 84 Stat. 1818 

(1970) and Flood Control Act of 

1965, Pub. L. No. 89-298, 79 Stat. 

1073 (1965).

Authorize projects for the benefit of navigation, the control of 

destructive floodwaters, protection of the shorelines, and other 

purposes.

Magnuson-Stevens Fishery 

Conservation and 

Management Act of 1972

16 U.S.C. §§ 1801-1883 Establishes a framework for the conservation and management of U.S. 

coastal and Outer Continental Shelf fishery resources and 

anadromous species, which includes the establishment of national 

standards for fishery management and conservation and of eight 

Regional Fishery Management Councils to develop fishery 

management plans. Requires federal agencies to consult with the 

Secretary of Commerce with respect to any agencies actions that may 

adversely affect essential fish habitat, and requires the Secretary to 

recommend habitat conservation measures to the agency.

Marine Mammal Protection 

Act

16 U.S.C. §§ 1361-1421h Enacts various measures to protect marine mammals and their 

habitats. Most notably, prohibits the taking of marine mammals, 

except under certain conditions, including as an incidental take during 

commercial fishing operations. 

Marine Protection, Research 

and Sanctuaries Act of 1972

33 U.S.C. §§ 1401-1445, 16 

U.S.C. §§ 1431-1434

Regulates the dumping of all types of materials into ocean waters and 

authorizes the EPA to issue dumping permits for material other than 

dredged material and the Army Corps of Engineers to issue permits 

for the transportation and dumping of dredged materials, based in part 

on the effect of the dumping on fish and wildlife and the marine 

environment.

Migratory Bird Conservation 

Act

16 U.S.C. §§ 715-715r Establishes a Migratory Bird Conservation Commission, headed by 

the Secretary of the Interior, to approve areas of land or water 

recommended by the Secretary, and approved by the state in which 

the land is located, for acquisition as reservations for migratory birds.

Migratory Bird Treaty Act 16 U.S.C. §§ 703-712 Implements various treaties and conventions between the United 

States, Canada, Japan, Mexico, and the former Soviet Union for the 

protection of migratory birds. Prohibits taking, killing, or possessing 

migratory birds.

National Environmental 

Policy Act of 1969

42 U.S.C. §§ 4321-4347 Enacts measures to promote efforts to prevent or eliminate damage to 

the environment. Requires federal agencies to examine the impacts of 

proposed major federal actions “significantly affecting” the 

environment.

National Historic 

Preservation Act of 1966

16 U.S.C. §§ 470 Encourages agencies and individuals to develop historic preservation 

programs, and requires agencies to oversee any historic sites under 

their jurisdiction and consider the effects of its actions on historic sites. 

Provides for tribes to designate an official to administer the 

preservation program on tribal lands. 

Nonindigenous Aquatic 

Nuisance Prevention and 

Control Act of 1990

16 U.S.C. §§ 4701-4751 Enacts measures to prevent the unintentional introduction of 

nonindigenous species into the waters of the United States and to 

minimize the economic and ecological effects of such species that 

become established. Establishes a task force, comprising, among 

others, the FWS, the Coast Guard, and EPA to develop a program to 

prevent introduction of and to control the spread of introduced aquatic 

nuisance species.

(Continued From Previous Page)
Appendix II

Laws, Treaties, and Executive Orders 

Guiding Agency Activities Affecting 

Columbia River Basin Fish and Wildlife

Page 38 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Source: GAO analysis of information provided by federal agencies.

Nationwide law Citation Description 

North American Wetlands 

Conservation Act 

16 U.S.C. §§ 4401-4414 Enacts measures to protect, enhance, restore, and manage wetlands 

and their ecosystems (which includes fish and wildlife). Authorizes the 

Secretary of the Interior to fund wetland improvement projects. 

Oil Pollution Act of 1990 33 U.S.C. §§ 2701-2761 Imposes liability on responsible parties for damages (e.g., loss of 

natural resources) and for removal costs that agencies, tribes, and 

others incur from oil discharges into navigable waters.

Public Rangelands 

Improvement Act of 1978

43 U.S.C. §§ 1901-1908 Establishes a national policy to improve conditions on public 

rangelands; requires the Secretary of the Interior and Secretary of 

Agriculture to develop, update, and maintain and inventory of range 

conditions; and authorizes funding for range improvement projects.

River and Harbor Act of 

1899, §§ 9,10

33 U.S.C. §§ 401, 403 Prohibits projects that interfere with navigation, unless congressional 

approval is given and a permit is obtained from the Department of 

Transportation for bridges or causeways, or from the Army Corps of 

Engineers for other projects such as piers, wharfs, breakwaters, 

bulkheads, jetties, weirs, dams, or dikes.

Safe Drinking Water Act of 

1974

42 U.S.C. §§ 300f to j-26 Enacts measures to protect public drinking water. Requires EPA to 

promulgate national drinking water regulations to be enforced by 

states, and prohibits federal agencies from assisting actions that will 

contaminate an aquifer designated as a drinking water source.

Sikes Act 16 U.S.C. §§ 670-670o Establishes a program for conservation and rehabilitation of natural 

resources, including fish and wildlife, at military installations, in 

accordance with a plan developed by the Secretaries of Defense and 

the Interior in coordination with the appropriate state agency.

Transportation Equity Act for 

the 21st Century, § 3039

49 U.S.C. § 138 note Directs the Secretary of Transportation, in coordination with the 

Secretary of the Interior, to study alternative transportation needs on 

public lands, such as national parks, recreation areas, and wildlife 

refuges, to encourage and promote the development of transportation 

systems for the betterment of those areas in order to, among other 

things, conserve natural, historical, and cultural resources and prevent 

adverse impacts, relieve congestion, reduce pollution, and enhance 

the visitor experience.

Watershed Protection and 

Flood Prevention Act 

16 U.S.C. §§ 1001-1010 Authorizes the Secretary of Agriculture to provide financial and other 

assistance to state and local entities and to Indian tribes to plan and 

carry out projects in watersheds for flood prevention, conservation, 

development, utilization, and disposal of water, or for conservation and 

proper use of land.

Wild and Scenic Rivers Act 16 U.S.C. §§ 1271-1287 Institutes a national wild and scenic rivers system and implements a 

policy of protecting rivers that comprise the system and preserving 

them in a free-flowing state, by enacting protective and other 

measures. 

Wilderness Act 16 U.S.C. §§ 1131-1136 Establishes a National Wilderness Preservation System composed of 

federally owned areas the Congress designates as “wilderness areas,” 

which are to be administered in a way that protects the areas and 

preserves their wilderness character. Federal agencies that had 

jurisdiction over areas designated as part of the system are to retain 

jurisdiction and continue to manage them. 

(Continued From Previous Page)
Appendix II

Laws, Treaties, and Executive Orders 

Guiding Agency Activities Affecting 

Columbia River Basin Fish and Wildlife

Page 39 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Table 5: Basin-specific Laws Guiding Agency Activities Affecting Columbia River Basin Fish and Wildlife

Basin-specific law Citation Description

Bonneville Project Act of 

1937

16 U.S.C. §§ 832-832l Authorizes the construction, maintenance and operation of the 

Bonneville Project to improve navigation on the Columbia River, and 

for incidental purposes such as the production of electricity. Creates 

the Bonneville Power Administration (Bonneville) and authorizes it to 

market power produced by the Project and to construct electricity 

transmission lines. Requires Bonneville to set its rates in a way that 

considers the recovery of the cost of producing and transmitting 

electric energy from the Federal Columbia River Power System. 

Columbia Basin Project Act 16 U.S.C. §§ 835-835c-5 Makes the construction of Grand Coulee Dam subject to federal 

reclamation laws discussed in this table, and authorizes the Secretary 

of the Interior to take certain actions, including the sale and exchange 

of lands and the administration of public lands in the project area, to, 

among other things, protect project land.

Federal Columbia River 

Transmission System Act

16 U.S.C. §§ 838-838k Directs the Secretary of Energy, through the Administrator of the 

Bonneville Power Administration, to operate and maintain the federal 

electric power transmission system in the Pacific Northwest and to 

construct appropriate improvements and additions. Designates 

Bonneville as the marketing agent, with some exceptions, of electric 

power generated by federal plants constructed by the Army Corps of 

Engineers or the Bureau of Reclamation in the Pacific Northwest. 

Fisheries Restoration and 

Irrigation Mitigation Act of 

2000

16 U.S.C. § 777 Directs the Secretary of the Interior, in consultation with heads of other 

appropriate agencies, to develop and implement projects to mitigate 

impacts on fisheries of the construction and operation of water 

diversions by local governmental entities in portions of Oregon, 

Washington, Montana, and Idaho from which water drains into the 

Pacific Ocean. Eligible projects include the development, 

improvement, or installation of fish screens and fish passage devices.

Mitchell Act 16 U.S.C. §§ 755-757 Directs the Secretary of Commerce to establish salmon-cultural 

stations in the Columbia River Basin in Oregon, Washington, and 

Idaho, and to carry out other activities for the conservation of fishery 

resources in the Columbia River Basin. 
Appendix II

Laws, Treaties, and Executive Orders 

Guiding Agency Activities Affecting 

Columbia River Basin Fish and Wildlife

Page 40 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Source: GAO analysis of information provided by federal agencies.

Basin-specific law Citation Description

Pacific Northwest Electric 

Power Planning and 

Conservation Act

16 U.S.C. §§ 839-839h Enacts measures to assure the Pacific Northwest of an adequate, 

efficient, economical, and reliable power supply, and includes 

provisions for the protection of fish and wildlife. Provides for the 

formation of the Pacific Northwest Electric Power and Conservation 

Planning Council (Council) and directs it to, among other things, 

develop a program to “protect, mitigate, and enhance” fish and wildlife 

of the Columbia River Basin. Requires the Administrator of the 

Bonneville Power Administration to take steps to “protect, mitigate, and 

enhance” fish and wildlife affected by the development and operation 

of the Federal Columbia River Power System, while ensuring the 

Pacific Northwest an adequate, efficient, economical, and reliable 

power supply. Requires federal agencies responsible for managing, 

operating, or regulating hydroelectric facilities in the Columbia River 

Basin to provide equitable treatment for fish and wildlife with the other 

purposes for which these facilities are operated and managed, and to 

consider in their decision-making process, to the fullest extent 

practicable, the Council’s fish and wildlife program.

(Continued From Previous Page)
Appendix II

Laws, Treaties, and Executive Orders 

Guiding Agency Activities Affecting 

Columbia River Basin Fish and Wildlife

Page 41 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Table 6: Mission-specific Laws Guiding Agency Activities Affecting Columbia River Basin Fish and Wildlife

Mission-specific law Citation Description

Federal Land Policy and 

Management Act of 1976

43 U.S.C. §§ 1701-1782 In setting policy for and providing for the management of public lands, 

along with the Classification and Multiple Use Act, establishes a 

multiple-use mandate for lands managed by the Bureau of Land 

Management. Directs the Secretary of the Interior to develop and 

maintain land use plans using a systematic interdisciplinary approach 

to achieve the integrated consideration of physical, biological, and 

economic factors.

Federal Power Act 16 U.S.C. §§ 791a-797, 798-

824a, and 824b-825r

Provides for the development, conservation, and use of the nation’s 

navigable waters, including the development of waterpower resources, 

and, to that end, requires federal licenses for the construction and 

operation of certain nonfederal hydroelectric projects. For projects 

using lands within federal land reservations, such as national forests, 

licenses are subject to conditions established by the relevant land 

management agency for protection of the lands. License conditions 

must include a requirement for fish passage as prescribed by the 

Secretaries of the Interior and Commerce. The license must also 

include conditions for the protection and enhancement of fish and 

wildlife, based generally on recommendations made by federal and 

state fish and wildlife agencies. 

Individual project 

authorization acts (E.g.,

Tualatin Federal 

Reclamation Project Act)

Various authorizing statutes (E.g.,

Pub. L. No. 89-596, 80 Stat. 822)

Authorize Columbia River Basin projects by agencies such as the 

Army Corps of Engineers and the Bureau of Reclamation for purposes 

such as navigation, power production, fish and wildlife conservation, 

and recreation. 

Multiple-Use Sustained-Yield 

Act of 1960

16 U.S.C. §§ 528-531 Directs the Secretary of Agriculture to develop and administer the 

renewable surface resources of the national forests for multiple use 

and sustained yield of the various products and services obtained from 

those areas, in cooperation with interested state and local government 

agencies and others.

National Forest Management 

Act

16 U.S.C. §§ 1600-1614 Along with the Organic Act and the Multiple-Use Sustained-Yield Act, 

establishes a multiple-use mandate for lands managed by the Forest 

Service to include outdoor recreation, range, timber, watershed, 

wildlife and fish, and wilderness purposes. Regulations adopted 

pursuant to the National Forest Management Act require the Forest 

Service to manage habitat to maintain viable and well-distributed 

populations of native fish and wildlife.

National Wildlife Refuge 

System Administration Act of 

1966

16 U.S.C. §§ 668dd, 668ee Establishes the National Wildlife Refuge System and directs the 

Secretary of the Interior to, among other things, provide for the 

conservation of fish and wildlife and their habitats within the system 

and to prepare a comprehensive conservation plan for each refuge.

Reclamation Act Act of June 17, 1902, ch. 1093, 

32 Stat. 388; Act of August 4, 

1939, ch. 418, 55 Stat. 1187

Includes a requirement that the Bureau of Reclamation obtains water 

project permits from and operates projects in accordance with state 

water law. 

Reclamation Recreation 

Management Act

16 U.S.C. §§ 4601-4631 Establishes federal responsibility to provide opportunities for public 

recreation at federal water projects, and authorizes the Secretary of 

the Interior to undertake specific measures for the management of 

Reclamation lands.
Appendix II

Laws, Treaties, and Executive Orders 

Guiding Agency Activities Affecting 

Columbia River Basin Fish and Wildlife

Page 42 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Source: GAO analysis of information provided by federal agencies.

Table 7 lists the treaties that federal agencies reported as guiding their 

actions to protect, mitigate, and enhance fish and wildlife in the Columbia 

River Basin.

Table 7: Treaties Guiding Agency Activities Affecting Columbia River Basin Fish and Wildlife

Source: GAO analysis of information provided by federal agencies.

Mission-specific law Citation Description

Soil Conservation and 

Domestic Allotment Act

16 U.S.C. §§ 590a to 590q-3 Authorizes the Natural Resources Conservation Service, and includes 

among its purposes the protection of rivers and harbors against the 

results of soil erosion, and the prevention and abatement of 

agriculture-related pollution.

Water Resources 

Development Acts

E.g., Water Resources 

Development Act, 33 U.S.C. §§ 

2201-2330

Authorize the Army Corps of Engineers to construct environmental 

restoration projects; to restore degraded ecosystems resulting from 

the construction or operation of a project; to restore, protect, and 

create aquatic and wetlands habitat in connection with a project; and 

to assist tribal, state, and local governments in preparing 

comprehensive development plans. Authorize compensation for fish 

and wildlife losses caused by four dams on the lower Snake River.

Wyden Amendment 16 U.S.C. § 1011(a) Authorizes the Forest Service and Bureau of Land Management to 

enter into cooperative agreements with federal agencies, tribal, state 

and local governments, private and nonprofit entities, and landowners 

for the protection, restoration, and enhancement of fish and wildlife 

habitat and other resources on public or private land. 

(Continued From Previous Page)

Treaty Citation Description

Columbia River 

Treaty 

Treaty Relating to Cooperative Development of the 

Water Resources of the Columbia River Basin (with 

Annexes) (September 16, 1964)

Defines the relationship between the United States and 

Canada concerning the operation of Columbia River 

dams and reservoirs.

Pacific Salmon 

Treaty

Treaty between the Government of Canada and the 

Government of the United States of America 

Concerning Pacific Salmon (August 13, 1985)

Governs the harvest of certain salmon stocks in the 

fisheries of the Northwest states (including Alaska) and 

Canada.
Appendix II

Laws, Treaties, and Executive Orders 

Guiding Agency Activities Affecting 

Columbia River Basin Fish and Wildlife

Page 43 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Table 8 lists the executive orders that federal agencies reported as guiding 

their actions to protect, mitigate, and enhance fish and wildlife in the 

Columbia River Basin.

Table 8: Executive Orders Guiding Agency Activities Affecting Columbia River Basin Fish and Wildlife

Source: GAO analysis of information provided by federal agencies.

Executive order Citation Description

Floodplain Management E.O. 11988 (May 24, 1977) Directs executive agencies to evaluate the potential effects of any 

actions they may take in a floodplain and to take action to reduce the 

risk of flood loss and to preserve the beneficial values served by 

floodplains.

Protection of Wetlands E.O. 11990 (May 24,1977) Directs executive agencies to minimize the destruction, loss, or 

degradation of wetlands in carrying out their responsibilities on 

federal land.

Responsibilities of 

Federal Agencies to 

Protect Migratory Birds 

 E.O. 13186 (January 10, 2001) Directs executive agencies to take certain actions to further 

implement the Migratory Bird Treaty Act for the conservation of 

migratory birds and their habitats.
Page 44 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Appendix III

Laws and Executive Orders Guiding Agency 

Activities Affecting Columbia River Basin 

Tribes ApendxiI

Table 9 lists the laws that federal agencies reported as guiding their actions 

with regard to tribes in the Columbia River Basin.

Table 9: Laws Guiding Agency Activities Affecting Columbia River Basin Tribes

Source: GAO analysis of information provided by federal agencies.

Law Citation Description

Indian Reorganization 

Act

25 U.S.C. §§ 461-463, 464, 

465, 466-470, 471-473, 474, 

475, 476-478, 479.

Enacts measures to protect ownership of Indian lands and to restore lands to 

tribal ownership, and authorizes the Secretary of the Interior to acquire lands for 

Indians. Grants rights of self-governance to Indians.

Indian SelfDetermination and 

Education Assistance 

Act

25 U.S.C. §§ 13a, 450-450n, 

455-458e

Enacts measures that promote a policy of Indian self-determination by assuring 

maximum Indian participation in educational and other federal services to 

Indian communities, including effective and meaningful participation in the 

planning, conduct, and administration of those services. Includes measures to 

improve Indian education. 

Snyder Act 25 U.S.C. § 13 Directs the Bureau of Indian Affairs, Department of the Interior, to spend 

appropriated funds for the benefit, care, and assistance of Indians for 

enumerated purposes, such as education, health, and the development of water 

supplies.

National Indian Forest 

Resources 

Management Act

25 U.S.C. §§ 3101-3120 Directs the Secretary of the Interior to undertake management activities, 

together with the Indians, on Indian forestland to develop, maintain, and 

enhance the land in a perpetually productive state in accordance with the 

principles of sustained yield and multiple uses, to maintain and improve wildlife 

and fisheries, and for other purposes.

Native American 

Graves Protection and 

Repatriation Act

25 U.S.C. §§ 3001-3013 Establishes a process for agencies to return Native American remains and 

associated funery objects to lineal descendants and affiliated Indian tribes, and 

regulates the ownership and control of Native American cultural items that are 

excavated or discovered on federal or tribal lands after November 16, 1990.
Appendix III

Laws and Executive Orders Guiding Agency 

Activities Affecting Columbia River Basin 

Tribes

Page 45 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Table 10 lists the executive orders and presidential memorandum that 

federal agencies reported as guiding their actions with regard to tribes in 

the Columbia River Basin.

Table 10: Executive Orders and Presidential Memorandum Guiding Agency Activities Affecting Columbia River Basin Tribes

Source: GAO analysis of information provided by federal agencies.

Executive order or 

memorandum Citation Description

Consultation and 

Coordination with Indian 

Tribal Governments

E.O. 13175 (Nov. 6, 2000) Requires executive agencies to respect Indian tribal self governance 

and sovereignty, honor tribal treaty and other rights, and strive to 

meet the responsibilities that arise from the unique legal relationship 

between the federal government and tribal governments. Each 

agency shall have an accountable process to ensure meaningful and 

timely tribal input in the development of regulatory policies that have 

tribal implications.

Government to 

Government Relations 

with Native American 

Tribal Governments

Memorandum for the Heads of 

Executive Departments and Agencies 

(April 29, 1994)

Requires, among other things, that executive agencies operate 

within a government-to-government relationship with federally 

recognized tribal governments; consult to the greatest extent 

possible with tribal governments before taking actions that affect 

tribal governments; and agencies assess the impact of federal 

government plans, projects, programs, and activities on tribal trust 

resources and ensure that tribal rights and concerns are considered 

in developing them.

Regulatory Planning and 

Review

E.O. 12866 (September 30, 1993) Establishes a program to reform and make more efficient the 

regulatory process, including making the process more accessible 

and open to the public. Wherever feasible, agencies are required to 

seek the views of appropriate state, local and tribal officials before 

imposing regulatory requirements that might significantly or uniquely 

affect them.

Enhancing the 

Intergovernmental 

Partnership 

 E.O. 12875 (October 26, 1993) Prohibits executive agencies, to the extent feasible, from 

promulgating any regulation not required by statute that creates a 

mandate upon a state, local, or tribal government, unless funds 

necessary for direct costs of the mandate are provided by the federal 

government or the agency has consulted with affected state, local, or 

tribal government. Requires agencies to develop effective 

processes to permit state, local, and tribal representatives to provide 

meaningful and timely input in the development of regulatory 

proposals containing significant unfunded mandates.
Page 46 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Appendix IV

Court Decisions Guiding Agency Activities 

Affecting Columbia River Basin Fish, Wildlife, 

and Tribes ApendxiIV

Table 11 lists the court decisions that federal agencies reported as guiding 

their actions to protect, mitigate, and enhance fish and wildlife in the 

Columbia River Basin.

Table 11: Court Decisions Guiding Agency Activities Affecting Columbia River Basin Fish and Wildlife

Court decision Citation Result

Alsea Valley Alliance v. Evans 161 F. Supp. 2d 1154 (D. Or. 

2001)

Invalidated NMFS listing of naturally spawning Coho salmon on the 

Oregon coast as threatened.

National Wildlife Federation v. 

National Marine Fisheries Service

No. CV 01-640-RE, 2003 

WL 21077450 (D. Or. May 7, 

2003)

Invalidated the NMFS biological opinion that concluded that in light of 

certain mitigation actions, endangered and threatened species of 

salmon and steelhead trout in the Columbia River Basin would not be 

jeopardized by federal agencies’ continued operations of the Federal 

Columbia River Power System. The court remanded the opinion to 

NMFS to resolve deficiencies the court identified.

National Wildlife Federation v. 

United States Army Corps of 

Engineers

132 F. Supp.2d 876 (D. Or. 

2001)

Held that the Army Corps of Engineers’ 1995 and 1998 “Records of 

Decision” describing how the Corps would operate dams on the Snake 

and Columbia Rivers violated the Clean Water Act by failing to ensure 

compliance with water quality standards issued by the State of 

Washington under the act. The court remanded the 1998 Record of 

Decision to the Corps for reconsideration and directed the Corps to 

issue a decision, within 60 days, that addresses compliance with its 

obligations under the Clean Water Act.

Northwest Environmental Defense 

Center v. Bonneville Power 

Administration

117 F.3d 1520 (9th Cir. 1997) Held that the requirement in the Pacific Northwest Electric Power 

Planning and Conservation Act to treat fish and wildlife equitably with 

power did not require Bonneville to dedicate a portion of the water to 

fish and wildlife in connection with agreements Bonneville entered into 

with Canada and several utilities governing rights to water stored 

behind electric dams on the Columbia River system in Canada. The 

court found that the act did not require equitable treatment for fish and 

wildlife for every action Bonneville took, but only required equitable 

treatment on a systemwide basis. Also held that the National 

Environmental Policy Act did not require Bonneville to prepare an 

environmental impact statement in this case.

Northwest Resource Information 

Center, Inc. v. Northwest Power 

Planning Council

35 F.3d 1371 (9th Cir. 1994) Held that in its final amendments to the Columbia River Basin Fish and 

Wildlife Program, the Northwest Power Planning Council failed to 

comply with requirements of the Pacific Northwest Electric Power 

Planning and Conservation Act and the Administrative Procedure Act 

by failing to (1) explain a statutory basis for its rejection of 

recommendations of fish and wildlife agencies and Indian tribes, and 

(2) evaluate proposed program measures against sound biological 

objectives. The court remanded the final amendments to the Council 

for reconsideration.
Appendix IV

Court Decisions Guiding Agency Activities 

Affecting Columbia River Basin Fish, 

Wildlife, and Tribes

Page 47 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Source: GAO analysis of information provided by federal agencies.

Table 12 lists the court decisions that federal agencies reported as guiding 

their actions with regard to tribes in the Columbia River Basin.

Table 12: Court Decisions Guiding Agency Activities Affecting Columbia River Basin Tribes

Court decision Citation Result

Public Utility District No. 1 of 

Douglas County v. Bonneville 

Power Administration

947 F.2d 386, 392-94 (9th

Cir. 1991) 

Held that the Bonneville Power Administration erred in its adoption of 

the “Final Policy” for implementation of the 

Columbia River Basin Fish and Wildlife Program in deciding that only 

those measures protecting fish and wildlife specifically described in the 

program were compensable under the provision of the Pacific 

Northwest Electric Power Planning and Conservation Act entitling 

nonfederal electric projects to compensation for costs, including power 

loss, resulting from federally imposed measures to protect fish and 

wildlife.

Confederated Tribes of the 

Umatilla Indian Reservation v. 

Bonneville Power Administration

342 F.3d 924 (9th Cir. 2003) Held that the Bonneville Power Administration’s alleged unreasonable 

delay in implementing the Pacific Northwest Electric Power Planning 

and Conservation Act requirement to provide equitable treatment to 

fish and wildlife was not reviewable by a court.

(Continued From Previous Page)

Court decision Citation Result

Lane v. Pueblo of Santa Rosa 249 U.S. 110 (1919) Held that the lower court should not have directed that a permanent 

injunction be issued to stop the Secretary of the Interior from disposing of 

land that comprised the Pueblo of Santa Rosa, a Pueblo Indian town in 

southern Arizona acquired from Mexico under the Gadsden Treaty, without 

allowing the federal government a chance to address the merits of the 

claim against it.

Morongo Band of Mission 

Indians v. Federal Aviation 

Administration

161 F.3d 569, 574 (9th Cir. 

1998)

Found, among other things, that although the United States had a general 

trust responsibility to Indian tribes, unless there is a specific duty that has 

been placed on the government with respect to Indians, this responsibility 

is discharged by the agency’s compliance with general regulations and 

statutes not specifically aimed at protecting Indian tribes.

Pyramid Lake Paiute Tribe of 

Indians v. Morton

354 F. Supp. 252 (D. D.C. 

1973)

Tribe successfully challenged the Secretary of the Interior’s regulation 

establishing the basis for determining the amount of water to be provided 

to the Truckee-Carson Irrigation District. Court held that the Secretary 

failed to adequately justify how much water, under court decrees and a 

contract with an irrigation district, he determined could be diverted from a 

river prior to the point where it flowed into an Indian reservation and fed a 

lake relied upon by many Indians for their livelihood. 

United States v. Ferry County 511 F. Supp. 546 (E.D. Wash. 

1981)

Held that lands acquired by the U.S. in trust for the tribes and individual 

Indians are nontaxable, and that all tax assessments against such lands 

are null and void.

Seminole Nation v. United 

States

316 U.S. 286 (1942) Resolved a number of monetary claims by the Seminole Indians, finding in 

favor of the Seminoles on some, and against them on others.
Appendix IV

Court Decisions Guiding Agency Activities 

Affecting Columbia River Basin Fish, 

Wildlife, and Tribes

Page 48 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Source: GAO analysis of information provided by federal agencies.

Court decision Citation Result

United States v. Creek 

Nation

295 U.S. 103 (1935) Held that the United States was liable to the Creek Indians for damages 

that occurred when it disposed of Creek land that a survey erroneously 

indicated belonged to the United States, measured by the value of the 

property at the time of the disposal. 

United States v. Mitchell 463 U.S. 206 (1983) Held that the United States breached its fiduciary duty to the Indians by 

mismanaging Indian forest resources, and was liable to the Indians for 

resulting money damages. 

Sohappy v. Smith 302 F. Supp. 899 (D. Or. 

1969)

Held that the State of Oregon was limited in its power to regulate the 

exercise of the Indians' federal treaty right to fish, in that regulation must 

be necessary for conservation of the fish, the state restrictions must not 

discriminate against the Indians, and restrictions must meet appropriate 

standards. Affirmed the treaty rights of certain Indian tribes to a fair share 

of the harvestable catch.

United States v. Washington 384 F. Supp. 312 (W.D. 

Wash. 1974)

Held that the State of Washington had authority to regulate Indians’ 

exercise of their treaty fishing rights only to the extent necessary for the 

conservation of fishery resources, and that tribes (that met certain 

conditions) had the right to regulate fishing by their members without any 

state interference. Affirmed the treaty rights of certain Indian tribes to a 

share of the harvestable catch.

Winters v. United States 207 U.S. 564 (1908) Held that a reservation of waters for irrigation purposes for the Indians on 

the Fort Belknap reservation is implied from an agreement that 

established a reservation for the Indians, and that no one has the right to 

divert water from naturally flowing to the reservation.

(Continued From Previous Page)
Page 49 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Appendix V

Plans and Programs Implemented by Federal 

Agencies to Manage Columbia River Basin 

Fish and Wildlife Activities ApendxiV

Table 13 provides descriptions of plans and programs identified by federal 

agencies, including the directives driving the plans and programs and the 

lead agencies.

Table 13: Plans and Programs That Guide Federal Fish and Wildlife Activities in the Columbia River Basin

Plan/program Lead agency Description

Northwest Power Act-driven plans and programs

Columbia River Basin Fish and 

Wildlife Program

Bonneville,

the Council

Program to protect, mitigate, and enhance fish and wildlife, including related 

spawning grounds and habitat, on the Columbia River and its tributaries. 

Developed by the Council, funded by Bonneville, and implemented by a number 

of agencies and other organizations.

Northwest Power and 

Conservation Council 

Subbasin Planning Process

The Council Process to incorporate local-level planning for the 50+ subbasins in the Columbia 

River Basin into the development and implementation of the Columbia River 

Basin Fish and Wildlife Program. 

Northwest Power and 

Conservation Council 

Provincial Review

The Council Program developed by the Council, and operated on a 3-year cycle, to improve 

the technical review and approval of projects funded by the Columbia River Basin 

Fish and Wildlife Program.

Endangered Species Act-driven plans and programs

Biological Opinions for the 

FCRPS 

FWS and NMFS Plans that set forth reasonable and prudent measures/alternatives for operation 

by the Corps, Reclamation, and Bonneville of the FCRPS, in order to minimize 

impacts to fish and wildlife. Created as a result of consultation with FWS and 

NMFS under Section 7 of ESA. 

Biological Opinion 

Implementation Plans for the 

FCRPS

Bonneville, the 

Corps, Reclamation

Frameworks developed by the agencies managing the FCRPS for complying with 

Biological Opinions for the FCRPS. 

Bull Trout Recovery Plan FWS Plan designed to organize, coordinate, and prioritize recovery actions for bull 

trout, and to outline objective measurable criteria that will be used to determine 

when bull trout no longer needs the protection of the ESA. 

Recovery plans for salmon 

(under development)

NMFS Plans designed to organize, coordinate, and prioritize recovery actions for 

endangered and threatened salmon and steelhead, and to outline objective 

measurable criteria that will be used to determine when salmon and steelhead no 

longer need the protection of the ESA.

Basin-wide Salmon Recovery 

Strategy (All-H Paper)

All agencies in the 

Federal Caucus

A strategy and accompanying suite of actions to be used as a blueprint to guide 

federal actions towards recovery of threatened and endangered salmon and 

steelhead in the Columbia River Basin. 

Clean Water Act-driven plans and programs

Clean Water Act Section 319 

Grant Program

EPA Program to provide funding to states and Indian tribes for a wide variety of 

nonpoint source activities including technical and financial assistance, education, 

training, technology transfer, demonstration projects, and monitoring.

Clean Water Act General 

Assistance Grant Program to 

Tribes

EPA Program to provide assistance grants to Indian tribal governments and intertribal 

consortia to build capacity to administer regulatory and multimedia programs 

addressing environmental issues on Indian lands.
Appendix V

Plans and Programs Implemented by Federal 

Agencies to Manage Columbia River Basin 

Fish and Wildlife Activities

Page 50 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Plan/program Lead agency Description

Clean Water Act Section 

104(b)(3) Support to Total 

Maximum Daily Loads

EPA Program to provide assistance to state water pollution control agencies; 

interstate agencies; and other nonprofit institutions, organizations, and 

individuals to promote the coordination of environmentally beneficial activities, 

including storm water control, sludge management, and pretreatment of 

wastewater.

Clean Water Act Section 106 

Grant Program

EPA Program to provide assistance to Indian tribes in carrying out effective water 

pollution control programs, including water quality planning and assessments, 

developing water quality standards and total maximum daily loads, and ambient 

monitoring.

Clean Water State Revolving 

Fund

EPA A loan program to fund water quality protection projects for wastewater treatment, 

nonpoint source pollution control, and watershed and estuary management.

Lower Columbia Estuary 

Partnership

EPA Program under Clean Water Act Section 320 to improve the quality of the Lower 

Columbia Estuary, and provide the basis for estuarine salmon recovery efforts. 

Key activities include habitat monitoring, volunteering monitoring, and species 

recovery. 

Court-driven plans and programs

U.S. v Oregon Management 

Plans/Agreements

FWS, NMFS Plans that address tribal allocation of annual fish harvest, as well as hatchery 

and supplementation measures designed to help rebuild depressed fish stocks.

Mission-driven plans and programs

Gas Abatement Project at 

Chief Joseph Dam

The Corps Project to install spillway deflectors and implement operational changes at Chief 

Joseph Dam in order to reduce total dissolved gas levels.

Army Corps Anadromous Fish 

Evaluation Program

The Corps Program to develop and evaluate anadromous fish passage facilities at Corps 

dams on the Columbia and lower Snake Rivers. Includes monitoring, research, 

and evaluation studies conducted in collaboration with other federal, state, and 

tribal agencies.

Project Management Plans The Corps Internal management plans developed in parallel with any Corps project. 

Designed to ensure that proper internal procedures are followed to protect and 

mitigate barriers to fish passage. 

District Resource Management 

Plans

BLM Internal management plans for all BLM activities. Developed via the National 

Environmental Policy Act process, they include specific management guidelines 

for protection of fish and wildlife. 

Wild and Scenic River Plans BLM, Forest Service Management plans developed to ensure that agency activities protect identified 

“outstandingly remarkable values,” including fish and wildlife, recognized in Wild 

and Scenic River Areas. 

Upper Salmon Basin Project NRCS Project designed to provide a basis of coordination and cooperation between 

local, private, state, tribal, and federal fish and land managers, land users, land 

owners and other affected entities. Goal is to manage the biological; social; and 

economic resources to protect, restore, and enhance anadromous and resident 

fish habitat.

General Investigations Reclamation Projects funded by special congressional appropriations, some of which address 

fish and wildlife enhancement or mitigation. Also typically involve partnerships 

with other groups, such as states, interest groups, and tribes. 

Research and Monitoring 

Programs

Reclamation Internal Reclamation programs funded by the Commissioner’s office that focus 

on a range of discretionary activities, including research and monitoring efforts 

for fish and wildlife. 

(Continued From Previous Page)
Appendix V

Plans and Programs Implemented by Federal 

Agencies to Manage Columbia River Basin 

Fish and Wildlife Activities

Page 51 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Source: GAO analysis of information provided by federal agencies.

Plan/program Lead agency Description

Resource Management Plans Reclamation Management plans required for all reservoirs managed by the agency. Plans 

address management of recreational activities, as well as conservation of fish 

and wildlife. 

Hungry Horse Mitigation 

Implementation Plan

Reclamation Specific project at Hungry Horse Dam to control water withdrawals at the 

reservoir that were causing harm to fish, and to mitigate for impacts of 

constructing a water control system. 

Lower Snake River 

Compensation Plan 

Bonneville, FWS Specific project to mitigate impacts to fish and wildlife from construction of last 

four FCRPS dams on the Lower Snake River. Project preceded mitigation 

requirements set forth under the Power Act. 

Recreational Fishery 

Resources Conservation Plan

FWS Internal agency plan to incorporate conservation planning into the management 

of recreational fisheries.

Land and Resource 

Management Plans (Forest 

Plans)

Forest Service Internal agency plans that incorporate specific conservation measures for fish, 

wildlife, plants, and other natural resources, into management of National 

Forests. 

Lynx Conservation Strategy 

and Agreement

Forest Service Strategy to address the needs of lynx and lynx habitat in the context of forest 

management, and to foster cooperation and interaction between foresters and 

wildlife biologists.

PACFISH & INFISH Forest Service, BLM Aquatic strategies that apply interim standards and guidelines to agency actions 

for the protection of aquatic and riparian habitat for the restoration of endangered 

and threatened fish within the interior Columbia basin.

Northwest Forest Plan Forest Service, BLM An interagency approach to developing and implementing measures for the longterm health of forests, wildlife, and waterways on federal lands. 

Pacific Coastal Salmon 

Recovery Fund

NMFS Assist the states and tribes in implementing salmon restoration efforts.

Environmental Quality 

Incentive Program

NRCS Cost-share program, operated collaboratively with tribes, to benefit fish and 

wildlife through environmental improvements to irrigation, erosion, water quality, 

and agriculture. 

State-driven plans and programs

“Extinction Is Not an Option”: 

Washington Statewide Strategy 

to Recover Salmon

State of Washington Long-term strategy for the recovery of salmon in Washington state. Primary 

goals of the strategy are to restore salmon, steelhead, and trout populations to 

healthy and harvestable levels and improve the habitats on which fish rely.

Fish and Forest Agreement in 

Washington

State of Washington Collaborative agreement between Washington state, tribes, federal agencies, 

timber interests, and environmental groups to address timber practices so as to 

minimize impacts to fish populations. 

Oregon Plan for Salmon & 

Watersheds

State of Oregon A statewide approach to natural resource management in Oregon that focuses 

on restoring Coho salmon through the Coastal Salmon Restoration Initiative and 

improving water quality through the Healthy Streams Partnership.

Tribally-driven plans and programs

Wy-Kan-Ush-Mi Wa-Kish-Wit 

(“Spirit of the Salmon”)

Nez Perce, Umatilla, 

Warm Springs, 

Yakama tribes

A framework for restoring salmon in the Columbia River that outlines the cultural 

context for the tribes’ salmon restoration efforts, as well as technical and 

institutional recommendations and watershed restoration activities. 

Warm Springs National Fish 

Hatchery Operational and 

Implementation Plan

Warm Springs tribe Plan outlining management measures and operational procedures for the Warm 

Springs National Fish Hatchery, which is cooperatively managed by FWS and the 

Warm Springs tribe.

(Continued From Previous Page)
Page 52 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Appendix VI

Comments from the Bonneville Power 

Administration ApendxiVI
Appendix VI

Comments from the Bonneville Power 

Administration

Page 53 GAO-04-602 Columbia Basin Fish and Wildlife Activities
Page 54 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Appendix VII

Comments from the Department of 

Agriculture ApendxiVI

Now on p. 4.

Now figure 3 on p. 20.

Now on p. 22.

Now on p. 22.
Appendix VII

Comments from the Department of 

Agriculture

Page 55 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Now on p. 24.

Now on p. 24.

Now figure 4 on p. 27.

Now on p. 31.

Now table 6 on p. 41.

Now table 13 on pp. 50 and 

51.
Page 56 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Appendix VIII

Comments from the Department of 

Commerce ApendxiVI
Appendix VIII

Comments from the Department of 

Commerce

Page 57 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Now on p. 1.

Now on p. 1.

Now on pp. 7 and 9.

Now on p. 7.

Now on p. 14.

Now on p. 14.
Appendix VIII

Comments from the Department of 

Commerce

Page 58 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Now on p. 15.

Now on p. 17.

Now on p. 23.

Now on p. 24.

Now on p. 26.

Now on p. 29.

Now table 4 on p. 37.

Now appendix V, table 13, 

on p. 51.
Page 59 GAO-04-602 Columbia Basin Fish and Wildlife Activities

Appendix IX

GAO Contacts and Staff Acknowledgments ApendxiIX

GAO Contacts Barry T. Hill, (202) 512-3841

Jeffery D. Malcolm, (202) 512-6536

Acknowledgments In addition to those named above, Jill Berman, Brad Dobbins, and Rebecca 

Sandulli made key contributions to this report. Also contributing to the 

report were Bob Crystal and Cynthia Norris.

(360380)
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