U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

73-135 PS 2002

WATER MANAGEMENT AND ENDANGERED SPECIES ISSUES

IN THE KLAMATH BASIN

OVERSIGHT FIELD HEARING

BEFORE THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

June 16, 2001 in Klamath Falls, Oregon

Serial No. 107-39

Printed for the use of the Committee on Resources

(

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

or

Committee address: http://resourcescommittee.house.gov

(II)

COMMITTEE ON RESOURCES

JAMES V. HANSEN, Utah, Chairman

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,

Vice Chairman

W.J. ‘‘Billy’’ Tauzin, Louisiana

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Joel Hefley, Colorado

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Scott McInnis, Colorado

Richard W. Pombo, California

Barbara Cubin, Wyoming

George Radanovich, California

Walter B. Jones, Jr., North Carolina

Mac Thornberry, Texas

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Bob Schaffer, Colorado

Jim Gibbons, Nevada

Mark E. Souder, Indiana

Greg Walden, Oregon

Michael K. Simpson, Idaho

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

C.L. ‘‘Butch’’ Otter, Idaho

Tom Osborne, Nebraska

Jeff Flake, Arizona

Dennis R. Rehberg, Montana

George Miller, California

Edward J. Markey, Massachusetts

Dale E. Kildee, Michigan

Peter A. DeFazio, Oregon

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Calvin M. Dooley, California

Robert A. Underwood, Guam

Adam Smith, Washington

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Jay Inslee, Washington

Grace F. Napolitano, California

Tom Udall, New Mexico

Mark Udall, Colorado

Rush D. Holt, New Jersey

James P. McGovern, Massachusetts

Anibal Acevedo-Vila, Puerto Rico

Hilda L. Solis, California

Brad Carson, Oklahoma

Betty McCollum, Minnesota

Allen D. Freemyer, Chief of Staff

Lisa Pittman, Chief Counsel

Michael S. Twinchek, Chief Clerk

James H. Zoia, Democrat Staff Director

Jeff Petrich, Democrat Chief Counsel

(III)

CONTENTS

Page

Hearing held on June 16, 2001 ............................................................................... 1

Statement of Members:

Gibbons, Hon. Jim, a Representative in Congress from the State of

Nevada ........................................................................................................... 6

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

Washington .................................................................................................... 6

Herger, Hon. Wally, a Representative in Congress from the State of

California ....................................................................................................... 4

Pombo, Hon. Richard W., a Representative in Congress from the State

of California ................................................................................................... 1

Prepared statement of ............................................................................... 2

Simpson, Hon. Mike, a Representative in Congress from the State of

Idaho .............................................................................................................. 8

Smith, Hon. Gordon, a U.S. Senator from the State of Oregon, Letter

submitted for the record ............................................................................... 161

Walden, Hon. Greg, a Representative in Congress from the State of

Oregon ............................................................................................................ 2

Prepared statement of ............................................................................... 4

Statement of Witnesses:

Bishop, Franklin M., President and CEO, Intermountain Farm Credit ...... 90

Prepared statement of ............................................................................... 93

Crawford, John, Klamath Project Farmer and Member of Tulelake

Irrigation District Board of Directors .......................................................... 35

Prepared statement of ............................................................................... 39

Fletcher, Troy, Executive Director, Yurok Tribe ........................................... 86

Prepared statement of ............................................................................... 88

Foreman, Allen, Chairman, The Klamath Tribe of Oregon .......................... 75

Prepared statement of ............................................................................... 78

Gaines, Bill, Director of Government Affairs, California Waterfowl

Association ..................................................................................................... 139

Prepared statement of ............................................................................... 142

Gasser, Robert E., Klamath Basin Businessman .......................................... 144

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

Grader, William F. ‘‘Zeke’’, Executive Director, Pacific Coast Federation

of Fishermen’s Associations ......................................................................... 119

Prepared statement of ............................................................................... 122

Kerr, Andy, Senior Counselor, Oregon Natural Resources Council ............. 95

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

Molder, Sharron, Principal, Tulelake High School, Tulelake, California .... 41

Prepared statement of ............................................................................... 44

Raybould, Hon. Dell, Idaho State Representative ......................................... 48

Prepared statement of ............................................................................... 49

Solem, David, Manager, Klamath Irrigation District .................................... 104

Prepared statement of ............................................................................... 106

Vogel, David A., President, Natural Resource Scientists, Inc. ..................... 57

Prepared statement of ............................................................................... 58

West, Hon. M. Steven, 2001 Chairman, Klamath County Board of

Commissioners, Klamath County, Oregon .................................................. 29

Prepared statement of ............................................................................... 31

Wooldridge, Sue Ellen, Deputy Chief of Staff, Department of the Interior . 9

Prepared statement of ............................................................................... 13

Page

IV

Additional materials supplied:

Horton, Patricia L. et al., Letter submitted for the record by Hon. Greg

Walden ........................................................................................................... 161

Miscellaneous Photographs and Letters submitted for the record ............... 164

Roberts, Jack, Oregon Labor Commissioner, Statement submitted for the

record ............................................................................................................. 162

(1)

WATER MANAGEMENT AND ENDANGERED

SPECIES ISSUES IN THE KLAMATH BASIN

Saturday, June 16, 2001

U.S. House of Representatives

Committee on Resources

Klamath Falls, Oregon

The Committee met, pursuant to call, at 9:20 a.m., at the Klamath County Fairgrounds, 3531 S. 6th Street, Klamath Falls, Oregon, Hon. Richard Pombo presiding.

STATEMENT OF THE HON. RICHARD POMBO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. POMBO. Good morning. I wanted to welcome everybody here

this morning. The hearing of the House Committee on Resources

will please come to order. Today, the Committee will exercise its

oversight jurisdiction with regard to the water management and

endangered species issues in the Klamath Basin. I would like to

thank everyone here for coming to this important event. I would

like to also thank Representative Greg Walden, whose congressional district we are in this morning, as well as my other colleagues present here today. I am grateful for their interest in this

important matter.

Let me begin by introducing myself. I am Richard Pombo. I represent the 11th Congressional District in California, which is the

home of San Joaquin and Sacramento Counties. I do not want to

speak too long because we are here to listen to you. My purpose

today is to focus attention on the Klamath Basin problem, find solutions and to assist in any way that we can.

Let me say this, though, after serving as Chairman of the House

Resources Committee, Endangered Species Act working group, I

have attended numerous hearings throughout the years around the

country and heard testimony from people who have lost their

homes, their jobs and their dignity due to questionable interpretations of the Act. It is clear to me that ESA has been misused for

years by some advocacy groups to threaten the rights of private

property owners.

Further, the impacts from environmental lawsuits on businesses

and families throughout California and across the nation have been

financially and emotionally devastating. We have sacrificed

enough. I simply cannot stand by quietly as farmers, ranchers,

families and businesses, especially those in the West who depend

on natural resources for a living, suffer for no constructive purpose.

2

It is time to take back our economic and constitutional rights.

After all, the human species deserves the most important place in

the ESA equation.

I look forward to hearing from the panels of witnesses today, and

to explore ways to improve the water management and endangered

species issues in the Klamath Basin and across the Nation. Again,

I want to thank everyone for being here this morning, and I also

want to point something out. It’s taken a tremendous amount of

work putting this hearing on, and I appreciate the interest that is

shown by the number of people who have turned out for the hearing today. Because this is an official congressional hearing as opposed to a town hall meeting, we have to abide by certain rules of

the Committee and of the House of Representatives, so we would

ask that there be no applause of any kind or any kind of demonstration with regards to the testimony. It is important that we

respect the decorum and the rules of the Committee.

At this time I would like to recognize Mr. Walden for any opening statement that he may have at this point.

[The prepared statement of Mr. Pombo follows:]

Statement of The Honorable Richard W. Pombo, a Representative in

Congress from the State of California

Good morning. Welcome, everyone. The hearing of the House Committee on Resources will please come to order.

Today, the committee will exercise its oversight jurisdiction with regard to the

water management and endangered species issues in the Klamath Basin.

I would like to thank everyone here for coming to this important event. I would

like to also thank Representative Greg Walden, whose congressional district we are

in this morning, as well as my other colleagues present here today. I am grateful

for their interest in this important matter.

Let me begin by introducing myself. I am Richard Pombo. I represent the 11th

Congressional District of California, which is home to the San Joaquin and Sacramento counties.

I do not want to speak too long because we are here to listen to you. My purpose

today is to focus attention on the Klamath Basin problem, find solutions and to assist in any way that we can.

Let me say this, though, after serving as Chairman of the House Resources Committee Endangered Species Act (ESA) working group, I have attended numerous

hearings throughout the years around the country, and heard testimony from people

who have lost their homes, their jobs and their dignity due to questionable interpretations of the Act.

It is clear to me that ESA has been misused for years by some advocacy groups

to threaten the rights of private property owners. Further, the impacts from environmental lawsuits on businesses and families throughout California and across the

nation have been financially and emotionally devastating. We have sacrificed

enough.

I simply cannot stand by quietly as farmers, ranchers, families, and businesses,

especially those in the West who depend on natural resources for a living, suffer

for no constructive purpose.

It is time to take back our economic and constitutional rights. After all, the

human species deserves the most important place in the ESA equation.

I look forward to hearing from the panels of witnesses today, and to explore ways

to improve the water management and endangered species issues in the Klamath

Basin and across the nation.

Again, I want to again thank everyone for being here.

STATEMENT OF THE HON. GREG WALDEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON

Mr. WALDEN. Thank you very much, Mr. Chairman, colleagues.

I want to welcome you to the great 2nd District of the State of OrVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6602 73135.TXT HRESOUR1 PsN: HRESOUR1
3

egon and the Klamath Basin, ground zero of the Endangered Species Act debate. I very much appreciate you taking your time out

of your busy schedules and away from your families and your districts to come here on this Father’s Day weekend to hear from the

people of this Basin about the problems that they face and the potential solutions to them.

You know, sometimes I feel like the fellow who’s speeding along

on one of those back country roads, and you come up over the rise

and here’s a four-way intersection and there’s a terrible wreck in

the middle of it. There’s glass and twisted metal and vehicles and

injury, each driver saying he had the right of way when he came

to that intersection. In some respects, it’s that collision that we’re

examining today. Tribal interests point to treaty obligations. Fishermen say it’s their right to have the water. Environmentalists say,

Get the farmers out and give us the water. The farmers point to

land grants that I’ve seen, signed by President Hoover in fact, saying they want water forever. It is this wreck that we’ve come upon.

For nearly a century these interests sped along their way, and

then on April 6th, 2001, the government stepped in and said, No

water for the farmers, and there was an extraordinary disaster

that’s ensued since then.

First, we must do everything we can do to help the economic

lives of those who are having their water taken away, their farms

dried up and their livelihoods destroyed. We must provide that

help. Toward that end, we have gotten the administration to agree

to add $20 million into emergency supplemental legislation. That

money, approved by the Committee on Thursday, will be voted on

by the U.S. House of Representatives next week. Know that that

is but a drop in a dry canal in terms of the economic devastation

that’s in this Basin. We’re working on 18 other efforts to help get

assistance, and we saw that today with the food bank effort here.

The Committee’s focus today is on what happened and why it

happened. How did we get to this point? It’s on the reliability of

science and the openness of that process. It must focus on how the

Endangered Species Act works, and how it fails us, and how it

should be changed for the better. Our efforts today must also focus

on the future of this Basin. What can we do to preserve a farming

way of life here while improving water quality and quantity for the

other needs, and how rapidly can we do that.

Some farmers simply want out. Frankly, I don’t blame them.

They’re being choked out and they have nowhere to go. They

should not be forced to shoulder the entire cost of the Endangered

Species Act requirements alone. But with the juicy carrots that are

being dangled in front of them, you have to ask, Is this but yet another Federal proposal that will never be carried out, a promise

that will not be kept?

These are tragic times and present us with complex and thorny

problems that hundreds of thoughtful people have spent years trying to sort out. It’s clear to me the time has come for significant

Federal reform of the Endangered Species Act. I hope today we will

begin to see before us a way to untangle the wreckage, restore the

rights and resolve the conflicts in this Basin. Thank you very

much, Mr. Chairman.

[The prepared statement of Mr. Walden follows:]

4

Statement of The Honorable Greg Walden, a Representative in Congress

from the State of Oregon

Mr. Chairman, colleagues. I welcome you to the Klamath Basin - Ground Zero in

the Endangered Species Act debate. I very much appreciate your taking time away

from your districts - and on father’s day weekend - your families - to come hear from

the people of this basin.

Sometimes I feel like the fella who’s speeding along a back road for hours without

seeing another vehicle, comes up over a rise. Ahead is a four-way intersection of

gravel roads. And in the middle is the worst, tangled mess of metal and glass you’ve

ever seen. Each driver saying he had the right of way.

In some respects, it is this collision that we examine today.

Tribal interests point to treaty obligations and argue for habitat restoration and

fish recovery beyond ESA levels to harvestable levels.

Pacific Coast Fishermen say the salmon’s decline is due to habitat and inadequate

stream flows and demand more water.

Environmentalists say let the government buy out farmers and return the land

to its pre-settlement state.

Farmers point to land grants signed by President Hoover saying they and their

heirs will forever have water rights for mining, agriculture and other uses. And they

rely on the solid tenets of the Kuchel Act as well.

For nearly a century these conflicting demands sped along their way and then on

April 6, 2001 they collided in the intersection that brings us here today.

First, we must do triage to save the economic lives of the farmers whose ditches

are dry, whose fields are turning brown and whose bank accounts are turning red.

Toward that end, I have encountered little objection. Next week the House will

vote to support $20 million in emergency disaster aid to farmers. Thursday, I wrote

to Secretary Veneman and told her relief must come in the nature of grants - not

loans - and that I stand ready to assist if new legislative authority is needed to accomplish this. We all know that time is of the essence.

We’re working on 18 other efforts to get help to those in need - from seven semitruck loads of food for the food bank to working to get livestock feed to ranchers

to working on new ways to channel federal forest and range jobs to local residents,

we are leaving no stone unturned.

The Committee’s focus today is on what happened and why it happened.

It is on the reliability of the science and the openness of the process.

It must focus on how the Endangered Species Act works and how it should be

changed to work better.

Our efforts today must also focus on the future for this basin.

What can we do to preserve a farming way of life here while improving water

quality, quantity and fish habitat? And how rapidly can we do it‘?

Some farmers simply want out and 1 do not blame them. They should not be

forced to shoulder the cost of the ESA requirements alone. But will the juicy carrot

being dangled in front of those most desperate materialize - or will it become just

another unkept federal promise a few years from now?

These are tragic times and they present us with complex and thorny problems

that hundreds of thoughtful people have spent years trying to sort out.

It is clear to me that the time has come for significant federal legislative action.

1 hope today we will begin to see before us a way to untangle the wreckage, restore

the rights and resolve the conflicts.

Thank you.

Mr. POMBO. Mr. Herger.

STATEMENT OF THE HON. WALLY HERGER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. HERGER. Thank you, Chairman Pombo, and all my other colleagues for coming. I want to thank you for sharing our strong concerns about the Endangered Species Act and for being witness in

our commitment to making the updates in the law that are long

overdue.

Ladies and gentlemen, we are at war with the extreme environmentalists. What they have done in the Klamath Basin is nothing

short of a tragedy. I have never seen anything like it in my years

5

of public office. The Endangered Species Act has been invoked to

completely destroy an entire local economy under the pretense of

saving a non-commercial sucker fish. They used bogus science, misinformation and their political friends in the previous Clinton/Gore

administration to bring an entire community to its knees, and

nothing in the law prevented it. Nothing in the law required open

decision making, public involvement or public review. Nothing in

the law required independent review of the science. Nothing in the

law required that the needless social and economic suffering that

were sure to result would be considered.

There is something fundamentally wrong, and indeed, immoral

about this, and it must be changed. Across the West the extremist

environmentalists are using the Endangered Species Act to drive

farmers, ranchers and land owners from their homes and from the

lands that they have worked for generations. Their goal is not to

protect the environment. It is to destroy local economies, bankrupt

businesses and drive people from the land. This is exactly what is

happening in the Klamath Basin. To the extreme environmentalist,

there is no balance, there is no middle ground.

Herein lies the challenge. We must use this tragedy to educate

the American public. Protecting the environment and promoting

economic well-being does not have to be an either/or proposition.

We have the experience and technical know-how to do both. Indeed,

we must do both, because a healthy environment depends upon a

healthy economy. There is no better example of that than the centuries-long relationship between agriculture and wildlife in the

wildlife refuges right here in the Klamath Basin.

What I can tell you is that they have only strengthened our resolve, and we are not going to give up. The fact that we are holding

this hearing today on the dire need to update the Endangered Species Act is a positive first step. And unlike the last 8 years, we now

have a presidential administration in Washington that is willing to

listen to our concerns and work with us to ensure that common

sense and balance prevail in the implementation of our environmental laws and policies.

I would like to thank Sue Ellen Wooldridge for being here to testify today. She worked extremely hard for us and did her best with

the hand she was dealt by the Clinton/Gore administration. We are

not here to criticize her efforts, but we are here to ask her help and

that of the administration in working to fully undo the political decisions that have devastated this economy. It is extremely unfortunate that the real decision-makers, the Clinton/Gore officials who

have either retired or moved on, are not present today to answer

for their actions. I will strive to bring those individuals in front of

the Congress to be accountable for what they have done.

Today, we must do two things. First, we must thoroughly examine the science, the decision-making and the process by which the

biological opinions were developed so that we can uncover the political knots, undo them and rework them, based on, 1) independent

peer-reviewed science, 2) actual historical evidence and, 3) balance.

Not politics, speculation and guesswork. We must also uncover the

specific provisions of the Endangered Species Act that fostered this

tragic result so that we can begin developing recommendations for

6

this Committee on how to restore balance to this misguided law so

that people and communities will come first. Thank you.

Mr. POMBO. Mr. Gibbons.

STATEMENT OF THE HON. JIM GIBBONS, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF NEVADA

Mr. GIBBONS. Thank you very much, Mr. Chairman. First of all,

I want to join my colleagues in their comments about the Endangered Species Act and its need for reform. And I do believe at this

point, Mr. Chairman, that everything that needs to be said, has

been said, perhaps not by everybody, but it has been said already.

I want to look out here in the audience and just say thank you.

Can you hear me now? About the only thing I can do is swallow

this thing. I want to thank this community for your courtesy and

your hospitality in hosting us today throughout this trying time.

You have been just gracious, friendly and overwhelmingly welcoming to us as we come here. And I want to say as a Committee

that we’re here to listen, we’re here to learn, and we’re here to join

with you in your effort to help reform the Endangered Species Act,

and I believe that is our common goal that we need to be here to

do is to learn from you.

It has been said, Mr. Chairman, that World War II veterans

were America’s greatest generation. In my view, it is America’s

farmers and ranchers who are America’s greatest generation for

feeding this country, to keep us free. This battle is the Gettysburg

of our nation in a civil war to ensure that our environment and our

economy will work together. If the ESA is the Gettysburg of the

Civil War right here in Klamath Falls, we will begin this fight

here, we will join in this fight, and we will win in this fight to win

the reform of the ESA. And if the economy in Klamath Falls were

radioactive, the ESA has become a nuclear bomb, so we must win

this war, not just for Klamath Falls, but for states like Washington

and Oregon, California and Nevada. I want to thank you for having

this hearing here today.

Mr. POMBO. Mr. Hastings.

STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON

Mr. HASTINGS. Thanks you, Mr. Chairman. I think it’s always

good to review history, because when the National Reclamation Act

was signed into law in 1902, the United States’ vision to expand

and homestead in the West finally became a reality. The development of irrigation and hydropower projects in the seventeen western states commenced, and not long after, the Klamath Projects in

Oregon and California and the other irrigation projects were authorized.

For those of us who live in and represent the regions that encompass the Bureau of Reclamation Projects, we know very well how

irrigation and hydropower have developed our regions. Many contractors can go back to their own history, to those who homesteaded the West at the turn of the century. They were seeking a

better way of life, a new place to live, and the government’s water

projects contributed to the development of a robust agricultural

economy.

7

The recent actions in the Klamath Basin, however, run counter

to that vision and violate the central promise of western expansion.

What we now face is a serious crisis in the relationship between

water, people and wildlife. But to a greater extent, we face a serious crisis in the future of Western ideals, philosophies and a way

of life most of us have been accustomed to. Actions in the Klamath

Basin could have much broader implications and may well lead to

the exact opposite goal of transforming the West. That implication

could be denying progress, locking up the land and driving people

out.

While some might find that these are rather harsh comments, I

must remind you that the Klamath Basin is not the only region in

the West that has been impacted by the underlying issue at hand— the implementation of the Endangered Species Act and the overzealous targets regarding species recovery. I know this to be true,

because a similar experience is occurring in my own district right

now.

For 3 years, irrigators in the Medtile Valley in central Washington have been without water. The National Marine Fishery

Service, or NMFS, shut the water off in order to save hatchery

salmon known as the Carson stock. While simultaneously shutting

off the water for farmers and devastating the economy in that valley, only 50-plus miles away, NMFS was clubbing the same Carson

stock of hatchery fish. Why? Because NMFS determined that the

Carson stock was co-mingling with wild stock in a different tributary, thus degrading the salmon population.

Now, this situation in the Medtile Valley is occurring at the

same time that salmon runs, both hatchery and wild, are the largest in the Pacific Northwest since 1938. In addition, the debate

over endangered salmon is not over fish in general, but specifically,

the amount of wild fish in the system. Now, the only way to distinguish a wild salmon from a hatchery salmon is by a fin that the

hatchery workers clip on hatchery bred salmon, but hatchery fish

have been spawning with wild stocks for decades. The first hatchery was put into the Columbia system nearly 80 years ago. But

most importantly, this has been going on before the passage of the

Endangered Species Act.

Now, for those unfamiliar with the implementation of the Endangered Species Act in the West, this story, of course, sounds ludicrous; killing one species for co-mingling with another, bankrupting

communities to save endangered species that humans consume,

shutting off water that has been available for nearly a hundred

years to farmers and ranchers in order to save suckers. As communities, governments and industry and tribal interests continue to

discuss and debate the future of endangered species in the West,

we need to come to a resolution on one very important issue.

We know that fish need water. That’s self-evident. But no Federal agency or entity has ever determined with good science just

how much water is enough. We know how much water is necessary

for irrigation, for transportation, for power generation, but there is

no agreement on how much water fish require. We must be able

to quantify what constitutes recovery. Regulations and enforcement

should not refer to pre-civilized conditions. How did fish survive

when drought occurred before the West was inhabited? Are we to

8

use pre-civilization alleged fish counts as goals for endangered species recovery? I think not. Due to the decision by the U.S. Government to settle the West, people are here and the landscape has

changed, and we must accept that.

Because the lives and futures of people have been subject to extreme actions due to fish, my colleagues and I are seriously committed to amending the Endangered Species Act. Until each of

these scenarios related to endangered species recovery is addressed, including the economic impact of listings on local communities, it will be extremely difficult to come to any consensus on

salmon recovery.

If the Klamath Basin and the Medtile Valley serve as guidelines

for what lengths the Federal bureaucracy will go for endangered

species recovery, then to me it is clear that the commonsense approaches are really the endangered species. We must require sound

science, we must require economic balance, we must inject reason

and leadership into the decision-making, and we must ensure that

the Federal Government is not over-stepping its bounds by interpreting the law at levels that seriously harm people and communities.

We cannot turn back the hands of time and assume the Klamath

Basin or any other region of the West should operate as it once did.

Instead, we must find creative solutions whereby everyone can utilize the water. We know that people here today want these solutions. Unfortunately, there are others, mostly outside of our region,

who do not want solutions. They want an issue as a weapon to advance their agenda.

The solutions that we seek must include fish and people. It is not

an either/or decision. And we can do this together, provided that

we set guidelines that are manageable, attainable and reasonable.

I don’t think any of us here today would consider ourselves as antifish, but we must also recognize that not just fish rely on natural

resources for survival.

I’m honored and privileged to be here with my colleagues, and

I want to thank my good friends, Greg Walden and Wally Herger,

who represent this area, for their efforts on behalf of you. And I

also want to congratulate and work with Richard Pombo, who has

been the lead in the U.S. Congress in amending the Endangered

Species Act, and I pledge to work with them so that we can find

a solution to this in the long term. And I thank all of you for being

here today.

Mr. POMBO. Mr. Simpson.

STATEMENT OF THE HON. MIKE SIMPSON, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO

Mr. SIMPSON. Thank you, Mr. Chairman. I see the microphones

are working about as good as the ESA is. I do want to thank Greg

for inviting me to your district. It is as beautiful as you’ve always

told me it is down here, and I want to tell you all that I have never

seen anybody as active at working on a problem for their constituents as Congressman Walden and Congressman Herger have been

in this area, and we owe them all a great deal of thanks for what

they have been doing, because they have been up day and night

trying to address this problem and solve it for you.

9

I am very pleased to be here, but I’m sorry that I need to be

here. I have come, like the rest of my colleagues here, to listen to

these individuals that are going to testify, to see if we can find

some solutions to this problem that is facing us.

Many people have seen this train wreck coming for many years.

Our Chairman of our hearing today, Mr. Pombo, has warned about

this train wreck for years and years, so it comes as no surprise to

many of us, but I’m sorry that it happened here first or to the extent that it has here first. My concern is not only for the welfare

of you that live here in this Basin, but for the fact that if this action isn’t halted, it will spread throughout the entire West. It will

effect every district of every Congressman in the entire west, and

it needs to be addressed.

Some say that there are no changes necessary to the Endangered

Species Act. I would suggest that if there are no changes necessary

to the Endangered Species Act then common sense has no place in

our laws or their application. I think we need to bring common

sense back into the Endangered Species Act, a law that passed

overwhelmingly with bipartisan support when it was adopted. I

don’t think anyone anticipated the extent to which the Endangered

Species Act would be misconstrued, as it has been. Today, I doubt

we could get the Endangered Species Act through Congress, if we

didn’t have one, if we knew then what we know now, so we need

to look at this, we need to work with our colleagues, some of the

individuals who haven’t felt the impacts of the Endangered Species

Act like we have in the West. So I’m very glad to be here and I

look forward to the testimony. Again, I congratulate Mr. Walden

and Mr. Herger for the work that they’re doing on your behalf.

Thank you.

Mr. POMBO. Thank you. I would like to invite our first witness,

Sue Ellen Wooldridge, representing the Department of the Interior,

to join us at the witness table.

Good morning. I want to thank you for being here this morning.

I know that your prepared testimony has been turned in to the

Committee already. I would like to ask that you keep your oral testimony to 5 minutes. We will then have questions from the Committee. I will limit my colleagues to 5 minutes each for their questions. All the panels will be run that way here so that we can try

to stay on time with the hearing. So thank you very much for being

here. If you’re ready, you can begin.

STATEMENT OF SUE ELLEN WOOLDRIDGE, DEPARTMENT OF

THE INTERIOR

Ms. WOOLDRIDGE. Great, thank you. Thank you very much, Congressman Pombo. I am endeavoring to do my best to keep my remarks to 5 minutes. I will help myself by speaking quickly because

I think I do have more than 5 minutes to say. I do want to thank

you for the invitation to participate here today. I think I join with

Congressman Simpson that I am pleased to be here today, but not

happy to be here today.

I have with me representatives of the Bureau of Reclamation, the

Bureau of Indian Affairs, Fish and Wildlife Service, U.S. Geological

Survey, Secretary’s Indian Water Rights Office, and the National

Oceanic and Atmospheric Administration, National Marine Fishery

10

Service, and they are here to assist me, should you have some specific technical questions which are beyond my competence.

Mr. POMBO. Thank you.

Ms. WOOLDRIDGE. Last month I and other administration representatives spent several days and evenings traveling in the

Basin. We started about at the peak of the Sprague River and the

Sycan River, and we made it all the way down to Arcada. We met

with farmers and ranchers from project and non-project areas,

leaders from the Klamath Tribes, Yurok, Karuk and Hoopa Tribes,

with Federal, State, city and county officials, various environmentalists, commercial fishermen, PacifiCorp which runs the dams

on the Klamath, and numerous other interested citizens.

I would like to recognize them now, and also acknowledge the

folks who are sitting behind me, for what I perceive as their continued and unfailing politeness and courtesy in dealing with the Federal representatives that were out here at that time, and here

today. Their comments were frank, pointed, helpful, and I think

will help us fulfill our purpose in coming out here, which was to

look for long-term solutions for the problems within the Basin. We

were moved, pained, upset by the stories we heard. We’re not indifferent to them, by any means, and they are difficult at best to cure.

And it is extremely difficult to be part of something that leads to

those conclusions.

We heard about farms closing, we heard about fathers moving

away from families to find work, businesses laying off workers, a

myriad of problems in schools with children who hear their parents

discuss their woes in the evening and have to go to school the next

day, wondering if they’re still going to be in the school district. The

stories were endless and compelling. We heard their frustrations.

But, again, as I said, we were impressed and want to thank them

again for their graciousness.

Secretary Norton speaks regularly of her 4-C approach to managing the Department—Communication, Consultation, Cooperation,

all in the service of Conservation. It means that we as the Federal

Government, representing the Department of the Interior, must

communicate a consistent message, consult with interested and affected parties, cooperate with local regional interests and conserve

our cultural and national heritage. Our trip was intended to further these principles.

We were told the basin needs Federal leadership; and quite

frankly, that was a little astonishing to those of us who are generally in favor of local control and local interest. What’s that?

Mr. POMBO. Just ignore it and keep going.

Ms. WOOLDRIDGE. That’s 4 minutes? Okay, I’m sorry. I will go

fast.

Mr. POMBO. I’ll say this. This is the only time you’re ever going

to hear me say this. I will be liberal with the time.

Ms. WOOLDRIDGE. Okay. I have no idea where to go from here.

I just finished one of my 7 pages.

We were told the basin needed Federal leadership, and it was

kind of a shock to us. It was a shock to us, but we are prepared

to exercise that leadership and work in cooperation with the locals

to try to come up with some solution, and I know that all the Members on the panel are willing to do that as well. And I don’t honVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6602 73135.TXT HRESOUR1 PsN: HRESOUR1
11

estly think a Federal crammed-down solution is the answer in the

basin, but I know that with good will and a lot of heavy effort and

lifting, we can come up and try to help resolve these problems.

The second theme we heard when we were here had to do with

drought and financial relief that was needed for the basin. Third,

we heard that the scientific basis of the Federal management decisions must be improved. I will speak to that more generally in a

moment. And finally, we heard there was a strong desire for this

basin-wide solution.

We have severe drought conditions here. I was informed yesterday that we are now in the driest year on record in the basin.

We’ve surpassed the 1977 drought. By law, the Department of the

Interior plays rolls in this. As you know, the Bureau of Reclamation operates the project. We have trust responsibilities to the

tribes. The Fish and Wildlife Service operates the refuges. And

with all of these, we have to obey the law which exercises and determines the priorities for the water in the basin.

As you all know, on April 6th, based on the priorities and the biological opinions of the Fish and Wildlife Service and the National

Marine Fishery Service, reclamation announced that it was unable

to operate the Upper Klamath Lake this year and to provide

Project water for irrigation or the refuges. So what are we doing

about that?

Congressman Walden referenced that the administration had re- quested $20 million in the supplemental budget. I understand the

House Appropriations Committee has redirected the request to

cover the release of not less than $20 million from available funds

from the Commodity Credit Corporation. The preventive planting

coverage, I believe, from the Department of Agriculture, which I

know has some limitations, is part of the standard crop insurance.

USDA has allocated two million to the Basin through Emergency

Watershed Protection, and USDA’s Farm Service Agency has provided some initial allocations, up to a half million dollars. Reclamation is working on ground water supplies. California’s Office of

Emergency Service is making available five million dollars to help

with ground water development. Reclamation is continuing ground

water investigations, both in Oregon and California. The list goes

on, and I would go through them all, but I want to try to get to

some of the things I know are important to the panel and to the

people in the audience.

Interior is continuing to lead an inter-agency group back in

Washington and out here on the ground with folks who are out

here, trying to come up with ideas for resolving the long-term problems within the Basin, and we will continue that as long as we can

and there’s good will and interest in having us be involved in that.

Let me turn to the science. One of the things that was a consistent theme, and we’ve heard it today as well, is that the science

underlying the biological opinions which formed the basis for the

decision that Project deliveries could not been made was bad

science, irresponsible, not credible, you name it. We were told that

the science was not exposed to a public process or peer review, and

is thus susceptible to these criticisms.

The Endangered Species Act requires that the protection of species be based on the best science available. That is the statutory

12

mandate. One does not need to agree or disagree about whether

that standard was achieved in order to believe that the process of

making ESA determinations should be as transparent as possible.

It is vital that the Department of the Interior and the other participants base water and fish decisions on sound science and an objective assessment of what we know and don’t know.

In our quest for credibility, we cannot ignore the criticisms we

receive. We are mindful, for instance, that one set of reviewers in

this case commented with respect to our draft biological opinion

that it was difficult to evaluate because it was, and I am quoting,

Full of—actually, that was an ellipsis full of—now I’m quoting— ‘‘Misspelled words, incomplete sentences, apparent word omissions,

missing or incomplete citations, repetitive statements, vagueness,

illogical conclusions, inconsistent and contradictory statements,

often back to back, factual inaccuracies, lack of rigor, and rampant

speculation.’’ While many of these criticisms related to the form in the Fish

and Wildlife and NMFS opinions, a number related to their substance, and thus, the quality of the opinions with respect to their

being based on the best science available. And while Fish and

Wildlife Service made a multitude of changes after those criticisms

were leveled, the existence of that type of criticism does not give

rise to public confidence in the work of the Department. We agree

that not all of the science used for the NMFS opinion for the Coho,

or the Fish and Wildlife opinion for the suckers, has been independently peer-reviewed.

And actually, just as an aside, when we first came in to the new

administration, laying there waiting for us were letters from a

number of you on this panel, pointing out the insufficiencies of that

peer review process. Where peer review science was available, the

Fish and Wildlife Service and NMFS used it. Where unpublished

‘‘gray literature’’ data was available, they used it. The Services continued to believe that the opinions were reasonable and based on

the best science available. Unfortunately, the public does not have

the additional opinion of scientists with the appearance of independence to confirm or deny this, and thus, the criticisms are left

unanswered and we cannot point to independent peer review to

lend credibility.

In order to address these concerns, the Secretary will direct the

science upon which the Fish and Wildlife Service’s biological opinion is based, and which exists in the administrative record, be subject to an independent scientific review. Such a review is to be conducted by an objective, outside scientific body or group of experts

that is widely recognized and has a disciplined scientific review

focus. The science underlying the NMFS biological opinion will be

subject to similar review. In addition, plans already exist to subject

the forthcoming study by Professor Hardy to independent peer review.

At a minimum, the independent science review should be asked

to assess the degree to which the opinions used—I’m sorry—the

Services use the best scientific information available at the time

they prepare their biological opinions to assess how the Services

use the science information available to make their management

recommendations, identify objective scientific information that has

13

become available since those opinions were prepared, and identify

gaps in the knowledge and scientific information. In addition, the

USGS, building on that scientific assessment, will undertake scientific studies focused on the identified knowledge gaps. As a nonregulatory agency with a purely scientific mission, the USGS will

direct its science in both the upper and lower basin toward the critical needs of the decision makers as we go forward.

With regard to project operations in the coming years, when we

develop future long-term operations plans, we will instruct ourselves to fully review the existing scientific data and seek appropriate public comment as we go forward into the next water years.

This concludes my prepared testimony. I’m pleased to answer any

questions you may have.

Mr. POMBO. Thank you. Ms. Wooldridge, I’d like to concentrate,

if I can, on the science for a little bit. The Endangered Species Act

requires that the Services use the best available science. When

there is conflicting science, when different groups—different outside groups, the Fish and Wildlife Service, NMFS, and others have

done biological surveys, have looked at data and come to different

conclusions and there’s a difference, how does Fish and Wildlife

Service determine which is the best available science?

Ms. WOOLDRIDGE. How, as in what is the legal obligation or process by—.

Mr. POMBO. What do you use? How do you base your decision?

Ms. WOOLDRIDGE. Well, this may be the place where I need to

turn to one of the people who are sitting here. I don’t know if you

wish to have them here. My understanding is very basic, and that

is that they take into account those comments and go out to those

persons who have made those decisions and discuss them and test

them, but I can’t answer that question more precisely than that.

Mr. POMBO. If you could prepare an answer to that question and

have it for the record of the hearing, I would appreciate it, because

I’ve known a number of cases, when we are looking at listings or

habitat designations, there are differing opinions from different biologists and different scientists, and it appears to me that some of

that science is ignored.

Ms. WOOLDRIDGE. Well, it does seems to be the case when you

deal with these, where you have—the science is all agreed to in the

sense of the data, and you have differing conclusions or analyses

from that data. I can tell you, as a decision-maker, it’s very difficult

to decide what the tie breaker is. And the Fish and Wildlife Service

has their obligation, and they do what they believe they are required to do by making a judgment as to which is more likely, and

they have a statutory obligation to choose the one that is the most

conservative in the sense of protecting species. But I can understand that, and I will be happy to provide the answer.

[The prepared statement of Ms. Wooldridge follows:]

Statement of Sue Ellen Wooldridge, Deputy Chief of Staff, Department of

the Interior

Thank you for the invitation to participate today in this oversight hearing on the

Endangered Species Act and Water Management in the Klamath Basin. I appreciate

the opportunity to be here today on behalf of the Department of the Interior. I have

with me representatives of the Bureau of Reclamation, the Bureau of Indian Affairs,

the Fish and Wildlife Service, the U.S. Geological Survey, and Secretary’s Indian

14

Water Rights Office, and the National Oceanic and Atmospheric Administration

within the Department of Commerce. They are here to assist in responding to specific questions you may have. I will make some brief oral comments but I request

that my entire written statement be included in the record of this hearing.

MY VISIT TO KLAMATH BASIN AND WHAT WE HAVE LEARNED

Last month, I and other administration representatives spent several days and

evenings traveling the length of the Klamath Basin. Our intention was to meet with

as many individuals and groups as possible to learn first-hand the circumstances

faced by the Basin, the perceived needs of the Basin as understood by the various

groups, and the effects, both existing and potential, that the Federal Government

has had and will have on the Basin.

We met with farmers and ranchers whose lands are above Upper Klamath Lake,

farmers who have lands within the Bureau of Reclamation project area, leaders

from the Klamath, Yurok, Hoopa Valley, and Karuk tribes, with Federal, state, city

and county agency and elected officials, environmentalists from a myriad of organizations, school administrators, business people, commercial fishermen, management

personnel from PacifiCorp (Scottish Power), as well as interested citizens not belonging to any of those groups. Each person or group described for us in vivid detail

the impact that current drought, and the Endangered Species Act and other federal

legal requirements were having on their businesses, their families, those they serve,

or the interests they wish to protect. I would like to recognize and, through this

record, thank everyone we met with for their frank and helpful comments.

I was greatly moved by my meetings and pained by stories of the distress of many

people here, stories of farms closing operations, fathers moving from families to find

work, businesses laying off workers. I was equally moved by a desire to do as much

as we can to help and to renew some degree of certainty to lives in this region. I

am also painfully aware of limitations brought by a very limited resource and the

multiple demands on it, and by the multiple responsibilities of the Department.

Secretary Norton speaks regularly of her 4–C approach to managing the Department of the Interior - COMMUNICATION, CONSULTATION, COOPERATION, and

CONSERVATION. To manage resources and our legal responsibilities effectively, we

must 1) Communicate a consistent message; 2) Consult with interested and effected

parties; 3) cooperate with local and regional interests; and 4) Conserve our natural

and cultural heritage. Our trip was intended to further these principles.

We learned many things. While opinions varied as widely as the subject matter,

we did hear a number of common themes.

First, we were told that the Basin needs leadership by the Federal Government

to address the conflicts at hand. This was relatively surprising to us, and generally

inconsistent with our philosophy that local problems are solved best by local solutions. However, it is also understandable, as there seems to be a Basin-wide view

that the Federal Government - including Federal law - is largely responsible for the

existing conditions.

These conditions are variously described by the differing groups as including overallocation of existing water, broken treaty rights, past favor toward agricultural interests, breach of promise to agricultural interests, bad or corrupt science, inadequate funding of water enhancement projects, poor forest and habitat management,

overly conservative interpretation of existing resource data, failure to encourage the

State of Oregon to address diversions by upper basin water users and general callousness toward the economic and human impacts of resource management decisions.

The second common theme we heard is that immediate drought and financial relief is needed for farmers and the farming communities. As one local leader (Marshall Staunton) described it, the Federal law-mandated cut-off of water to the Klamath Project is a—major human tragedy in the Upper Klamath River Basin.’’ There

are approximately 1,400 farmers in the region, many of them small producers, and

agriculture and agriculture-related businesses are a substantial factor in the Basin’s

economy. However, because of the water shortage, many farmers have not been able

to plant crops or maintain livestock herds.

Third, we heard that the scientific basis of Federal management decisions must

be improved. While I will address this issue in a few moments, it is beyond question

that where Federal resource decisions are made, the scientific basis of those decisions should be unassailable as biased or less than the best available science.

Finally, we heard a strong desire for a basin-wide solution which will provide predictability and certainty. This presents both a quandary and an opportunity. There

exists in the Basin a wide variety of groups or mechanisms dedicated to solving

some part of the Basin’s problems. These include, to name a few, the Upper KlamVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 73135.TXT HRESOUR1 PsN: HRESOUR1
15

ath Basin (Hatfield) Working Group, the Klamath Watershed Coordination Group,

the Oregon Klamath Adjudication Alternative Dispute Resolution process, the Klamath Basin Compact Commission, the Klamath River Basin Fisheries Task Force and

most recently, the mediation conducted in conjunction with the Kandra litigation.

The quandary is how to utilize these existing forums and groups to achieve solutions. The opportunity is demonstrated by the obvious and overwhelming interest

of the people in the Basin to find them.

So, having heard these common themes, what are we doing? First, I will discuss

the current situation, then our efforts to date and finally, what we intend to do.

WHERE WE ARE - DROUGHT AND ESA

While in this crisis much focus has been on the Endangered Species Act, it should

not be forgotten what local residents already know - severe drought conditions are

affecting the Basin. Snow water and precipitation amounts for the water year are

well below average. Currently, the basin-wide precipitation is one half of normal.

Streamflow forecasts are near record low levels. Projected net-inflow to Upper Klamath Lake for the summer is expected to be less than 35 percent of average. Inflow

to Gerber and Clear Lake reservoirs has ceased.

The Federal Government has placed the Klamath Basin in ‘‘D3’’ status, which predicts ‘‘. . . damage to crop or pasture losses likely; fire risk very high; water shortages common; water restrictions imposed.’’ The Governors of Oregon and California

and the U.S. Secretary of Agriculture have issued drought declarations for Klamath,

Modoc, and Siskiyou counties. In short, this is the worst drought since 1977, and

potentially the worst on record.

By law, the Department of the Interior plays several roles in the management of

resources in the Klamath Basin. The Bureau of Reclamation (Reclamation) operates

the Project, which includes the management of water levels in Upper Klamath Lake

and Gerber Reservoir (both in Klamath County, Oregon), as well as Clear Lake Reservoir (in Siskiyou County, California). The Project historically provides water to approximately 210,000 acres of irrigated agriculture and two major portions of the

Klamath Basin National Wildlife Refuge complex. The Project also affects flows in

the Klamath River through an agreement with PacifiCorp, a hydropower company

that operates Link River Dam at the south end of Upper Klamath Lake.

The Secretary has a trust obligation to the Native American Tribes. Four federally-recognized tribes reside in the Klamath Basin’the Klamath Tribes of Oregon

and the Hoopa Valley Tribe, the Karuk Tribe, and the Yurok Tribe of California.

These Tribes have recognized property interests in the Basin which the United

States holds in trust for their behalf and which varies with the individual Tribe and

its associated ethnological and legal history. Among other interests, the Klamath

Tribes have treaty-protected fishing, hunting, and gathering rights, and the Hoopa

Valley and Yurok Tribes also have federally reserved fishing rights in the Klamath

Basin. The fishing rights entitle the Tribes to harvest for subsistence, ceremonial,

and commercial purposes. The Tribes also have water rights in the Basin necessary

to support their resources.

The Fish and Wildlife Service (FWS) operates six National Wildlife Refuges in the

Klamath Basin National Wildlife Refuge complex, and the FWS carries out consultations for Federal actions under the Endangered Species Act (ESA) for species listed

by the Service.

The National Wildlife Refuge (NWR) complex covers more than 150,000 acres. The

Lower Klamath NWR is host to the largest fall population of staging waterfowl in

the Pacific Flyway (nearly 1.8 million birds), winters the largest concentration of

bald eagles (200–900 birds) in the Lower 48 states, and supports 20–30% of the Central Valley population of sandhill cranes during fall migration. In addition, the refuge hosts large numbers of nesting waterbirds and diverse wildlife species. Water

for this management program is normally provided through Reclamation facilities.

The Klamath Basin refuge complex annually has over 55,000 visitors for recreation and bird-watching. In addition, there were over 16,000 migratory bird hunters

in 1999, a number reduced to 13,000 last year due a short-term water shortage.

These visitors provide considerable economic benefits to local businesses. The lack

of water this year will force a significant reduction in waterfowl hunting at these

refuges, and may lead to a fall-off in other visits as well.

The FWS is also responsible under the Endangered Species Act for the Lost River

and shortnose suckers, which occur only in the upper Klamath Basin and are listed

as endangered. The National Marine Fisheries Service (NMFS) has the lead ESA

responsibility for consultation on the coho salmon which is listed as threatened.

These and other fish have supported Tribal fisheries and a large commercial fishery

16

at the mouth of the river; these fisheries have been greatly diminished in recent

years.

Several legal mandates affect the management of Project water to meet these

multiple needs. Following a review of the various authorities, the Department has

managed the Project for the following purposes: 1) species listed under the ESA; 2)

Tribal trust responsibilities, 3) irrigated agriculture, and 4) National Wildlife Refuges. This order of priority was confirmed by the Court in Klamath Water Users

Protective Association v. Patterson.

Under the ESA, the Bureau of Reclamation must consult with its sister agency

the FWS and the NMFS regarding impacts of Project operations on endangered

suckers and threatened coho salmon. This has been a long and complex process and

the subject of much public discussion. On April 5 and on April 6, 2001, the FWS

and the NMFS, respectively, provided Reclamation with final Biological Opinions regarding operation of the Klamath Project for the 2001 water year. Reclamation conformed its operations plan to those opinions.

On April 6, 2001, Reclamation announced that with the exception of delivery of

70,000 acre feet for Project irrigated acres on areas served from Clear Lake and

Gerber Reservoir, and a certain amount of water to be delivered to Tule Lake Sump

for the protection of suckers, no water would be delivered from Upper Klamath Lake

for Project operations. Reclamation is unable to operate Upper Klamath Lake this

year to provide project water supply for irrigation or for the refuges.

ASSISTANCE

Since the Committee will not hear directly from the Department of Agriculture,

I will address the immediate efforts undertaken by the Administration to provide

what relief is available under current authorizations and appropriations. The Administration, Secretary Norton, and Secretary Veneman are committed to working

with Congress to ensure these funds are appropriately invested in the region to assist producers during this difficult time

The Administration and the Department of Agriculture

President Bush requested $20 million in his supplemental budget for the Department of Agriculture to make available financial assistance to eligible producers in

the Klamath Basin. This $20 million was proposed to supplement existing assistance already available to help farmers and ranchers adversely affected due to limited water availability in the region. I understand that the House Appropriations

Committee has just re-directed this request to cover the release of not less than $20

million from available funds of the Commodity Credit Corporation, in the belief that

this may be a more efficient means to provide the funds.

Prevented planting coverage is part of the standard crop insurance contract and

is available on insurable crops in the impacted counties, except forage production

and nursery. For producers with crops ineligible for coverage through the crop insurance program, USDA’s Non-insured Assistance Program (NAP) provides compensation similar to that available through crop insurance. Crops covered through

NAP in the Klamath area include alfalfa hay, onions, mint, horseradish, rye, forage

(grazed), forage (production, Oregon only), and various other minor crops.

Through the Emergency Watershed Protection program USDA has allocated $2

million to the basin area for re-seeding efforts, which will help farmers establish

vegetative cover with low moisture requirements on lands that they had laid bare

in anticipation of planting, reducing wind erosion.

Additionally, USDA’s Farm Service Agency has provided almost $400,000 to help

farmers get water for their livestock. Initial allocation for Klamath County, Oregon

is $225,000 and $167,000 total for 2 California counties, Modoc and Siskiyou.

Interior

A. Groundwater Supplies:

1. Cooperation with State Programs. The Bureau of Reclamation (Reclamation), in

partnership with the Oregon Water Resources Department (ORWD) and the California Department of Water Resources (CDWR) is working to develop groundwater

supplies to assist agricultural water users served by the Klamath Project.

Reclamation met with high-level policy makers from CDWR and ORWD on May

11, 2001, to coordinate fast-track groundwater development for this year and to develop a longer-term program to use groundwater for drought contingencies and supply augmentation purposes.

Wells in some locations may have to be drilled to a depth of between 700 and

1,000 feet (or greater) to reach the water-bearing volcanic zone, which may exceed

$300,000 per well. The potential yield (short-term and long-term) is unknown.

17

Groundwater in the Klamath Basin has never been put to such a test, so the

amount of yield that may be sustained is unknown at this time.

California’s Office of Emergency Service is making available up to $5 million to

Tule Lake Irrigation District. Wells are anticipated to be on line this year, to help

soften the blow, and Reclamation continues to cooperate with state agencies to facilitate construction of wells.

Reclamation is continuing groundwater investigations in both the Oregon and

California portions of the Klamath Basin that began with the October 1997 Klamath

Basin Water Supply Initiative. Groundwater development holds potential in this

area as a supplemental tool to be included for any long-term water management

plan, and Reclamation will continue to coordinate with the State governments to

further long-term efforts to use groundwater resources to help supplement dry-year

needs in the Klamath Basin. While the effort currently under way may generate

some supplemental water supplies later this summer, it will likely not generate a

fully-developed dry-year supply.

OWRD and USGS are cooperating on a regional ground water study in the Upper

Klamath Basin. The study includes agricultural areas in southern Oregon and

northern California. Reclamation has provided logistical and financial support to

this effort. This regional ground water study will take 4 to 6 years to complete due

to the data collection requirements. This study represents the primary effort to determine the amount of ground water that can be produced on a long-term basis.

2. Reclamation, Groundwater Acquisition. Reclamation has initiated a program to

purchase groundwater from willing sellers to augment Klamath Project water supplies during the current irrigation season. Nearly $2.2 million in fiscal year 01 in

drought funding will be spent on this endeavor. The emphasis is on supporting preventative planting of cover crops to prevent soil erosion. Reclamation has partnered

with OWRD to develop up to 60,000 acre-feet of groundwater during this season for

stream flow, water quality, and project supply augmentation.

In addition, funding for lining of canals in California and Oregon district will help

water conservation for the short and long term.

B. Groundwater in National Wildlife Refuges:

The Fish and Wildlife Service (FWS) is focusing on groundwater development in

the Klamath Basin. It is estimated that in the future, refuges will experience conditions wherein 70 percent of the refuge wetlands will be dry 70 percent of the time

during fall waterbird migration. Impacts are likely to be felt throughout the Pacific

Flyway. To address this situation in the short term, the FWS has commissioned a

groundwater study on the Lower Klamath National Wildlife Refuge in California

where eleven test wells have been developed. Nine of these wells adjacent to, or on

the refuge show promise. Two wells produced geothermal water. The FWS intends

to develop 23,000 acre-feet of groundwater, intended for late summer/early fall use,

when refuge water supplies are most critical. It may be possible to get one or two

wells on-line in time to meet refuge requirements this fall.

The FWS is also considering purchasing an additional well from a private owner,

as well as paying for groundwater pumped from another owner. This water will be

applied at a rate of 35 acre-feet/day to keep the largest unit from going dry for a

150-day period starting on June 1. Pumping associated with this program is eligible

for Reclamation Project power rates.

C. Agency Coordination

Further, with respect to Interior’s efforts, the Secretary has taken the lead in coordinating among Interior, the Department of Agriculture, and the National Oceanic

and Atmospheric Administration, and internally, we have formed a working group

to explore potential long term solutions and work with the states and with all interested local groups.

SCIENCE

As I stated earlier, we have received much criticism of the science used to support

our decisions under the ESA. Specifically, we have been told that the science used

was not exposed to a public process nor peer reviewed and thus does not appear

credible.

The ESA requires that protection of species be based on the best science available.

One does not need to agree or disagree about whether that standard was achieved

in order to believe that the process of making ESA determinations should be as

transparent as possible. It is vital that Interior and other participants base water

and fish decisions on sound science and an objective assessment of what we know

and what we don’t know.

18

In our quest for credibility, we cannot ignore the criticisms we receive. In this

case, we are mindful that while many of these criticisms relate to the form of the

FWS and NMFS Opinions, a number relate to their substance, and thus the quality

of the Opinions with respect to their being based on the ‘‘best science available.’’ We

agree that not all of the science used for the NMFS opinion for the Coho or the FWS

opinion on the suckers has been independently peer reviewed. Where peer reviewed

science was available, the Services used it. Where unpublished ‘‘gray literature’’ data was available, the Services used it. The Services believe that the opinions are

reasonable and based on the best science available. Unfortunately, the public does

not have the additional opinions of scientists with the appearance of independence

to confirm this.

In order to address the concerns expressed about the scientific basis for management decisions in the Klamath Basin, the Secretary will direct that the science upon

which the FWS Biological Opinion is based, and which exists in the Administrative

Record, be subject to an independent scientific review. Such a review is to be conducted by an objective outside scientific body that is widely recognized and has a

disciplined scientific review focus. The science underlying the NMFS Biological

Opinion will be subject to similar review. In addition, plans already exist to subject

the forthcoming DOI commissioned study by Professor Hardy, from Utah State University, to independent peer review. At a minimum, the independent science review

body should be asked to:

1. assess the degree to which the the determinations made by the FWS and NMFS

were based on best existing knowledge and best available scientific information

at the time they prepared their biological opinions;

2. assess how the FWS and NMFS used the scientific information available to make

management recommendations;

3. identify objective scientific information that has become available since the FWS

and NMFS prepared the biological opinions; and

4. identify gaps in the knowledge and scientific information that need to be addressed.

Building on this scientific assessment—as part of Interior’s own scientific efforts

in the Klamath Basin—USGS will undertake additional scientific studies focused on

the identified knowledge gaps. As a non-regulatory agency with a purely scientific

mission, USGS will direct its science in both the upper and lower basin toward the

critical needs of decision makers.

Additionally, in fiscal year 2001, the FWS began to collect baseline information

for a study to assess fish habitat conditions in the Klamath River and its tributaries

below Iron Gate Dam. We hope that actions will result from the study that will help

recover species, avoid further listings, enhance tribal trust responsibilities, restore

recreational fisheries and related local economies, and reduce impacts of conservation efforts on water users.

LOOKING AHEAD

Interior has organized longer term efforts. I can report on very good progress in

implementing Public Law 106–498, the Klamath Basin Water Supply Enhancement

Act.

As I noted earlier, Reclamation in 1997 entered into a partnership with the States

of Oregon and California and the Klamath River Compact Commission to begin a

Water Supply Initiative. Based on information collected through sustained public

outreach efforts, Reclamation has identified 95 potential projects.

Public Law 106–498 provides Interior important authority and direction to advance efforts begun under the Initiative, and authorizes additional important feasibility studies. Representatives of Oregon and California are very interested in expanding the partnerships initiated with the Water Supply Acquisition Program by

participating in the feasibility studies authorized in Public Law 106–498. Reclamation will be working closely with the States over the next few months to develop

a comprehensive strategy for full implementation of the Act.

The Act authorized and directed the Secretary of the Interior to study, in consultation with affected State, local and tribal interests, stakeholder groups and the

interested public, the feasibility of:

• Increasing the storage capacity and/or yield of the Klamath Project facilities while

improving water quality, consistent with the protection of fish and wildlife.

• Developing additional Klamath Basin groundwater supplies; and,

• Finding innovative solutions in the use of existing resources, or market-based approaches, consistent with state law.

Using funding previously provided for the Water Resources Initiative, Reclamation has been able to initiate partial implementation of the Act as follows:

19

1. Increasing Klamath Project Storage Capacity/Yield: In December 2000, Reclamation released an appraisal level report examining the desirability of raising the

Upper Klamath Lake as much as two feet to elevation 4145.3 feet. The report considered two alternatives: 1) construction of new dikes and sea walls, and modification of existing dikes to contain the lake within its current boundaries, and 2) acquisition of lands inundated by raising the lake without structural construction or

modification to contain the lake within its current boundaries. Option 1 is estimated

to cost $125 million and option 2 is estimated at $129 million; the cost of either option is approximately $800 an acre-foot. A feasibility study would consider environmental impacts and costs and benefits of raising the lake. The study is expected to

begin on a limited basis during Fiscal Year 2001, using existing funding from the

Water Resources Initiative.

Reclamation also has completed a cursory review of existing information to determine if it is feasible to increase the storage capacity by raising the Gerber Dam.

Feasibility of this project is considered likely, and collection of engineering data has

begun. A plan of study is in preparation during Fiscal Year 2001, using existing

funding from the Water Resources Initiative.

2. Developing Groundwater Supplies: In Fiscal Year 1999, Reclamation entered

into a cooperative agreement with the Oregon Water Resources Department to study

the potential of obtaining supplemental groundwater supplies in the Klamath and

Lost River Basins in Oregon. Preliminary results indicate good potential for high

production wells in the aquifer underlying lands irrigated by Shasta View Irrigation

District. These wells are anticipated to have a low impact on other wells in the area.

In the 2001 irrigation season, an existing well will be pump-tested. If long term

pumping appears feasible, a plan of study will be prepared regarding the potential

to drill additional test and production wells. This ongoing effort helped to facilitate

the emergency relief efforts described above.

Reclamation also entered into a cooperative agreement in Fiscal Year 1999 with

the CDWR to examine groundwater in the California portion of the Klamath and

Lost River Basins. Since the Fall 1999, CDWR has performed semiannual water

level measurements on 35 wells. Data will be collected over a three year period to

assess the potential for groundwater augmentation.

In addition, as mentioned above, Reclamation provided funding for a cooperative

study by the Oregon Department of Geology and Mineral Industries and the U. S.

Geological Survey (USGS) to determine the geologic potential for additional groundwater availability in the Wood, Sprague and Williamson River valleys. Information

gained from that study could be used to initiate a full feasibility study.

3. Innovative Solutions: Reclamation recently initiated a one-year pilot Klamath

Basin Irrigation Demand Reduction Program to determine irrigators’’ interest in receiving a payment in lieu of applying surface water to their irrigated lands. This

pilot program may aid in development of a long-term demand reduction program.

Reclamation received approximately 550 proposals from irrigators willing to forego

surface water on their irrigated lands in exchange for a combined total exceeding

$20 million. Reclamation’s Fiscal Year 2001 budget for implementation of this program is approximately $4 million.

Public Law 106–498 also directed the Secretary to complete ongoing hydrologic

surveys in the Klamath Basin conducted by the USGS, mentioned earlier. The study

has four phases and is scheduled to be completed in Fiscal Year 2005. The Act also

authorized the Secretary to compile information on native fish species in the Upper

Klamath River Basin, upstream of Upper Klamath Lake. A compilation of existing

information is currently underway, and will be used to determine the necessity of

further studies.

We will do our utmost to see that these studies are given very high priority. We

fully appreciate the necessity of these and other projects to work toward a sustainable future within the basin—both for those who live and work there and for the

wildlife we are pledged to conserve.

With regard to Project Operations for coming years, when the Bureau develops

future plans to meet its multiple obligations and other biological assessments are

developed in consultation with FWS on such plans, FWS will fully review the existing scientific data and to seek appropriate public comment and peer review.

This concludes my prepared testimony. I am pleased to answer any questions you

may have.

Mr. POMBO. Well, this is where I have a real problem—one of the

places I have a real problem with the service is because many

times I believe they make a political decision, and that’s not their

20

job. Their job is to base their decision on science and not on politics. And if it’s a political decision, it’s at that time that they should

boot it over to Congress, because that’s our job, and we have to

stand for election. And it shouldn’t be—the bureaucracy in general

should not be making political decisions. And when you are deciding between competing science, if it never goes out to peer review,

if you never have an outside body look at that science, you are

making political decisions.

Ms. WOOLDRIDGE. I don’t disagree with that.

Mr. POMBO. And I’d like to remind our audience that the decorum of the House requires that you not respond positively or negatively to any of the testimony or the questions that are asked.

As we look at reforming the Endangered Species Act and changing it and trying to make it work better, one of the things that the

administration could be extremely helpful on is making suggestions

on the science side. What do we need in the Act so that when you

come to a decision, we can count on that? I know science is never

finished. Things are always being studied. There’s always new evidence that comes out. But I don’t have confidence in the process

as it exists right now, and it would be extremely helpful for any

suggestions that the administration would have in terms of, how do

we set up a peer review system that I believe we can count on and

trust? So I would greatly appreciate that.

At this time, I turn to my colleague, Mr. Walden.

Mr. WALDEN. Thank you very much, Mr. Chairman. I want to

followup on a couple of the comments you made, Sue Ellen. And

I want to go back to the Oregon State University analysis of the

pre-decision or draft professional scientific review copy, which you

read from and cited in your testimony, and I appreciate that because it is a damning indictment of the original work. And the

thing that troubles me is this document was put out 6 March of

2001—the OSU review. The decision to turn the water off for farmers came out 6 April, 2001, a month later.

And I know, in making contact with OSU, they say that there

were changes made to the biological opinion after their review. But

can you explain to me how those changes were made in that short

a period of time, when what is listed here, and I’ll quote again.

‘‘The document is excessively long, the problems are not windowdressing rather than obscure the data and make it very difficult to

find validity in the claims. The document has the potential to have

a severe negative impact on the Services’ public credibility.’’ This

is 6 March—the OSU report—and I’m just curious. How do you get

from there to 6 April and make the number of changes that had

to have been made to satisfy OSU.

Ms. WOOLDRIDGE. I can’t answer that directly and I don’t want

to make a flippant remark. I do have a list of the changes that they

made in response to that. I am not aware of whether they were in

contact with those professors independently or whether they had

some advance notice of what the critique was going to be.

Mr. WALDEN. Well, let me take it another step then, because this

is one of the issues I keep hearing about is the need for peer reviewed science. Was there a requirement in the law that the draft

opinion be peer reviewed?

Ms. WOOLDRIDGE. No.

21

Mr. WALDEN. So had OSU not been asked to peer review it, the

possibility exists that the original document that they found extraordinary flaws in could have been the basis upon which your decision was made.

Ms. WOOLDRIDGE. Yes. I will say—. Mr. WALDEN. But what you—. Ms. WOOLDRIDGE. —that the Fish and Wildlife Service sent it to

the American Fisheries Association for them to send it off for these

comments.

Mr. WALDEN. Right, and I understand that in this case, but my

point is to the bigger issue about why or why not we need to

amend the Endangered Species Act, because the potential exists,

had the Fish and Wildlife Service not done this, because they’re not

required by law to send it off—they did it of their own volition— that we could be building the foundation for decisions the magnitude of that in the Klamath Basin based upon non-peer reviewed

data.

Ms. WOOLDRIDGE. That’s correct.

Mr. WALDEN. And in this case, it has been peer reviewed. And

in this case, frankly—and I spoke, or my staff did, with OSU and

the people who did the review yesterday, and they said, Yes, these

things were cleared up. But I want to read from an e-mail from

Professor Douglas Markel to somebody here in reference to this.

And he says that, among other things, ‘‘No doubt there’s uncertainty surrounding a whole bunch of issues in the biological opinion, but the final product is at least a well reasoned document.’’ Then he goes on to write, ‘‘It errs on the side of the fish, which may

be the position the authors feel is required of them. Personally, I’m

somewhat more optimistic about the future of the suckers and

would have thought that a different decision could have been

reached.’’ That was Thursday, the 14th of June. What do we do

when we have scientists that differ in an issue that is as critical

as this? What do I tell these people? What do we do? How do we

change the law so we don’t face this.

Ms. WOOLDRIDGE. I know the question is not rhetorical. I do

think that is the benefit of having peer review. And should you, as

you mentioned, wish to go that direction and try to explore those,

I know the administration would be happy to provide our experience and what we can to help with that.

Mr. WALDEN. Well, and as I understand it—at least one draft or

comments I’ve heard you make, the administration supports peer

review.

Ms. WOOLDRIDGE. Yes, it does.

Mr. WALDEN. An outside review.

Ms. WOOLDRIDGE. Yes, it does.

Mr. WALDEN. Let me ask you another question involving the

Hardy flow report. Somebody gave me this today, which continues

to raise the questions. Hardy flow report flawed. Quote, ‘‘We used

some incorrect data.’’ And it’s a quote from a publication of a subsequent interview, with questions specifically about the Hardy flow

report. Loveland stated, quote, ‘‘There were problems. We used

some incorrect data and that’s being looked at now.’’ When asked

if it changes the report, Loveland responded, ‘‘Yes, it very well

could We have to turn it over to the Justice Department to coordiVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 73135.TXT HRESOUR1 PsN: HRESOUR1
22

nate the efforts of Hardy on the river flow/Coho issue.’’ Is that

something you’re familiar with in terms of questions—. Ms. WOOLDRIDGE. I’m not familiar with that e-mail. I do think

I have some understanding that there was some changes that were

made in some modeling that the Bureau of Reclamation was using,

and that they’ve been working with Professor Hardy to fix those,

and that that will inform his determinations as he’s going forward.

The Hardy II process has not finished.

Mr. WALDEN. Let me ask you another question, because my time

is running out. A couple of months ago I wrote to the Secretary regarding the legislation that Senators Smith and Wyden and I got

passed last year, calling on the Bureau of Reclamation to do a complete analysis of this Basin to see how we can improve water storage, water quality, water quantity. The initial Bureau of Reclamation response was that it might be several years before they could

complete that or even start that study. Can you report back to me

now whether or not we can speed that up? We don’t have several

years to wait.

Ms. WOOLDRIDGE. I do understand that. In that legislation, you

asked that we conduct a number of feasibility studies, and I can— and I actually cut it out of my remarks because I was going so

slowly—that we have begun a feasibility study on increasing the

Klamath Project storage capacity. That is also funded in the next

years’ budget, in the Secretary’s budget. And we will commit to you

that we are going to make sure that we are making these high priority as we go through. They are subject to budget constraints and

not any lack of interest in trying to bring these to a conclusion as

soon as we can.

Mr. WALDEN. But you will do everything possible to—. Ms. WOOLDRIDGE. Yes, sir.

Mr. WALDEN. And we will work with you, if you need congressional assistance on that.

Ms. WOOLDRIDGE. Thank you very much.

Mr. WALDEN. Thank you. Thank you, Mr. Chairman.

Mr. POMBO. Mr. Gibbons.

Mr. GIBBONS. Thanks you very much, Mr. Chairman. Ms.

Wooldridge, we want to welcome you here. We know that you’ve

been in this job something less than 6 months. We’re not here to

blame you, because we know that you’ve inherited just one hell of

a problem. We’re here with the hope that you can help us on all

of this, and certainly that’s the direction that these questions are

being addressed.

Ms. WOOLDRIDGE. Thank you.

Mr. GIBBONS. In my preparation for this hearing today, I looked

at the overall view of the Klamath Basin and realized that it has

approximately 5,000 square miles to it. There are hundreds of public and private activities throughout the Basin that, in effect, have

some sort of impact on this species. I want to ask just one basic

question. Why is the Endangered Species Act only being applied to

the Klamath Project.

Ms. WOOLDRIDGE. That is a very good question. The Federal

project has certain deliveries, at least as described by the project

in the biological assessment. The other users of water within the

basin are unadjudicated, and that is within the province of the

23

State of Oregon and in the State of California. And we have been— because the Federal project has these certainties, you can determine jeopardy looking just at that. And, of course, the problem is

that that focuses the full burden of the Endangered Species Act on

a particular group of people, and that is not right. But from the

perspective of somebody who’s representing the Department of the

Interior, it’s a box that’s very hard to get out of, because we can’t

tell the outside of Project uses or users that they are violating the

ESA when we don’t know what their right is. And so we are hopeful that this long-term solution is going to include trying to look

outside the project as well as just at the project, because you can’t

have a Basin-wide solution that looks solely at these particular

people. But it is a conundrum and a problem.

Mr. GIBBONS. Well, I do know that there are other Federal

projects, especially in the Upper Klamath region of Klamath Lake,

that are also not subject to this restriction, and they are Federal

projects. Let me ask just one follow-up question very briefly here

in an effort to get through this. What are the most recent timelines

for beginning and completing water augmentation studies that

were authorized in legislation that was sponsored by Congressman

Walden and the two Oregon Senators from the Upper Klamath

Basin.

Ms. WOOLDRIDGE. My understanding is that we have begun those

studies already, that they are underway. And they originally were

on a time frame based on what we assumed were going to be the

kinds of appropriations that we might be able to bring to bear on

those projects. As I mentioned briefly, we are going to make sure

that these are very high priority, they are funded for next year, so

that we know that we’ve got money to continue to get toward those

in terms of being included, and we will do what we can to make

sure that that happens.

Mr. GIBBONS. Mr. Chairman, in order to move this hearing along,

I’ll yield back the balance of my time. But I did want to say that

it’s a pleasure to have an administration that’s willing to work with

us and not against us.

Ms. WOOLDRIDGE. Thank you.

Mr. POMBO. Mr. Simpson.

Mr. SIMPSON. Thank you, Mr. Chairman. It’s good to see you and

for you to be here today. And like Congressman Gibbons, I want

you to know that you are among friends and we look forward to

working with you to try to address this issue and others that face

us in the West. One thing I’d like to know is—and I guess maybe

I’m a little backwards on this, but it’s my belief in that I don’t believe there’s anything called Federal water. I think it’s state water.

And I’d like to know if the taking of this water in this project is

consistent with Oregon water law, and the use of this water is consistent with Oregon water law.

Ms. WOOLDRIDGE. My belief is the answer is yes.

Mr. SIMPSON. Is there a consistent Federal policy on when and

how water can be essentially taken from a project like this? Apparently this was taken without—you know, they just said, We’re

going to turn off your water. In other areas in Idaho where they’ve

tried to restore salmon with flow augmentation, it’s been through

a willing seller, willing buyer, for whatever we had—427,000 acre

24

feet taken for the last several year, to willing sellers. Is there any

consistent policy, and why we would have a willing seller/willing

buyer in one area, and in another area just say, We’re going to

turn it off?

Ms. WOOLDRIDGE. I am venturing probably beyond my level of

competence. My basic understanding is that these issues are governed by state law. This is a federalism issue, and water has always been a matter of the state law that governs it. And I assume

that the consistent policy would be that we ensure that those state

laws are respected and carried out and are not trumped by some

Federal grab of water—Federal water law or something.

Mr. SIMPSON. Fine. I’m glad to hear you say that, and I look forward to working with you to try to make sure that that is the case,

because I can tell you that with the variety of Federal agencies,

that there are attempted Federal takes of State water law, to override them, whether it’s bypass flows in Colorado or whether it’s the

recent, I guess you could say, order from NMFS for Idaho power,

to give up 350,000 acre feet of their water that’s stored behind

Brownly Dam—Brownly Reservoir, without any other consideration. I see a clear pattern that the Federal Government is trying

to take control of State water, and I look forward to working with

you to try to make sure that that doesn’t happen.

One other area I’d like to ask you just a little bit about, and that

is the area in the ESA of listing a delisted species. How do you list

one, and then how do you delist one? And as you know, listing is

not that difficult anymore. Delisting is almost impossible. Do we

need to make reforms in the area of how we list an endangered

species? And from what I understand out here, these sucker fish— it would be nice if they were named something differently—but

they used to grab them with hooks and pull them out of the river,

so many, and then apparently they were listed with only so many

estimated population, and then they’ve had fish kills that were

more than what they thought were actually in the lake, so it kind

of makes me wonder about the ease with which we list. And if

there’s that many, why is it so difficult to delist them?

Ms. WOOLDRIDGE. Boy, that’s one of those where you say that’s

a mystery wrapped in a conundrum. I have asked the same questions. I won’t pretend to be an expert on this either. My understanding, at least with respect to the suckers, is that the Fish and

Wildlife Service is concerned because there isn’t recruitment or

new fish being born into particular year classes that you would see

in a natural system, and that rather than seeing a spike in a population for every several years, that’s not happening. And so while

the absolute number is an estimate, but larger than when it was

listed, the concern is that it’s not—that it is still susceptible because it’s not recruiting itself, you know, in those years.

Mr. SIMPSON. Well, I appreciate the testimony. I look forward to

working with the administration to address some of these concerns

that we have with the Endangered Species Act—not to repeal it,

not to have less concern for those species that need protection, but

to actually bring some common sense back into the Endangered

Species Act with the realization that humans beings are part of our

environment also.

Ms. WOOLDRIDGE. Thank you.

25

Mr. SIMPSON. Thank you.

Mr. POMBO. Mr. Herger.

Mr. HERGER. Thank you, Mr. Chairman. And again, I want to

join in welcoming you, Ms. Wooldridge. I don’t envy the position

that you’re in, coming in in a new administration. You’re inheriting

what is probably one of the greatest tragedies I’ve ever seen take

place. But if I could ask, it would appear that the actual historical

evidence indicates that the die-offs of the sucker fish actually occurred in years in which water levels in the Upper Klamath Lake

where high, and not low, and that is supported by a study done by

the Klamath Water Users Association. It seems to me that what

the U.S. Fish and Wildlife Service is saying here would actually be

harmful for these fish.

And getting back to—you’ve talked about it a little bit and certainly the questions that have been directed to you come down to

peer review. We have what would appear to be historical evidence

that, if anything, these sucker fish are healthier when the water

levels are lower than they are when they’re high. We have some

who we would feel are on a political, extreme environmental jihad

here. I hate to put it in those terms, but I don’t know any other

way you could look at it. It would appear that they are looking

for—in the scientists, or at least the biologists who have looked at

this have almost picked out what they could to ensure that there

is not a mesh with our environment and with the economy of our

area. And again, that might seem like harsh terms, but I see that,

not only in the Northern California part of the Klamath Basin that

I represent, but I see it in an area in the southern part of my district where we’re trying for put a highway in where there’s been,

just yesterday, the 148th death, fatality on a road that because of

a meadowfoam and a garter snake, they can’t improve the highway, or where we had a levee that broke where 6 years before the

Corp of Engineers said it would break, but they found a beetle

there that supposedly was endangered.

Again, it would seem that we are not having peer review. We’ve

heard this come up about peer review, and I’d like to have you

comment on this and whether or not—you mentioned it’s not in the

law. Do you feel it should be in the law, and if it’s not in the law,

can we still implement it? And I’m even going to go one step further than that. I’m concerned of where we have those of like minds

that seem to be part of this extreme environmental movement who,

basically, they want to run people off the land, whether it be here

as farmers, or whether it be out in the Chico area that I represent,

where again the 148th fatality from about Marysville to Chico have

taken place in the last 10 years.

But again, this peer review is very important. We put men on

the Moon more than 3 decades ago. I’m convinced that we can both

protect our environment, and as my colleague, Mr. Simpson, said,

I don’t think there’s any of us who want to see us do away with

the Endangered Species Act, but certainly we want to see it implemented in a proper way, in a balanced way, in a way where we utilize the best science, not just a very biased interpretation of science

that we seem to go getting. So my question is, getting around—it’s

not in the law. Can we still utilize it because it makes sense, because it’s the right thing to do, and even to go one step forward,

26

extend that just a step, and that is, can we ensure that we have

independent peer review of scientists outside of this closed block of

Fish and Wildlife and NMFS and some of those others who seem

to have this bias in the wrong way? Is there something that we can

do in the administration here?

Ms. WOOLDRIDGE. Well, let me answer that this way. I think that

peer review does two things. It helps us to know, as decision makers, that our judgments are reasonable. And often in these cases,

you don’t know absolutely where something is true or false, but if

you know that what you’ve done is reasonable, that is helpful, because it adds to the credibility of what is being done. So it helps

because it helps you know that your judgments are correct, and it

helps so that those who are affected by it can have confidence that

it wasn’t a product of a political decision.

As you did say, the ESA does not necessarily require this, or does

not require this. And my brief here today was not to talk about

what the administration thought should be done to modify or reinterpret or make modifications to the Endangered Species Act. Our

focus in the 5 months that we’ve been there has been to use what

administrative or administrative kinds of things that we could do

to help make sure that these decisions were implemented properly,

in accordance with the law. So the answer is yes, and I think we

can, as in this case, as we have said, as we go forward with this,

that we will subject this to peer review and we will use independent peer review. That is not to say that within that, that we

are going to—they’ve got to talk to somebody, and they will need

to know from our biologists what is the data and how it was gathered, and those sorts of things, but in terms of the actual review,

yes.

Mr. HERGER. Thank you. Thank you, Mr. Chairman.

Mr. POMBO. Mr. Hastings.

Mr. HASTINGS. Thank you, Mr. Chairman. I want to add my voice

to those that welcome you and recognize that you are inheriting

things that you’re trying to deal with with the best that you have.

I would just kind of—being last to ask questions, a lot of those

questions have already been asked by my colleagues, but I would

like to wrap it up in this sense, because there is a common thread

that all of us I think were saying and all of us have been concerned

about in dealing with the Endangered Species Act. And, obviously,

it talks about the good science and peer review. And it all revolves

around, to me, and I think especially for people that are impacted—people here in the Klamath Basin, certainly people in the

Medtile Valley in my area—and that is, they want a solution. They

don’t want an issue. And you can get to a solution if you can get

people together and somehow arrive at a common ground. But

what is missing in all of this—and I can see it from my constituents, and I certainly sense it listening to what has been going on

here—is a lack of interaction, and you said you were going to correct that, in your testimony. But it deals around science and good

science and so forth.

I am reminded of former Governor Dixie Lee Ray of Washington.

I was in the legislature when she was Governor. She has since

passed on. She wrote two books, ‘‘Trashing the Planet’’ and ‘‘Environmental Over-kill.’’ And in both of those books, while Governor

27

Ray was—at least, the extreme environmentalists didn’t like her

very much because she was exposing, I think, what they were all

about. She never said that an issue was wrong. She just said,

Prove it. That’s all she said was ‘‘prove it.’’ And her basis, coming

from a scientific background, was to have good science that is peer

reviewed, and I think that’s all people are asking. So I guess I

would ask you go a step further, to take back to the Department

of the Interior—and I would certainly hope that the Committee

would agree with me, but if not, at least for any own satisfaction— I would like to know what specific steps, since the Department of

Interior is in favor of peer review—what specific steps will you be

taking in the short-term to try to answer some of the questions

that were brought up about Dr. Hardy’s report, for example? I

mean, if there are holes in this thing, how are we going to correct

that? What steps are going to be done and how the Department of

the Interior is going to handle that here with the Klamath Basin,

but with other issues that are no doubt going to come up in your

four or 8 years that you will be in office. Could I ask you to get

something for the Committee—and if not for the Committee, certainly for me, and I will share with the Committee—on what you’re

going to do?

Ms. WOOLDRIDGE. I would be happy to do that in writing. I do

think it is going to call for us to make some judgments in terms— we do thousands of biological opinions, for instance, a year. And it

may well be that we need to make a kind of a standard or judgment with regards to which of those, and how often, and that kind

of thing—because peer review, as you can imagine, is very costly— but where you have decisions which are equally costly to people, I

think it is only reasonable that we then maybe make that kind of

a cut. Where we have fairly dreadful impacts on people, that we

make sure that our decisions are as correct as we can make them.

Mr. HASTINGS. Well, I would hope that—because, again, the common thread that we are all asking about is what is the basis? What

is the basis, based on science, peer review, whatever the case may

be? Prove it, in other words, if you’re going to make a decision

that’s going to affect so many people. And I would just ask the Department, this administration—and I’d be willing to work with

them—to put this in place as soon as possible so that it’s easier for

us then to go back and tell our constituents that it was done in a

manner that is responsible, but probably more important, a manner that is seeking to find a solution rather than to maintain an

issue, as so many people outside our region want to have. Thank

you for your testimony.

Ms. WOOLDRIDGE. Very well.

Mr. POMBO. Mr. Herger.

Mr. HERGER. Just very quickly, and if I could, just cutting to the

chase. What will it take to reopen the consultation on the existing

biological opinion.

Ms. WOOLDRIDGE. I believe that our view of it is that the consultation is ongoing.

Mr. HERGER. So it’s ongoing. Would you like to go further? Is it

possible then—again, it would appear that there’s more information here. It would appear that we have not had an adequate, if

at all, independent peer review. We’re looking at again the bankVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 73135.TXT HRESOUR1 PsN: HRESOUR1
28

ruptcy of communities. Is there any commitment, or is it possible

to get an indication of the Department of Interior’s—. Ms. WOOLDRIDGE. Well, Congressman, let me answer it this way.

I’m not quite sure I’m following exactly what you’re asking, but let

me— We’re moving into the next years’ operation, and these folks

back here in the community have to have a certain amount of certainty, to the extent possible, of about what is going to be happening with them. And we have two, 1-year biological opinions. We

need to have the long-term opinion. We need to do an EIS-NEPA

on the operations of the project. Those things, to me, seem pretty

clear that we need to have those. And as we continue to consult

with the services on the operation of the project, what we said

today is that we will make sure that there is an independent review of the science which forms the basis of these opinions.

Mr. HERGER. Thank you.

Mr. HASTINGS. I would go back, but you took all my time.

Mr. POMBO. Well, before I excuse you, Ms. Wooldridge, I’d just

say that science is probably, in my mind, one of the most important

issues that we have to face in terms of reforming the act, the Endangered Species Act. But one of the other things that really gets

to me is the Act is not enforced equally in all parts of the country.

There is a difference between the way that it is implemented in the

West versus the way it is implemented in the East—there’s a big

difference. And just to maybe balance things out a little bit, it’s

come to my attention—I’ve been told that the Potomac River near

Washington D.C. is home of an endangered sturgeon, and that the

drinking water process—the purification process that Washington

D.C. goes through—as part of that process, they dump alum into

the Potomac. And from what the biologist has told me is that that

kills the eggs of the sturgeon. So maybe if we shut off the drinking

water for Washington D.C., it would gain the kind of attention to

this problem that we need, that we may be able to make some

changes. So I would suggest to you that as part of your ongoing review, that maybe we can look at that as well.

But I want to thank you very much for your testimony. I know

that there are several questions that were asked of you that you

will be answering for the record. If you could get those to us on a

timely basis so that we can include them, I would appreciate it.

Ms. WOOLDRIDGE. I’d be happy to do that. Thank you very much.

Mr. POMBO. Thank you. I’d like to call up our second panel of

witnesses. We have the Honorable Steven West, John Crawford,

Sharron Molder, the Honorable Dell Raybould, and Dave Vogel. If

you would join us at the witness stand, please—the witness table.

STATEMENTS OF THE HONORABLE M. STEVEN WEST, COMMISSIONER OF KLAMATH COUNTY, OREGON; JOHN CRAWFORD,

KLAMATH BASIN FARMER; SHARRON MOLDER, TULELAKE

HIGH SCHOOL PRINCIPAL, TULELAKE, CALIFORNIA; THE

HONORABLE DELL RAYBOULD, IDAHO STATE REPRESENTATIVE; DAVE VOGEL, PRESIDENT, NATURAL RESOURCE SCIENTISTS, INC.

Mr. POMBO. Thank you very much for joining us here today. I’m

going to begin with Mr. West, who is the commissioner of Klamath

County, Oregon. Mr. West, you may begin.

29

STATEMENT OF M. STEVEN WEST

Mr. WEST. Thank you, Congressman. As the current Chairman

of the Board of Commissioners, it’s also my privilege today to represent my fellow Commissioners, John Elliot and Al Switzer.

Water is the life blood of Klamath County. In 1905 President

Theodore Roosevelt recognized the importance of irrigated agriculture by authorizing the Klamath Irritation Project. The United

States Government invited people to build ranches and farms on

the irrigated land, and much of that land was divided into homesteads and awarded to returning veterans of the First and Second

World Wars.

The United States Department of Agriculture reports that 1,064

families in Klamath County are farmers, and these farmers

produce over a $120 million a year in farm gate sales. Using a conservative multiplier, that’s a $264 million industry in Klamath

County. Agriculture contributes 40 percent of the region’s economy,

makes up over 10 percent of the region’s tax base, and employs

over 7 percent of the region’s workforce.

The people of the Upper Basin are facing an economic disaster

of epic proportions. It is both a natural and a regulatory disaster.

The natural disaster is a record drought. The basin has received

a D-2 Severe Drought designation. Secretary of Agriculture Ann

Veneman has declared a USDA Drought Disaster Declaration, and

President Bush has been requested to issue a Presidential Disaster.

The regulatory disaster is the result of management decisions

made by the United States Bureau of Reclamation, based on biological opinions from the United States Fish and Wildlife Service

and National Marine Fisheries. These biological opinions started as

memos from the agencies on January 19th, the last day of the Clinton administration. The biological opinions were implemented by

the bureau on the 6th of April.

During previous drought years, all interests in the basin worked

together to minimize the loss of the impact. The Bureau was allowed flexibility in the operation of the Project to minimize negative impact to agriculture and endangered species. This year that

common sense flexibility is gone. These biological opinions have received little or no review, and it appears that what little peer review that has been done has largely been ignored. In light of the

pervasive flaws in the biological opinion, it’s ludicrous to base such

a far-reaching decision on what is at least very questionable work.

Why should Federal agencies, as stewards of public resources, be

allowed to base decisions of this magnitude on such questionable

information?

The decision to not deliver water to the Klamath Irrigation

Project is having a huge negative economic consequence. The dollars from agriculture are spent and re-spent here in the basin.

Hundreds of families are facing bankruptcy and the loss of land

that’s been in their families for generations. Every business, family, and individual in Klamath County is going to feel the impact.

There will also be significant loss of revenue for local government

services at a time when the demand for those services has never

been higher.

Klamath County Assessor Reg LeQuieu has estimated that tens

of thousands of acres of irrigated farm land currently valued at

30

from $622 to $146 per acre will be valued at only $28 per acre

without irrigation water. The tax loss has been estimated at

$640,000. President Theodore Roosevelt said, ‘‘The conservation of

natural resources is the fundamental problem. Unless we solve that

problem it will avail us little to solve all the others.’’ The people

of the Basin understand that challenge and have been committed

to producing local, balanced, common sense solutions. Their cooperative efforts have restored riparian zones, created over 20,000 acres

of wetlands, enhanced existing wetlands, and installed fish

streams.

Independent studies show that these projects are all working or

contributing significantly to improving water quality in the Upper

Klamath Lake. But all the cooperative and collaborative efforts

were not given any credit in the biological opinions. Because of the

heavy-handed management practices of these agencies, future local

efforts are threatened. The agencies have created a huge breach of

trust. The very citizens who have been committed to finding solutions, and who have worked the hardest to implement those solutions, are giving up on that process, and who could blame them?

The Federal Government has not been able to keep its promise for

water in the Klamath River system. Now they are making the

irrigators of the Klamath Irrigation Project and the people of the

Upper Klamath Basin pay the cost for the government’s broken

promises.

So what are the solutions? There are equally important immediate and long-term actions that need to be taken. The immediate

actions: Pass the $20 million emergency Federal package that’s in

President Bush’s supplemental budget and get it to the affected

people without a lot of agency red tape. Next, find additional Federal funding that is proportional to the Federal Government’s responsibility for the current crisis. Next, open the biological opinions

to peer review which allows for full participation by local stakeholders. Require and empower Federal agency managers to participate in the development and implementation of local consensusbased cooperative solutions that are based on common sense. And

the Federal Government must acknowledge its responsibility and

obligations made to the Klamath Irrigation Project.

The long-term solutions are, first, develop a multi-year Federal

economic safety net for agriculture, similar in concept to Senate

Bill 1608, that would give time for long-term solutions to be implemented, including amending the Endangered Species Act to consider economic impact. Next, guaranty an annual amount of water

to agriculture in early spring that will allow crop decisions to be

made. Next, the Federal Government must provide financial resources for restoration that are proportionate to the size of the

problem. Next, develop the best opportunities for additional water

storage in the Klamath River system with a guaranteed amount of

water dedicated to irrigated agriculture. Stop all out of Basin

transfers and develop other sources of water to replace water to

those who have received, historically, these out of Basin transfers.

And finally, the Federal Government must level the international

economic playing field for United States agriculture.

It’s time for the Federal Government to become part of the solution, not just part of the problem. There’s no room for partisanship

31

or political agendas when the stakes are this high. Again, thank

you for allowing me to testify before you today, and I’d be happy

to answer any questions.

Mr. POMBO. Thank you. Mr. Crawford.

[The prepared statement of Mr. West follows:]

Statement of M. Steven West, 2001 Chairman, Klamath County Board of

Commissioners

Good morning members of Congress, my name is Steve West. I am one of the

three full-time commissioners elected to represent the 64,000 residents of Klamath

County. Currently, I serve as the 2001 Chairman of the Klamath County Board of

Commissioners, and I am pleased to also represent my fellow Commissioners, John

Elliott and Al Switzer, here today.

I want to thank you for making time in your busy schedules to hold this hearing

today in Klamath Falls. My hope is that after this hearing today, you will have a

much better understanding of the challenges we face in the Upper Klamath Basin

and will help us in implementing both immediate short-term and long-term solutions.

Water resource issues in Klamath County and the entire Klamath River system

are very complex. These issues include: two states, non-adjudicated rights, the Endangered Species Act (ESA) and multiple endangered species that are competing for

the same resource, out of basin water transfers, tribal trusts, water quality and

quantity issues, flood and drought cycles, federal wildlife refuges, and a hundreds

of million dollar annual agriculture industry. To understand the complexity, it takes

more than reading a report or a legal brief. To really understand, you must meet

and listen to the people whose lives these issues effect.

Water is the lifeblood of Klamath County. It supports wildlife, recreation, tourism,

agriculture, and most importantly, it supports people. In 1905, President Theodore

Roosevelt recognized the importance of irrigated agriculture in feeding our growing

nation and the world by authorizing the Klamath Irrigation Project. Over the next

forty-five years, the United States Government invited people to build ranches and

farms on the land irrigated by the Klamath Irrigation Project. Much of the land was

divided into homesteads and awarded through lotteries to returning veterans home

from defending their country during the Second World War. The Klamath Irrigation

Project was completed in the 1960’s and was paid for by the farmers and ranchers.

The project is a great example of American hard work and ingenuity. The Project

has become home for generations of well-run family farms and ranches.

The United States Department of Agriculture reports that 1064 families in Klamath County are farmers. These farmers produce over $120,000,000 a year in farm

gate sales. This figure is not retail sales, but what the farmer gets for the sale of

raw products. If you use a very conservative multiplier of 2 to 2.2, that is a

$264,000,000 industry in Klamath County. Agriculture contributes over 40% of the

Klamath Basin’s economy, makes up over 10% of the region’s tax base, and employs

over 7% of the region work force. Klamath County and the Upper Klamath Basin

is a high desert region with an average annual precipitation of only 10 to 12 inches.

Without irrigation there is very little agriculture in this area.

The people of Klamath County and the Upper Klamath Basin are facing an economic disaster of epic proportion. This economic disaster is effecting two states,

three counties, one region’s economy, and the lives of everyone who has made the

Upper Klamath Basin their home. It is both a natural disaster and a regulatory one.

The natural disaster we face is a record drought. Mr. Rob Allerman, the Bureau

of Reclamation’s Klamath Project hydrologist has estimated that inflows into Upper

Klamath Lake from April to September will be less than the record drought of 1992

and similar to the drought of 1977. Total stream flow into the Upper Klamath Lake

from all sources is estimated to be at only 29% of normal. These are record low levels.

Mr. Roger Williams, Meteorologist in Charge, National Oceanic and Atmospheric

Administration (NOAA), National Weather Service in Medford reports that precipitation measured at Kingsley Field (Klamath Falls Airport) from September 1, 2000

through March 26, 2001 was only 32% of average. NOAA officials also report that

the Northwest is the most drought-impacted region in the country and that the

Upper Klamath Basin is the driest in the Northwest.

The National Resources Conservation Service (NRCS) reports that the ‘‘Snow

Water Equivalent’’ for snow pack in the Upper Klamath Basin as of March 26, 2001

was only 34% of normal. Snowmelt occurred at all elevations one to two months earlier than normal. The Upper Klamath Basin would have had to of received 200%

32

of normal spring rain to get back to a normal water year. The highest spring ever

recorded in history in the Basin only produced 143% of normal.

The Upper Klamath Basin has received a D–2 Severe Drought designation. Governor Kitzhaber, at the request of the Klamath County Board of Commissioners and

recommendation of the Oregon Drought Council, has signed a State Drought Declaration for Klamath County. Secretary of Agriculture Ann Veneman has declared

a U.S. Department of Agriculture (USDA) Drought Disaster Declaration for Klamath County. The Klamath County Board of Commissioners has also requested that

Governor Kitzhaber seek a Presidential Disaster Declaration from President Bush.

The regulatory disaster is the result of management decisions made by the United

States Bureau of Reclamation (USBoR) based on Biological Opinions (BO) from the

United States Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS). Memos from the NMFS and USFWS both dated January

19th, the last day of the Clinton administration, were sent to the USBoR. These

memos made new recommendations for Upper Klamath Lake levels and Klamath

River down stream flows. The USFWS and NMFS memos were followed up with formal Biological Opinions (BO). The Klamath River down stream flows and Upper

Klamath Lake levels demanded in these Biological Opinions were implemented by

the USBoR on April 6th.

It has been estimated that the Klamath River Down Stream flows and Upper

Klamath Lake elevations required by the Biological Opinions will create an average

water shortage of 250,000 acre feet in all water year types. (An acre-foot of water

is enough water to cover one acre of area, one foot deep).

Drought conditions are nothing new to the Upper Klamath Basin. During the

drought years of 1992 and 1994, all interests in the Basin, including agriculture and

National Wildlife Refuges, worked together to minimize loss and impacts. USBoR

was allowed flexibility in the operation of the Klamath Irrigation Project that minimized negative impacts to agriculture and endangered species. This year, because

of the rigid and unreasonable demands of USFWS and NMFS for Upper Klamath

Lake levels and Klamath River downstream flows, that common sense flexibility is

gone.

USFWS and NMFS Biological Opinions that the USBoR is basing its 2001 Klamath Project Operating Plan on has received little or no peer review. It also appears

that what little peer review that was done has been largely ignored by these agencies. A review for the Oregon Chapter of the American Fisheries Society done by

Douglas F. Markle, David Simon, Michael S, Cooperman, and Mark Terwilliger of

Oregon State University’s Department of Fisheries and Wildlife (February 5, 2001

and March 6, 2001) made the following statements:

. . . The editorial problems are of such magnitude that they severely

influence this review. The misspelled words, incomplete sentences, apparent

word omissions, missing or incomplete citations, repetitious statements,

vagueness, illogical conclusions, inconsistent and contradictory statements

(often back to back), factual inaccuracies, lack of rigor, rampant speculation, format, content, and organizational structure make it very difficult to

evaluate this BO.

We urge, in the strongest possible way, that the Service (U.S. Fish and

Wildlife Service) re-visit every single sentence for importance, applicability,

grammar, spelling, content and internal consistency with other parts of the

document. The document is excessively long. The problems are not ‘‘window

dressing’’, rather they obscure the data and make it very difficult to find

validity in claims. This document has the potential to have a severe negative impact on the Service’s (U.S. Fish and Wildlife Service) public credibility. . .

. . . The analytical problem with the system is that the lake level is

a seasonally monotonous function of date, so that sequential observations

are serially auto-correlated and variables of interest are cross-correlated.

For example, low lake level and low temperature do not co-occur because

low lake levels happen in late summer or fall and low temperature happens

in winter. An important consequence is that lake level cannot be easily separated from cross-correlated physical variables or from seasonal behavior

patterns of the fish. Fish responses that are temperature related cannot be

easily separated from lake level. A further consequence is that an entire

year’s worth of observations become a statistical sample of one. The BO

does not seem to appreciate this fundamental analytical problem.

The BO argues that lake elevation is related to water quality and was

responsible, in part, for fish kills such as those observed in 1995, 1996, and

1997. The case for a fish kill - lake level relationship rests on weak or inappropriate data, such as the following:

33

• Pg. 27. ‘‘In contrast, suckers captured in 1994 - 1996 (years with better

water quality and higher lake levels) were substantially more robust’’. This is an instance where thin fish are used as evidence of poor water

quality when no such evidence is presented, not even a correlation coefficient. Further on of the years, 1994, had the lowest lake level on record,

and directly challenges the premise...

• Pg. 74. ‘‘Lower Lake elevations may increase AFA (a type of blue-green

algae) and worsen water quality.’’ Again, the two lowest water years, 1992 and 1994, are not explained.

This discussion describes a complex, non-linear system that either implicates intermediate lake levels or suggests that almost any lake level can

be associated with poor water quality. The data implicate intermediate, not

lower, lake levels because 1.) historical data have been interpreted to indicate that fish kills were common prior to Link River Dam, 2.) the pre-dam

minimum elevation was 4139.93 and therefore all historical fish kills took

place at higher lake elevations, and 3) no die off has ever been documented

when elevations were below the historical minimum (pg.46). . .

. . . In summary, the argument for a fish kill - lake level relationship

is complex, but does not account for observation that extremely low lake

elevations in 1992 and 1994 did not produce fish kills. Further, the BO suggest that 1995–1999, the most heavily managed years in the lake’s history,

were higher water years, yet fish kills occurred in three of the five years.

The data presented give little support for the contention that low summer

lake level is related to fish kills. If anything the data support the notion

that intermediate summer levels are dangerous. . .

In light of the pervasive flaws in the Biological Opinions pointed out in just one

limited peer review, it is ludicrous to base such a far reaching decision as the

USBoR’s 2001 Klamath Irrigation Operation Plan on what is at the very least questionable work. If more exhaustive peer review had been allowed and considered, how

many more flaws would have come to light? In the Endangered Species Act (ESA),

Biological Opinions are presented, as the best science has to offer. If my fellow

County Commissioners and I, as stewards of public resources, made decisions of this

magnitude based on such questionable information, we would not long be County

Commissioners. If American corporations and industries made decisions of this magnitude based on such questionable information, they would not long be in business.

Why should federal agencies, as stewards of public resources, be allowed to base decisions of this magnitude on such questionable information?

The USBoR’s decision to not deliver irrigation water to the Klamath Irrigation

Project is having huge negative consequences. The economic loss from grain, alfalfa,

pasture, livestock, and potato crops, plus the increased feed cost for dairies is estimated in the hundreds of million dollars. Livestock producers who have invested

years and countless dollars in breeding programs will suffer losses that will take

years to recover from. Even pastures that are not watered will be negatively affected

to the point that they will require replanting. These dollars from the agriculture

economy are paid in salaries and spent to purchase farm supplies, fuel, equipment,

vehicles, food and so on; they are spent and re-spent here in the Upper Klamath

Basin. Hundreds of farm and ranch families are facing bankruptcy and the loss of

land that has been in their families for generations. Every business, family, and individual in Klamath County is feeling the impact.

There will also be significant loss of revenue for local government services. Beside

County Government services the repayment of three public project construction

bonds will be negatively impacted. Those bonds are for the Klamath County Courthouse, the Klamath County Government Center, and the Klamath County Fair

Grounds Event Center where this hearing is being held today. Also negatively impacted will be the Klamath County Library Service District, two school districts, a

community college, four (4) cemetery districts, sixteen (16) fire districts, five (5) park

districts, seventeen (17) road districts, five (5) vector control districts, a public transportation district, and the 911 emergency dispatch services.

Klamath County Assessor Reg LeQuieu has estimated that tens of thousands of

acres of irrigated farm land currently valued at from $622 to $146 per acre will be

valued dry at only $28 per acre without irrigation water. He has estimated the tax

revenue loss at $640,000. Eighty percent of the new revenue growth allowed under

Oregon Property Tax law will be eliminated.

Klamath County and the Upper Klamath Basin have not enjoyed the economic

prosperity of the 1990’s. Economic impacts from loss of timber jobs and the recession

of the 1980’s are still being felt. Klamath County’s current unemployment rate is

over 10%. There are outstanding ongoing efforts by Klamath County Economic Development Association (KCEDA) and Team Klamath to diversify the Basin’s econVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 73135.TXT HRESOUR1 PsN: HRESOUR1
34

omy. We are trying to build a healthy diversified economy built on our historic base

industries of agriculture and forestry, while adding technology and tourism.

The recent siting of the new manufacturing plant of Electro Scientific Industries,

Inc. (ESI) and Escend Software’s research and development facility are examples of

successful business recruitment. Dr. Martha Ann Dow and her team at Oregon Institute of Technology (OIT) is a vital asset to Klamath County’s economic future.

The Running Y Ranch Resort, the 2002 Centennial Celebration for Crater Lake National Park, and other destinations in the area are increasing the tourism industry’s

contribution to economic health. However, all these efforts are for naught if we lose

our agricultural economy base. This past year, Collins Plywood closed resulting in

the loss of 300 family wage jobs, showing that our economy is still very fragile.

In 1907, at the Deep Waterway Convention in Memphis, Tennessee, President

Theodore Roosevelt said, ‘‘The conservation of natural resources is the fundamental

problem. Unless we solve that problem it will avail us little to solve all others.’’ The

people of Klamath County and of the Upper Klamath Basin understand that the

challenge that President Roosevelt recognized in 1907 is the same challenge that we

face today. They have worked hard to be part of the solution.

There has been a great commitment by the people of the Upper Klamath Basin

to produce local, long term, balanced, common sense solutions. Over the last several

years, there have been many ongoing local efforts to find solutions. The Klamath

Adjudication and Alternate Dispute Resolution (ADR) processes are ongoing projects

of the Oregon Water Resources Department. Both, however, in my opinion will simply result in dividing up the drought.

Farmers, ranchers, Soil Conservation District, Watershed Councils, Tribes, consumers and conservationist have worked together cooperatively and collaboratively.

They have restored riparian zones, created over 20,000 acres of new wetlands enhanced existing wetlands, and installed fish screens. They are doing these projects

and more because they are the right things to do, not because they are being forced

to. Studies done for the Oregon Department of Environmental Quality show that

these projects are all working and are contributing to improved water quality in

Upper Klamath Lake by lowering phosphorous levels.

President Theodore Roosevelt once said, ‘‘I have a perfect horror of words that are

not backed up by deeds’’. He would find nothing to cause him horror with the people

of Klamath County and the Upper Klamath Basin. He would only need to look at

their accomplishments to see that their words have been backed up by their deeds.

But all these cooperative and collaborative efforts were not given any credit in the

USFWS and NMFS Biological Opinions and in the USBoR’s 2001 Klamath Irrigation Project Operating Plan that resulted from those opinions.

In my opinion, future local efforts are all in danger of collapsing because of the

current heavy-handed management practices of the USBoR, USFWS, and NMFS.

The current management practices of these agencies have created a huge breach of

trust. They have also resulted in inner-agency and inter-agency squabbles. As a result of the current situation, I am concerned that the very citizens who have been

committed to finding solutions and who have worked the hardest to implement

those solutions are giving up on that process. And who could blame them. The current management practices of these agencies threaten to end agriculture in the

Upper Klamath Basin. This is an end that we can not allow to happen.

The United States Federal Government made promises for water in treaties with

Tribes in the 1860s. The United States Federal Government made promises for

water in homestead grants to returning veterans, war heroes, the greatest generation, in the 1920s and 1940s. The United States Federal Government made promises

for water in the Endangered Species Act to endangered species in the 1970s. The

United States Federal Government has not been able to keep its promises. Now the

United States Federal Government is making the irrigators of the Klamath Irrigation Project, the people of Klamath County, and the people of the Upper Klamath

Basin pay all the cost of the government’s broken promises.

In passing the endangered Species Act legislation, the people’s elected federal representatives said that these species were important enough to the people of the

United States to pass a powerful law. The Endangered Spices Act is the federal law

for all the people of United States. Therefore all the people of the United States

should have to shoulder the cost of implementing this law, not just those that make

the Upper Klamath Basin their home. The people of Klamath County and the Upper

Klamath Basin can not be asked to pay the entire cost of the Endangered Species

Act for the entire Klamath River watershed. All the problems of water quality,

quantity, and endangered species in the Klamath River System, cannot be solved

on the backs of the Klamath Irrigation Project, the people of Klamath County, and

the people of the Upper Klamath Basin alone.

35

We want to work together with all the people of the Klamath River from the

headwaters to the Pacific Ocean, but the Klamath Irrigation Project and the Klamath Basin’s economy cannot bear the entire cost. So, what are the solutions? Klamath Commissioners John Elliot, Al Switzer, and my self, Modoc County Supervisor

Nancy Huffman, Siskiyou County Supervisor Joan Smith, Oregon State Senator

Steve Harper, U.S. Representatives Greg Walden, Wally Herger, and their staff’s,

U.S. Senator Gordon Smith and his staff, have all been working tirelessly to bring

help to the people we have been elected to serve. We need your help and we need

it now. I believe that there are equally important immediate and long-term actions

that need to be taken.

IMMEDIATE ACTION

• The $20 million dollar emergency federal package contained in President Bush’s

supplemental budget must be passed immediately and gotten to the affected

people in the most expedient manner possible and with a minimum amount of

agency red-tape.

• Federal funding, in addition to the package in President Bush’s supplemental

budget, that is proportionate to the Federal Government’s responsibility for the

current regulatory crisis must be identified and be made available.

• The current USFWS and NMFS biological opinions must be opened to a peer

review process that is done in good faith, in an open public forum which allows

for full participation by local stake holders.

• Local Federal Agency managers must be required to and empowered to participate in good faith to develop and implement local consensus-based and cooperative solutions without the interference from heavy handed agency bureaucrats

in region offices or Washington, D.C.

• The Federal Government must acknowledge its responsibility for historically

promoting and encouraging the development of agriculture in the Upper Klamath Basin through homesteads and reclamation projects, and thus it has an obligation to honor the agreements made with agriculture.

LONG TERM ACTION

• A multi-year Federal economic safety net must be developed for the Upper

Klamath Basin, similar in concept to SB1608, that would give time for long

term solutions to be implemented.

• Agriculture must be given a guaranteed quantity of water in early spring (February–March) of each year that will allow decisions on crop production and production financing to be based on.

• The Federal Government must provide financial resources that are proportionate to the size of the problem. The Klamath River System is the third largest river system on the West Coast. The financial resources currently being

made available are only a fraction of what is being spent on the restoration of

the Columbia River System and the Sacramento–San Joaquin River System.

• All opportunities must be identified for additional water storage in the Klamath

River System and adequate funding must be provided to construct the best

projects in no more than five years, with a guaranteed amount dedicated for irrigated agriculture.

• All out-of-basin water transfers must be stopped and other sources of water to

replace water to those who have historically received the out-of-basin transferred water need to be identified.

• The Federal government must work legislatively to level the international economic playing field for United States agriculture to sell their products and to

remedy the unfairness of current trade agreements.

The problems and solutions are large and complex, and time has run out. It is

time for the Federal government to become part of the solution, not just part of the

problem. These are people’s lives we are talking about. There is no room for partisanship or political agendas when the stakes are this high. Again, thank you for

allowing me to testify before you today. I am happy to answer any questions you

might have.

STATEMENT OF JOHN CRAWFORD

Mr. CRAWFORD. Thank you, Mr. Chairman and members of the

Committee. My name is John Crawford. I’m a Klamath Project

farmer. As part of my testimony today, I have the humbling reVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6602 73135.TXT HRESOUR1 PsN: HRESOUR1
36

sponsibility of representing Klamath Project agriculture, including

the veterans and the Hispanic members of our community. Klamath Project irrigators are often accused by environmental extremists of being highly subsidized and having not paid our portion of

the construction costs of the Klamath Project. In fact we have repaid every penny of our obligation to the Klamath Project, and the

following statement will provide insight as to past accomplishments

of the agricultural community.

Through the half century since the Klamath Project was com- pleted, the Federal Government has invested about $14.7 million in

the construction of the Project. Federal tax collections alone, since

1940, have reached a cumulative total of about $95 million, or more

than six times the project’s cost.

Two hundred thousand acres of fertile land have been reclaimed

from swamp and arid prairie. More than 1,600 farm families and

scores of merchants and tradesmen derive an excellent livelihood

from this reclamation project. About 44,000 acres of the 200,000

acres reclaimed were originally in the public domain. These public

lands have been dedicated to the most worthy purpose of assisting

our war veterans. I can think of no finer program. Since 1922, settlement opportunities have been provided to more than 600 veterans of World Wars I and II.

Although the accomplishments in the Klamath Project area in

the past half century have been great, there is sill room for expansion, and even greater accomplishments are in store for this area

in the future if the full development of the water and land resource

potential is effectively achieved. ‘‘I believe that you will find this a very interesting study and another example showing that expenditures for our reclamation program constitute one of the nation’s wisest investments.’’. Those are the words of Clair Engle, the chairman of this very

committee, spoken on May 16th of 1957. That wise investment has

provided over six billion dollars in farm products, based on the

value of today’s dollar.

Words cannot begin to describe the pain being experienced in our

communities. Farm families have lost income. Long-term commodity supply contracts have been terminated. Debts will not be

paid. Dreams are being shattered. The loss is not only economic.

It is a loss of our identity. There is no separation between our work

and the rest of our lives. We are farmers and ranchers.

Recently, I’ve seen Tom Hanks of ‘‘Saving Private Ryan’’ fame soliciting support for the World War II memorial in Washington D.C.

As a life member of the Veterans of Foreign Wars, I fully support

this effort, but believe there no better place to recognize the admiration and respect earned by our World War II veterans than here

in the Klamath Basin. This can be accomplished if our government

honors its commitment to the veterans who homesteaded the

Tulelake area of the basin.

With the Chairman’s permission, I would like to submit the written testimony of over 20 of these veterans who homesteaded in the

Tulelake area.

Mr. POMBO. Without objection, it will be included in the record.

[The information referred to is located at the end of this hearing:]

37

Mr. CRAWFORD. The vast majority of the basin’s Hispanic people

are permanent residents of the area. These proud leaders and valued members of our community are inexorably linked to Basin agriculture. No water has equated to loss of jobs, and some of the

men have already been forced to leave the area in search of work.

Now that the school year has ended, this exodus will continue and

escalate. It is tragic that we may lose our friends and neighbors

that make up the Hispanic community.

How have we arrived at this deplorable and devastating outcome

that destroys our communities and provides no recognizable benefit

for any of the endangered species? This outcome is the product of

a corrupted scientific process and a disproportionate focus on the

Klamath Project.

Instead of having applicant status in both Section 7 consultations

for suckers and Coho salmon as we held in the development of the

1992 opinion for suckers, we have been excluded from the salmon

consultation and relegated to commenting on the sucker biological

opinion after the fact. The Department of the Interior has ignored

two different sucker restoration plans developed by the Klamath

Water Users Association in their preparation of biological assessments and opinions. They have ignored credible peer review, including that of Oregon State, which has already been discussed. We

would like to formally request that applicant status of Project

irrigators be reinstated for both the section 7 consultations for

suckers and for Coho.

Members of Congress and stakeholders continually ask the same

questions, but honest answers never seem to materialize. If all of

the fish kills in Upper Klamath Lake have occurred at high water

levels, why is the average fish kill elevation the same as that prescribed as the minimum level in the biological opinion? If no fish

kills have occurred at low levels, why is the concern so heavily

weighted that they may occur in the future? If the only viable year

class of suckers recruited in the last 10 years, 1991, occurred in a

low water elevation of 4138, why is that not recognized? If the

healthiest sucker population with the most year classes occurs in

Clear Lake where virtually no emergent vegetation exists, why

does the U.S. Fish and Wildlife Service insist that the relationship

between emergent vegetation and lake levels in Upper Klamath

Lake is so important?

If fish kills on the Klamath River, including Coho, occurred in

August of ’94, May and June of 2000, and May of 2001, when releases were being substantially augmented with water from Upper

Klamath Lake and the temperature of that water was toxic to fish,

why does the National Marine Fisheries Service insist that more

water, regardless of its quality, is better? Since fish returns, particularly Coho, were excellent in 1995 and 1996, following the lowest flows since Link River Dam was constructed, why don’t the

agencies acknowledge that other factors may have more influence

than flows in the main stem Klamath below Iron Gate Dam?

The demand that the Klamath Project must shoulder all of the

responsibility for providing lake levels, river flows and any other

needs that the agencies can dream up goes well beyond unfair and

borders on the ridiculous. There are two other Federal irrigation

projects, thousands of acres above Upper Klamath Lake, thousands

38

of acres irrigated from the Shasta and Scott rivers. The Federal

Government does not have the courage or creativity to deal with

this inequity. The Klamath Project has simply been chosen as an

easy target.

The perception shared by the tribes and some environmental

groups that all of the water stored for irrigation, plus all of the inflow for the year, is still not enough to protect resources, even with

no deliveries to agriculture and the refuges, is completely counterproductive to attaining agriculture’s cooperation for any endeavor.

The resentment that this attitude has instilled in the community

will result in long-term harm to agriculture’s support for restoration projects and activities.

We have initiated or supported the creation of nearly 25,000

acres of wetlands that have changed from productive agricultural

lands in private ownership to Federal or conservancy ownership.

We have supported appropriations for the refuges and collaborated

with the California Waterfowl Association and Ducks Unlimited to

improve wetland habitats. Unlike others, we have never demanded

all the water and never will. We support our fellow food producers

in the commercial fishing industry and have focused our restoration efforts on improving water quality. We think that these improvements, which have been well documented, provide the most

positive impact on the fisheries relied upon by the commercial fleet,

and also improve conditions for endangered suckers and the trust

resources of the downstream tribes as well.

It has been stated by Glen Spain of the Pacific Coast Federation

of Fisherman’s Association that market conditions in the Klamath

Basin may make agriculture’s future an effort in futility. Like the

fishing industry, we have fought through tough times before and

survived. We can prosper again, but only with an adequate supply

of water. The unfortunate truth for both fishermen and farmers is

that the cheapest meal I can think of today consists of a big baked

potato and a fillet of pen-raised Chilean Coho available at Safeway

in Klamath Falls for $1.89 a pound.

The devastated condition of this basin not only includes a $250

million loss of farm gate revenue and the risk to public safety related to wind and soil erosion that continues to occur, but the horrible degradation of 200,000 acres of habitat for hundreds of species

living in the Klamath Project. How can we justify the elimination

of this habitat in the name of single species management up in

Upper Klamath Lake when that management will probably not

benefit the endangered suckers?

If an adequate economic relief package is not forthcoming, the

long-term harm and damage may be so severe that the people and

resources of this community cannot survive. Existing disaster and

drought relief programs provided by the U.S. Department of Agriculture cannot be modified or adapted to provide for these circumstances. Economic relief must be crafted to accommodate the

tremendous need based on what has occurred in this basin.

The California community wants to thank Governor Gray Davis

for taking quick, decisive action and providing immediate relief in

the form of five million dollars for the drilling of wells to augment

our non-existent allocation of water.

39

The primary concern that I have regarding this entire issue is

that I cannot identify a single action taken by the Department of

the Interior that will prevent us from being in this identical situation next year. I don’t believe that any type of long-term solution

has been addressed by the Federal agencies. Thank you.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Crawford follows:]

Statement of John Crawford, Klamath Project Farmer and Member of

Tulelake Irrigation District Board of Directors

Mr. Chairman and members of the committee:

My name is John Crawford and I am a Klamath Project farmer. I have lived in

the Klamath Basin my entire life. I am a member of the Tulelake Irrigation District

Board of Directors, past president of the Klamath Water Users Association, member

of the Board of Trustees of the Nature Conservancy of Oregon, a member of the

Upper Klamath Basin Working Group and the Klamath Basin Ecosystem Foundation.

As part of my testimony today I have the humbling responsibility of representing

Klamath Project agriculture including the veterans and the Hispanic members of

our community. Klamath Project irrigators are often accused by environmental extremists of being highly subsidized and having not paid our portion of the construction costs of the Klamath Project. In fact we have repaid every penny of our obligation to the Klamath Project and the following statement will provide insight to other

accomplishments of the agricultural community:‘‘Through the half century since the

Klamath Project was completed, the Federal Government has invested about $14.7

million in construction of the project. During that same period the project has produced crops having a gross value of more than $350 million. During the last 10

years alone, project lands have produced 67 million bushels of potatoes valued at

$80 million, and 42 million bushels of barley valued at $62 million. Federal tax collections alone since 1940 have reached a cumulative total of about $95 million, or

more than 6 times the project’s cost.

Two hundred thousand acres of fertile land have been reclaimed from swamp and

arid prairie. More than 1,600 farm families and scores of merchants and tradesmen

derive an excellent livelihood from this reclamation project. About 44,000 acres of

the 200,000 acres reclaimed were originally in the public domain. These public lands

have been dedicated to the most worthy purpose of assisting our war veterans. I can

think of no finer program. Since 1922 settlement opportunities have been provided

to more than 600 veterans of World Wars I and II.

Although the accomplishments in the Klamath project area in the past half century have been great, there is still room for expansion, and even greater accomplishments are in store for this area in the future if full development of the water and

land resource potential is effectively achieved.

I believe that you will find this a very interesting study and another example

showing that expenditures for our reclamation program constitute one of the nation’s wisest investments.’’

The above is an excerpt of the statement of Clair Engle, the Chairman, to the

members of the House Interior and Insular Affairs Committee dated May 16, 1957.

That wise investment has provided over 6 billion dollars in farm products based

on the value of today’s dollar.

Words cannot begin to describe the pain being experienced in our communities.

Farm families have lost income. Long-term commodity supply contracts have been

terminated. Debts will not be paid. Dreams are being shattered. The loss is not only

economic. It is a loss of our identity. There is no separation between our work and

the rest of our lives. We are farmers and ranchers.

Recently, I have seen Tom Hanks of ‘‘Saving Private Ryan’’ fame soliciting support

for the World War II memorial in Washington D.C. As a life member of the Veterans of Foreign Wars I fully support this effort, but believe there is no better place

to recognize the admiration and respect earned by our World War II veterans than

here in the Klamath Basin. This can be accomplished if our government honors its

commitment to the veterans who homesteaded the Tulelake area of the Basin.

The vast majority of the Basin’s Hispanic people are permanent residents of the

area. These proud leaders and valued members of our community are inexorably

linked to Basin agriculture. No water has equated to loss of jobs and some of the

men have already been forced to leave the area in search of work. Now that the

40

school year has ended this exodus will continue and escalate. It is tragic that we

may lose our friends and neighbors that make up the Hispanic community.

How have we arrived at this deplorable and devastating outcome that destroys

our communities and provides no recognizable benefit for any of the endangered species? This outcome is the product of a corrupted scientific process and a disproportionate focus on the Klamath Project.

Instead of having applicant status in both the Section 7 consultations for suckers

and Coho salmon as we held in the development of the 1992 opinion for suckers we

have been excluded from the salmon consultation and relegated to commenting on

the sucker biological opinion after the fact. The Department of Interior has ignored

two different sucker restoration plans developed by the Klamath Water Users Association in their preparation of biological assessments and opinions. They have ignored credible peer review including Oregon State University’s assessment of the

sucker biological opinion that said the opinion was comprised of ‘‘illogical conclusions’’, ‘‘inconsistent and contradictory statements’’, ‘‘factual inaccuracies and rampant speculation’’. The review also stated that the document had the potential to severely damage the public credibility of U.S. Fish and Wildlife Service (USF&WS).

Members of Congress and stakeholders continually ask the same questions, but

honest answers never seem to materialize. If all the fish kills in Upper Klamath

Lake have occurred at high water levels why is the average fish kill elevation the

same as that prescribed as the minimum level in the biological opinion. If no fish

kills have occurred at low levels why is the concern so heavily weighted that they

may occur in the future? If the only viable year class of suckers recruited in the

last ten years (1991) occurred in a low water year elevation 4138 why is that not

recognized? If the healthiest sucker population with the most year classes occurs in

Clear Lake where virtually no emergent vegetation exists why does the USF&WS

insist that the relationship between emergent vegetation and lake levels in Upper

Klamath Lake is so important? If fish kills on the Klamath River (including Coho)

occurred in August of 1994, May and June of 2000 and May of 2001 when releases

were being substantially augmented with water from Upper Klamath Lake and the

temperature of that water was toxic to fish why does the National Marine Fisheries

Service insist that more water regardless of its quality is better? Since fish returns

(particularly Coho) were excellent in 1995 and 1996 following the lowest flows since

Link River Dam was constructed why won’t the agencies acknowledge that other

factors may have more influence than flows in the main stem Klamath below Iron

Gate Dam?

The demand that the Klamath Project must shoulder all of the responsibility for

providing lake levels, river flows and any other needs the agencies can dream up

goes well beyond unfair and borders on the ridiculous. There are two other federal

irrigation projects, thousands of acres above Upper Klamath Lake, thousands of

acres irrigated from the Shasta and Scott rivers. The federal government does not

have the courage or creativity to deal with this iniquity. It has simply been chosen

as easy target.

The perception shared by the tribes and some environmental groups that all of

the water stored for irrigation plus all of the inflow for the year is still not enough

to protect resources even with no deliveries to agriculture and the refuges is completely counter productive to attaining agriculture’s cooperation for any endeavor.

The resentment that this attitude has instilled in the community will result in longterm harm to agriculture’s support for restoration projects and activities. We have

initiated or supported the creation of nearly 25,000 acres of wetlands that have

changed from productive agricultural lands in private ownership to federal or conservancy ownership. We have supported appropriations for the refuges and collaborated with the California Waterfowl Association and Ducks Unlimited to improve

wetland habitats. Unlike others we have never demanded all the water and never

will. We support our fellow food producers in the commercial fishing industry and

have focused our restoration efforts on improving water quality. We think that these

improvements, which have been well documented, provide the most positive impact

on the fisheries relied upon by the commercial fleet and also improve conditions for

endangered suckers and the trust resources of the downstream tribes as well. It has

been stated by Glen Spain of the Pacific Coast Federation of Fishermen’s Associations, that market conditions in the Klamath Basin may make agriculture’s future

an effort in futility. Like the fishing industry we have fought through tough times

before and survived. We can prosper again, but only with an adequate supply of

water. The unfortunate truth for both fisherman and farmers is that the cheapest

meal I can think of today consists of a big baked potato and a fillet of pen raised

Chilean ‘‘Coho’’ available at Safeway in Klamath Falls for $1.89 per pound.

The devastated condition of this Basin not only includes a $250 million loss of

farm gate revenue and the risk of public safety related to wind and soil erosion that

41

continues to occur, but the horrible degradation of 200,000 acres of habitat for hundreds of species living in the Klamath Project. How can we justify the elimination

of this habitat in the name of single species management in Upper Klamath Lake

when that management will probably not benefit the endangered suckers.

If an adequate economic relief package is not forthcoming the long-term harm and

damage may be so severe that the people of this community cannot survive. Existing

disaster and drought relief programs provided by the U.S. Department of Agriculture can probably not be modified or adapted to provide for these circumstances.

Economic relief must be crafted to accommodate the tremendous need based on

what has occurred in this Basin.

The California community wants to thank Governor Gray Davis for taking quick,

decisive action and providing immediate relief in the form of 5 million dollars for

the drilling of wells to augment our non-existent allocation of water.

The primary concern that I have regarding this entire issue is that I cannot identify a single action taken by the Department of Interior that will prevent us from

being in this identical situation next year. I don’t believe that any type of long-term

solution has been addressed by the federal agencies.

Mr. POMBO. Ms. Molder.

STATEMENT OF SHARRON MOLDER

Ms. MOLDER. Mr. Chairman, members of the Committee, thank

you for the opportunity to testify today. My name is Sharron Molder. I’m the Principal of Tulelake High School, and I depend on

farming for my daily existence just as you do.

I want to thank you on behalf of all the students, parents, teachers, and staff members of the Tulelake Basin School District and

our neighboring schools located within the Klamath Basin for coming to Klamath Falls to learn more about the crisis we are now facing. In fact, with no objection, I would like to invite all current and

former students from Tulelake, Merrill and Malin to please stand

up so you can see the people I represent here today. We are not

a small group.

I have been asked to give my opinion on what caused the current

water crisis. If you come to Tulelake High School and walk through

the foyer where a tradition of graduating classes have been displayed since 1934, you will understand. The veterans of World War

I and World War II who came to farm in the Klamath Project believed that a written promise for water forever made by the government that sent them to war, and signed by Franklin Delano Roosevelt, Herbert Hoover or Ulysses S. Grant, was meant to last

longer than 50 years. These are the people who created the backbone of this community. Out of 135 families, today in the Tulelake

School District, 18 children at the high school are third generation,

18 are fourth generation and two are from fifth generation farming

families.

What caused this crisis? Greed and hidden agendas by environmental zealots who are not much different than the carpetbaggers

who rampaged the South after the Civil War devastated our communities. Indifference to social and economic conditions has begun

to destroy not only our rural communities, but also 430 native species of wildlife as well.

We don’t just raise potatoes, horseradish and onions. We grow

kids. The valedictorian for the class of 2001, Brianna Byrne, is a

member of a local family who has farmed here for a century. At a

hearing before the California State Assembly, Water, Parks and

Wildlife Committee in May, Brianna stated, ‘‘How can I and other

42

members of my chapter of Future Farmers feel any sense of security in pursuing agriculture as a career when the government of

the strongest nation on earth takes away the core of our history

and community based on unproven and speculative science?’’ The Tulelake community has tried to repair the situation by communicating the news of this devastating crisis through the media

and a massive letter writing campaign to all government representatives. I’d like to share excerpts of some journal writings by students at Tulelake High School in hopes that you will have some insight into the people that are affected by this callous decision accepted as necessary by some branches of our government. Dozens

of testimonies make a clear statement that our young people are

losing there faith in government, and I believe that should concern

you, Mr. Chairman and Committee members.

Our students wrote, ‘‘The citizens of the area are looked upon as

pawns of their own government—the American government. The

government totally turned their backs on the people of this Basin.

They took away their livelihood. There once was a strong belief in

this community for the American government, but that has now

been destroyed.’’ Mr. Chairman, I ask that you please include this information in

the official record.

Mr. POMBO. Without objection.

[The information referred to has been retained in the Committee’s official files:]

Ms. MOLDER. The Tulelake School District provides education for

children from preschool through 12th grade. As of March, 2001, the

student enrollment in the district was 574; 55 percent of our student population is Hispanic, approximately 80 percent of these students qualify under Federal guidelines as economically disadvantaged and therefore receive free or reduced lunches and other benefits. Based on a poll preparing the district’s operating plan and

budget for 2001/2002, we could lose approximately 200 students, 30

to 40 percent of our student population, and approximately one million dollars in lost revenue. I know a lot about school administration, but I don’t know how to administrate a school with no children.

Our schools are recognized by the State of California as high performance schools. Our technology is second to none in Northern

California. We are a very successful school district. Our success is

particularly notable when you consider that many of our students

come from homes that are at or below the poverty level, and Spanish is the primary language spoken in the homes. A government official in Sacramento told me that instead of destroying our schools,

the Federal agencies should be up here studying them.

Many of the students’ recent writings and actions indicate even

more significant adverse impacts to the school community. Our recent 4th quarter grade reports show a significant increase in D’s

and F’s. This time frame parallels the news of the water crisis.

These are students who emotionally gave up. We expect our SAT

9 scores to drop district-wide.

Many of the families in our schools have participated for years

in the successful agricultural business community, and are now unemployed or are employers who have not only been forced to lay off

43

long-term employees, but face the prospect of financial ruin themselves. The emotional pain and stress felt by the parents is recognized and transmitted to the students. As hope for a rapid solution

fell, referrals and problems increased. I am concerned that facing

a summer with no jobs for high school students, problems will continue to increase. We usually process about 100 student work permits, and we have processed six.

Modoc and Siskiyou Counties have been declared a ‘‘special disaster area.’’ A Local Assistance Center has been set up. However,

some of our community members are undocumented immigrants

who will not be eligible for assistance. They have put down roots.

Some are third-generation now. But without financial aid, they

must move on. Others who will need our services but will not accept them are senior citizens in need, but too proud to accept a government handout.

It is troubling to hear from people who don’t live here, but who

suggest that we should all just accept a government buyout and

move on. Unfortunately, discrimination is still prevalent in our society, as these remarks sadly show. Our schools will reopen in August, but who will still be here? Our summer school enrollment has

dropped from 220 students last year to 170 this year. Our staff is

frustrated and deeply hurt by the possibility that our efforts to

build an excellent learning community are at risk because of the

loss of irrigation water to the farms that support this school district. We still have children in this Basin to raise and educate.

I share the words of Ross Macy who said, ‘‘As an FFA officer, I

have been taught the importance of farming and leadership. I have

ambitions to gain the highest honor that the FFA has to award, the

American Farmer Degree, and to accomplish this in my home town

and in my high school. However, because of this destructive decision, I may not be able to reach this goal, and neither will future

generations.’’ Above all, the greatest country in the world needs to

have the greatest government in the world so that a government

‘‘of the people, by the people and for the people shall not perish

from this earth.’’ Abraham Lincoln.

My daughter Jennifer is a sophomore at Cal Poly, San Luis

Obispo, majoring in production agriculture, a 1999 graduate of

Tulelake High School and a member of FFA. In October we traveled to Kentucky where she received her American Farmer Degree

from the largest youth organization in American. I pray that she

will not be the last. How can this problem be prevented in the future?

Our government in an emergency is reactive, not proactive. As

Thomas Jefferson said, ‘‘It is more honorable to repair a wrong

than to persist in it.’’ You could still open the gates and turn on

the water. Some say it is too late to turn on the water this year,

but as long as it can help any person or any species in the Basin,

it is not too late. We teach our children, if you make a mistake you

admit it, correct it and move on. Congress should also financially

reimburse those businesses and workers who have suffered because

of the loss of water supplies. The science that led to these decisions

must be reviewed. Economic impact studies should be conducted

before decisions are made. It is the people in this Basin who are

endangered and worth saving.

44

To close, I choose the words of sophomore, Lupita Aguilar: ‘‘We

need to find an answer to all of this. Please find a way in which

both fish, farmers and ranchers get water. I’m sure there is a solution because there is one to everything. We just have to work together and find the one that will benefit all sides.’’ Thank you.

Mr. POMBO. Thank you.

[The prepared statement of Ms. Molder follows:]

Statement of Sharron Molder, Principal, Tulelake High School, Tulelake

Basin Joint Unified School District, Tulelake, California

Mr. Chairman, members of the Committee, thank you for the opportunity to testify today. My name is Sharron Molder. I am the principal of Tulelake High School

and I depend on farming for my daily existence, just as you do.

I want to thank you on behalf of the students, parents, teachers, and staff members of the Tulelake Basin School District and our neighboring schools located within the Klamath Basin, for coming to Klamath Falls to learn more about the tragedy

unfolding before us.

I have been asked to give my opinion on what caused the current water crisis.

If you came to Tulelake High School and walked through the foyer where a tradition

of graduating classes have been displayed since 1934, you would know the answer.

The Veterans of WWI and WWII who came to farm in the Klamath Project, created

by the Bureau of Reclamation believed that a written promise for water forever,

made by the government that sent them to war, and signed by Franklin D. Roosevelt, Herbert Hoover, or Ulysses S. Grant was meant to last longer than 50 years.

These are the people who created the backbone of this community. Their pictures,

on display from 1934 to the present honor the generations that followed these brave

families. Who is affected by the loss of water in the Tulelake Basin? Out of 135 families in the high school we have 18 families with third generation children, 18 who

are fourth generation and two who are fifth generation farming families. Some of

these same veterans now face a severe loss in income because their land cannot be

leased for farming providing retirement income. These proud Americans never saw

the crisis coming. What caused this crisis? Greed and hidden agendas by environmental zealots who are not much different than the carpetbaggers who rampaged

the south after the civil war devastated our communities. Indifference to social and

economic conditions has begun to destroy not only our rural communities but also

430 native species of wildlife as well.

My daughter, Jennifer wants to be a farmer. She is a sophomore at Cal Poly, San

Luis Obispo, majoring in Production Agriculture, a 1999 graduate of Tulelake High

School and a member of FFA. She has earned her American FFA degree, the highest national honor in the Future Farmers

Organization, still the largest youth organization in America. I share with you excerpts from the FFA Creed written by E.M. Tiffany

I believe in the future of agriculture. I believe that American agriculture can and

will hold true to the best traditions of our national life and that I can exert an influence in my home and community which will stand solid for my part in that inspiring

task.

Jennifer is one of Tulelake’s children. We don’t just raise up potatoes, horseradish

and onions. We also grow kids. Another student, our valedictorian for the class of

2001, Brianna Byrne, is on her way to Santa Clara University. She is a member

of a Klamath Basin family, in farming for a century. At a hearing before the California State Assembly, Water, Parks and Wildlife Committee on May 22, 2001

Brianna stated ‘‘How can I and the other members of my chapter of Future Farmers

feel any sense of security in pursuing agriculture as a career when the government

of the strongest nation on earth takes away the core of our history and community

based upon unproven and speculative science?’’

The Tulelake community has tried to repair the situation by communicating the

news of this devastating crisis through the print media, television and a massive

letter writing campaign to our government representatives. A sophomore took photographs during a sandstorm, when the dirt blew so hard you couldn’t see the end

of your car on the highway, a common occurrence these days. Students and staff

prepared a reception at Tulelake High School for Congressman Wally Herger, with

mere 24 hours notice. The previous day the high school took busses to the rally at

The Event Center in Klamath Falls to hear the governor of Oregon address the

crowd of 6000. Columbia Plywood in Oregon gave the high school 30 sheets of plywood to advertise our plight along highway 139 to passing motorists. The students

45

painted messages on both sides: ‘‘Give us our slice of the pie’’, ‘‘In preschool we were

taught to share’’, ‘‘Save our ecosystem, fish, rancher, and farmer’’ and ‘‘Call 911!

Some Sucker stole our water!’’ But still, the tap is dry. I liken the feeling to the ‘‘rolling power blackouts’’ that areas of California have been experiencing. Imagine

that the lights are switched off, but they do not go back on in an hour, or a day.

You do not know if the switch will ever go back on, ever. So it is with our irrigation

water.

The Tulelake community has tried to repair the situation by communicating the

news of this devastating crisis through the media and a massive letter writing campaign to our government representatives. I’d like to share excerpts of some journal

writings by students at Tulelake High School in hopes that you will have some insight into the real people that are affected by this speculative science accepted as

truth by some branches of our government. Dozens of statements make a clear

statement that our young people are losing their faith in government and I believe

that should concern you Mr. Chairman and committee members.

Ross: The citizens of the area are looked upon as pawns to their own government,

and not just any government, but the American government. I feel as if the government believes that some fish in a river are more important than the livelihoods of

thousands. Is this how the American government was set up? Absolutely not. It just

goes to show how unimportant the government believes the small farmer is. We do

all we can to produce the food the world needs, maintain the environment, and sustain our own lives. There is no farmer in the world that has to put up with more

regulations and strict standards than the American small farmer. However, we still

hold on, believing that these regulations are helping to produce a superior product,

and we are helping to give the world the food it needs. And then the government

takes it all away. The government has set a standard, and now little bits of land

can be taken away throughout the entire United States, and soon we will be abolishing the American small farmer all together.

Wes: On Friday, the 6th of April, our government decided that they were not

going to give any water, as in none at all, to the farmers of the Klamath Basin.

They decided that they were going to let all the water run down river just because

there might be a possibility that the fish population would deplete. There was no

evidence guaranteeing that the fish population would go down. They still decided

that the lives of fish were more important than the lives of countless farmers. The

government totally turned their backs on the people of this Basin. They took away

something that was truly important to the people here; they took away their livelihood. Our government, at the turn of the century, invited homesteaders to come and

settle here and start new lives. Now, that very same government is taking away

what they once had supported. The farmers of this area use only two percent of the

water in Klamath Lake. They only want 6 inches of the lake water so that they can

provide food for their families and thousands of other families in the US. Everything

that goes on in Tulelake is in one way or another linked to agriculture. My dad

works for a fertilizer corporation whose business comes from the farmers. Every

friend that I have here is also linked to farming. To most of them farming is all

they know, its what they have done for their whole lives, its what they have taught

their children to do. What are they going to do when they are suddenly out of a

job? All because the Government believes that the lives of fish are more important

than the lives of your people. What kind of Government is that?

Angela: Our FFA chapter earns most of its money by our school farm. Without

water we will not be able to farm this summer and we are unsure how we will be

able to pay for chapter contests and educational conferences for next year. The saddest thing to think about is that my FFA jacket maybe useless next year because

there doesn’t seem to be a future for the farmers in this area.

Alejandra: The water crisis means a lot to me because of my parents. They don’t

have a good education to get a different job, so they can only work out in the fields

or in the packing sheds.

Amanda: What about the businesses, the schools, the churches, the youth groups,

school sports, and also the wildlife? What do the farmers and ranchers do now?

Move from their homes and take their children out of the schools where they grew

up with all their classmates and built strong relationships? Our towns will become

ghost towns because there is no work. Tulelake, Merrill, and Malin are based on

farming and when that gets taken away the towns become nothing. All the money

the farmers and workers put into their houses and businesses will have all gone

to waste for the sake of Sucker Fish! To me, this seems outrageous.

Jose Antonio: Our community revolves around agriculture. Many families have

started moving, looking for jobs. The farmers don’t have the money to have the

workers work for them. I have been really worried that my family will want to

move. I’m sixteen years old and I’ve lived in Tulelake for eleven years. All my

46

friends have known me for most of my life and I don’t want to be separated from

them. I’m asking anybody that reads this or hears this to help us.

Laura: The water decision in this basin is a tragedy. So many families will be

leaving and so many friends. It is very strange that we are having a recession in

the economy and we are putting people out of jobs. Isn’t it supposed to be the other

way around?

Jerry: When people would eliminate people over fish, there is something wrong.

If people would rather see a sucker fish prosper, than see a whole community survive, something is erroneous. This issue is more than being able to stay in Tulelake,

it is the fact that people can get away with catastrophic devastation to smaller communities, for unimaginable wants. If it starts here, it won’t stop. Other communities

will be struck with this, If we don’t get any water and the protection agencies win,

then they will have the power to do it over and over again.

Juan: The water crisis is a very big problem at this point in my life. I have many

other problems and this is one that has to be resolved fast. Please make our suffering end this month.

Wes: There isn’t much work so there isn’t much money coming in. Times are very

rough. It is hard for our family to pay the bills each month. My mom and dad are

stressed out all the time. What’s worse is that there is nothing I can do about it.

Agustin: My parents don’t want to move because they like this peaceful community and good schools. My father is going to move away and send us money so we

won’t have to leave here. He will return when the situation is better.

Amanda: I worry about moving and leaving my small school. Small schools are

special because you get to know other students real well and most of us have relationships with our teachers.

Matt: Turning off the water has taken away my dream to go to college and play

basketball. I don’t know now how I can pay for it.

Rebecca: As human beings we should try everything in our power to sustain wildlife, but at what cost? In Tulelake, by refusing water to the basin’s farmers there

is the idea that a fish’s life is worth more then many farmers and their families’’ lives. This is a ridiculous idea. There isn’t any person who would sacrifice the life

of themselves or their children for the life of a fish. So why are farmers in Tulelake

being asked to do so? These farmers have made their livelihood out of farming. They

have built on the American Dream, the American Dream to produce and flourish.

The dream that with every drop of sweat that falls and with every trickle of blood

spilled, at the end of the day they can be proud of their toil. This crisis does not

only affect farmers and the Tulelake Basin. By supporting the fish’s life, you are

supporting the basin’s business degradation. There once was a strong belief in this

community for the American Government; but that has now been destroyed. Please

help us to regain some of that belief, and support the Tulelake Farmers.

Cecilia: Immigrants once came to this country to escape this type of tyrannical

government and gave their lives for the freedoms we all enjoy. Why now does the

government have the right to tell us how we are to make our living and where we

are to live?

Our students feel betrayed. We all feel betrayed.

The Tulelake School District provides education for children from preschool

through 12th grade. As of March 2001, the student enrollment in the District was

574. Approximately 80% of the said students qualify under federal guidelines as economically disadvantaged and, therefore, receive free or reduced lunches and other

benefits. As of said date, approximately 55% of our student population was Hispanic. We are currently involved in preparing the District’s operating plan and

budget for the 2001–2002 school year. In order to determine the impact of the cutoff

of water on our school population we began polling the students in our schools.

Based on our poll, we could lose approximately 200 students, 30 - 40% of our total

student population by the beginning of the next school year. The estimated loss of

revenue will be approximately 1 million dollars.

Our schools are recognized by the state of California as High Performing Schools.

Our schools are recognized by the state of California as High Performing Schools.

Tulelake Basin Elementary School raised their API from 545 to 659, an increase of

114 points. Tulelake High School, already a high performing school, raised our API

53 points, the second largest increase in the north state. This phenomenal growth

far exceeded the accountability targets set by the state of California. Our technology

is second to none in Northern California. Our student to computer ratio is 1:2. We

have a video-conferencing lab for students and community members to take courses

from College of the Siskiyous. Next fall we will begin a yearlong course for Cisco

Networking Certification as well as a semester course in A+ Certification as part

of our technology path. We are part of the University of California College Prep Initiative, offering 7 online AP courses and 4 honors courses next year. We are also

47

expanding AVID to three grades, 8th, 9th and 10th to increase opportunities for college path education to more students. We have been a part of the KRIS Project

(Klamath Resource Information System ) collecting water quality data from tributaries to Klamath Lake. We understand the problem. What we do not understand

is being excluded from the solution. We also have a working school farm which supports our agricultural program offering hands on experience to future farmers. We

cannot farm either this year without water. We cannot water our football fields, soccer fields or our parks. A governmental official in Sacramento told me that instead

of destroying our schools you should be up here studying them!

Many of the students’’ recent writings and actions indicate even more significant

adverse impacts to the school community. Based on my years of experience in education I recognize and understand the emotional and behavioral impacts of stress

on the school population. Our recent 4th quarter grade reports show a significant

increase in D’s and F’s. This time frame parallels the news of the water crisis. There

are students who emotionally gave up. We expect our SAT 9 scores to drop District

wide. It was very hard to motivate many of our students to focus beyond the crisis.

The children in our schools are well aware of the financial and emotional health of

their families. Many of the families in our schools have participated for years in the

successful agricultural business community. Many of the parents of our students are

now unemployed or are employers who have not only been forced to lay off longterm employees, but face the prospect of financial ruin themselves. The emotional

pain and stress felt by the parents is recognized and transmitted to the students.

As hope for a rapid solution fell, referrals and problems increased. I began to deal

with behaviors I had not witnessed in three years. We are concerned that facing a

summer with no jobs for high school students, the problems could continue to increase. We usually process about 100 student work permits, mostly for field workers. We have processed six.

California Governor Gray Davis signed a bill declaring Modoc and Siskiyou counties within the Klamath Reclamation Project a ‘‘special disaster area’’. Two million

dollars will come to our non-profit, Tulelake Community Partnership to set up a

Local Assistance Center. We hope it is soon enough and direct enough to help all

of our people. Some of our community members are undocumented immigrants,

former migrant workers, who will not be eligible. They have put down roots; some

are third generation now, but without assistance they must move on. Others who

will need our services but will not accept them are senior citizens, too proud to accept ‘‘a government handout’’. Mr. Wendall Wood commented that the government

can write a check to our farmers but not to a bald eagle. Mr. Wood needs to remember who signs the check.

The schools will open in late August, but who will still be here? How do we plan?

Our summer school enrollment has dropped from 220 last year to 170 this year K—

8. Our staff is frustrated and deeply hurt by the possibility that our efforts to build

an excellent learning community are at risk of destruction because of the loss of irrigation water to the farms that support this school district. We are committed to

keeping our certificated and classified staffs intact. We are a very tenacious and

proud community and we will find a way to maintain our way of life for the children

we have yet to raise and educate.

I share the words of Ross Macy : ‘‘I am an officer in the Future Farmers of America. This organization has taught me the importance of farming, and of leadership.

I have ambitions to gain the highest honor that the FFA has to award, the American Farmer Degree and to accomplish this in my hometown, and in my own high

school. However, because of this destructive decision I might not be able to reach

this goal, and neither will future generations. This is terrible. Above all, the greatest country in the world needs to have the greatest government in the world. ‘‘So

that a government of the people, by the people, and FOR the people, shall not perish

from the earth.’’ Abraham Lincoln.

Farmers are truly the Keepers of the Earth. If the ESA is not amended there will

always be a lawsuit on the horizon. There was a combination of factors that came

together during this drought year. Unfortunately, the land itself, which sustains

this agricultural community, became a commodity.

How can the problem be prevented in the future? Our government in an emergency is reactive not proactive. As Thomas Jefferson said, ‘‘It is more honorable to

repair a wrong than to persist in it.’’ You could still open the gates and turn on

the water. Some say it is too late to turn water on this year but as long as it can

help any person, or any species in the Basin, it is not too late. We teach our children

if you make a mistake you admit it, correct it and move on. Congress should also

financially reimburse those businesses and workers who have suffered because of

the loss of water supplies. The science that led to these decisions must be reviewed.

48

Economic impact studies need to be conducted prior to the impact, as is required

by your laws.

It is the people in this Basin who are endangered and worth saving. To close, I

choose the words of sophomore, Lupita Aguilar : ‘‘We need to find an answer to all

this. Please find a way in which both fish, farmers, and ranchers get water. I’m sure

there is a solution because there is one to everything. We just have to work together

and find the right one that will benefit all sides.’’

Thank you.

Mr. POMBO. Mr. Raybould.

STATEMENT OF DELL RAYBOULD

Mr. RAYBOULD. Thank you, Mr. Chairman. I appreciate the opportunity of coming to Oregon to testify before this Committee. My

name is Dell Raybould and I am from Rexburg, Idaho. I am here

today representing a number of water, farming and agricultural interests in the State of Idaho, including the Committee of Nine,

which is the governing board of Water District Number 1 in the

State of Idaho, The Idaho Water Users Association, and the Idaho

Farm Bureau Federation.

I’ve been a farmer and a businessman in eastern Idaho for over

50 years. I have served in water management as the Director of

Canal Companies, a private reservoir company, and an irrigation

district. I am also a current member of the Idaho State House of

Representatives, in which I serve on the Resources and Conservation Committee.

I believe that there is a basic lack of understanding and respect

regarding the commitment that the Federal Government made to

encourage settlers to establish agriculture in the arid West. The

Federal Government has a contractual as well as a moral obligation to protect this essential industry, which the Federal Government itself fostered and encouraged.

Mr. Chairman, there are three points that I would like to make

today. First, the Federal Government should never allow the constitutional protections of this nation to be ignored or made subservient to actions of Congress. The issue here is fundamentally a

property rights issue and the constitutional guarantee that the government will never take private property without just compensation. Secondly, the Federal Government needs to adopt and maintain a consistent policy west-wide regarding the acquisition and use

of water for the Endangered Species Act purposes. And, third,

sound science must guide any decision to use water for the Endangered Species Act purposes. Flow targets must be demonstrated by

credible, peer reviewed scientific evidence, not models or untested

theories.

The issue of whether and how water should be acquired for the

Endangered Species Act purposes is not a new one for us. We are

very familiar with it in the Upper Snake River Basin in Idaho.

During 1994, Senator Larry Craig secured a written pledge, signed

by the Commissioner of the Bureau of Reclamation, that water for

Endangered Species Act purposes would only be acquired from willing sellers and within state law providing for water leases in the

Upper Snake River Basin, and that there would be no taking of

water.

49

The willing seller within State law and with the lease provisions

policy announced in 1994 remains the case today in Idaho. With

the willing seller leases and state law policy so firmly entrenched

in the Upper Snake River Basin, the question must be asked, what

happened in the Klamath Basin? Why was water, held under contract, taken from the irrigators? Is there no consistent policy regarding the acquisition of water for ESA purposes? Apparently not.

This needs to change. We believe that the right to own private

property is one of the fundamental and defining characteristics of

this Republic. It would indeed be troubling if the erosion of private

property rights is not as troubling to this Committee as it is to us.

The water users of the Klamath Basin must be compensated for their loss. I applaud the Bush administration for including $20 million in disaster assistance for the Klamath Basin in its supplemental appropriation request. I understand that other financial assistance is also being arranged. While this will certainly aid those

in need, this money should be recognized for what it is: a BandAid to temporarily alleviate the pain of a much larger wound.

Reclamation project benefits established almost a century ago

should not been brushed aside in the name of the Endangered Species Act. These projects have been paid for by the water users, and

whole communities have grown up around the projects as a result

of the promises made by the Federal Government. It is my experience that the willing seller, lease, and state law policy have worked

well in the Upper Snake River Basin. I believe it could work in the

Klamath Basin and other parts of the arid West. Mr. Chairman

and Committee Members, I therefore request that you help see that

it is adopted.

In conclusion, I find the entire episode in the Columbia (sic)

Basin this year to be appalling. Time honored contracts between

water users in the United States have been thrown aside in the

name of the ESA and junk science. For this, the local economy and

a way of life have been sacrificed. Mr. Chairman, today is the day.

Now is the time to amend the Endangered Species Act by passing

legislation to exempt irritation water from Endangered Species Act

jurisdiction. We encourage you to do what you can to see that order

and sanity are restored in the Klamath Basin. If there is anything

we can do to help, we will. Mr. Chairman, I again appreciate the

opportunity to testify, and would welcome any questions that you

may have. Thank you.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Raybould follows:]

Statement of Dell Raybould, Representing the Committee of Nine, Water

District 1, State of Idaho, The Idaho Water Users Association, Inc., and

the Idaho Farm Bureau Federation

Mr. Chairman and Members of the Committee, my name is Dell Raybould, from

Rexburg, Idaho. I’m here today representing a number of water, farming and agricultural interests in the State of Idaho, including the Committee of Nine, which is

the governing board of Water District 1 in the State of Idaho, the Idaho Water

Users Association, and the Idaho Farm Bureau Federation.

I appreciate the opportunity to testify before you regarding the situation here in

the Klamath Basin and across the West. In particular, I would like to acknowledge

my Congressman, Mike Simpson, as well as Representative Butch Otter, for their

role in providing me with the opportunity to testify.

I have been a farmer and a businessman in Eastern Idaho for 53 years. I have

served in water management as the director of canal companies, a private reservoir

50

company, and an irrigation district. I am also a current member of the Idaho State

House of Representatives, in which I serve on the Resources and Conservation Committee.

This hearing is important not just for the people of the Klamath Basin, but also

for those people living in Idaho and throughout the West that are dependent upon

irrigated agriculture.

There is a basic lack of understanding and respect regarding the role that irrigation has played in the settlement of the West and the commitments that the federal

government made to encourage settlers to bring the deserts of the arid West into

production.

Agriculture and ranching is still the most important industry in the West and the

federal government has a contractual, as well as a moral, obligation to protect this

essential industry which the federal government itself fostered and encouraged

through direct Congressional action.

Mr. Chairman, there are three general points that I would like to make today:

(1) The federal government should never allow the constitutional protections of

this nation to be ignored or made subservient to actions of Congress. The issue here

is fundamentally a property rights issue and the constitutional guarantee that the

government will never take private property without just compensation, and even

then, only when there are not alternatives.

(2) The federal government needs to adopt and maintain a consistent policy

westwide regarding the acquisition and use of water for Endangered Species Act

purposes. Such acquisitions should be from willing sellers only and the water should

be used consistent with state law. Water should not be taken from irrigators against

their will or used in a way that is contrary to state law.

(3) Sound science must guide any decision to use water for Endangered Species

Act purposes. The need for minimum reservoir pools or downstream flow targets

must be demonstrated by credible, peer reviewed scientific evidence, not models or

untested theories. Known factors of mortality such as harvest, predators, and ocean

conditions must receive renewed focus.

We are here today because more than 1,500 farmers and ranchers in the Klamath

Basin have had their water taken from them when they need it most - during a

drought - in the name of the Endangered Species Act. At least ninety percent of the

200,000 acres of farmland under the Klamath Project will be without water this

year. Not because of a drought, but because of the federal government’s implementation of the Endangered Species Act. It is a wrong-headed policy that has resulted

in this catastrophe and one that needs to be changed.

The issue of whether, and how, water should be acquired for Endangered Species

Act purposes is not a new one. We are very familiar with it in the Upper Snake

River Basin in Idaho.

In response to the listing of Snake River salmon under the ESA in 1991 and 1992,

the National Marine Fisheries Service (NMFS) requested that the U.S. Bureau of

Reclamation provide up to 427,000 acre feet of water from the Upper Snake River

Basin for the purpose of assisting in the downstream migration of the salmon.

NMFS has required the delivery of water from Idaho for flow augmentation in Biological Opinions issued during 1995, 1998, 1999 and, most recently, on May 2,

2001.

During 1993, the Pacific Northwest Regional Director of the Bureau of Reclamation, John Keys, was provided with written guidance from Dan Beard, the Commissioner of the U.S. Bureau of Reclamation, regarding the acquisition of water by the

Bureau to aid in the recovery of threatened and endangered salmon.

The July 19, 1993 memorandum from Dan Beard is attached to my written testimony.

In his memorandum, Commissioner Dan Beard concluded that there were four options ‘‘available and legally authorized’’ to secure water for flow augmentation. They

were: (1) releasing water stored but not under contract; (2) releasing water covered

by existing spaceholder contracts; (3) participating in rental water banks to acquire

water; and (4) buying back already committed space in the reservoirs.

It was option number 2 on this list - ‘‘releasing water covered by existing

spaceholder contracts’’—that raised the fundamental issue of whether the federal

government would respect or ignore the United States Constitution. More specifically, the question was whether water would be acquired on a willing seller-willing

buyer basis, or whether water would be taken by the federal government without

regard to private property rights and the contractual obligations of the Bureau.

Through his memo, Commissioner Beard signaled the intent of the Clinton Administration to take water away from irrigators.

Commissioner Beard’s memo was met with heavy criticism by the entire western

water community, and especially by Idaho interests. As just one example, Beard was

51

peppered with questions at the National Water Resources Association’s annual conference in San Diego during the fall of 1993.

During 1994, on the eve of NMFS adopting a new Biological Opinion that would

govern the flow augmentation program, Idaho’s Congressional delegation, led by

Senator Larry Craig, secured a written pledge, signed by Commissioner Dan Beard

and Rolland Schmitten, Assistant Administrator for Fisheries, NMFS, Department

of Commerce, that water for ESA purposes would only be acquired from willing sellers in the Upper Snake River Basin and that there would be no taking of water.

A copy of this April 1, 1994 letter addressed to Senator Craig and a related press

release from Senator Craig’s office, dated April 4, 1994, are attached to my testimony. The Bureau’s Regional Director, John Keys, was also instrumental in forging

the willing seller policy of the federal government.

The willing seller policy announced in 1994, coupled with deference to state law,

was subsequently reflected in the Biological Assessments and Biological Opinions

issued by the Bureau and NMFS. This remains the case today.

With the ‘‘willing seller’’ and ‘‘state law’’ policy so firmly entrenched in the Upper

Snake River Basin, the question must be asked: What happened in the Klamath

Basin? Why was water held under contract taken from irrigators? Is there no consistent policy even within the Snake/Columbia Basin regarding the acquisition of

water for ESA purposes? Apparently not. This needs to change.

We believe that the right to own private property is one of the fundamental and

defining characteristics of this republic. It would indeed be troubling if the erosion

of private property rights is not as troubling to this Committee as it is to us.

In the short term, the water users of the Klamath Basin must be compensated

for their losses. Their livelihoods have been taken by the federal government and

must be returned to them, in tact. The Endangered Species Act is an obligation of

all of the people of the United States - not just those that reside in this basin. It

is a matter of basic fairness that just compensation be provided from the U.S. Treasury for the losses that have been sustained.

The recent Court of Federal Claims decision in Tulare Lake Basin Water Storage

District v. United States (April 30, 2001) requires NMFS and the U.S. Fish & Wildlife Service to compensate water users for reduced water deliveries that resulted

from ESA compliance in the Central Valley of California. So, too, should the water

users of the Klamath Basin be compensated for water shortages caused by the federal government.

It has been reported that the economic losses in the area this year are likely to

exceed $200 million. I applaud the Bush Administration for including $20 million

in disaster assistance for the Klamath Basin in its Supplemental Appropriations request to Congress, as urged by Senator Gordon Smith and Representative Greg Walden. I understand that other financial assistance is also being arranged. While this

will certainly aid those in need, this money should be recognized for what it is: a

band-aid to temporarily alleviate the pain of a much larger wound.

To fix the problem for the long term, the Bush Administration must take the existing willing seller/state law policy in the Upper Snake River Basin and apply it

westwide.

Reclamation project benefits, established almost a century ago, should not be

brushed aside in the name of the Endangered Species Act. These projects have been

paid for by water users and whole communities have grown up around the projects

as a result of the promises made by the federal government.

The United States should not take this water from the farmers and ranchers of

the Klamath Basin. If the United States desires water for ESA purposes, it should

be required to purchase the water from willing sellers in the basin. The use of the

water must also be consistent with state law.

It is my experience that this federal policy has worked well in the Upper Snake

River Basin. I believe it could work in the Klamath Basin and other parts of the

arid west. Mr. Chairman and Committee Members, I therefore request that you help

see that it is adopted.

Of course, before any water is purchased, there must first be a demonstrated, scientifically-based need for the water.

Water users in Idaho have relentlessly challenged the scientific basis for NMFS’

flow augmentation program. A key part of this program is the establishment of

downstream flow targets. We challenge the flow targets as being inconsistent with

actual hydrologic data maintained for the past 80 years.

Similar questions must be asked in the Klamath Basin regarding the downstream

flow targets for the coho salmon, as well as the minimum pool levels established

for the suckers. Are these thresholds based on observed data, or are they based on

computer models and unproven theories?

52

Have the studies relied upon by the federal agencies been adequately peer reviewed by credible scientists? Have biological studies done by independent scientists

been disregarded by the federal agencies?

The answers to these and other tough scientific questions - and not politics—

should dictate whether, and how much, water is required to meet the needs of the

species. Credible, peer reviewed data, and the consideration of all available scientific

information is a must. Decisions to take water from irrigators should not be guided

by junk science.

In the Upper Snake River Basin, water users and the State of Idaho have been

able to debunk the myth that flow augmentation will recover the salmon. Other factors are at play which threaten the fish. I understand that ocean conditions are improving and, if so, this should significantly increase salmon runs. Predators and

harvest are also major sources of mortality - ones that can and should be controlled.

These factors must be taken into account when looking at the Klamath Basin.

In conclusion, I find the entire episode in the Klamath Basin this year to be appalling. And I am not alone in my assessment. Irrigators in Idaho and throughout

the West are keenly aware of the plight here in the Klamath Basin. Time-honored

contracts between water users and the United States have been thrown aside in the

name of the ESA and junk science. For this, the local economy and a way of life

have been sacrificed.

We encourage you to do what you can to see that order and sanity are restored

in the Klamath Basin. If there is anything we can do to help, we will.

Mr. Chairman, again I appreciate the opportunity to testify and I would welcome

any questions that you may have.

[Attachments to Mr. Raybould’s statement follow:]

53

54

55

56

57

Mr. POMBO. Mr. Vogel.

STATEMENT OF DAVID VOGEL

Mr. VOGEL. Mr. Chairman and members of the Committee,

thank you for the opportunity to be here to testify. My name is

David Vogel. I’m here to provide you with important information

concerning the science, or more aptly stated, the lack of science behind the artificially created regulatory crisis that has been imposed

in the Klamath Basin, and to recommend solutions to this major

problem. I’m a fishery scientist with 26 years of experience. I have

authored many technical reports, including restoration of Klamath

Basin fishery resources. I have performed research on Coho salmon

and the endangered suckers as well as many other fish species

throughout the western United States.

Mr. Chairman, I offer your Committee several reasons why this

regulatory crisis did not have to occur, and how it can be avoided

in the future. My written testimony provides more details. I will

simply summarize the main points here.

My first point pertains to how the decision making process went

awry. In my entire professional career of nearly three decades, I

have never been involved in a process that was as closed, segregated, and as unjust as we now have in the Klamath Basin. The

constructive science-based processes I have experienced elsewhere

used an honest and open dialogue. Hypotheses are developed and

then tested against empirical evidence. Such are the accepted

standards of science, but they have not been applied here.

My second point pertains to the distortion of facts and the lack

of science associated with the suckers and Coho salmon. The two

sucker species exhibit far greater numbers over a much broader geographic range, and with greater reproduction than reported by the

agency more than a decade ago. These facts call into serious question if the fish really are endangered. This year’s crisis was caused

by a demand for high lake levels, and is a major step backwards

for practical natural resource management. Forcing higher than

normal lake levels is likely to be detrimental, not beneficial for the

suckers.

As you can see from Figure 1 of my testimony, huge fish kills occurred when the lake was near average or above average levels,

but not at low levels. In fact one of the worst fish kills on record

occurred during 1971 when the lake was nearly full. This is not a

professional opinion, but is a fact extensively documented, yet ignored by the Fish and Wildlife Service.

The National Marine Fisheries Service added to the regulatory

crisis by demanding higher than historical flow rates from Iron

Gate Dam. As you can see from Figure 2 in my testimony, and the

poster to my left, numerically and proportionally, few Coho are

present in the mainstem river channel in the area most influenced

by the Klamath Project. Instead, NMFS chose to focus on the

Klamath Project in the Upper Basin to rectify for the failures in

the tributaries of the Lower Basin where most Coho reside. This

misguided scientifically deficient approach will not succeed. In

short, scientific bases for the agency’s actions are lacking. Further

scrutiny will reveal these deficiencies. Tragically, for the Upper

Basin and for the fish, warm water is being dumped in the wrong

58

place, at the wrong time, and for all the wrong reasons. The purported biological benefits to the fish will not been realized.

My last point is that there are solutions to avoid such problems

in the future. There are enormous opportunities to do good things

for ecosystem restoration. There are numerous on the ground actions that could be undertaken to improve the existing situation

and provide greater flexibility and balance for resource management. It’s time to take a new approach. To this end, the water

users have adopted an unprecedented, proactive strategy for restoration. They have promoted actions ranging from improving fish

access to the Sprague River, to physical habitat and water quality

improvements. The major impediments to taking action appear to

be those individuals afraid of taking calculated risks, and those unwilling to seek a balanced approach to natural resource management. I submit that these attitudes will lead to continual conflict

and controversy, and they will not solve the problems.

Mistakes made by these two agencies can be prevented through

a proper peer review, much like Sue Ellen Wooldridge mentioned.

However, this peer review should be performed outside of the Departments of Interior and Commerce to avoid the problems encountered this year. Data must be examined with clear scientific objectivity, using widely accepted scientific principles. To be objective,

agency policies and positions do not belong in the scientific process.

Good science will lead to good policies. And if the agencies are willing, there is a great opportunity to accomplish restoration goals

without doing the kind of harm that is being experienced now.

Thank you.

[The prepared statement of Mr. Vogel follows:]

Statement of David A. Vogel, President, Natural Resource Scientists, Inc.

Mr. Chairman and members of the Committee, thank you for the opportunity to

testify at this important hearing. My name is David Vogel. I am a fisheries scientist

who has worked in this discipline for the past 26 years. I earned a Master of Science

degree in Natural Resources (Fisheries) from the University of Michigan in 1979

and a Bachelor of Science degree in Biology from Bowling Green State University

in 1974. I previously worked in the Fishery Research and Fishery Resources Divisions of the U.S. Fish and Wildlife Service (USFWS) for 14 years and the National

Marine Fisheries Service (NMFS) for one year. During my tenure with the federal

government, I received numerous superior and outstanding achievement awards and

commendations, including Fisheries Management Biologist of the Year Award for

six western states. For the last 10 years I have worked as a consulting fisheries scientist on a variety of projects on behalf of federal, state, and county governments,

Indian tribes, and numerous other public and private groups. During the past decade, I have advised the Klamath Water Users Association (KWUA) on Klamath

River basin fishery resource issues. I was the principal author of the 1993 ‘‘Initial

Ecosystem Restoration Plan for the Upper Klamath River Basin’’ and was one of the

primary contributing authors to the Upper Basin Amendment to the Klamath River

fishery restoration program. I was a principal contributor of information for the

1992 Biological Assessment on Long–Term Operations of the Klamath Project. More

recently, I was a contributor to technical portions of the March 2001 document,

‘‘Protecting the Beneficial Uses of Waters of Upper Klamath Lake: A Plan to Accelerate Recovery of the Lost River and Shortnose Suckers’’. This plan was also authored by Dr. Alex Horne and I have attached his March 21, 2001 testimony before

the Senate Subcommittee on Water and Power. I have performed research projects

on coho salmon and the endangered suckers, as well as many other species.

Today, I am providing your Committee with important information concerning the

science, or more aptly stated, lack of rigorous science, behind the artificially created

regulatory crisis that has been imposed on the Upper Klamath basin. These topics

relate to the sucker fish, which the USFWS has focused on to regulate higher-thannormal lake elevations in Upper Klamath Lake, and coho salmon, which NMFS has

59

focused on to demand higher-than-normal flows below Iron Gate Dam on the Klamath River. And lastly, I am providing your Committee with recommendations to

avoid the regulatory crisis that has been created in the Klamath Basin.

DECISION–MAKING PROCESS

In my entire professional career, I have never been involved in a decision-making

process that was as closed, segregated, and poor as we now have in the Klamath

basin. The constructive science-based processes I have been involved in elsewhere

have involved an honest and open dialogue among people having scientific expertise.

Hypotheses are developed, then rigorously tested against empirical evidence.

None of those elements of good science characterize the decision-making process

for the Klamath Project. At one time, several years ago, the agencies would interact

with all interests who had expertise or a stake in the decisions. Recently, my role

has been to receive completed analyses (usually without supporting data) and mail

in comments. Often, the timeline is such that it is virtually impossible to comment

and certainly impossible for the agencies to consider the comments objectively and

meaningfully. The overriding sense I have is that the goal is to dismiss what we

have to offer. A scientist that I work with has had the experience of being invited

to a technical meeting, then literally turned away. Additionally, we have been invited to attend recent meetings related to downstream flow studies, but our presence was requested at the end of the process, after key assumptions had been developed.

I provide examples below of the kinds of information that have not, in my opinion,

received objective consideration or open discussion. I also include alternative actions

and recommendations.

KLAMATH BASIN SUCKERS

Endangered Species Status

Disturbingly, I have learned from an extensive review of the relevant Administrative Record that the information used by the USFWS to list the two sucker species

as endangered in 1988 under the Endangered Species Act (ESA) is now very much

in question. The USFWS so selectively reported the available information that it can

only be considered a distorted view of information available to the agency at that

time. The dominant reason that the USFWS listed the species was an apparent precipitous decline in both populations in the mid–1980s and the lack of successful reproduction (recruitment) for 18 years. Documents selectively used by the Service to

support the listing portrayed an alarmist tone indicating that the species were on

the brink of extinction. Because of information in the Administrative Record and scientific data developed since the listing, major questions are now posed calling into

question the integrity of the original listing decision.

Due to extensive research performed on the Lost River and shortnose sucker populations in recent years, relative population abundance estimates are available for

both species. Although there are differences in the manner by which each estimate

was computed and some estimates have broad confidence intervals, the numbers

represent the best available information that was used by the USFWS to list and

monitor the species. A comparison of estimates developed prior to and after the listing demonstrates a remarkable change in the species’’ status (Table 1). Recent data

demonstrates that the sucker populations exceeded the original estimates used to

justify listings by an order of magnitude.

It is now evident that either:

1) The estimates of the sucker populations in the 1980s were in error and did not,

in fact, demonstrate a precipitous decline (i.e., the populations were much larger

than assumed), or

2) The estimates of the sucker populations in the 1980s were reasonably accurate

and the suckers have demonstrated an enormous boom in the period since the listing and no longer exhibit ‘‘endangered’’ status.

Furthermore, in contrast to the lack of recruitment described in 1988, it is now

very evident that the Upper Klamath Lake sucker populations have experienced

substantial recruitment in recent years and also exhibit recruitment every year.

Only three years after the sucker listing, it also became apparent that the assumptions concerning the status of shortnose suckers and Lost River suckers in the Lost

River/Clear Lake watershed were in error. Surveys performed just after the sucker

listing found substantial populations of suckers in Clear Lake (reported as ‘‘common’’) exhibiting a biologically desirable diverse age distribution. Within California,

the USFWS surveyors considered populations of both species as ‘‘relatively abundant, particularly shortnose, and exist in mixed age populations, indicating successful reproduction’’. Recent population estimates for suckers in the Lost River/Clear

60

Lake watershed indicate their populations are substantial, and that hybridization

is no longer considered as ‘‘rampant’’ as portrayed by the USFWS in 1988. Tens of

thousands of shortnose suckers, exhibiting good recruitment are now known to exist

in Gerber Reservoir. In 1994 the Clear Lake populations of Lost River suckers and

shortnose suckers were estimated at 22,000 and 70,000, respectively, with both populations increasing in recent years exhibiting good recruitment and a diverse age

distribution (Buettner 1999). Unlike the information provided by the USFWS in the

1988 ESA listing, it is now obvious that the species’ habitats were sufficiently good

to provide suitable conditions for these populations. Additionally, the geographic

range in which the suckers are found in the watershed is now known to be much

larger than believed at the time of listing. The shortnose populations in the lower

Klamath River reservoirs (J.C. Boyle, Copco, and Iron Gate), previously believed to

be small or essentially non-existent at the time of the listing, are more abundant

and widespread than assumed in 1988 (Markle et al. 1999).

In summary, although the species had obviously declined from their historic population levels in the early to mid–1900s, the surmised status of the species was not

as severe as assumed in the mid- to late–1980s. The two fish species presently exhibit far greater numbers, over a much larger geographic range, and with greater

recruitment than assumed more than a decade ago. ‘‘Remnant’’ populations postulated in 1988 are now known to be abundant. ‘‘Severe’’ hybridization among the species assumed in 1988 is now known not to be as problematic. In the mid–1990s,

Upper Klamath Lake sucker populations were found to exist on an order of magnitude greater than believed in the mid–1980s. And it is now clear that widespread

recruitment of both species regularly occurs.

This all leads to an important, albeit an awkward, question for the USFWS and

is one that the agency cannot, or will not, answer. Which assumption is correct: that

posed by the agency in 1988 or that of the present day? The species were either

inappropriately listed as endangered because of incorrect or incomplete information

or the species have rebounded to such a great extent that the fish no longer warrant

the ‘‘endangered’’ status.

Upper Klamath Lake Elevations

I believe the USFWS’s recent Biological Opinion on the Operations of the Klamath

Project has artificially created a regulatory crisis that did not have to occur. This

circumstance was caused by the USFWS’s focus on Upper Klamath Lake elevations

and is a major step in the wrong direction for practical natural resource management. The USFWS rationale for imposing high reservoir levels ranges from keeping

the levels high early in the season to allow sucker spawning access to one small

lakeshore spring, to keeping the lake high for presumed water quality improvements. This measure of artificially maintaining higher-than-historical lake elevations is likely to be detrimental, not beneficial, for sucker populations. The data

do not show a relationship between lake elevations and sucker populations, and to

maintain higher-than-normal lake elevations can promote fish kills in water bodies

such as Upper Klamath Lake.

During the mid–1990s, I predicted that fish kills could occur if the Upper Klamath Lake elevations were maintained at higher-than-historical levels. Subsequently,

those fish kills did occur. The USFWS recent Biological Opinion dismissed or ignored the biological lessons from fish kills that occurred in 1971, 1986, 1995, 1996,

and 1997 and, instead, selectively reported only information to support the agency’s

concept of higher lake levels. All the empirical evidence and material demonstrate

that huge fish kills have occurred when Upper Klamath Lake was near average or

above average elevations, but not at low elevations (Figure 1). This is not an opinion

but a fact extensively documented in the Administrative Record and subsequently

ignored by the USFWS.

A good indicator that Upper Klamath Lake elevations do not create a ‘‘populationlimiting factor’’ for the suckers is a comparison of historical seasonal lake elevations

with sucker year class strength that may or may not result from those lake elevations. Sucker year class strengths for some years are now available because suckers killed during die-offs in 1995, 1996, and 1997 were examined to determine the

age of the fish. This allows a determination of the year the fish were hatched and,

because sufficient numbers of fish were collected, the relative ‘‘strength’’ of one year

class compared to other years. Using this new analysis of the best available scientific information, it is evident the sucker populations do not experience a population-limiting condition from lower lake elevations as incorrectly postulated by the

USFWS. In fact, one of the strongest year classes of suckers occurred during a

drought year in 1991 when lake levels were lower than average. These data demonstrate that there are no clear relationships between Upper Klamath Lake elevations and sucker year-class strength. Additionally, the data now demonstrate that

61

the two species did not suffer ‘‘total year-class failures’’ during the drought years

in the late 1980s and early 1990s as was commonly speculated at that time. It is

particularly noteworthy that the strong 1991 class of suckers experienced extremely

low lake elevations during the severe drought of 1992 but nevertheless remained the

dominant year class observed in 1995, 1996, and 1997. Also, based on the age structure of suckers determined from the 1997 fish kill, it was readily apparent that

many older-aged suckers were in the population; from the early 1990s until 1997,

it had been surmised that the age structure of the sucker populations were almost

entirely younger fish. This new evidence indicates that environmental conditions resulting from the drought, including low lake elevations, did not have the adverse

impacts on the sucker populations assumed by the USFWS. The USFWS Biological

Opinion notably ignored extremely relevant scientific data and information that was

contrary to the agency’s premise in the Biological Opinion. The USFWS failed to

point out empirical evidence the agency could have provided in the Biological Opinion which demonstrates that Upper Klamath Lake levels lower than demanded in

the Biological Opinion will not harm (and may actually benefit) the sucker species.

KLAMATH COHO SALMON

In my opinion, the National Marine Fisheries Service (NMFS) significantly and

inappropriately added to the regulatory crisis in the Klamath Basin by calling for

higher-than-normal releases from Iron Gate Dam under the auspices of protecting

the coho salmon, a ‘‘threatened’’ species, from extinction.

Primary Factors Affecting Coho are in the Tributaries, Not the Mainstem

Coho salmon, as a species, prefer smaller tributary habitats, as compared to larger mainstem river habitats. This extremely important biological fact was not incorporated into the rationale NMFS used to assess Klamath Project effects on coho. Fry

and juvenile coho normally occupy small shallow streams where there are more

structurally complex habitats (e.g., woody debris) than are found in larger, mainstream river systems; this fact is amply described in the scientific literature. NMFS

ignored the fact that proportionally and numerically only small numbers of fry use

the reach most affected by the Klamath Project as compared to the entire basin.

NMFS has notably failed to reconcile this critical piece of biologically relevant information. NMFS avoided using an excellent source of information that would demonstrate this fact. A 1985 U.S. Department of Interior document entitled: ‘‘Klamath

River Basin: Fisheries Resource Plan’’ thoroughly describes and graphically shows

the distribution of coho in the Klamath Basin. That voluminous, peer-reviewed document clearly demonstrates that the upper Klamath River, in proportion to the entire Klamath River basin, is a geographically minor area of coho presence. This fact

is evident from the attached Figure 2 adapted from the Klamath River Basin Restoration Plan. Instead of acknowledging this indisputable information, NMFS has

singularly focused on demanding dramatically increased, higher-than-historical

flows from Iron Gate Dam to ‘‘protect’’ coho from extinction. In so doing, NMFS has

inappropriately suggested that coho habitats should somehow be re-created in the

large river channel downstream of Iron Gate Dam to serve as a surrogate for the

lost or degraded habitats in Klamath basin tributaries. This misguided, scientifically

deficient approach is unlikely to succeed.

I thoroughly reviewed thousands of pages of documents in detail to determine

whether the available scientific data and information suggest that the recent historical flow regime in the mainstem Klamath River below Iron Gate has been a significant factor affecting Klamath River fishery resources. These documents included scientific peer-reviewed literature, state and federal agency documents and reports,

and investigations encompassing many decades of research on the Klamath River.

This extensive review revealed that numerous factors other than the recent historical mainstem flow regime at Iron Gate Dam are overwhelmingly documented to

have affected Klamath River fishery resources. There are many other documented

factors that have affected salmon runs in the Klamath River; I compiled a comprehensive listing of those factors in March 1997 and provided that list to NMFS.

None of the documents I have reviewed provided any supporting scientific information or data suggesting that the historical mainstem flow regime at Iron Gate Dam

is a significant factor adversely affecting coho salmon. To the contrary, the available

information provides compelling evidence that other factors are far more important

in affecting fish populations than the recent historical Iron Gate Dam flow regime.

It is particularly noteworthy that the multi-million dollar, multi-agency Long–

Range Plan for restoring Klamath River anadromous fish (the principal document

guiding salmon restoration in the basin) addresses the issue of Iron Gate Dam releases and potential effects on salmonids in an almost passing manner (Klamath

River Basin Fisheries Task Force 1991). Nearly the entire discussion in the Long–

62

Range Plan on the topic of salmon production focuses on the tributaries in the lower

Basin. This is instructive because, despite all the efforts and research accomplished

to date on the Klamath River, no entity has developed any scientific data to support

the premise that specific Iron Gate releases over the past several decades has been

a significant factor limiting Klamath River salmonids.

Probably the strongest indicator demonstrating that the recent historical Iron

Gate Dam flow regime is not a primary factor affecting lower Klamath River fish

is the response of the fish populations. There are no apparent cause-and-effect relationships between historical flow levels at Iron Gate Dam and resulting production

of coho salmon. Clearly, there are other well documented factors that have an influence on the Klamath River salmon runs than the flow regime alone (e.g., harvest,

hatchery production, tributary habitats).

The following are highly relevant facts ignored by NMFS in the agency’s Biological Opinion:

• Fry rearing habitat in the upper mainstem Klamath River is not as quantitatively or qualitatively important to the species as is rearing habitat in the

Klamath River tributaries.

• Numerically and proportionally, very small numbers of coho fry rear in the

mainstem downstream of Iron Gate Dam in the reach most influenced by the

Klamath Project.

• The indirect effects of variable Iron Gate flow on adult coho populations in the

Klamath basin is minuscule when compared to other direct factors such as incidental ocean harvest and other harvest of adult fish.

NMFS relied on a closed process to formulate the agency’s recommendations for

Klamath River instream flows. Individuals involved with this process purposefully

excluded scientific experts that could have provided meaningful input to the process.

This exclusionary process is contrary to scientific and procedural processes employed

elsewhere in the United States, particularly in California.

In summary, sound scientific bases for the NMFS Biological Opinion are lacking.

NMFS relied on an incorrectly applied and incomplete computer modeling exercise

to support the agency’s conclusions of the effects of the Klamath Project operations

on coho. A close examination of the NMFS Biological Opinion demonstrates that it

does not empirically describe how Klamath Project operations affect coho populations in the Klamath River basin. Instead, the agency’s action resulted in too

much warm water dumped in the wrong place at the wrong time and for all the

wrong reasons. The purported biological benefits to coho salmon will not be realized.

THE NEED FOR ALTERNATIVES USING A PRO–ACTIVE/ADAPTIVE MANAGEMENT APPROACH

Implement Meaningful Restoration Actions

New data and analyses indicate that regulatory measures and some research implemented over the past decade, although perhaps well intended, misdirected resources away from other more beneficial actions. Also, unfortunately, to the extent

recovery or restoration efforts have been undertaken over the past 13 years since

the listing, they have not been effective. The USFWS has contended that maintaining high reservoir elevations is the only feasible short-term measure that can be implemented to benefit the sucker populations; this is incorrect. Alternatives are available to benefit the species/ecosystem and have been presented to the agency. These

alternatives could have prevented the crisis we are in today.

There are fundamental changes that have occurred in Upper Klamath Lake that

cannot be ignored. As an example, the fact that non-native fish were introduced into

the lake and are now proliferating is a change that is absolute. Such changes have

permanently altered the ecosystem. Despite the emotional rhetoric one may hear

about ‘‘Nature healing herself’’, there is no turning back to a so-called ‘‘pristine’’ ecosystem. These non-native fish prey on and compete with suckers and will never be

extirpated from the lake. However, there are numerous on-the-ground actions that

could be undertaken to improve the existing situation and provide greater flexibility

and balance for resource management. The Upper Klamath Basin is in a situation

where millions of dollars have been spent on ‘‘ecosystem restoration’’ (primarily land

acquisition) under the auspices of sucker recovery; unfortunately, the site-specific

linkages to sucker recovery are highly debatable and unclear. These benefits have

not been forthcoming. It is time to take a new approach.

Several recovery projects first identified in the early 1990s hold promise for increasing the sucker populations. To this end, the KWUA recently developed a document entitled ‘‘Protecting the Beneficial Uses of Waters of Upper Klamath Lake: A

Plan to Accelerate Recovery of the Lost River and Shortnose Suckers’’ (Plan) to promote timely implementation of biologically innovative action-, and results-oriented

restoration projects. This Plan was presented to the Senate Subcommittee on Water

63

and Power in March 2001. Some of the projects in the Plan are embodied in the

1993 USFWS Sucker Recovery Plan, but have not been pursued. The Plan focuses

on implementation of specific actions to accelerate the recovery of the endangered

suckers while minimizing conflicts among competing uses for common resources.

This Plan’s use of cooperative efforts between local interests and those individuals

and groups sharing common goals is considered preferable to traditional fragmented

plans which result in tragic conflicts for limited resources we are seeing in the basin

today. The Plan recommends actions such as improving access of suckers in the

Sprague River to physical and water quality improvement projects in Upper Klamath Lake.

As with the suckers in the Upper Klamath Basin, there are viable alternatives

and opportunities to increase coho populations in the Lower Klamath Basin, particularly in the tributaries. However, until NMFS changes its singular and misdirected focus on higher-than-historical flows from Iron Gate Dam, restoration opportunities using the agency’s approach are unlikely to succeed. Unfortunately,

whatever the existing lower basin programs may have accomplished to date, fishery

restoration does not appear to be one of them. Although many millions of dollars

have been spent on the lower basin programs, benefits to fish have not been evident.

A new strategy of embracing a more holistic watershed approach and cooperative

partnerships in the tributaries, instead of the traditional adversarial approach is

needed.

Implement Independent Peer Review

Many of the mistakes made by the USFWS and NMFS during this year could

have been avoided through a proper peer review of the agencies’ actions. It is imperative that the peer review not be a facade of ‘‘like-minded’’ individuals or agencies

promoting or protecting their policies or positions. To prevent the flawed process

that occurred this year, it will be necessary to ensure that a peer review be performed by individuals without a vested interest in the suckers and coho remaining

listed species under the ESA; to do otherwise undermines the integrity of the scientific process. For example, it is clearly inappropriate to have so-called peer review

by some stakeholders demanding water rights, including high lake levels. Likewise,

researchers dependent on the ESA controversy for funding may have a clear conflict

with objective review. Individuals that would use the threatened or endangered status as ‘‘leverage’’ to promote their positions should also be excluded from the process. Additionally, the peer review should be a ‘‘blind’’ review process to allow reviewers to be anonymous; this will ensure that ‘‘peer pressure’’, instead of peer review,

does not occur. The peer review of the agencies’ Biological Opinions should be performed outside the Departments of Interior and Commerce to avoid the problems

we have observed in the Klamath basin crisis. Data must be examined with clear,

scientific objectivity using widely accepted scientific principles. To be objective,

agency policies and positions do not belong in this scientific process. Good science

will lead to good policy. And, if the agencies are willing to do so, there is a great

opportunity to accomplish restoration goals without doing the kind of harm that is

being experienced now.

REFERENCES

Buettner, M. 1999. Status of Lost River and shortnose suckers. U.S. Bureau of

Reclamation. Presentation at the 1999 Klamath Basin Watershed Restoration and

Research Conference.

CH2M Hill. 1985. Klamath River Basin fisheries resource plan. For U.S. Department of the Interior.

Kier, William M., Associates. 1991. Long range plan for the Klamath River Basin

conservation area fishery restoration program. The Klamath River Basin Fisheries

Task Force.

Markle, D., L. Grober–Dunsmoor, B. Hayes, and J. Kelly. 1999. Comparisons of

habitats and fish communities between Upper Klamath Lake and lower Klamath

reservoirs. Abstract in The Third Klamath Basin Watershed Restoration and Research Conference. March 1999.

U.S. Fish and Wildlife Service. 1988. Final Rule: Endangered and Threatened

Wildlife and Plants; Determination of Endangered Status for the Shortnose Sucker

and Lost River Sucker. 53 FR 27130–01.

Mr. POMBO. Thank you. I’d like to begin this round of questioning with Mr. Hastings.

64

Mr. HASTINGS. Thank you for your consideration, Mr. Chairman.

I appreciate that. I appreciate all of you coming here today and

taking your time to testify in front of this Committee.

Mr. West, let me start with you, or Commissioner West, I should

say, because I have the greatest admiration for local elected officials.

Mr. WEST. Thank you.

Mr. HASTINGS. In fact, I think your job is really a lot harder than

ours. I say it in this context; there’s no politics in a pothole—just

fix it. And so you’re in a situation now—a very difficult situation

of trying to balance all the needs that arise from this decision not

made by you. You’re familiar with the Oregon Natural Resources

Counsel proposal. I guess that we’ll hear this later on, because I

was reading it in the prepared testimony that is coming later on,

about the notion to buy up this land from willing sellers, and so

forth. Tell me if there is any impact on you, and if so, what is that

impact on this county.

Mr. WEST. Thank you, Congressman. First, I would ask the question, what is a willing seller? If I, as a property owner, through no

fault of my own, have had all the value taken away from my property, and someone now offers me an unusually large sum of money

for my property, am I a willing seller or am I a hostage? The county that I represent is over 57 percent publicly owned. I’m not sure

we can afford anymore publicly owned land. You gentlemen are all

from western states. You realize that in reality PILT, Payment in

Lieu of Taxes, is really a misnomer. The actual funding that comes

through Payment in Lieu of Taxes is only a fraction of the tax revenue that would be paid if those lands were privately held.

In the State of Oregon it’s very simple. State government runs

on income tax, county governments run on property tax. So any additional loss to our tax base would continue to have devastating effects on Klamath County, so I question the premise of willing seller, and I am concerned about the additional impacts to the county

tax base.

Mr. HASTINGS. Okay, Thank you very much, Mr. West.

Mr. WEST. Yes, sir.

Mr. HASTINGS. Representative Raybould—I guess that’s the correct way to say it. In your testimony, you talked about the agreement that Senator Craig had reached with the Bureau of Reclamation and National Marine Fisheries back, according to this, in 1994.

Have they lived up to the terms of that agreement?

Mr. RAYBOULD. Yes. In Idaho we have statutes that allow irrigation districts to establish rental pools, and the rental pools that are

established allow an irrigator, if he has excess storage water in any

given year, to contribute that water to the rental pool, and then he

is paid for it out of the rental pool. The Rental Pool Committee

then rents that water to other irrigators for other needs for water,

out of the pool, but agriculture has first priority on any water that

is consigned to the rental pool, so that puts agriculture first. When

all of agriculture’s requests are satisfied, then power interests, or

in the case of the Bureau of Reclamation, they can purchase water

from the rental pool. This is a 1-year deal. I don’t mean, in any

sense of the word, to indicated that Idaho farmers are selling their

water rights or selling their land—only this lease of water. And it

65

comes under the willing buyer/willing seller doctrine. That has

worked very well up until this year. This year we’re in extreme

drought. There is very little water in the rental pool.

The Endangered Species Act is not going to get water for flow

augmentation from Idaho farmers this year. The biological opinion

that has come out is still requesting 427,000 acre feet of water

from the Upper Snake. It isn’t there. We are right now jockeying

to see how that’s going to work out, but at this point in time they

have lived up to their commitment to not take water other than

from our rental pool, from a willing consignor, a willing seller.

Mr. HASTINGS. Thank you very much.

Mr. Vogel, as a scientist, you made a number of points in your

written testimony. What I’d like to ask you—because you have

heard us, and you’ll probably hear us later on—all of us on this

panel are concerned about good science and so forth. Could you

give us an idea, from your perspective, what we should be incorporating into the amendments that need to be made to the Endangered Species Act as it relates to good science? How would we go

about that, from a legislative standpoint, to accomplish what we all

want to do?

Mr. VOGEL. Sure, thank you. Actually, I do know quite a bit

about the Endangered Species Act. I worked for 15 years previously

for the U.S. Fish and Wildlife Service and the National Marine

Fisheries Service. That was more than a decade ago. So I have a

lot of background experience working for the agency in terms of

how the Act is administered. In fact when I was in the Fish and

Wildlife Service I was involved with some listings of fish in California.

First of all, probably one of the most important things is to point

out that it’s extremely easy to get a species listed. And I’ll be real

blunt—a child could do it. It’s that easy. I have kids. I’ve even

thought about having them do it as a test case, if it didn’t result

in harm to people, like we have right now. The problem is it’s almost impossible to get a species delisted. There is not a real good

mechanism within the ESA to figure out how to do it, and it’s very,

very tough. I’ve struggled with it, tried to figure out how agencies

can do it, and it’s almost impossible. So clearly, there has to be a

very clear articulation on procedure to make it as easy to delist as

it is to list.

The other is that the act does not allow the ability to take calculated risks, for the lack of a better phrase. It doesn’t allow for

any mistakes. There are a lot of very practical ways in resource

management where you can do good things for fish and wildlife,

but the Act doesn’t provide that flexibility or creativity. That has

to be written into the Act, because there’s a lot of good things that

landowners, as an example, can do good things for the fish and

wildlife habitats. They’re not allowed to do it right now, the way

the act was written.

The other thing we talked about was peer review. There’s a very

clear mechanism I think for peer review. It’s being very grossly

abused right now. It’s not really peer review. I call it peer pressure

biology, in that if you don’t agree with the agencies’ policies and

position, you’re chastised because you’re not abiding by what they

believe. It has to be a blind peer review process. And by that, I

66

mean, the author does not know who’s critiquing his work, and the

person critiquing the work doesn’t know who wrote the work.

That’s true peer review, and the act doesn’t allow for that.

The last is accountability of civil servants. I was a civil servant

for 15 years. I took it very, very seriously and I was very proud

to say I was a civil servant. And I had a handbook that identified

exactly what it means to be held accountable as a government employee. Something got lost, I’d say in the last decade, that eliminated that personal accountability of employees that would abuse

the act. I’ll be real blunt. Some of these Federal biologists have become intoxicated by the power provided by the Endangered Species

Act, and that has to be eliminated.

Mr. HASTINGS. Thank you very much, Mr. Vogel. And, Mr. Chairman, thank you for your consideration. I appreciate it.

Mr. POMBO. Mr. Herger.

Mr. HERGER. Thank you, Mr. Chairman.

Mr. Vogel, I want to thank you. I want to thank each of you. And

as you pointed out, you’ve actually spent time working with the,

quote, Fish and Wildlife.

Mr. VOGEL. Yes.

Mr. HERGER. And with NMFS. I understand, 14 years with Fish

and Wildlife and a year with NMFS. And I want to thank you for

your very strong and stirring testimony of just how serious this

problem is. I was just wondering, you have also—and you’re a biologist; is that correct?

Mr. VOGEL. Yes.

Mr. HERGER. A scientist. And you’ve reviewed the biological opinions.

Mr. VOGEL. Yes, both of them.

Mr. HERGER. And could you indicate to us if you’ve seen any instances that these opinions were driven not by on the ground

science, but perhaps—perhaps driven by political decision-makers

who wanted to reach a predetermined outcome.

Mr. VOGEL. Yes. I don’t have a quick answer for that, unfortunately, because it’s so embodied within many, many meetings that

were held in secret over many months in this last year. There was

a lot of evidence of data that was ignored, that was contrary to the

positions of the agencies. We know what that data is. We know

where they ignored it. We know how they misapplied the data that

they did have. But there was a very closed process we saw this last

year. I’ll point out that almost 10 years ago we had a very open

dialogue, a very constructive dialogue with the agencies. They put

their data on the table. We put our data on the table. We’d have

honest, frank debate about it. Sometimes heads got knocked, and

so forth, but at least we all talked about it. It was open, it was honest, and it was very efficient. And it worked well during the

drought years, in ’92 and ’94, as an example. And we got through

this crisis using that type of open scientific dialogue.

This last year, the door was slammed shut, and that was one of

the biggest problems we encountered this year is that we could

never get to the point of contributing what we believed was very

valuable information that could have avoided this regulatory crisis.

That, in itself, can never be allowed to happen again. That door

67

needs to be opened once again to allow the scientific scrutiny to

occur on all the data.

Mr. HERGER. Thank you, Mr. Vogel. So in other words, you have

a concern—I don’t want to put words in your mouth, but it would

appear that you have a strong concern that the decision that finally

came down that allowed the farmers of the Klamath Basin basically to get zero water, perhaps could have had a predetermined

political outcome that—. Mr. VOGEL. Yes.

Mr. HERGER. —could have been avoided had we had all the data,

all the scientific data explored and considered.

Mr. VOGEL. Absolutely.

Mr. HERGER. Thank you very much.

And just as a follow-up to what Mr. Vogel was saying, Mr.

Crawford, you were involved in the last administration, I understand, during the ’92, ’94 drought that Mr. Vogel spoke of. And I

understand that during that time that the water users were afforded what was called applicant status, which enabled them to be

a participant in the process of developing the biological opinions.

But then under the 8 years of the Clinton/Gore administration that

status was taken away. Are you able to explain that process to us,

and can you explain how and why you lost that applicant status?

Mr. CRAWFORD. Thank you, Mr. Congressman. Absolutely. In

1992 we had such a severe lack of information regarding the suckers that what very little was known was so very important in making a good decision that would be—result in a biological opinion

that we could live with. We were at the table and our information

was considered, as was everybody else’s information considered. It

was weighted carefully as the best available science, and we ended

up with a biological opinion for suckers in 1992 that allowed us the

flexibility to get through those serious drought years of 1992 and

1994.

Unfortunately, as the process changed through administrative

mandate and enforcement and policy regarding the Endangered

Species Act, biological opinions that were forthcoming after—or

more importantly, in 1995 the Klamath Project went to annual operations plans that superceded those biological opinions. Lake levels were established on an annual basis, in 1995 and in 1996 and

in 1997, that far exceeded the levels identified in the ’92 opinion.

There were no fish kills in ’92 and none in ’94, but there were substantial fish kills that occurred in ’95, ’96 and ’97 under those annual operating plans that held Upper Klamath Lake at the highest

level it had been held since Link River Dam was built.

That’s an example of how removal of our applicant status as

irrigators in the Klamath Project has harmed, not only our ability

to exist as an irrigation community, but the livelihoods of the suckers are very well at risk because of that same action. And the same

applies on the river. We have been completely excluded from Dr.

Hardy’s process and from having the ability to have input to that

process, and we are formally asking that our applicant status for

that section 7 consultation be reinstated.

Mr. HERGER. Thank you very much, Mr. Crawford. Mr. Chairman, and without objection, if this Committee could request from

the Interior Department about the applicant status and why it was

68

lost, and why the Department—and whether the Department

would commit to restoring it.

Mr. POMBO. Without objection, that will be added to the list of

questions for the Interior Department.

Mr. HERGER. Thank you very much.

Mr. POMBO. Mr. Simpson.

Mr. SIMPSON. Thank you, Mr. Chairman. We never know where

you’re going to go next.

Mr. POMBO. You’re right.

Mr. SIMPSON. I appreciate that.

Representative Raybould, I appreciate you coming over here all

the way from Idaho. I know it’s a long drive, 50 miles, or 40 miles;

but it’s a very long drive, and I want to thank you for coming over

to show that these people are not alone in this issue, that the people of Idaho care about what’s going on here and the impacts that

the potential outcome could have on the rest of the West.

You mentioned the 427,000 acre feet that the legislature has appropriated on a willing seller/willing buyer basis over the last several years in order for flow augmentation for salmon. Do we have

any results on the effects of flow augmentation as they pertain to

the effectiveness of returning salmon and flushing salmon.

Mr. RAYBOULD. Thank you, Mr. Chairman, Congressman Simpson. The legislature authorized 427,000 acre feet to be taken out

of the State of Idaho under the idea that water had to be used

within the State on its way out. The only way to do that was with

power production. It’s against state law to remove water from outside the state without it being put to beneficial use in the State.

This was done on a test basis. I believe you were in the legislature when the initial legislation was passed to do this. It was to

be on a test basis and the National Marine Fisheries was to report

back to the State of Idaho on the results of this test, whether flow

augmentation did any good or not. We have yet to receive a report

from National Marine Fisheries. There are theories that have been

debunked in the past two or 3 years in as much as more salmon

are coming back now, with less flow augmentation, than there were

before.

It is obvious to us that ocean conditions, the lowering of the sea

surface temperature in the ocean, has had may more to do with

salmon recovery than any meager thing that we could do with a

few hundred—a thousand acre feet of water, when you figure that

20 or 30 million acre feet of water flow down the Snake and the

Columbia each year. So, yes, we believe, through the studies that

our Department of Water Resources has done, flow augmentation

has done absolutely nothing to help recover salmon.

Mr. SIMPSON. Thank you. And again, thank you for coming over

here. I appreciate it very much.

Mr. Crawford, let me ask you, is there any idea, of the $20 million in emergency founding, how is that going to be spent to help

agriculture? Do you have any plans for how it’s going to be divided

up? Is it going to go solely to agricultural producers? Could you

give me some idea? And let me tell you, first, that I do believe that

that will be approved by Congress, because it was in the President’s request, and I applaud him for that, and I believe—you

know, not knowing exactly what Congress will ever do, I do believe

69

that it will probably be approved. But do we have a plan for how

it’s going to be spent?

Mr. CRAWFORD. Certainly, not only the water users and basic

community are struggling with that very issue, but I think that the

Congress is going to end up struggling with it as well. I think, as

was stated before, that that $20 million is very greatly appreciated,

but it’s a very small Band-Aid on very large wound. The $250 million annual hit for this year, that I identified, is a very real thing.

So if we try to get that money—the 20 million—on the ground to

producers, and we try to share that with the farm workers in the

community, we try to share that with the businesses that have suffered because of the taking that has occurred, it is going to be a

very difficult task to distribute what is such a minute percentage

of the hurt experienced here this year.

Mr. SIMPSON. Well, I appreciate that. It seems like, if you’re looking at the 250 million—I’ve heard 250 million or 350 million dollar

economic impact that this could have on this community. And we’re

talking, what, 10 percent or less than 10 percent—8 percent of the

total impact being in this emergency appropriation? Everybody sees

the impact that this is having on the farmer that’s not going to be

able to plant a crop or anything else like that.

A lot of people don’t understand that in communities like this,

when the farming industry is not doing well, neither is the farmer

doing well, neither is the auto mechanic or the auto salesman or

the dentist or the doctor or anyone else doing very well. I always

told people in my dental practice that I could tell what the price

of potatoes were every year by going back and looking at my appointment book, and you can do that. People don’t understand how

this impacts not just the farmer, but every business in the community, and as Ms. Molder said, how it impacts every school in this

district and how it is going to impact the children in this district.

The impacts go far beyond just the individual that isn’t able to

plant a crop out there, so I appreciate the testimony of all of you

and look forward to working with you, because this is a band-aid

to a solution that needs to be addressed.

Mr. CRAWFORD. Thank you, Mr. Chairman.

Mr. POMBO. Mr. Gibbons.

Mr. GIBBONS. Thank you, Mr. Chairman, and to all of you again,

welcome. I’m very impressed with your testimony here today and

your open and candid remarks about the problems that this has

created. I think one of the things that I’ve learned here just from

listening to you is that anytime there’s a decision to be made by

the Federal Government on issues like endangered species, what

we need to do is put a few farmers and ranchers on the Fish and

Wildlife Service to make that decision for us.

Mr. West, I was tremendously impressed with your comments

about the economic safety net needed throughout that and the

early decision to be made with water delivery rates so that you can

make some crop decisions in planting. Those are very important as

well. With regard to counties and the part you made about, when

you remove property from the tax base. Believe me, I come from

a state that has the highest percentage of its state boundary and

geography owned and regulated by the Federal Government. In

fact several of our counties are 10,000, 12,000 square miles, 98 perVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6602 73135.TXT HRESOUR1 PsN: HRESOUR1
70

cent owned by the Federal Government. And you’re right. PILT

comes no where near being able to support their infrastructure,

their schools, their highways, hospitals, law enforcement throughout the county, when you have a county that size.

What I want to talk to you about is, if you lose 40 percent of your

population, as projected by the implication of this Endangered Species Act on the sucker fish, what are some of the numbers that you

see in terms of your ability to provide services to families, to seniors, hospital care? Has your county looked at those numbers and

made any determination at this point whether you’re going to have

to close facilities and reduce activity, reduce services? Has your

county looked at those yet.

Mr. WEST. Mr. Chairman and Congressman Gibbons, we are very

definitely impacted by this and have just concluded our annual

budget process, and in that budget process we saw requests that

we did fund for an additional $45,000 for the Swell Water Conservation District, an additional $50,000 for senior citizens’ food

programs, and I’m very pleased to say and proud that the elected

officials of Klamath County stood together and turned down our

cost of living rates, and that money, approximately $19,000, is

being put into a special fund to help us meet some of the additional

costs that we’re facing because of this regulatory disaster. And

we’re already seeing an increase on the need for those services.

If I might just quickly read a couple of sentences from the director of our Mental Health Department to one of my colleagues. ‘‘Men

and women accustomed to hardship, who have worked and fought

their way through all the challenges nature and the economy have

handed them for generations, cannot help themselves now. Their

children are watching their friends disappear abruptly from their

classrooms, and seeing their parents’ dread, fear and outrage.

Nightmares, anxiety and depression are new experiences that are

taxing already overwhelmed family coping skills.’’ In our county Mental Health Department, pre-commitment investigation is up 67 percent, crisis services are up 64 percent, mental health medical services are up 32 percent. That’s for March,

April and May, when compared directly against last year, so we are

seeing an increase in needs. Obviously, you gentlemen participated

with the food coming in which was so generously donated by businesses. So there’s a huge demand on our food bank, and we’re

going to see more and more increases in demands for county services. We did not enjoy the benefits of the economic recovery in the

1990’s here, and our unemployment is still over 10 percent.

Mr. GIBBONS. Thank you.

And I want to address Mr. Crawford here for a minute, if I may.

Mr. Crawford, picking up from what my colleague in Washington,

Representative Hastings, asked earlier about the proposal to buy—

from the Oregon Natural Resource Council, to buy farmland—I

hope you’re familiar with that in this brief question here. So if a

farmer were to sell, what would be the tax implications? What

would be the long range implications? Is it a plan that has met

with reality, or is it just a short term fix for this problem?

Mr. CRAWFORD. Mr. Chairman and Congressman Gibbons, I’m

going to use some strong words regarding that proposed action.

And I am going to define some impacts from the perspectives of the

71

people who fully intend to stay in this Basin, in that farming is

their future and the future of their children. There are three basic

flaws with the idea that any conservancy group is going to go out

and buy willing seller farmland, and particularly in the Tulelake

area. They’re proposing to spend about $100 million to accomplish

that. The rights of those private land owners to sell to anyone they

choose are the kind of rights that I hold as dear as anyone else as

long as there are no impacts on their neighbors, or in this case, on

the National Wildlife Refuge that is present there.

They’re talking about eliminating commercial farming on 15,000

acres of Federal lease land as a part of this proposal. Therefore,

this proposal is predicated on a lie. The net loss of 15,000 acres of

prime farm land to the irrigation district that supplies the water,

and to the farmers who depend on the income from those acres, is

just as important as any other aspect of that acquisition. When any

conservancy group is reimbursed at $110 million for the land that

they paid for from willing sellers, whether it—they’ve contended

that it’s going into some sort of a farming trust to be administered

by the irrigation district or the Growers Association. The truth is

they are going to be reimbursed at 110 percent for their expenditure. At that point in time, the only way that it is legal to make

that happen is for that land to go into the hands of the Federal

Government. It would be a net loss of whatever acres—$110 million—from what the Federal Government can buy.

The other problem is their vision for that 15,000 acres of wildlife

refuge. They envision it as a created and maintained wetland or as

a storage facility to provide water for other areas of the refuge.

Today that land has a 1905 irritation water right. If they are to

create and maintain a wetland, it’s going to be a 1928 reserve

right, because that’s when the refuge was created, so the water will

not be available to accomplish that goal. If water is to be stored

there as part of a storage project, they’re going to have to get a

right from the State of California to store water, dated 2001, and

that water has to belong initially to the State of Oregon, so that

stored water will be junior to any other water use in the entire

Klamath Basin and will not be served in any year. That will be the

net result of what’s been proposed.

Mr. GIBBONS. Now, Mr. Chairman, if I may make just one final

question here. I know my time is up, but I did want to go to Mr.

Crawford, because this is an important part.

Mr. Crawford, you and your farmers in their association as water

users have been paying, as you stated in your testimony, for the

diversionary works to get that water to them. Let me ask you a

question right now, and you can help answer this for us and the

Federal Government. If you are not getting your water, are you

being relieved of your obligation to pay for the O and M on that

works?

Mr. CRAWFORD. Not only are we not being relieved of the responsibility of paying for that water—not that water; that O and M on

the facilities that deliver that water—but there are 21 irrigation

districts represented within the Klamath Project, and what is the

faith of those folks that are going to be called upon next year, if

we can rectify this disaster? We have to have the infrastructure

and the people prepared to deliver that same water next year, so

72

we recognize our obligation to pay for that. Unfortunately, we have

to recognize some income to see that that happens and that in the

future, the facilities that we need are there, are manned, and the

services that they supply are available to us as irrigators.

Mr. GIBBONS. Thank you. Thank you, Mr. Chairman.

Mr. POMBO. Mr. Walden.

Mr. WALDEN. Thank you, Mr. Chairman. Congressman Gibbons,

I appreciate your raising that issue. I have before me the O and

M costs to the reserve works here, and have already talked to the

Department of Interior about that very point. Why should you have

to pay for something you’re not going to get? And that’s the point

here, and we need to do something about that.

Mr. Crawford, later, in the next panel, we’ll hear from a number

of people who have some rather strong comments to make, as we’ve

heard from other members of this panel and others that have

strong comments. But I want to ask you a question, because of the

testimony that I’ve read from Mr. Kerr, where he makes some comments that are pretty strong. And you’re representing the farmers,

so I want to ask you. One of the things he writes is, ‘‘Locally, potatoes are being raised more for the government subsidies than the

market.’’ Could you explain to me any subsidies you’re aware of being paid

to potato growers in this market?

Mr. CRAWFORD. Congressman Walden, first of all potatoes happen to be a nonprogram crop through the FSA program.

Mr. WALDEN. I’m aware of that.

Mr. CRAWFORD. The idea that potato farmers are being heavily

subsidized—and I think a portion of what Mr. Kerr refers to is the

production of potatoes, onions, sugar beets, on that 15,000 acres of

leased land that has been referred to—and not only are those crops

on those acres not subsidized, but the Kiekel Act in 1964 said that

those acres would be comprised of 75 percent cereal grain production for the benefit of waterfowl. And that Kiekel Act has never— we have never approached the 25 percent that is allowed to be in

row crop since the Kiekel Act was written so—.

Mr. WALDEN. So you’re following the law.

Mr. CRAWFORD. We’re following the law. We are following everything.

Mr. WALDEN. —which mandates what you grow there. He goes

on to say, ‘‘Klamath Basin farming is in trouble, but in reality the

Endangered Species Act is the least of their problems.’’ Do you happen to concur with that?

Mr. CRAWFORD. You know, I referred earlier to the cheap meal

of a baked potato and a Chilean pen-raised Coho. The unfortunate

reality for this Spring is that we’re seeing a potential turn-around

in the fresh market potato industry. And I think everybody realizes

that this may indeed be the first year in a very long cycle of troublesome markets for fresh market potatoes. We have no fresh market potatoes planted out there on these farms and ranches who

have gone through this long siege of poor market conditions, so we

will not be able to take advantage of the changes in those trends

this year to make ourselves whole again. The potato industry is

very cyclical and always has been, and if we lose the opportunity

to produce this year, we may never recover, and that is based soleVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00076 Fmt 6633 Sfmt 6602 73135.TXT HRESOUR1 PsN: HRESOUR1
73

ly on the idea that, for whatever reason, we have a zero allocation

of water.

Mr. WALDEN. He also says it’s marginal farmland. Do you agree

with that or not ?

Mr. CRAWFORD. You know, when we go in to prove up yields in

the FSA, it’s amazing the productivity that occurs in this Klamath

Basin. It is the most suited area in the world for the production

of potatoes. Cool nights and warm days are what some of our row

crops thrive on. Our grain yields are unparalleled, unparalleled

anyplace else in this country, and good practice of rotational crops

is what makes that all a viable thing.

Mr. WALDEN. I asked you those questions for a very important

purpose, because we get testimony like this that then becomes part

of the official record, that sometimes people have no opportunity to

rebut, and it becomes believed and the truth. And I have real trouble accepting that, so I appreciate your comments on that.

Mr. CRAWFORD. Congressman, I might also say that this hundred

million dollars that’s been proposed to buy private lands and turn

them into public lands, it is the contention of the irrigators that

that hundred million dollars could instead be used to implement a

sub-rotation program on the lease lands down there, or to do a

myriad of restoration work that would provide benefit for all of the

environmental resources as well as agriculture in the Klamath

Basin.

Mr. WALDEN. I’ll tell you, Mr. Crawford, if I could get a hundred

million dollars, that’s where I’d put it after I took care of the economic disaster here, and that’s what we ought to get, and that’s

what this Federal Government ought to deliver. We ought to go to

work to get more water in this basin, storage available for agriculture and for fish, but to satisfy both needs. If there’s an extra

hundred million floating around in Washington, we’re going to put

our hands on it, but it’s going to be for a more productive purpose.

Mr. Vogel, I’d like to ask you a question.

Mr. VOGEL. Yes.

Mr. WALDEN. You’ve reviewed these biological opinions. You

probably heard my reference to Mr. Markel’s e-mail of Thursday,

June 14th, where he said ‘‘maybe their sound science might have

come to a different conclusion.’’ What do you see as the biggest scientific flaw in the biological opinions?

Mr. VOGEL. In both opinions?

Mr. WALDEN. You take either one or both.

Mr. VOGEL. Okay. Well, there’s no question it’s the single minded

approach that more water is always better for fish. There’s a mind

set there that cannot be shaken. It happened somewhere. I’m not

sure what it is. And I get chastised for even suggesting that anything less than the maximum possible flows or the maximum possible lake levels will be good for fish. We’ve seen it demonstrated.

We’ve heard it over and over. Very high lake levels— we’ve seen

it in the past—they kill fish. Low lake levels are not killing fish.

The same with the Klamath River. They treat Upper Klamath

Lake as though it’s the Shasta Reservoir. They have this concept

that there’s this enormous, four and a half million acre reservoir

with very cold, clear water, and somehow it’s going to save all the

problems of the Lower Klamath River Basin, and it will not work.

74

Upper Klamath Lake is very warm, very eutrophic and very shallow, and it’s about 60 miles from there down to Iron Gate Dam.

They’re dumping more water today to try to mitigate for the failures of habitat restoration programs in the tributaries, and that

really has to be shaken loose. I mean, the further scrutiny of this

peer review will reveal those deficiencies.

Mr. WALDEN. Do you believe that the habitat improvement is

what’s needed most? If you could do one thing—if we could do one

thing, two things, what would it be that would get to the heart of

these problems we’re facing today?

Mr. VOGEL. There’s absolutely no question. The number one

thing is we’ve got to start some projects—on the ground projects.

I’ve never seen a place anywhere in the western United States

where people will not allow on the ground projects to be initiated.

They’re saying, ‘‘No, don’t do anything. Let nature heal herself.

Just simply buy up the land, get all the water, and somehow,

through mechanisms we don’t understand, everything will be

okay.’’ And it will not occur. There’s no turning back the clock to

make a pristine ecosystem. Those days are gone. The idea is to

come up with practical, real-world, on the ground projects to begin

restoration activities.

Mr. WALDEN. Thank you, Mr. Vogel. Thank you, Mr. Chairman.

Mr. POMBO. Mr. Simpson.

Mr. SIMPSON. Mr. Walden pointed out how sometimes statements

become part of the record and then people start quoting them, and

I just wanted to make sure that Mr. Crawford, when he was bragging about potato production here and he said this is the greatest

place to grow potatoes in the world, what he meant was— I’m coming from Idaho and I do have to put this in the record is that, what

he meant to say is this is almost the greatest place in the world

to grow potatoes.

Mr. HASTINGS. Mr. Chairman, could I lend my voice to talking

about the quality of the potatoes grown in the Columbia Basin

Project as being maybe something that would compete with this

area.

Mr. GIBBONS. Mr. Chairman, I also want to add that Nevada’s

Winemucca potatoes to that same item.

Mr. POMBO. Well, all I’ll say is that since I am chairing this

hearing and I happen to represent the San Joaquin Valley of California, we’re going to come to a conclusion about the best place to

raise potatoes.

Mr. Vogel, there’s something that you just said about a pristine

environment, and I think that—and I don’t want anybody to get

the wrong idea about what your comment meant. It’s my understanding that in this so-called pristine environment, that the Klamath Lake was a much shallower lake than it is today, and yet the

fish survived in that setting. How was that possible?

Mr. VOGEL. Well, it’s possible because we’re talking about sucker

fish, in all honesty, there’s this image that people are inappropriately portraying, that sucker fish are like salmon or they’re like

trout, and they’re not. They thrive very well in muddy water,

muddy conditions, shallow water. You see them all over the watershed now. We see them in habitats where these fish were never believed to be known. In fact I know ranchers and farmers right in

75

this Basin that know they have suckers on their property, and

there’s no way in the world they’re going to tell anybody about it,

for obvious reasons. So this is not a—this isn’t rocket science. It’s

very, very straightforward, very simple. And the Fish and Wildlife

Service is trying to ram a square peg into a round hole with these

lake level issues, and we have to shake them away from that mind

set.

Mr. POMBO. Well, you heard before, on the previous panel and

on this panel—a lot has been talked about in terms of science and

how we come to the conclusions that we do. And as a former civil

servant yourself, I think it’s important that the agencies, the outside groups, no matter what side of the issue they’re on, come up

with the best science that they are able to develop, and all of that

to be presented to the agency to make their decision based upon

science.

And currently, the way the system works, that doesn’t happen,

because I have heard complaints from those in the environmental

community that their science has not been listened to. I have heard

people from agriculture and building industries saying that the

science that they put together was not listened to. And if we are

ever going to have science that we can depend on, the entire system has to be changed from where we currently are. But I think

that it’s important that you and everybody else realize of this, that

people being here—you know, a hundred plus years of people farming in this valley has changed the environment, and unless you are

going to go in and remove any sign of human activity, including

any dam, any person, any school, any city—just take it all out— and then somehow think that it’s going to return to what it was

before, it’s not going to happen. So the solution has to be, how do

you have a balance between protecting fish and wildlife and the

people who live here, and how do the people that live here become

part of the solution instead of those who pay the price, and I think

that that’s the solution that we have to come to.

I want to thank this panel and invite our third panel to come up.

The Committee is going to take a very, very short break. But I do

invite our third panel to take their seats, and we will be back very

shortly.

[Recess.]

Mr. POMBO. I’m going to call the hearing back to order. We have

our third panel here.

STATEMENTS OF ALLEN FOREMAN, CHAIRMAN OF THE KLAMATH TRIBES; TROY FLETCHER, YUROK TRIBE; FRANKLIN M.

BISHOP, PRESIDENT AND CEO, INTERMOUNTAIN FARM

CREDIT; ANDY KERR, SENIOR COUNSELOR, OREGON NATURAL RESOURCES COUNCIL; DAVE SOLEM, MANAGER,

KLAMATH IRRIGATION DISTRICT

Mr. POMBO. I’m going to start with Mr. Foreman, if you’re ready

to begin.

STATEMENT OF ALLEN FOREMAN

Mr. FOREMAN. Congressmen, member of the Committee, I appreciate the opportunity to present the Klamath Tribe’s views on the

water problems in the Klamath Basin. Most of what has been said

76

here today, thus far, I agree with. The tribes have been saying the

same thing for years. We have suffered from the empty promises

of the government also.

I appear before you today representing not only a constituent

base, but also as a leader of a sovereign nation, a nation that’s recognized by the United States. I’m here not merely as another interest group or an interested party. I would like to remind the Committee that the United States has a legal and moral obligation to

preserve and protect the trust responsibility to the tribes. The Constitution of the United States refers to its treaties as the supreme

law of the land. It is in this context that I direct my remarks to

you, on a government-to-government basis.

Our livelihoods are also as important as any others in the basin.

The land and the other resources that we depend upon has been

lost. Restoration is a necessary part of the solution in the basin.

In order to understand the problems, it’s important to understand

its historical roots.

From the beginning of time, we owned all of the land in the

Upper Klamath Basin and all of its resources, including the water.

As a result of the Treaty of 1864, the tribes gave up 20 million

acres of land, but still retained ownership of the remaining land an

its resources. In the 1950’s the land was lost due to a flawed termination policy, which President Nixon later declared to be immoral.

We still retained the resources, including the water. The courts

have upheld that those rights exist today, and I know of no agreed

upon document in existence today that changes that fact.

Later, when the Government invited the farmers and the veterans of World Wars I and II to move into the Basin and suggested

that the water would be available, the Government did not take

into consideration or tell the farmers about the tribal water rights.

The Link River Dam was put into place, that actually lowered the

Klamath Lake from its historical levels. This began to diminish our

resources.

To further compound the problem, for nearly a century the U.S.

Has allowed the State of Oregon to issue water permits without regard for Tribal water rights, and until recently, without regard for

the natural health of the rivers, lakes and marshes, causing virtually all of the Basin’s streams to be listed on the 303 list as having severe water quality problems, and a further decline to our

treaty resources.

The Government’s own agencies—the Forest Service, the National Parks, the U.S. Fish and Wildlife Service—claim the same

water, again without regard to the Tribal water rights or the tribe’s

needs. Today the problems are a cumulative result of nearly a century of extended promises for the available water.

Recently, the tribes have been victims of unwarranted and unjustified attacks on both our public imagine and our character. Unfortunately, there have been personal attacks as well. The most

grievous of these are the attacks on our children in the public

schools, many of whom live and attend schools within the farming

communities.

With the water shortage this year, it’s hard for anyone to think

about a future when the present looks so hopeless. We know that

livelihoods are at risk in the farming community. I want to make

77

one thing perfectly clear. It is not now, nor has it ever been, in the

interest of the Klamath Tribes to shut down or destroy agriculture

in the Klamath Basin.

It’s both incorrect and unfair to blame the Tribes for the current

water shortage. The real problem is that demand for water in the

Klamath Basin has been allowed to exceed the supply. I hope that

everyone can understand why the Tribes continue to defend our

water rights in the same way everyone else in the Basin seeks to

reinforce their own rights and claims. I would like to remind you

that over use of the water has already severely damaged the livelihoods of our own families.

We also believe that the Federal Government has a responsibility

to the farm families who, like the Klamath Tribes, now depend on

a water system that is simply not capable of meeting the current

demands. We, as a people who have for years felt the pain of being

unable to meet the demands and needs of our families and communities, do not want to see our friends and neighbors in the agricultural community suffer. Sharing the benefits of nature’s bounty is

one thing, but now we must also share the adversity caused by decades of over-allocation and ineffective resource management.

Today, we all need to focus on the present problem. The Tribes

have been a leader in the search for an effective solution to the

water problems.

Concerning the biological opinion, if a peer review is going to

happen, which appears to be likely, it should review both the

science that supports the withdrawal from the natural system as

well as the science that supports keeping the water in the system,

should be reviewed equally. First, we believe that the biological

opinion incorporates the best available science. Second, we’re concerned about the objectivity of any review simply because many influential people have already committed to a negative position. A

review would involve a great deal of time and resources on a matter that the courts have already reviewed.

Doing away with or revising the Endangered Species Act or the

biological opinion simply will not change the Tribal trust responsibilities, nor will it fix the problems that exist today. What will

work? The current situation is correctable with strong, even-handed and focused leadership to get beyond the squabbles among agencies, between water interests and between the U.S. And the State

of Oregon.

The goal must be restoring and sustaining a healthy and functioning ecosystem to support multiple uses. The Upper Basin watershed currently cannot provide a reliable foundation for either

the Tribe or the agricultural community. Correcting this will allow

the Tribes and agriculture to become stable and healthy. We need

to reduce demand on the system through a program that fairly rewards the agricultural community for retiring land, so the remaining lands can be farmed with a certainty. This will stabilize the future for agriculture in the Basin. Next, a sustainable livelihood for

the Tribal community must be part of the equation. This depends

on the restoration of the Tribe’s ownership of their homelands,

which contains a significant portion of the watershed. We will then

be able to restore the health of the forests, streams and springs

78

that nurture our water supply, and restore our much needed subsistence base.

The basin will not regain its health by treating the symptoms

while avoiding the causes of the water shortage. We need to restore

nature’s productive capacity in the Klamath Basin, like the Creator

intended, otherwise we’ll be facing problems just like this one for

years to come. Those of us who must face the consequences of those

empty promises cannot build a future by turning on each other.

The fisheries, the farming communities, the Klamath Tribe’s culture and economy are all at risk. We need high level Federal policy

makers to provide the leadership so that all of us who live in the

Klamath Basin can work together on a lasting solution, not an inadequate quick fix. Thank you, Mr. Chairman.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Foreman follows:]

Statement of Allen Foreman, Chairman, The Klamath Tribes of Oregon

Congressmen, members of the committee, I appreciate the opportunity to present

the Tribes views on the water problems in the Klamath Basin.

I appear before you here today representing not only a constituent base but also

as a leader of a sovereign nation, recognized by the United States,. I am not here

merely as another interest group or an interested party. I would like to remind you

that the United States has a legal and moral obligation to preserve and protect their

trust responsibility to us. The constitution of the United States refers to its treaties

as the supreme law of the land. It is in this context that I direct my remarks to

you, on a government-to-government basis.

In order to understand this problem appropriately it is important to understand

its historical roots.

*From the beginning of time we owned all the land in the Klamath Basin and

all of it’s resources, including the water.

*As a result of the Treaty of 1864, the Tribes have given up twenty million acres

of land but still retained ownership of the remaining land and its’ resources. In the

1950’s the land was lost due to a flawed termination policy, which President Nixon

later declared to be immoral, we still retained the resources including the water.

The courts have upheld that those rights exist today. I know of no agreed upon document in existence today that changes that fact.

*Later when the government invited farmers and veterans of world wars I and

II, to move into the Basin and suggested that water would be available, the government did not tell the farmers about Tribal water rights. The Link River Dam was

put into place that actually lowered the Klamath Lake from its historical levels.

This began to diminish our resources.

*To further compound the problem for nearly a century the U.S. has allowed the

State of Oregon to issue water permits without regard for Tribal water rights, and

until recently, without regard for the natural health of the rivers, lakes and

marshes. Causing a further decline to those Treaty resources.

*The governments own agencies, the Forest Service, National Park, and the U.S.

Fish and Wildlife claim the same water, again without regard to the Tribes water

rights or needs.

Today’s problems are a cumulative result of nearly a century of extended promises

to others for our water.

Recently the Tribes have been the victims of unwarranted and unjustified attacks

on both our public image and our character. Unfortunately there have been personal

attacks as well. The most grievous of these is the attacks on our children in the

public school system, many of whom live and attend schools within the farming communities.

With the water shortage this year it is hard for anyone to think about the future

when the present looks hopeless. We know that livelihoods are at risk in the farming community. I want to make one thing perfectly clear, it is not now, nor has it

ever been, the intent of the Tribes to shut down or destroy agriculture in the Klamath Basin.

79

It is both incorrect and unfair to blame the Tribes for the current water shortage.

The real problem is that the demand for water in the Klamath Basin has been allowed to exceed the supply. I hope that everyone can understand why the Tribes

continue to defend our water rights, in the same way everyone else in the Basin

seeks to reinforce their own rights and claims.

We also believe the federal government has a responsibility to the farm families

who, like the Klamath Tribes, now depend on a water system that is simply not capable of meeting current demands. We as a people, who for years have felt the pain

of being unable to meet the needs of our families and communities, do not want to

see our friends and neighbors in the agriculture community suffer.

Sharing the benefits of nature’s bounty is one thing but now we must also share

the adversity caused by decades of over allocation and ineffective resource management.

Today we all need to focus on the present problem. The Tribes have been a leader

in the search for an effective solution to the water problems.

The following is a list of things that we know that will and will not work:

Will not work:

Concerning the BO.

1. We believe that the current BO is the best available science.

2. A review is unnecessary because the courts have already ruled upholding the

science.

3. We are concerned about the objectivity of any review simply because many influential people have already committed to a negative position.

4. A review would involve a great deal of time and resources.

Doing away with or revising the ESA and BO simply will not change the Tribal

trust responsibility nor will this fix the problems that exist today.

What will work:

The current situation is correctable with strong, even-handed and focused leadership, to get beyond the squabbles among agencies, between water interests, and between the US and the Sate of Oregon.

*The goal must be restoring and sustaining a health and functioning ecosystem

to support multiple uses. The upper basin watershed currently cannot provide a reliable foundation for either the tribal or the agricultural communities, correcting this

will allow the Tribes and agriculture to become stable and healthy.

*We need to reduce demand on the system through a program that fairly rewards

the agricultural community for retiring land, so the remaining lands can be farmed

with certainty. This will stabilize the future for agriculture in the Basin.

*A sustainable livelihood for the tribal community depends on the restoration of

the Tribes’ ownership of our homelands, which contains a significant portion of the

watershed so that we can restore the health of the forest, streams, and springs that

nurture our water supply, and so that we will be able to restore our much needed

subsistence base.

The Basin will not regain its health by treating symptoms while avoiding the

causes of our water shortage. We need to restore nature’s productive capacity in the

Klamath Basin. Otherwise we will be facing problems like this one for years to

come.

Those of us who must face the consequences of those empty promises cannot build

a future by turning on each other. The fisheries, the farming communities, the

Klamath Tribes culture and economy are all at risk.

We need high-level Federal policy makers to provide leadership so that all of us

who live in the Klamath Basin can work together on a lasting solution, not an inadequate quick fix.

EXECUTIVE SUMMARY

The current situation in the Klamath Basin offers a unique opportunity to develop

a policy showing that economic and environmental concerns can be productively balanced, and that the honor of the U.S. can be upheld in its dealings with both indigenous peoples and its other citizens. The situation is not some sort of obscure scientific controversy, but rather a problem of community instability on three fronts.

80

These fronts are interdependent, so any real solution to Basin problems must address all three, or the problems will persist. • The Klamath Tribes currently lack crucial elements required for their societal

and community stability; as this is corrected the Tribes will become a stabilizing

element in the Basin.

• The agricultural community is undergoing economic difficulty and uncertainty

in water supplies that make it unstable; as this is corrected that community

will become a stabilizing element in the Basin.

• The Upper Basin watershed is in a devastated condition and cannot provide a

reliable foundation for either the tribal or the agricultural communities; correcting this will allow the Tribes and agriculture to become stable and healthy.

The situation is correctable with strong, even-handed and focused leadership by

the Administration to get beyond the squabbles among agencies, between water interests, and between the United States and the State of Oregon which have characterized the situation in recent years. In this document the Klamath Tribes discuss

three fundamental problems and offer the broad outlines of a prescription for solutions.

Ecosystem repair: Basin rivers, lakes, wetlands and forests are degraded to the

point that the health and stability of all Basin communities are undermined. Largescale restoration oriented toward long-term ecosystem functions can solve this problem. Research into agricultural improvements will enhance prosperity of agricultural operations, an essential component of achieving necessary restoration on private lands.

Solving over-appropriation: Federal and state promises have created a demand for

water that exceeds what Nature provides. Administration leadership is needed to

lay the foundation for restoring the balance.

Returning the tribal homeland: A sustainable livelihood for the tribal community

depends on the Tribes’ recovery of certain lands now in federal ownership. These

lands were taken from the Tribes as part of the now discredited Termination policy;

the Administration can further the process of their return.

The Basin is at a critical juncture. It can be the centerpiece of a federal policy

balancing nature and the economy, or it can be left to descend into decades of divisive litigation and strife.

A STRATEGIC APPROACH TO ACHIEVING ECONOMIC AND ECOLOGICAL

HEALTH IN THE KLAMATH BASIN

THE KLAMATH TRIBES - JUNE, 2001

The events of 2001 in the Klamath Basin are the inevitable consequence of longstanding, unresolved conflicts. With all Klamath Basin residents suffering economic

hardship brought on by decades of the federal and state governments’ mismanagement of the region’s water resources, only leadership from the highest levels of the

United States government can restore a sustainable economy based on rationally

managed natural resources. The Klamath Tribes have been and will be here always,

so we have been intimately involved in all of the issues that must be addressed to

achieve stability and prosperity for the Basin as a whole.

The Klamath Tribes are uniquely positioned to play a central role in resolving

Basin problems to the benefit of all, and we are very serious about doing so. Therefore, instead of focusing on past hurts and inequities, we are focused on the future,

on finding solutions that can work for everyone. In this spirit, we offer the following

outline of our strategic approach to achieving economic and ecological health in the

Klamath Basin. Our intent here is not to provide a greatly detailed strategy, but

rather to facilitate a basic understanding of the problems driving the present conflicts and crises, and then to offer the key elements of viable long-term solutions.

We believe that our strategy provides a strong foundation for the development of

an effective U.S. policy which can resonate throughout the nation, and perhaps the

world. We envision a policy showing that economic and environmental concerns can

be productively balanced, and that the honor of the U.S. can be upheld in its dealings with both indigenous peoples and its other citizens. While we firmly believe

that successful policy can be built on the foundations we offer here, we are not naive

about the challenges involved. Strong, even-handed, responsive leadership from the

highest levels of the U.S. government will be the pivotal element in determining the

success or failure of efforts to bring health and stability to the Klamath Basin.

Background and Description of Problems

It is our intent to approach the issues at hand in a positive, solution-oriented

manner. However, it is crucial for policy-makers to understand the perspective from

81

which the Klamath Tribes approach the present situation, so we must briefly detail

some history. Social and ecological problems experienced here in the Klamath Basin

are complex and have a 140+ year history. We refrain here from providing great

detail, focusing instead upon the fundamental problems, which have brought us to

the present situation; problems which must be resolved to achieve health and stability. We stand ready and able to provide detailed explanations and analyses of any

component, and will await requests for further information to do so.

In the Treaty of 1864, the Klamath Tribes reserved hunting, fishing, and gathering rights on 2.2 million acres of land, essentially encompassing the entire Upper

Klamath River Basin above Upper Klamath Lake. Over time, reservation boundaries were resurveyed and changed until in 1954 the reservation was reduced to 1.1

million acres. The Termination Act of 1954 led to the loss of federally recognized

tribal status as well as the conversion of a major portion of our ancestral lands into

the Winema and Fremont National Forests. Termination precipitated a time of severe economic and social devastation from which we are struggling to recover. In

1986 the US acknowledged the failure of the termination era policies by restoring

our federally recognized tribal status. While this step restored some capability and

authority to influence resource management, it was not accompanied by the return

of our ancestral lands, and so was insufficient to overcome the legacy of devastation

wrought on the landscape during the termination era.

It is vital to understand that the Klamath, Modoc, and Yahooskin peoples have

been on this land for hundreds of generations, thousands of years before the ancestors of the American pioneers had any idea that the North American continent even

existed. When we go out into the land, we can literally feel the permanent presence

of our people throughout history, a sense of belonging that cannot really be described or fully understood by outsiders. Our land was taken from us in stages from

1864 to 1954, until we were left with none. Since 1864 we watched as enormous

changes were made across the landscape; we watched Upper Klamath Lake turn

into a cesspool, the streams and rivers degraded, the marshes plowed under, the

salmon disappear, the sucker fishery plummet, the deer herds decline to all-time

lows, sacred places trampled and pillaged, and the forests completely changed in

character.

Many decades of industrial forestry, agricultural development, and other changes

led to a complete transformation of our landscape, and resulted in the decimation

of natural resources vitally important to the spiritual, cultural and economic livelihoods of the tribal community. Radical changes in forest structure and composition

contributed to tremendous declines in our mule deer herds. Places sacred to our people have been trampled and pillaged. Road development has cris-crossed our ancestral lands with an amazingly dense road network. What little old growth forest remains occurs in small isolated patches.

Over the past century, the most beneficial use of water was considered to be taking water away from fisheries in order to create more irrigated agriculture. Accordingly, vast tracts of wetlands and even lakes were diked, drained, and transformed

to farmland. Floodplains of our major river systems were developed as well, resulting in extensive loss of important riparian ecosystems and the commensurate impairment of floodplain function. Profound changes in the geomorphology (that is, the

shape and physical characteristics) of our rivers degraded both fish habitat and

water quality. Diversions of water from our rivers annually draw them far below

natural base flows. Diversions of water from Upper Klamath Lake cause annual

lake level fluctuations far in excess of the natural condition. Cumulative effects of

these and other transformations of the watershed contributed greatly to the

hypereutrophication of Upper Klamath Lake, impairing water quality so severely

that some of the toughest and most abundant fish species, the suckers, have been

pushed to the brink of extinction. Effects of these terrible conditions are felt by everyone, causing problems for other fisheries and water users far downstream of

Upper Klamath Lake.

The direct consequences of this severely degraded watershed are being felt by all

in the present water crisis. As all parties battle over who gets how much water, the

fundamental problems which underlie the entire situation are not being addressed.

Everyone living here can fight about water quantity forever, and no matter who

wins or loses the terrible problems we face will remain, until we properly address

the central problem of extreme ecosystem degradation. A healthy Basin economy depends on being able to squarely address ecosystem restoration at an appropriate

scale. Unless we do this, we simply doom ourselves to continued instability, strife,

and economic depression.

So far we have described the devastated condition of both our ecosystem and the

tribal economy, but another important piece of the puzzle remains, the health and

stability of the agricultural economy. The recent shutoff of irrigation water to part

82

of the Klamath Project has obviously hurt that portion of the agricultural economy.

Such events further de-stabilize the basin, resulting in extreme polarization of the

very groups which must come together to achieve long-term solutions. Agriculture

needs something which it does not have: a stable water supply. Instability of the

agricultural water supply results from decreased wetland and floodplain storage as

well as from ESA-related regulatory actions, both of which originate from impaired

ecosystem functions, and from uncontrolled development of water demand which

now far exceeds the supply Nature provides.

In the present crisis we are watching our agricultural neighbors experience in

part what has happened to the Tribes over and over: promises ignored, trust betrayed, severe personal economic damage, terrible pain, anguish, fear, and anger

with no productive outlet. We do not revel in their misery, and did not try to engineer their demise. However, we cannot let their agony and anger obscure the pathway to successful resolution of our problems. We want what is best for all Klamath

Basin residents, a healthy ecosystem with stable and prosperous economies for all.

Thus the crucial question is this: can we devise an effective strategy to restore

health and stability to the Klamath Basin ecosystems as well as to the Tribal and

agricultural economies? We firmly believe that the answer is yes, a successful approach can be devised, and that the success or failure of such a strategy rests in

the willingness of the highest levels of the US government to engage the situation

with strong leadership, wise policy, and adequate resources.

The Pathway to Stability: Three Key Elements

A central theme of these problems is instability, which will persist until the

foundational problems we face are addressed at the appropriate basin-wide spatial

scale and a long-term temporal scale. We are not facing some sort of scientific controversy here, but rather a problem of extreme social instability. The instability occurs on three fronts, each of which must be addressed by real solutions. • As long as the Klamath Tribes lack crucial elements to regain stability, our social and economic pain will be a destabilizing element in the Basin.

• As long as the agricultural community undergoes the uncertainty and economic

difficulties it has been experiencing, it will be a destabilizing element in the

Basin.

• As long as the watershed in the Upper Basin remains in its present devastated

condition, there is no possibility that either the Tribes or agriculture will become stable and healthy.

Critical ecosystem functions must be restored, recognized, and valued by all. Agriculture must own their land and have an assured water supply. The Klamath Tribes

must own our land, manage it to meet our needs and the needs of our neighbors

in the Klamath Basin, and have an assured water supply. A sustained and prosperous society in the Upper Klamath Basin cannot be achieved without adequately

addressing these three foundational elements.

ECOSYSTEM RESTORATION

Four main components require restoration in the Upper Klamath Basin ecosystem: rivers, lakes, wetlands, and forests. The Klamath Tribes have been researching and managing these ecosystems for a long time, and we have concluded

that repair of the following structural and functional components is crucial to regain

ecological health in the Basin. It is critical to consider the scale of both the problems

and their solutions. Ecological problems in the Upper Basin have been 100+ years

in the making and occur across a large portion of this watershed. To be successful

we must recognize that repairing this Basin will take time; a century of abuse cannot be erased in a moment. We can guarantee failure by approaching restoration

with a small-scale, short-term mind set, expecting that a few years of restoration

actions will immediately realize benefits sufficient to free up water supplies and

allow a quick return to the status quo. Alternatively, we can guarantee success by

recognizing the landscape scale of restoration needs, and by focusing our goals on

the long-term benefits to restoring critical ecosystem functions.

Rivers and streams need to be re-shaped, re-positioned, and adequately watered.

Early on, riparian communities were removed, which destabilized the riverbanks,

causing rivers to widen, straighten, and incise into their floodplains, lowering the

local water tables and drying out the floodplains. As a result of these structural

changes, nutrients are no longer stored appropriately either in the river channel or

in the riparian ecosystem. Instead, nutrients free-flow down the river systems,

which greatly contributes to the eutrophication of our lakes. Like nutrients, water

is no longer stored appropriately in wetlands and floodplains, so summer base-flows

are reduced, and then are further reduced by water withdrawals. All of these effects

83

are reflected in the greatly impaired physical habitat and water quality conditions

we now have in our rivers.

Our rivers need to be narrower, deeper, more sinuous, and they need to be placed

back into the proper contact with their floodplains. Dense, diverse riparian systems

need to once again flourish along our river corridors, and sufficient water must remain in the rivers to maintain healthy aquatic life and healthy riparian plant communities. We firmly believe that landowners will see benefits from these improvements as their fields and pastures in the flood plains are reconnected with the water

table. They will embrace, not resist, these improvements once the benefits are demonstrated. A program of substantial pilot projects to illustrate these benefits would

be an appropriate next step.

Implementing these restoration actions from the top down in the Basin watershed

makes a lot of sense. As the watershed above Upper Klamath Lake heals, summer

inflows to the lake will increase and nutrient inflows will decrease, with obvious

benefits to all beneficial uses downstream from the lake.

The Upper Klamath Lake system needs a more natural hydrology, with functional

tributaries and peripheral marshes.

Just as Upper Klamath Lake has been a focal point of the present water controversy, it remains a vital ecosystem component because it provides the main habitat for endangered suckers, the main water source for the Klamath River where

threatened salmon dwell, and the primary irrigation storage for the Klamath

Project. Competition among these uses has been greatly intensified by the terrible

water quality problems in Upper Klamath Lake, so solutions to the water quality

problems have been and must continue to be a centerpiece for management in the

Basin.

Two major components need to be addressed in Lake management and restoration. First, annual draw-down of the Upper Klamath Lake system far in excess of

natural levels must stop. Both water quality and physical habitat for fish are impaired by the extreme fluctuations in lake elevation, which have occurred annually

since 1921. Second, peripheral wetlands need to be reconnected to the lakes, providing fish habitat and water quality benefits. Major projects are already underway

at the Wood River Ranch (BLM) and the Lower Williamson River Delta Preserve

(TNC), and have already provided significant benefits. Both projects are located on

major lake tributaries that are crucial locations for the restoration of appropriate

morphology and connectivity between the rivers, their delta wetlands, and the lakes.

In addition, marshes are becoming re-established on the Agency Lake Ranch (BOR),

and options for its management are being developed. More opportunities exist for

major wetland restoration around the edges of the Upper Klamath Lake system.

Upper basin wetlands need to be restored.

Large, unique wetlands exist in the Upper Basin, and they are in need of extensive restoration. The Klamath Marsh (FWS) and the Sycan Marsh (TNC) are huge

wetlands that are vitally important components of the rivers on which they occur.

Both were extensively drained and modified for grazing uses, and require large-scale

actions to restore their many important ecosystem functions. Of particular importance is the restoration of their hydrology, which has far-reaching influences on both

the marshes themselves and flows in the downstream river systems. They also both

perform important functions for the river systems upstream, exerting profound

geomorphological influences on the river channels and providing important habitat

for large, migratory fish like Redband trout and the threatened bull trout. The

many ecological benefits realized by restoring these unique wetlands are too numerous to list here. Suffice it to say that in these critical areas the restoration efforts

already underway, which are greatly limited by funding, need to be redoubled.

Forests need to be re-structured.

Many decades of industrial forestry have radically altered the forests in the Basin.

Forests, which once were structurally complex with trees of diverse species and

ages, have been transformed into young stands with low species diversity. These

simple forest types now dominate the landscape, which profoundly affects many

things. Mature forest stands are rare and occur in isolated patches, and animals relying on them have suffered steep declines. Mule deer herds are at all time lows,

due in large part to the poor habitat provided by these simplified forests. Road networks are amazingly dense, a legacy of intensive harvest activities. Hydrological

functions of the forest lands have been altered in complex ways not fully understood, but which likely affect the timing and magnitude of spring runoff and influence the perennial nature of many small streams. We need to embark on a longterm approach to restore complex forest types across the landscape through careful,

selective harvest and other innovative forestry practices.

84

Agricultural research and enhancement.

Agricultural lands occupy large portions of our most sensitive landscapes— floodplains and historic wetlands. As such they represent crucial components of our

present-day ecosystems. It is very important that farmers and ranchers be supported by significant research into appropriate topics like water conveyance and application efficiencies, innovative crop selection and marketing strategies, and innovative grazing strategies. Much of the ecosystem restoration we all need must happen on private lands, and we believe the best way to make it happen is to help agriculture to prosper. Marginal operations cannot afford to be interested in restoration—prosperous operations can. Solid research can point the way to more profitable

agricultural strategies. However, applying the results of such research will likely involve infrastructure changes with which financial assistance will be needed. It is imperative that changes to agricultural operations be facilitated in ways that make

operational changes and ecosystem restoration both desirable and profitable for producers.

SOLVING OVER–APPROPRIATION PROBLEMS IS PART OF THE SOLUTION

Basin goals must include developing a sustainable agricultural component of the

Klamath Basin economy.

* We do not have that now. Now it is fragile, dependent on regular government

relief, and entangled in constant conflict with its neighbors.

Some farmers try to describe (and demand of public officials) an ideal that has never

existed, i.e., uninterrupted water supply at current demand levels.

* In fact, even the farmers do not really believe it is possible.

Project Irrigators (below Upper Klamath Lake) in Kandra v. U.S. demand that the

United States and the State of Oregon reduce Upper Basin (above Upper Klamath

Lake) irrigators’ water use.

Upper Basin irrigators in the Klamath Basin Adjudication challenge the validity

of Project Irrigators’ water rights and water use. And vice versa Project Irrigators

challenge the validity of Upper Basin users’ uses and rights.

It is unlikely that the congressional delegations can do the right thing on this issue.

* Politically no elected official from Oregon feels safe in being the first to say the

real problem is over-commitment of limited resources.

* But if the Administration puts the issue on the table, elected officials and all

other interests will have to respond. Everyone is learning that what’s being

asked of them by the farmers is (a) impossible to deliver and (b) not really believed by the farmers themselves, i.e., each farming interest asks for its water

to by guaranteed while asserting that other farmers should be cut off. The delegations know the status quo is unsustainable; they need to respond to Administration leadership on the issue.

Demand reduction concepts should look Basin-wide, not just at the Project. There is

more bang for the buck the farther up the watershed one looks.

* Water quality and temperature improvements higher in the system have more

far- reaching beneficial effects.

* Water savings higher in the system provide more management options over a

larger territory than similar savings lower in the system.

RETURNING TRIBAL LANDS NOW IN FEDERAL OWNERSHIP AND CONTROL IS PART OF

THE SOLUTION

The Klamath Tribes managed the territory of their homeland on a sustainable

basis for thousands of years. We continue to have significant property rights in the

form of hunting, fishing and gathering rights and the water rights to support these

activities on the former reservation. As a result we have, over the past thirty years,

been involved in and gathered significant information about the management of

these lands and the related wildlife and water needs. We are intimately familiar

with what the land needs in order to restore the stability of the natural systems

on which the Basin economies depend.

Solutions to Basin ecosystem and economic problems should include the return to

Tribal ownership of approximately 690,000 acres of certain lands now owned and

managed by the federal government. The following points should be kept in mind

when considering this aspect of resolving the current situation in the Klamath

Basin.

85

• The Tribes are the only government in the Basin that can provide a long-term

commitment to the management of these lands consistent with an articulated

set of management principles that will NOT be subject to amendment by a successor administration. This is one way to guarantee that these lands will be

managed over the long term consistent with watershed rehabilitation and restoration of watershed capability.

• The Tribes have a vision and proposal for how to accomplish the restoration of

the lands, the watershed, and the wildlife habitat for generations to come.

• A restored watershed will return appropriate hydrologic functions to the Basin.

• Restoration of riparian areas will improve water quality and fish habitat, increase base flows, make flood plain agriculture more productive, and improve

lake and river conditions far downstream.

• Returning out of Basin diversions that once naturally flowed into the Klamath

watershed would add 30 to 40 thousand acre-feet to the system.

• Using more efficient irrigation methods would reduce substantial losses to the

system.

• Enforcement measures should be mandated to protect legitimate water users.

Currently there is little or no enforcement against illegal use.

• Major forest management changes are necessary to enhance the damaged watershed.

• Substantial reduction of both natural and artificial pollutants would greatly improve water quality.

• A serious reduction in out of stream demand above Klamath Lake would greatly

enhance the entire system.

• Ground water augmentation is feasible only to the extent that it is based on

sound hydrological data and does not impair the surface water supply.

• The Tribes can commit to the delivery of the harvest of timber to the local economy, thereby securing to the Basin economy a reliable and sustainable economic

base for that sector.

• The lands were taken from the Tribes as a result of the disastrously flawed and

now discredited federal policy of Termination, which the Tribes resisted unsuccessfully. Therefore the honor of the US is manifest in the extent to which serious consideration is given to return of the Tribes’ homeland.

• The Tribes’ stability depends on our ability to obtain a sustainable livelihood

in the Basin. This, in turn, depends on our having a land base whose management is keyed to tribal values and long-term sustainability rather than to shifting federal priorities.

** Establishment of a subsistence base for the Tribes. We know from the past that

this land is capable of providing for the needs of our people. The Tribes have

a 100-year restoration plan to heal the land, ‘‘When we heal the land, we also

heal the people’’.

** Restore our full Tribal identity. ‘‘Our culture is strongly linked to the land. It

is impossible to talk about one without the other.’’

** Provide employment and income opportunities for tribal members. ‘‘We will protect our resource while generating a sound economy and commerce. Most important is not to take more than the land can endure.’’

** Protect and preserve our spiritual sites and cultural resources. ‘‘Our people have

been on this land from the beginning of time, the spirit of our ancestors walk

this land to this day.’’

** The stability and economic well being of the Tribes is beneficial for the entire

community.

HISTORY, BACKGROUND AND STATISTICS

Klamath County, Oregon contains 6151 square miles on the California border in

south central Oregon. The county is located between the foothills of the Cascade

Range and the Great Basin desert. Klamath County comprises approximately onethird of the area drained by the 254-mile long Klamath River, which empties into

the Pacific Ocean. The larger region known as the Klamath Basin, covers more than

10 million acres including most of Klamath County, Oregon and portions of three

other Oregon counties and five counties in California.

This region once contained some 350,000 acres of lakes, freshwater marshes, wet

meadows, and seasonally flooded basins. Salmon once traveled the length of the

Klamath River into the Klamath Lake and its tributaries, the Wood, Williamson,

and the Sprague Rivers. Lakes and streams in the upper basin also contained great

populations of C’wam and Qupto. These fish provided a major food source for the

86

Klamath Tribes. Early white explorers to the Klamath Basin were astounded by the

great concentrations of ducks, gees, swans, pelicans and other birds. Early trappers

in the area harvested beaver, otter and other fur-bearing animals here.

Historically, the Klamath, Modoc and Yahooskin Band of the Snake Indians lived

in the major portion of the upper Klamath Basin as separate Tribes. Today the

three Tribes are recognized collectively as The Klamath Tribes. Other Tribes residing in the lower portion of the Klamath Basin include the Hoopa, Karuk, and Yurok.

Damming and diversions of rivers, and draining of wetlands in the upper river

basin have taken a large toll on the region’s ecology and wildlife. Over 75 percent

of the Klamath Basin’s wetlands have been drained and converted to agriculture.

Over logging and other factors have also impacted the area’s ecology dramatically,

significantly altering the hydrology and degrading the water quality. The C’wam

and Qupto are now listed as endangered species, and the Coho salmon are a threatened species.

In the Treaty of 1864 the United States government on behalf of the American

people guaranteed the continuance of The Klamath Tribes’ pre-existing right to

hunt, fish, gather and trap on the Tribes’ reservation, along with sufficient water

to protect the resources necessary to these activities. The Tribes in turn ceded in

excess of 20 million acres of surrounding lands. These mutual promises are still in

force today.

In 1905 the United States government authorized the Bureau of Reclamation’s

Klamath Project without regard to water that was guaranteed to the Tribes in 1864.

Later the United States government allowed the State of Oregon to issue certificates

for the same water on the Oregon side of the basin, again without regard to the

Tribes pre-existing rights. Later the U.S. Park service and the USFWF were allowed

to claim the same water. As a result, there is a drastic over allocation of the existing

water supply.

The statistical background of the local community offers important insights into

the current situation and possible solutions.

• The population of Klamath County has increased 26 percent from 1970 to 63,185

people in1997. The most significant change is that both the number and percent

of Klamath County residents 65 years old and older have doubled during that

same time period.

• Nearly two-thirds of the growth in personal income over the last 28 years has

come from non-labor sources: dividends, interest, rent, and transfer payments

(such as retirement and medical benefits).

• Services surpassed manufacturing and government as the largest source of earnings in the early 1990s. Health services comprise about half of total service income.

• Income from farming declined 93 percent (in real terms) between 1969 and 1997

and represents two-tenths of one percent of total personal income. Agricultural

services accounted for six-tenths of one percent of income in 1997, a decrease

since 1969.

• Total employment in Klamath County has increased 44 percent since 1969 to

32,065. The largest gain was an 82 percent increase in the number of people

who own their own business. Farm employment declined one percent since 1969.

• Income from state and local government jobs has increased 98 percent since

1969 to $106 million. State and local government now represent nearly threefourths of government sector income.

Source: US Department of Commerce. 1999. Regional Economic Information System

(REIS) 1969–1997

Mr. POMBO. Mr. Fletcher.

STATEMENT OF TROY FLETCHER

Mr. FLETCHER. Thank you, Mr. Chairman and Congressmen. My

name is Troy Fletcher. I’m a member and Executive Director of the

Yurok Tribe. The Yurok Reservation is located at the mouth of the

Klamath River and extends 44 miles upstream. Whatever happens

in the Klamath Basin, whether it’s on the Trinity, the Shasta, the

Scott or in the Upper Klamath Basin, is of direct interest to the

Yurok Tribe. The Klamath Basin is a big basin. It’s 10,000 square

87

miles, plus, and we have a large interest in anything that happens,

specifically directed toward fishery interests.

I’d like to start by making a few points that briefly summarize

my written testimony. First off, I want to underscore and stress the

willingness, the desire of the Yurok Tribe to continue to work toward resolution of the issues in the Basin. These are difficult, large

issues that will require the dedication and the participation of a

number of different interests. For any of this to be productive—any

of the discussions to be productive, for any of the resolutions to be

meaningful, there needs to be an acknowledgment that our interests are legitimate as well as the interests of others, and we acknowledge the legitimate interests of all the parties in the Basin

that are dealing with this tough issue.

We understand what the constituents in the Klamath Project are

going through. The Yurok Tribe, as the Klamath Tribe has mentioned, Chairman Allen mentioned, has been going through the

same thing for decades. It’s an ongoing impact. Our fishery resources have declined from, not only historic levels, but even the

levels that were there over the past few decades. We’re not only interested in Coho flows in the river, from our perspective, it needs

to not only focus on Coho salmon. There are other issues out there.

When it comes to the discussion on ESA and the reform of ESA,

I’d like to stress, as Chairman Allen also stressed, that there’s

Tribal trust issues right behind that. A lot of the discussion that

occurred this year, of course, was focused on the Coho salmon or

the endangered species in the lake, but those other species also are

part of the equation. They are part of our discussions that we’ve

had with the Department of Interior, the National Fishery Service

and others, and they’ve been part of our ongoing concern.

I’d like to say a few words about the science. There was a lot of

discussion here about science. There’s a lot of debate about whose

science is better than the other person’s science. And I too agree

that if we’re going to stress peer review, as we should, then I believe sincerely that all parties need to be at the table. There needs

to be open, candid, frank, lively debate over the science that goes

into our decision making processes, but it’s got to go two ways.

And I do have to make a few comments on some of the comments

Mr. Vogel made earlier. I’ve been a member of the Klamath River

Task Force, or was a member of the Klamath River Task Force up

until last year. The Klamath River Task Force started looking at

these flow issues in ’96 and ’97. At that time the Task Force Commission was scoping to look at the in-stream flow issues in the

Klamath Basin, and we stressed the need to have a number of parties—all parties participate in that discussion, even parties who

weren’t members to the Task Force, like the groups on the Shasta

and the Scott River, attended those scoping meetings. Those

scoping meetings were the beginnings of the Hardy, phase two and

phase one, flow studies.

I, personally—and it’s in the minutes of the Klamath Task

Force—have asked that the Klamath County representative and

their technical work group person, who happens to be Mr. Vogel’s

partner, attend those meetings. We’ve stressed the need at the

technical work group for everybody to attend those meetings. For

financial or other considerations, that participation wasn’t there,

88

and it was sorely needed, and now I think you’re seeing the result

of a lack of participation.

There’s questions being raised, there’s issues that are thrown

out, there’s criticisms of the science that we do have. Some of that

criticism, some of those issues I think could have been addressed

if people would fully participate to the best of their abilities. And

they should be there. They have to be there. If they’re not there

then we’re not going to have any reasonable solutions, as I said

earlier, so we’re open to that and we think it should happen.

I would also like to add that because of the breadth of the scientific issues, they’re not easy issues. There are times of year,

there are differences of opinion in the amounts of flow, and there

are all kinds of issues on the table. I think it would be good to convene a several day workshop, a several day forum, to fully go

through the issues that are under debate in the scientific realm. I

think that would benefit everybody. It would be good to see some

of you there, and let’s all get a good understanding of what we’re

each talking about when we’re talking about science. After all, usually the proof in science boils down to a courtroom, and we need

to try to avoid that. Let’s try to get on the same page.

When it comes to solutions for the basin, we too believe that

there’s just too much demand for the limited amount supplied. We

believe and we know that fish, the salmon species, need more

water. We also, though, hear what the Klamath Project users are

saying, and we agree that it’s not fair to single out the Klamath

Project. The irrigators that are above the lake need to be held accountable. The States of Oregon and California need to be accountable. Irrigators in the Shasta and the Scott River need to be accountable. This is going to be a Basin wide issue. It’s going to require Basin-wide solutions and resolutions, and it’s not fair to focus

in on one group. We fully think that that’s a fair criticism. With

that, thank you for this opportunity.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Fletcher follows:]

Statement of Troy Fletcher, Executive Director, Yurok Tribe

Thank you for the opportunity to appear before you today to provide the perspective of the Yurok Tribe on the problems of water scarcity in the Klamath Basin. I

am the Executive Director of the Yurok Tribe, the largest Indian tribe in California,

with a population of approximately 4,000. We appreciate your interest in finding acceptable and permanent solutions to the water crisis facing the Klamath Basin.

It is an unfortunate fact that today there is insufficient water available in the

Klamath Basin to satisfy the demands of irrigators, tribes, and wildlife refuges. The

Yurok Tribe feels the effect of these shortages in an especially acute way. Our reservation is bisected by the last 45 miles of the Klamath River as it makes its way

to the Pacific Ocean. Our people and our culture are tied to the Klamath River in

ways that are sometimes difficult for outsiders to understand. We rely on the River

for the anadromous fish it supplies for our food, for the spiritual meaning that

comes from ceremonies based on the River, and for the ultimate cultural significance

as Yurok people. As one of our elders put it, the Klamath River is our identity as

Yurok people. This has been true since time immemorial.

The United States created our reservation in 1855 so that our people would have

a permanent place to practice a culture centered on the Klamath River. We see that

as a promise made to us that the United States must honor today. This fact has

led the Department of the Interior, and many federal and state courts to conclude

that we have fishing rights that are protected by federal law. And, because a fishing

right without water would be largely meaningless, we also have a right to adequate

amounts of water to satisfy our fishing needs. Although our water right has not

been formally quantified by the courts, law and morality require that federal agenVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00092 Fmt 6633 Sfmt 6621 73135.TXT HRESOUR1 PsN: HRESOUR1
89

cies, such as the Bureau of Reclamation, must operate their projects in ways that

respect our water and fishing rights.

The federal government has undertaken a trust responsibility for the lands and

resources of Indian tribes. The courts have ruled time and again that the Bureau

of Reclamation has a legally-enforceable trust obligation to satisfy the fishing and

water rights of the tribes in the Klamath Basin, including the Yurok Tribe. We believe as well that as a legal matter the tribes in the Klamath Basin should have

the first priority to scarce supplies of water.

We continue to be frustrated by the failure to resolve the water problems in the

Klamath Basin. In contrast to the farmers in the Klamath Irrigation Project, who

typically have received full contract deliveries of water, the Yurok Tribe has rarely

received sufficient instream flows to support the restoration and maintenance of the

Tribe’s fishery. The diversion of water by the Klamath Project for irrigation is one

of the primary reasons for the deteriorating condition of our fishery. We understand

that other factors contribute as well, but the simple fact is that salmon and other

anadromous fish cannot survive without a natural streamflow of adequate amounts,

depths and velocities at critical times in the spawning and rearing cycles.

The Klamath River anadromous fishery is in deep trouble, with population levels

at historic lows. As you know, coho salmon are listed as threatened under the Endangered Species Act. These actions show that some species of the Klamath fishery

are facing extinction. Spring chinook and summer steelhead salmon populations are

presently at levels that represent a small fraction of their historic abundance.

Eulachon are nearly extirpated from the Basin, and anecdotal information shows

that lamprey and sturgeon populations are also declining. The decline of our fishery

has decimated our community, increasing unemployment, destroying the social cohesion of our reservation and degrading our cultural practices.

The failure to provide adequate instream flows has harmed and continues to harm

the Yurok Tribe. Our culture is degraded and our economy suffers. Without the ability to rely and subsist on our fishery, our people are forced to leave the reservation

for employment. Our unemployment rate therefore is very high. The Tribe’s commercial fishery, which operates only occasionally at minimal levels, is one of the few

economic enterprises we have. Last year, there was a fish kill in the Klamath River

of an estimated 100,000 to 300,000 juvenile steelhead, chinook and coho salmon that

will undoubtedly affect the health of future fish runs. We need a viable, sustainable

fishery to support our people, and to have that, we need enough water in the River.

The impact on our people and our fishery will likely be especially harsh this year,

because of the extremely low amounts of rainfall and snowpack in the Klamath

Basin.

We have spent considerable sums of the Tribe’s scarce money and devoted enormous amounts of staff time to this problem, but we fear that our voice is not being

heard. The Tribe’s Department of Fisheries, the largest department of the Tribe,

commits millions of dollars each year to fish management, habitat restoration, law

enforcement, and fishery monitoring. Restoring the fishery is our highest priority.

Yet each year it seems that we bear a disproportionate share of the burden that

water shortages impose on all water users.

We see many challenges to progress toward resolving the water crisis in the

Klamath Basin. We appreciate the fact that there must be a sound biological basis

for planning and water management in the Basin, particularly as to the water and

habitat needs of salmon and other fish. The Yurok Tribe for many years has been

engaged in developing that strong scientific basis. However, rather than join with

us to develop a consensus about the biological needs of the species, the Klamath

Project Irrigators have attacked each and every report on the flow needs of anadromous fish as ‘‘advocacy science.’’ Similarly, in the recent suit brought to overturn

the BOR 2001 Annual Operations Plan, the biological opinion of the National Marine Fisheries Service, which determined the instream flows necessary to avoid jeopardy to coho salmon, was attacked as arbitrary and capricious. The federal judge

in the case rejected this argument, finding that NMFS considered all of the available facts and reached a reasonable and supportable conclusion. We hear a constant

refrain that our carefully designed studies, conducted in conjunction with experts

from other agencies, are ‘‘junk science’’ and that the needs of the fish are greatly

exaggerated. We categorically reject this characterization. These unfounded attacks

make cooperative efforts at long-term solutions difficult. This is not the place to debate the merits of these biological determinations, but we raise this to show our

frustration with the failure to develop cooperative relationships to work on this

problem. Our objective has been, and continues to be, to develop credible, unbiased

science to use when making important decisions about scarce Klamath Basin water

resources.

90

No one involved with the water problems in the Klamath Basin believes that the

annual operations plans of the Bureau of Reclamation is the best way to manage

the Project. The Yurok Tribe shares that view, because of the chaotic nature of the

decision-making process, the rush to consult at the eleventh hour, and the uncertainty of not knowing how much water will be available for our fishery. Some of

these problems could be alleviated if the work on the long-term environmental impact statement were completed. We have urged completion of this process for years

and we renew our call to finish this work. We believe this document could serve

as the basis for a long-term operations plan that would avoid the unsatisfactory

process we go through every year.

We are willing to work with the tribal, state, local and federal governments, as

well as the citizens of the Klamath Basin, to develop solutions that will engender

support among all the interests in the Klamath Basin. We are concerned, however,

that solutions that may be developed in the upper portion of the Basin are not always properly assessed for their impact, whether adverse or beneficial, on the

instream flow requirements of the Yurok Tribe. From our perspective, the key question to ask about all of these proposals is whether they will result in sufficient water

quality and quantity for downstream uses on the Yurok Reservation and surrounding area. Solutions that make up for deficiencies in deliveries to irrigators, but

do not address the health of the Klamath Basin ecosystem, including appropriate

Klamath River flows, are not real solutions to the problem. In other words, we believe federal agencies and Congress need to take a basin-wide view of the problem.

The Yurok Tribe is committed to joining with our neighbors in the upper basin

to find common ground and workable solutions. The Tribe is fully participating in

the mediation in the Kandra litigation ordered by federal Judge Aiken. For many

years, we have taken a leadership role in finding solutions through our participation

in various restoration and water fora. We intend to continue those efforts. The fate

of our tribal people depends on the success of those efforts.

Let me outline a number of factors that we believe could help overcome the current obstacles to long-term solutions to the water crisis. First, blaming the legal requirements of the Endangered Species Act and the federal tribal trust obligation for

the current crisis is not a constructive beginning point for finding common ground.

The courts have carefully and fairly applied the law in legal challenges brought by

the Project Irrigators, and proposals to radically change this legal regime are not

calculated to lead to mutually acceptable solutions.

Second, any solution to the water crisis must be founded on the principle that

each stakeholder recognizes the legitimate interests of others in obtaining water for

their needs. The Yurok Tribe recognizes that the Project Irrigators have legitimate

needs, and we are sympathetic to the economic suffering they have experienced this

year. In turn, we expect a corresponding recognition and respect for the Tribe’s legitimate needs for adequate instream flows.

Third, solutions must address the fact that the basin is overappropriated. There

is complete agreement that demand outstrips supply in most years. Although we believe that supplies could potentially be increased through groundwater development

and other measures, no solution will work in the long run unless agricultural demand for water is reduced.

Finally, we believe that solutions to the current crisis must include both shortterm and long-term measures. The planning process for the 2002 water year will

begin soon, but we should be cognizant of the fact that devising a better way to allocate scarce water supplies on an annual basis leaves unanswered many of the important questions about long-term solutions. The Yurok Tribe is interested in permanent fishery and watershed restoration, which may take years to implement.

These long-term measures will contribute as much to permanent solutions as proposals focused on the upcoming water year.

We appreciate the opportunity to appear before you today. We would be pleased

to answer any questions you may have.

Thank you.

Mr. POMBO. Mr. Bishop.

STATEMENT OF FRANKLIN M. BISHOP

Mr. BISHOP. Mr. Chairman and distinguished Committee, I’m

Franklin Bishop, President and CEO of Intermountain Federal

Land Credit Association and Production Credit Association. I have

served the associations as Joint-President for over 13 years. These

91

two farm credit institutions are part of the nationwide farm credit

system which was established by Congress in 1916 to provide a dependable source of credit to farmers and ranchers across this great

nation. We provide 800 loans for $180 million to 550 farmers and

ranchers in the seven northeastern California counties in the State

of Nevada.

Intermountain Federal Land Credit Association provides 49 loans

to 35 borrowers for over seven million dollars in the Tulelake Basin

south of the Oregon border. We make and service these loans from

an office in Tulelake, and have local representation on our Board

of Directors by Jim Boyd, a potato and grain farmer from Tulelake

who has served on Intermountain FLCA board for 13 years.

I am well acquainted with the agricultural and economic conditions impacting the Klamath and Tulelake Basins. I have never

seen a situation in which the forces of mother nature have combined with the Federal Government—in this case the Bureau of

Reclamation, the Fish and Wildlife Service, the National Marine

Fishery Service and the Endangered Species Act—to create the perfect storm. Perhaps no one could see the economic storm clouds and

ensuing devastation that has been set in motion by the recent

drought conditions that limited water supplies to levels that have

been artificially set by government agencies at elevations to ensure

the survival of two species of fish at the peril of three or four generations of American family farmers.

I am here today to testify on behalf of the farm credit system and

the banking community as to the devastating financial impact that

lack of water will force upon some 1,500 farming and ranching families. Many of the farmers are already financially stressed due to

6 years of below break-even potato prices, the loss of sugar beets

as a cash crop, and the low prices received for grains and other rotational crops. All lenders must evaluate each borrower’s financial

situation to determine if continued financing is possible, or what

alternative plans and servicing actions are available to provide financing on a responsible and sound basis, with reasonable levels

of risk.

Farm Credit System Associations, such as ours, have a congressional mandate to provide financing on a sound basis through

times of financial stress when many other lenders are no longer

willing or able to take the risk associated with riding out the

storm. I am sure that all agricultural lenders from this area are

working to prevent a worst case scenario in which borrowers are

unable to make loan payments because they had little or no farm

income as a result of conditions beyond their control, whether natural or man-made.

One of the tools to help avoid this worst case scenario is the loan

guaranty program provided by the Farm Service Agency or FSA.

Our associations have had a long and beneficial relationship with

FSA, spanning the last 13 years. We currently have 60 loans for

5.7 million dollars outstanding guaranteed by that agency. The

guaranty program provides the credit enhancements necessary to

allow lenders to provide continued financing or restructuring opportunities for farmers experiencing financial stress. The program has

been available to lenders for over 20 years, providing a tremendous

service to farmers and ranchers across the Nation.

92

We understand, however, that FSA may condition loan guarantees for restructured loans based on the Tulelake and Klamath

Basin farmers receiving full water allocations for 2002. Never before have the loan guarantees provided by FSA been conditioned in

this manner. We have no information that tells us farmers will be

unable to obtain water for the next year’s crop. We have to assume

that we will get average snow pack and that water will be available for farming operations next year. FSA’s own regulations tell

the agency to assume normal conditions when analyzing a loan.

The agency cannot assume a drought, and so it should not assume

the Federal Government will again withhold water from these

farmers.

FSA guarantees are critical to helping Tulelake and Klamath

farm families and their communities survive. If lenders are forced

to discontinue financing and initiate foreclosure proceedings, not

only will farm families lose their homes and livelihoods, but land

values will plummet, farm machinery and equipment values will be

reduced to 25 cents on the dollar, and area businesses will be ruined. The government can help lenders stay with our customers by

providing certainty to these farm families, and soon.

Today, we do not know if the Federal Government will provide

direct assistance. We do not know if FSA will provide loan guarantees. We need full cooperation and coordination from all government agencies. Without these, lenders will likely be unable to resume lending, even though water may be eventually restored. In

the worst case scenario where water from the Bureau is not forthcoming next year and land owners are faced with selling property,

there will be no interested investors to purchase the land, purchase

the businesses or purchase the farm and ranch assets that will be

left behind.

Without the certainty of a return of economic stability to the

area, how can any plans be formulated by outside parties to limit

the destruction? Moreover, those farmers who may have avoided

much of the financial distress in their operations to this point may

be left without lenders, only to suffer the longer term consequences

of financial ruin because of a ‘‘Cherynobl effect’’ that precludes any

interest in the area from outside businesses.

Farmers who borrow money today may find that they have no

borrowing capacity tomorrow. It’s just that simple. This is not sensationalism, but rather a very realistic view of what can and will

happen if lenders are forced to leave the community. Therefore, I

am asking this Committee, all Congressional Representatives and

all Federal agencies, ensure that existing programs be available as

part of many, many tools that can be used to avoid disaster and

restore long-term economic viability and stability to this vitally important agricultural community.

Having reviewed the causes and implications of the current

water crisis and what I believe can be done to repair the situation,

I’d like to express an opinion on what we can do to prevent this

problem from occurring in the future. In the short-term, we urge

the Federal Government, in conjunction with local representatives

of the agricultural and rural businesses communities, to provide

temporary economic assistance to maintain the economic value and

asset base of the community. This will promote harmony and susVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00096 Fmt 6633 Sfmt 6602 73135.TXT HRESOUR1 PsN: HRESOUR1
93

tain a sense of well-being to the Tulelake and Klamath communities.

We also urge Congress to establish policies for these types of unanticipated emergency situations in the long-term. Changes to the

Endangered Species Act, for example, to avoid disastrous impact

and economic loss where conflicts of a monumental size and nature

such as this has occurred are in order. Compensation for farmers

and local businesses for losses sustained as a consequence of no

water resulting from the Endangered Species Act, which the courts

have ruled ‘‘trump’’ all other laws and regulations and conflict

what the Act itself, warrant full consideration.

Finally, all Federal agencies should be directed to cooperate in

an effort to minimize economic and emotional damage to the community, while maintaining viability, not only in economic terms but

in terms of the human spirit. Thank you for allowing me to testify

today.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Bishop follows:]

Statement of Franklin M. Bishop, President and Chief Executive Officer,

Intermountain Federal Land Bank Association, FLCA, Intermountain

Production Credit Association

Good Morning.

I am Franklin M. Bishop, President and CEO of Intermountain Federal Land

Bank Association, FLCA and Intermountain Production Credit Association. I have

served the Associations as joint President for over 13 years. These two Farm Credit

institutions are part of the nationwide Farm Credit System which was established

by Congress in 1916 to provide a dependable source of long-term credit to farmers

and ranchers.

Under the Farm Credit Act of 1971, as amended, the Farm Credit System provides $85 billion dollars of loans to farmers and ranchers, agricultural cooperatives,

farm-related businesses, marketing and processing facilities, and part-time farmers,

as well as young, beginning, small, and minority farmers and ranchers. For 85 years

the Farm Credit System has been mandated by Congress and the Farm Credit System regulator, the Farm Credit Administration, to serve the short-, intermediate-

, and long-term needs of American farmers and their cooperatives. The Farm Credit

System accesses its funding through a fiscal agent in New York by selling bonds

on the New York money markets through a series of brokerages. It enjoys the highest levels of confidence by private, institutional, and the investing public.

The Farm Credit System is privately owned by its borrowers who are required to

own stock in the Farm Credit Institutions from which they borrow to provide capitalization and participate in governance at the local level. The Farm Credit System

is a government sponsored enterprise, serving a critically unique public policy role

by providing financing to America’s farmers and ranchers at competitive interest

rates during good and bad times alike.

The Intermountain Farm Credit Associations provide nearly 800 loans for $180

million to 550 farmers and ranchers in the seven northeastern California counties

and the state of Nevada. The Intermountain Federal Land Credit Association provides 49 loans to 35 borrowers for $7.2 million in the Tulelake Basin south of the

California/Oregon border. We make and service these loans from an office in

Tulelake, California, and have local representation on our Board of Directors by Jim

Boyd, a potato and grain farmer from Tulelake who has served on the Intermountain FLCA Board for 14 years.

I have worked in the Farm Credit System for over 26 years in various capacities

as a credit analyst, loan officer, field representative, branch manager, regional supervisor, appraiser, vice president of review and audit, senior vice president of credit, and president–CEO and co–CEO of Intermountain FLCA and PCA headquartered

in Reno, Nevada, and Ag Credit of California FLCA and PCA, located in Stockton,

California.

I am well acquainted with the agricultural and economic conditions impacting the

Klamath and Tulelake Basins. I have never seen a situation in which the forces of

Mother Nature have combined with the Federal Government, in this case, the BuVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00097 Fmt 6633 Sfmt 6621 73135.TXT HRESOUR1 PsN: HRESOUR1
94

reau of Reclamation, the Fish and Wildlife Service, the National Marine Fisheries

Service, and the Endangered Species Act to create the ‘‘Perfect Storm’’.

Perhaps no one could see the economic storm clouds and ensuing devastation that

has been set in motion by the recent drought conditions that limited water supplies

to levels that have been artificially set by government agencies at elevations to ensure the survival of two species of fish at the peril of two or three generations of

American family farmers.

The loss of approximately 210,000 acres of irrigated field and row crop farm

ground caused by the decision to ‘‘shut-off’’ water from the Bureau of Reclamation

to the Tulelake Irrigation District will result in an economic calamity and financial

ruin to farmers, ranchers, farm-related businesses, community services, merchants,

and many area businesses that rely on the income generated from this highly productive farming community to sustain their businesses.

There will be plenty of testimony as to the economic impacts at the local, county

and state levels here today, so I will not direct my comments to that particular subject. I am here today to testify on behalf of the Farm Credit System and the banking

community as to the devastating financial impact that lack of water will force upon

approximately 1,500 farming and ranching families.

Many of the farmers are already financially stressed due to six years of below

breakeven potato prices, the loss of sugar beets as a cash crop, and the low prices

received for grains and other rotational crops. All lenders must evaluate each borrowers financial situation to determine if continued financing is possible or what alternative plans and servicing actions are available to provide financing on a responsible and sound basis with reasonable levels of risk.

Farm Credit System Associations such as ours have a Congressional mandate to

provide financing on a sound basis through times of financial stress when many

other lenders are no longer willing or able to take the risk associated with ‘‘riding

out the storm’’. I am sure that all agricultural lenders from this area are working

to prevent a ‘‘worst case’’ scenario in which borrowers are unable to make loan payments because they had little or no farm income as a result of conditions beyond

their control—whether natural or manmade.

One of the tools to help avoid this worst case scenario is the loan guarantee program provided by the Farm Service Agency (FSA). Our Associations have had a long

and beneficial relationship with FSA spanning the last thirteen years. We currently

have 60 loans for $5.7 million outstanding guaranteed by FSA. The FSA loan guarantee program provides the credit enhancements necessary to allow lenders to provide continued financing or restructuring opportunities for farmers experiencing financial stress. The guarantee program has been available to lenders for twenty

years, providing a tremendous service to farmers and ranchers across the nation.

We understand, however, that FSA may condition loan guarantees for restructured loans based on the Tulelake and Klamath Basin farmers receiving full water

allocations for 2002. Never before have the loan guarantees provided by FSA been

conditioned in this manner. We have no information that tells us our farmers will

be unable to obtain water for the 2002 crop year. We have to assume that we will

get average rainfall and that water will be available for farming operations next

year. FSA’s own regulations tell the agency to assume ‘‘normal’’ conditions when

analyzing a loan. The agency cannot assume a drought, and so it should not assume

that the federal government will again withhold water from these farmers.

FSA guarantees are critical to helping Tulelake and Klamath farm families and

their communities survive. We hope that Congress will encourage all government

agencies to cooperate in an effort to bring about the needed loan restructures that

can prevent widespread economic disaster. Lenders and farmers alike need this

guarantee program now to ensure that they have every chance to develop plans for

dealing with this tragic situation over which they have had little to say.

If lenders are forced to discontinue financing and initiate foreclosure proceedings,

not only will farm families lose their homes and livelihoods, but land values will

plummet, farm machinery and equipment values will be reduced to 25 cents on the

dollar, and area businesses will be ruined. The government can help lenders stay

with our customers by providing certainty to these farm families soon. Today, we

do not know if the federal government will provide direct assistance. We do not

know if FSA will provide loan guarantees. We need full cooperation and coordination from all government agencies. Without these, lenders likely will be unable to

resume lending even though water may eventually be restored. In the worst case

scenario where water from the Bureau is not forthcoming in 2002, and land owners

are faced with selling property, there will be no interested investors to purchase the

land, purchase the businesses, or purchase the farm and ranch assets that will be

left behind.

95

Without the certainty of a return of economic stability to the area, how can any

plans be formulated by outside parties to limit the destruction? Moreover, those

farmers who may have avoided much of the financial distress in their operations

to this point, may be left without lenders, only to suffer the longer term consequences of financial ruin because of a ‘‘Chernobyl effect’’ that precludes any interest in the area from outside businesses.

Farmers who borrow money today may find that they have no borrowing capacity

tomorrow. It’s that simple. This is not sensationalism, but rather a very realistic

view of what can and will happen if lenders are forced to leave the community.

Therefore, I am asking that this committee, all congressional representatives, and

all federal agencies ensure that existing programs be available as part of many,

many tools that can be used to avoid disaster and restore long-term economic viability and stability to this vitally important agricultural community.

Having reviewed the causes and implications of the current water crisis, and what

I believe can be done to repair the situation, I’d like to express an opinion on what

we can do to prevent this problem from occurring in the future. In the short-term,

we urge the federal government, in conjunction with local representatives of the agricultural and rural business communities, to provide temporary economic assistance to maintain the economic value and asset base of the community. This will promote harmony and sustain the sense of well-being to the Tulelake and Klamath

communities.

We also urge Congress to establish policies for these types of unanticipated emergency situations in the long-term. Changes to the Endangered Species Act, for example, to avoid the disastrous impact and economic loss where conflicts of a monumental size and nature such as this has occurred are in order. Compensation for

farmers and local businesses for losses sustained as a consequence of no water resulting from the Endangered Species Act which the courts have ruled ‘‘trump’’ all

other laws and regulations in conflict with the Act itself, warrant full consideration.

Finally, all federal agencies should be directed to cooperate in an effort to minimize

economic and emotional damage to the community, while maintaining viability, not

only in economic terms, but in terms of the human spirit.

Thank you for allowing me to testify today.

MR. POMBO. Mr. Kerr.

STATEMENT OF ANDY KERR

Mr. KERR. I am here today to suggest a different course than the

one of endless litigation and listings of endangered species. Instead,

I offer a proposal that was developed by conservation and farming

interests in the Klamath Basin. This joint proposal balances farming and conservation. Specifically, it would, 1) acquire land or interest in water from willing sellers for fish and wildlife purposes

or for the establishment of replacement lease land so commercial

farming can end on the national wildlife refuges. 2) it would provide for the acquisition from willing sellers to re-reclaim the lakes,

wetlands and streams for natural water storage and cleansing. The

third point is that it would ensure the Federal funding of local governmental units as maintained. And fourth, it would provide for

economic transition assistance grants for local governmental units.

It is proposed that in addition to the payment of fair market

value for the land, that a transition payment also be made, both

of which would total $4,000 per acre. To put this in perspective, before the water was cut off in this severe drought year by a combination of an act of God and an act of Congress, such lands were

worth perhaps $2,500 per acre. Prices have plummeted since then;

$4,000 an acre is 60 percent above the former market value. Precedent exists for such compensation. The Federal Government has

bought down commercial fishing fleets. It is considering paying tobacco farmers to get out of tobacco farming.

96

The benefits to the remaining farmers in the basin of this joint

proposal would be immense. With the reduction of water demand

by reducing the amount of irrigated agriculture and the concurrent

increase of natural storage by the re-reclamation of reclaimed and

abused lands, irrigated water supplies will be much more reliable,

perhaps even enough to cope with a severe drought.

Conservationists negotiated this proposal with local land owners,

most with roots that go back generations. They are ready to sell

their lands to the Federal Government, if for no other reason than

that there is no other buyer. Of course, $4,000 an acre is not

enough to compensate for the loss of a lifestyle. However, it is

enough for most to get clear of the bank and have something left

for retirement or for the kids’ college fund. This $4,000 per acre figure can be justified to the taxpayers as a saving over the current

system of farm subsidies for these lands. Most importantly, it is the

right thing to do.

Many land owners would have sold out years ago, before the

water was cut off this year, had there been a market. Some are old,

others are tired of losing money, others are tired of the uncertainty

of farming. I’m sorry to have to note that these willing sellers have

been verbally abused and threatened for their stance by some of

their neighbors. One would have thought that one of the most basic

property rights is the right to sell it.

This joint proposal is ecologically rational, economically efficient,

fiscally prudent, it is socially just, and it is politically pragmatic.

The conservation community would use all of its powers of persuasion and political influence to see this proposal or something like

it enacted into law. There is only one specter on the horizon that

could diminish our capacity to work for this joint proposal. It is if

the conservation community instead has to use its resources to yet

again defeat another attack on the Endangered Species Act. If that

happens, our ability to advocate for such a just proposal will be diminished.

The Klamath Basin is the Everglades of the West. The Federal

and State governments have committed tens of billions of dollars

to restore the Everglades. It can find a billion for the Klamath

River Basin. We are not such a poor nation that we must destroy

species and ecosystems, nor are we rich enough that we can afford

to. We are a rich enough nation to fairly compensate those who are

adversely affected by changes in government policies pertaining to

Native American tribal rights, the conservation of fish and wildlife,

and the globalization of trade. Thank you for the opportunity to

testify.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Kerr follows:]

Statement of Andy Kerr, Senior Counselor, Oregon Natural Resources

Council

My name is Andy Kerr. I am Senior Counselor to the Oregon Natural Resources

Council. ONRC has been involved in conservation issues in the Klamath River

Basin for a quarter century. I have been involved as long, serving as a field representative, conservation director, executive director and now senior counselor.

I won’t talk today about the causes of the water crisis, other than to quote Oregon

Governor John Kitzhaber:

The current water crisis in the Klamath Basin has been 150 years in the making

and serves as a reminder to us all that we are stretching our natural resources

97

beyond their limits. Even in a normal year, the water in the Klamath Basin cannot

meet the current, and growing, demands for tribal, agricultural, industrial, municipal and fish and wildlife needs.

Agriculture was in trouble long before the combination of record drought and the

Endangered Species Act came into play.

Implementation of the government’s official biological opinions—on Klamath

Project operations and their affect on the federally listed coho salmon, bald eagle,

and two species of mullet—are projected to result in water conflicts between agriculture and endangered species, an average of six years out of ten. Not all years

will be this bad with had a snowpack less than one-quarter of average.

These biological opinions detail the minimum amount of water necessary in the

lake and the river to prevent the extinction of these species. They do not specify

the water levels and flows—and the water quality—necessary to recover the species

so the protections of the Endangered Species Act are no longer necessary, let alone

the level to return salmon and mullet to healthy harvestable surpluses.

The State of Klamath Basin Agriculture

I do want to touch on the causes of the farm crisis in the Klamath Basin. First,

it’s marginal as farmland. It’s at 4,000-feet elevation where frosts stay late and

come early. Second, it’s heavily subsidized farming, more so than most other farmlands in this nation. Besides the plethora of farm subsidy programs, both deliveries

of the water and the electricity to pump it are heavily subsidized by taxpayers and

ratepayers.

Currently project farmers are paying 0.6 cent/kilowatt hour. I’m currently paying

ten times that at my home and anticipate a rise in October of around 50%. When

the contract for electricity expires in 2006, project farmers electricity costs will increase by a factor of ten to thirty.

The North American Free Trade Agreement, the General Agreement on Tariffs

and Trade and the World Trade Association have caused more damage to Klamath

Basin agriculture than the Endangered Species Act ever could. Farming is in decline

in the basin due to market conditions—not a shortage of water, whether due to

drought or the Endangered Species Act. Processing plants for sugar beets and horseradish have closed. Canadian potatoes, Chinese onions, and Mexican sugar are

flooding into this country. With Congress poised to approve the Free Trade Agreement for the Americas, it will be NAFTA times two. The globalization of trade may

be beneficial to the nation’s economy as a whole, but it has been mostly disastrous

to farming in the Klamath Basin.

As it has been practiced in the Klamath Basin, farming is not economically, let

alone environmentally sustainable. Nationally, 48% of farm income is coming from

the federal taxpayers. Locally, potatoes are being raised more for the government

subsidies than the market. Klamath Basin farming is in trouble; but in reality, the

Endangered Species Act (ESA) is the least of their problems.

The Wrong Path: Attacking the Endangered Species Act

Attacking the Endangered Species Act is a poor strategy for the ‘‘give-me-wateror-give-me-death’’ crowd. First, as noted previously, it would be more on target to

attack the North American Free Trade Agreement.

Second, seeking to invoke the Endangered Species Committee (the so-called ‘‘God

Squad’’) is a bad idea. I was involved in the last time the God Squad was invoked

by George Bush the elder. It did not work out well for either the timber industry

or the Administration. In that case, large amounts of old-growth logging profits were

involved. In this case, any ‘‘profits’’ are derived only from the result of massive federal subsidies. In that case, it was ‘‘timber jobs versus the spotted owl.’’ In this case,

the political debate will be framed as subsidized federal farmers raising crops at a

price above market value, versus commercial fishers, Native Americans, endangered

Pacific salmon, and the nation’s national bird, the bald eagle. To win an exemption

from the Endangered Species Act, the God Squad would have to find that the harmful activity economically imperative and no alternatives exist. Our attorneys are

salivating at the prospect of the invoking the God Squad in this case.

Third, the God Squad cannot override tribal rights, the Clean Water Act, the National Environmental Policy Act or other federal law.

Fourth, it would be a futile political effort to gut the Endangered Species Act. It

has been tried numerous times by opponents with a much better set of legal and

political facts than in this case. Unfortunately, each time controversy arises about

enforcement of the Endangered Species Act; aggrieved parties always fancy themselves as the ones who will be the ‘‘poster children’’ that succeed in gutting the ESA.

It has not yet worked.

98

Fourth, attacking the underlying science supporting the biological opinions of the

federal fish and wildlife agencies is probably flawed strategy as well. Every Secretary of the Interior that I’ve known since the Ford Administration has tried to

substitute politics for science. The ESA is crystal clear on that point. The Secretary

must follow the law by following the science. This is not a case is not bad science,

but of science taken badly.

Even assuming that farm prices are going to increase soon and that magically the

ESA was no longer an issue—exercises in irrational exuberance—, the environmental issues of the basin do not go away. Poor farming and other management

practices have resulted in not only a severe lack of water quantity for fish and wildlife, but atrocious quality. In the late summer, the pH in parts of Upper Klamath

Lake can be comparable to that of dishwashing detergent. The water that returns

to the Klamath River is high in nitrogen and phospherous carried in from fields

ladened with pesticides. The need for enforcement of state water quality rules under

the federal Clean Water Act is undeniable.

The Right Path: Just Compensation

Having said this, I am here today to suggest a difference course than the one of

endless litigation and listings. Instead I offer a proposal that was developed by conservation and farming interests in the Klamath Basin. This joint-proposal balances

farming and conservation (see A Voluntary Demand Reduction and Resource Enhancement Program for the USBR Klamath Project, attached). Specifically it would:

1. Acquire lands or interests in water from willing sellers for fish and wildlife purposes, or for the establishment of replacement lease lands, so commercial farming

can end on the national wildlife refuges.

2. Provide for the acquisition from willing sellers to re-reclaim lake, wetlands and

streams for natural water storage and cleansing.

3. Ensure that federal funding of local governmental units is maintained.

4. Provide for economic transition assistance grants for local governmental units.

It is proposed—in addition to the payment of fair market value for the land’that

a transition payment also be made, both of which would total $4,000/acre. To put

this in perspective, before the water was cut off in this severe drought year by a

combination of an Act of God and an Act of Congress, such lands were worth perhaps $2,500/acre. Prices have plummeted since then. $4,000/acre is 60% above the

former market value.

Precedent for such compensation exists. The federal government has bought down

commercial fishing fleets. It is considering paying tobacco farmers to get out of tobacco farming.

The benefits to remaining farmers of this joint proposal would be immense. With

the reduction of water demand by reducing the amount of irrigated agriculture and

the concurrent increase of natural storage by the re-reclamation of reclaimed and

abused lands, irrigated water supplies will be much more reliable than today—perhaps even enough to cope with a severe drought year like this one.

Conservationists negotiated this proposal will local landowners; most with roots

that go back generations. They are ready to sell their lands to the federal government; there is no other buyer).

Of course, $4,000/acre is not enough to compensate for the loss of a lifestyle. However, it is enough for most to get clear of the bank and have something left for retirement or for the kids college fund. This $4,000/acre figure can be justified to taxpayers as a savings over the current system of farm subsidies for these lands. More

importantly, it is the right thing to do.

Some of the landowners we worked with to negotiate this deal asked to testify

today, but were told the witness list was already full. Others are afraid to speak

up publicly about their desire to sell. Many would have sold years ago if their had

been any market. Some are old, others are tired of losing money, others are tired

of the uncertainty of farming these days. I’m sorry to have to note that these willing

sellers have been verbally abused and threatened for their stance by some of their

neighbors. One would have thought that one of the most basic of property rights

is the right to sell it.

Conclusion

This joint proposal is ecologically rational, economically efficient, fiscally prudent,

socially just and politically pragmatic. It has both the broad and deep support of

the conservation community. I believe it to be a breakthrough in the thinking of

conservation organizations. I hope that it will be a model to avoid or solve conflicts

elsewhere.

For it to be successful, this joint proposal must first gain the open support of the

landowners that wish to have the option to sell their land. It is necessary for such

99

landowners to ban together against bullies who would deny them their property

rights and their future.

My friend and Western writer, Terry Tempest Williams has stated that environmentalists must be ‘‘both fierce and compassionate—at once.’’ The Oregon Natural

Resources Council is strongly committed to this proposal with its: • just compensation for affected landowners;

• commitment for community economic transition assistance; and

• maintaining federal contributions to the revenues of local governmental units.

The conservation community will use all of our powers of persuasion and political

influence to see it enacted into law. There is only one specter on the horizon that

could diminish our capacity to work for this joint proposal. If the conservation community has to instead use its resources to defeat yet another attack on the Endangered Species Act, our ability to advocate for this proposal will be diminished.

For this proposal to be enacted, it must pass Congress. It is up to the Oregon and

California congressional delegations to lead the way.

The conservation community sees the Klamath River Basin as the ‘‘Everglades of

the West’’. (see The Klamath Basin’s Wildlife Abundance, attached). The federal and

state governments have committed tens of billions of dollars to restore the Everglades. It can find a billion for the Klamath River Basin. The joint-proposal I am

offering today is an important component to conserve and restore this great natural

wonder and also provide economic justice to those affected by changing government

policies. (See Blueprint for Restoration of the Klamath Basin, attached.)

We are not such a poor nation that we must destroy species and ecosystems, nor

are we so rich that we can afford to. We are a rich enough nation to fairly compensate those who are adversely affected by changes in government policies pertaining to Native American tribal rights, the conservation of fish and wildlife, and

the globalization of trade. Thank you for this opportunity to testify.

A VOLUNTARY DEMAND REDUCTION AND RESOURCE ENHANCEMENT PROGRAM FOR

THE USBR KLAMATH PROJECT

This proposal was jointly created by an ad hoc committee of environmental, community, economic and landowner interests during a series of meetings in the Klamath Basin.

Below are conceptual elements for a voluntary land and/or water use sale program

for landowners being served by the United States Bureau of Reclamation’s Klamath

Project in Oregon and California. This proposal would also provide for the voluntary

acquisition of lands, water rights and/or federal grazing privileges in the Klamath

River Basin. Details would be filled in during consideration of the proposal by Congress.

1. The federal government, through the USDA Farm Services Agency, would offer

to purchase irrigated farmland or a non-irrigation conservation easement in the US

Bureau of Reclamation’s Klamath Project from willing sellers at appraised value.

For efficiency, individual appraisal of each eligible parcel will not be required. Rather the US Government would conduct statistically representative sample appraisals

and apply the results to all lands within the project area. A similar process would

be used to determine the value of the non-irrigation conservation easement, using

January 1, 2001 as a reference date.

a. Voluntary Land Sale. This voluntary land sale program would apply to deeded

acreage directly associated with irrigated farmlands in the Klamath Irrigation

Project. It would not include homes or other buildings, improvements or equipment.

b. Voluntary Sale of Non–Irrigation Conservation Easement. The easement would

apply to irrigation of the land by any means, and not limited to the use of project

water. A landowner choosing to sell a non-irrigation conservation easement would

be compensated in the amount of the difference between the market value of the

land with a reliable source of irrigation water and comparable land without irrigation water.

2. The closing date opting into the voluntary sale program will be 90 days after

enactment of the law. The USDA Farm Services Agency would regularly publish information pertaining to participation in the program, including publication in a local

newspaper and on a web page. Due to the potential interest in the voluntary sale

program and limits on the amounts of funds appropriated by Congress each year,

it may be necessary to implement the program over a several-year period. Priority

for acquisition would be based on dire financial need as determined by criteria developed by the FSA. For the period between when participating landowners opt into

the program and the transaction is completed, annual compensatory payments will

be made to landowners to not irrigate their lands.

100

3. The sellers of lands in this willing seller program outlined in provision 1(a) will

also receive an economic transition payment in the amount of $4,000/acre minus the

appraised value of the land. The transition payment would only be available for

those farmlands that are thereafter used in a manner that precludes their future

eligibility for all United States Department of Agriculture programs, now in effect

or later established, except for those lands specified under provision 6(a).

4. Landowners eligible for this program must have been the owner of record on

January 1, 2001. The eligibility date is necessary to preclude lending institutions

or speculators from benefitting from the recent financial misfortunes of others.

5. Those parcels of lands purchased by the federal government that are appropriate for inclusion into a unit of the National Wildlife Refuge System shall become

part of the Tule Lake, Lower Klamath units or new refuges established for this purpose. Such holdings must generally meet criteria for inclusion in the National Wildlife Refuge System.

6. Those parcels of lands purchased by the federal government that are not appropriate for inclusion into a unit of the National Wildlife Refuge System shall either:

(a) Be granted to an appropriate local governmental body for the purposes of replacing lease farming lands on the Tule Lake and Lower Klamath National Wildlife

Refuges. Operational control and the revenue stream therefrom will be granted to

appropriate local governmental bodies. Revenues from the lease program will first

go to offset tax revenues comparable to those currently generated by refuge lease

lands. Additional revenues may be used by the appropriate local governmental body

to offset management costs. The amount of land to be used for this purpose is equal

the amount of lease farm lands currently on the refuges. In the event that farming

does not occur on a parcel of land for five years, operational control of that parcel

shall revert to the United States. The acreage limit for this new lease lands is equal

to the acreage currently being leased for commercial farming on the national wildlife refuges. Water interests associated with new lease lands shall retain the same

legal status as when privately held.

(b) Be administered in a custodial state to minimize soil erosion, pending final disposition. After the acreage of lands in provision 6(a) have been met, the remaining

lands may be used by the US Fish and Wildlife Service to either: (1) exchange for

other lands owned by willing parties; or (2) sell with the proceeds being devoted to

acquiring other lands from willing sellers. In either case, such lands would be included in the National Wildlife Refuge System within the Klamath River Basin of

Oregon and California.

7. The Kuchel Act pertaining to the management of the Lower Klamath and Tule

Lake National Wildlife Refuges would be repealed. The refuges would be managed

just as other units of the National Wildlife Refuge System. The water rights associated with the lease lands within the refuges will remain with the land and be used

for the purposes for which the refuges were established. The water rights shall be

transferred to refuge purposes in such a manner as to maintain the 1905 priority

date and the US Bureau of Reclamation shall give the same preference to the refuges as it previously gave to irrigation contracts covering said lands.

8. Except for the new lease lands described in Section 6, the water rights now

attached (or that may become attached as a result of adjudication) to the parcels,

or non-irrigation conservation easements in this voluntary land sale program, would

be transferred to the US Fish and Wildlife Service which will be used to meet the

purposes of refuges and for the benefit threatened or endangered species in the

Klamath River Basin. These species include the northern bald eagle, coho salmon,

the Qapdo (‘‘kup-tu’’, or shortnosed sucker), C’wam (‘‘tshuam’’, or Lost River sucker)

and other species that may be listed in the future. This includes lands that are

added to the National Wildlife Refuge System or those managed in a custodial state

pending final disposition.

9. $100,000,000 would be made available for the acquisition from willing sellers

of appropriate lands and/or water rights from lands in the headwaters of the Klamath River Watershed, excluding the Klamath Project, or in the Scott and Shasta

Valleys. This would include lands and interests in lands around Upper Klamath

Lake, Klamath Marsh and tributaries to the lake and marsh that are suitable for

re-reclamation as lake and/or wetlands, riparian restoration and for instream flow

and lake and marsh level enhancement. It would also include appropriate lands in

the Scott and Shasta Valleys in California. Such funds could also be used for the

voluntary retirement of federal grazing permits. The result of such acquisitions

would be to both increase the storage capacity and improve the water quality of the

lake and marsh, and help meet tribal reserved water rights from instream flows in

the tributaries and the lake and marsh. Doing so will increase the amount of water

available for endangered species and tribal trust obligations, thereby increasing the

101

probability of adequate water being available to landowners who choose not to elect

to participate in the Voluntary Land Sale Program.

10. Tax revenues to local jurisdictions lost by participation in the voluntary sale

program will be replaced by the federal government. Revenues from those lands that

become part of the National Wildlife Refuge System will be mitigated via the Refuge

Revenue Sharing Act in a way that fully funds the program. For those lands temporarily held by the US Bureau of Reclamation, the federal government would pay an

amount to local taxing districts equivalent to what was being paid on January 1,

2001.

11. Federal transition assistance grants will be made to affected and eligible local

government units. Such grants could be used for mitigating the impacts of the results of the voluntary sale program and/or to assist communities in preparing for

the post-sale program period. The amount available for such grants will be specified

in the legislation after consultation with local government units. The administering

agency would be the USDA Farm Services Agency.

It is mutually understood that this is a proposal to Congress to help resolve both

the chronic and acute crises affecting farming and fish and wildlife in the Klamath

Basin. For a voluntary land sale program to become law, Congress must develop a

final package that it finds to be in the national interest. Changes to this proposal

are inevitable. The greater degree of participation by project landowners, and the

greater the support by local government and other community interests, the greater

the possibility that this proposal—or something close to it—will be enacted into law.

Finalized this 9th day of June, 2001.

Endorsers

Concerned Klamath Project Landowners

Oregon Natural Resources Council

Water Watch

Northcoast Environmental Center

World Wildlife Fund (Klamath–Siskiyou Ecoregion Project)

Siskiyou Regional Education Project

Kalmiopsis Audubon Society

Lane County Audubon Society

Oregon Watersheds

Audubon Society of Corvallis

Salem Audubon Society

Golden Gate Audubon Society

Rogue Valley Audubon Society

Cape Arago Audubon Society

Oregon Natural Desert Association

Rogue Valley Audubon Society

Cape Arago Audubon Society

Soda Mountain Wilderness Council

California Wilderness Coalition

Center for Biological Diversity

Northwest Environmental Advocates

Umpqua Watersheds

Klamath Siskiyou Wildland Center

California Trout, Inc.

Friends of Del Norte County

Concerned Friends of the Winema

Endangered Species Coalition

Northwest Environmental Defense Center

Headwaters Inc.

THE KLAMATH BASIN’S WILDLIFE ABUNDANCE

BY OREGON NATURAL RESOURCES COUNCIL

The statistics of former wildlife abundance (and decline) in the Klamath River/

Basin have been well documented and noted in numerous US Fish and Wildlife

Service (USFWS) and other agency publications. In 1994, the USFWS office in

Klamath Falls wrote, in describing the need for habitat restoration, that ‘‘113 out

of 410 wildlife species identified in the Klamath Basin are considered to be of concern or at risk.’’ More over, for the entire Klamath/Central Coast Ecoregion there

are ‘‘197 species that are considered sensitive (i.e. federal category species or species

which are considered sensitive or species of concern by Oregon and California.)‘‘—

102

Klamath/Central Pacific Coast Ecoregion Restoration Strategy–USFWS, Volume 4,

January 14, 1997.

Much of the reason for these declines is due to habitat loss. Page 1–2 of the July

1995 Wood River Wetland Resource Mgt. Plan, for example notes that particularly

in the ‘‘upper’’ Klamath Basin , ‘‘wetlands have been reduced from over 350,000

acres prior to 1905 to less than 75,000 acres today due to agricultural conversion...and other human changes to the landscape (USBR 1992).’’

Yet, overall, the entire Klamath River/Basin still remains one of the richest biological areas in North America (and elsewhere in much of the world) for two major

reasons:

First, the area is geologically very old compared to most of western North America, having been covered continuously by vegetation for at least the last 65 million

years (the entire Cenozoic Era). Thus, the basin has been a refugium for species destroyed in other areas by submergence, glaciation, desiccation, or lava flows. For example, the Siskiyou Mountains, in the lower river/basin, has the highest known diversity of conifer species: a 1-square mile area in the Sugar Creek Drainage of the

Klamath National Forest has 17 species of conifers.

Second, just to the west of Klamath Falls is a zone where four major bioregionsthe Cascadian, Californian, Great Basin and Klamath/Siskiyou Mountains all converge—supporting plant and animal species from all four regions. This meeting of

biological regions is very pronounced in the Soda Mountain area located mostly

south of Hwy. 66 between Klamath Falls and Ashland. To protect this particular

area’s superior ecological and scientific values President Clinton last summer designated this area the Cascade Siskiyou National Monument.

Some of the wildlife species we particularly find in the upper basin, such as

White-faced Ibis, American White Pelicans, Red-neck Grebes, Snowy Egrets, Least

Bittern, Green Heron, Ring-neck Duck, Yellow Rail, Pronghorn Antelope, Western

Pond Turtle, Oregon Spotted Frog and others occur in the Klamath Basin and area

wildlife refuges at what is generally the western, northern or eastern extremes of

their broader breeding range.

Protection of these species in their Klamath Basin wetland habitats is thus important, because individuals and populations at the edge of a species range are important for the viability of the species. Individuals and populations at the edge of a species range often possess the genetic constitution that expands the adaptive capability of the species. This capability affords the species protection from random catastrophic events and enhances its ability to adapt to large-scale disturbance.

As for overall historical abundance, most recently, the USFWS’s January 2000,

‘‘Programmatic Environmental Assessment of Klamath Basin Ecosystem Restoration

Office Projects 2000–2010’’ quoted E.D. Cope’s 1884: ‘‘On the fishes of the recent and

Pliocene lakes of the western part of the Great Basin’’ (who was also author of a

1879 American Naturalist article titled: ‘‘The fishes of Klamath Lake.’’) Dr. Cope

wrote: that Upper Klamath Lake sustained ‘‘a great population of fishes’’ and ‘‘was

more prolific in animal life’’ than any body of water known to him at that time.

In regards to waterfowl, an April 20, 1956 USFWS publication (and report to the

Secretary of Interior): ‘‘Plan for Wildlife Use of Federal Lands in the Upper Klamath

Basin’’ stated: ‘‘About 80 percent of all the waterfowl of the Pacific Flyway funnel

through the Upper Klamath River Basin in their annual migrations. In the Fall of

1955, for example, there were at one time upward of 7,000,000 birds on Lower

Klamath and Tule Lake National wildlife Refuges in the Basin. This is the greatest

concentration of waterfowl in North America and probably in the world.’’

While no one was counting much before then, it is estimated there were even

more birds earlier in that century. Thomas C. Horn, the Klamath Basin National

Wildlife Refuge manager in 1957 wrote: ‘‘At the time the area was made a refuge,

in 1908, literally clouds of birds of many species darkened the sky; the thunder of

their wings was like the roar of distant surf, and their voices drowned out all other

sounds.’’ Similarly, William Finley wrote in The Condor, 1907, in an article titled:

‘‘Among the Pelicans’’ of Lower Klamath as a ‘‘jungle‘‘of tules, an ‘‘impenetrable

mass’’ with numerous floating islands supporting a total of ‘‘four to nine thousand

while pelicans, one of the biggest breeding colonies anywhere.’’

Despite all that has been lost, the Klamath Basin today still represents the largest interior freshwater wetland west of the Mississippi River, and for that reason

can well be termed the ‘‘Everglades of the West.’’

103

BLUEPRINT FOR RESTORATION OF THE KLAMATH BASIN

PREPARED BY A COALITION FOR THE KLAMATH BASIN

JUNE 16, 2001

A Coalition for the Klamath Basin is an alliance of local, regional, and national

organizations dedicated to protecting and restoring the Klamath Basin. Members include Klamath Basin Audubon Society, Klamath Forest Alliance, Oregon Natural

Resources Council, Pacific Coast Federation of Fishermen’s Associations, Institute

for Fisheries Resources, Sierra Club–Oregon Chapter, The Northcoast Environmental Center, The Wilderness Society, and WaterWatch of Oregon.

The Klamath Basin is one of the nation’s great ecological treasures. Considered a ‘‘western Everglades,’’ this area in southern Oregon and northern California once

contained some 350,000 acres of shallow lakes and wetlands (only 75,000 acres of

which exist today). The 200-mile long Klamath River was among the most productive salmon and steelhead rivers in the West. The upper basin is home to remarkably large native trout, and once contained thriving populations of spring chinook

salmon, steelhead, and Kuptu and Tshuam (Lost River and Shortnose suckers).

These fish once provided a major source of food for Native Americans. The Klamath

Basin attracts nearly 80% of the birds migrating in the Pacific Flyway and supports

the largest seasonal concentration of bald eagles in the lower 48 states.

While water is vital to maintaining the ecological integrity of the Klamath Basin,

fishery dependent economies, and tribal trust resources the dominant use of water

in the Klamath Basin has historically been irrigated agriculture. To date more than

75% of the Basin’s wetlands have been drained and converted to agriculture. Damming and diversion of rivers and draining of wetlands have taken an enormous toll

on the Basin’s ecology. Hydrology of the Basin has been radically altered and water

quality has been severely degraded. These conditions have contributed to the decline

of ESA listed species, the failure of streams and lakes to meet water quality and

temperature standards, the failure to meet native American hunting and fishing

rights, and insufficient water to maintain the wetlands on the basin’s national wildlife refuges. Thousands of fishing dependent jobs have been lost as a direct result

of salmon declines in the Klamath Basin.

Federal assistance and support will be needed in resolving the numerous issues

and conflicts over water in the basin. We need to do what we can to reduce the economic hardships this year’s drought has brought on Klamath Basin farmers without

sacrificing the incredible resources of Klamath Lake, the Klamath River, and the

Klamath Basin Refuges. The Coalition hopes that careful consideration will be given

to the actions outlined below so that the ecological wonders of the Klamath Basin

will be preserved and restored.

1. Reform Management of the Klamath Project. The Klamath Project should be

managed to meet the river flow, lake-level and refuge water requirements as set

forth in the applicable biological opinions and ultimately should seek means to meet

the full water requirements of the refuges for ducks, geese, eagles and other wildlife, while recovering fish species to harvestable levels.

2. Fund and Implement a Voluntary Demand Reduction Program. Water has been

severely over allocated in the Klamath Basin. Any meaningful long-term solution

will require considerable downsizing of the Klamath Project and the retirement of

many other water rights throughout the basin. There are currently tens of thousands of acres for sale in the Klamath Basin. A voluntary program to give financial

assistance to the farmers, who want to sell their lands, by buying their lands at a

fair price would be an equitable way to reduce agricultural demand, while giving

more security to those who want to stay in business. A federally funded buyout program should be developed and implemented in this regard.

3. Terminate Refuge Lease Land Farming. The lease of 20,000 acres of federal refuge land in the Tule Lake and Lower Klamath National Wildlife Refuges for commercial agriculture should be terminated. This would allow management of these

lands for fish and wildlife, eliminate the use of pesticides on the refuges, allow refuge personnel to devote more time to refuge management, help secure a reliable

source of water for refuge purposes, and ease the irrigation season water demands

on the Klamath Project.

4. Restore Fish and Wildlife Habitats. Although fish and wildlife habitats have

been degraded throughout the Klamath Basin, it remains one of the few major river

systems in the US where substantial restoration is still possible. Reclaiming and restoring wetlands, especially in the Lower Klamath and Tule Lake Wildlife Refuge

areas and around Upper Klamath Lake, are important to obtaining a more natural

hydrological regime, improving and increasing fish and wildlife habitat, and improvVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00107 Fmt 6633 Sfmt 6621 73135.TXT HRESOUR1 PsN: HRESOUR1
104

ing water quality. Riparian areas need to be protected and restored. Dams and diversions need to be screened and provided with appropriate fish passage facilities,

or removed. The water retention and flow regulation capability of upland forested

ecosystems need to be restored through reforestation, canopy retention and work to

reduce the impact of extensive unpaved road systems.

5. Meet Water Quality Standards. The Klamath River and several of its tributaries have been listed as water quality ‘‘impaired’’ under the Clean Water Act.

Total maximum daily loads (TMDLs) should be established and implemented for the

impaired streams and plans should be developed and implemented to meet water

quality standards.

6. Implement Water Conservation Measures and Improve Water Management.

There should be a thorough analysis of irrigation needs in the basin. Opportunities

for improving conveyance system and on farm efficiencies should be carefully assessed, funded, and implemented. Water use measuring and reporting need to be

required, and an active enforcement program needs to be implemented.

7. Augment Water Supplies. Every effort should be made to evaluate water supply

augmentation possibilities and environmentally sound projects should be funded and

implemented.

Mr. POMBO. Mr. Solem.

STATEMENT OF DAVID SOLEM

Mr. SOLEM. Mr. Chairman and members of the Committee, my

name is David Solem. I’m the manager of the Klamath Irrigation

District and the director of the Klamath Water Users Association.

Thank you for the opportunity to testify here today on behalf of the

Association. The Association represents nearly all of the water districts in the Klamath Project.

On April 6, the Bureau of Reclamation issued a 4-1/2 page operation plan. Two sentences apply to the project irrigation from

Upper Klamath Lake. I’d like to read those. ‘‘Due to the requirements of the biological opinions in the ESA and the current

drought conditions, only limited deliveries of project water will be

made for irrigation. As a result, current conditions indicate water

deliveries to farms and refuges within the project service area will

be severely limited.’’ That’s it. No options, no alternatives, no

water.

The reallocation of water as called for by Federal officials is causing tremendous hardship in the community. Farmers and ranchers

are scrambling to drill wells or block up drain ditches, just to get

the irrigation in order to salvage something from their fields. Their

situation is getting worse by the day. Established hay fields and

pastures are dying, livestock is running out of water, top soil is

blowing away, and there is no certainty that the three species for

which our water has been taken will even benefit from it. Many

have been sympathetic about our situation, but sympathy doesn’t

pay the mortgage, the grocery bills or our kids’ education. This

mess must be fixed before the damage goes any further.

The reckless and irresponsible implementation of the Endangered Species Act by U.S. Fish and Wildlife Service, the National

Marine Fishery Service, will have disastrous human and environmental impacts for years to come. I understand the requirement

under this law to prepare reasonable and prudent alternatives to

protect threatened and endangered species. Is it reasonable and

prudent to devastate an ecosystem relying upon agriculture for

over 100 years?

105

It is not reasonable and prudent to deprive an irrigation project

of its water supply, to cause property values to drop, to cause jobs

to be lost, and to force families into bankruptcy. Please tell me how

it is reasonable and prudent to operate an irrigation project without water. I believe our situation can be resolved, but in the long

run this crisis illustrates all too well why the Endangered Species

Act must be amended. No one should fear an independent peer review of all science.

In an attempt to deflect criticism of the Federal decision, some

are now blaming the drought for this crisis. Drought is not to

blame. There is no question the snow pack is low and water supplies are severely limited. The fact is, however, irrigation of lands

in the Klamath Project will be seriously impacted in all but the

most extreme wet years due to the demands of the biological opinions. These demands require the Project to provide more water

than is available. Earlier this week, over 1,700 cubic feet per second was being released from Upper Klamath Lake down the Klamath River. The inflow to Upper Klamath Lake was roughly 200 cfs.

Average inflow to the lake is 1,400 cubic feet per second.

Is sending over eight times the inflow of Upper Klamath Lake

down the river reasonable and prudent in a drought? It clearly

shows that NMFS is taking water that was stored for project irrigation. Total flows below Iron Gate Dam from April through September this year will be roughly twice the level of flows required

in the drought of 1994, and three times as much as the drought

of 1992.

Upper Klamath Lake levels required by the U.S. Fish and Wildlife Service are roughly 3 feet higher in September 30th this year

than in the drought years of 1992 and ’94. Is it reasonable and prudent to take an additional 200,000 acre feet away from Project

farms and ranches in a drought? Here again, it’s clear the agencies

are taking water that was stored for irrigation purposes. If the requirements for the two sucker species and for Coho salmon were

relaxed even slightly, there would be water supplies for agricultural purposes and for the wildlife refuges. So clearly, it is not the

drought that has created this crisis.

Over-allocation of water supplies has also been cited as justification for taking project water. The only over-allocation in this Basin

is the over-allocation for environmental purposes this year. In an

average year, farmers in the Klamath Project use approximately

400,000 to 500,000 acre feet, less than evaporated off these lands

prior to the development of the Project. The Klamath Basin overall

produces 10 to 20 million acre feet of water going to the ocean after

irrigation diversions have been taken out. Our water use is but a

fraction of the water in the Basin. Nonetheless, the two agencies

are not restricting any use of water outside the Klamath Project.

Why? This is an example of the inequity of the Federal decision.

Why have they not required even other Federal agencies outside

the Project to restrict water use.

I urge the Committee, Congress, and the administration to take

the following steps to undo the damage caused by the two Federal

agencies to our communities. First, farmers and ranchers in the

community must be provided adequate financial assistance for the

water taken from them this year. I urge Congress to increase the

106

$20 million now included in the Supplemental Appropriations Bill.

While it is appreciated, that amount is inadequate to mitigate all

of the financial impacts the Federal decisions caused. Of course, we

would prefer to have our water supplies instead of any Federal

fund.

Second, the administration must conduct an independent peer review of the science, and I think that’s been discussed in detail here

today. Third, the Department of the Interior should complete an

EIS for the long-term operations of the Klamath Project. The effort

now underway must be withdrawn or modified, because it is tied

to these biological opinions and will reflect all of their flaws as

well. A new effort worthy of the seriousness of these issues must

begin with congressional oversight. Fourth, Congress should appropriate funds for on the ground restoration measures, such as the

‘‘A’’ canal fish screen. A pilot oxygenation project in Upper Klamath

Lake and modifications to Chiloquin Dam would also be good

projects.

I believe farming and a healthy environment are compatible in

the Klamath Basin. The people who rely on this project have fulfilled their commitment to the U.S. By working hard to build a successful community and to protect the species dependent upon it.

Now it’s the Federal Government’s turn to fulfill its commitment

to us.

[The prepared statement of Mr. Solem follows:]

Statement of David Solem, Manager, Klamath Irrigation District

Mr. Chairman and members of the Committee, my name is David Solem. I am

the manager of Klamath Irrigation District and a director of the Klamath Water

Users Association. Thank you for the opportunity to testify here today on behalf of

the Klamath Water Users Association. Our association represents nearly all of the

water districts in the Klamath Irrigation Project.

Words cannot begin to describe the anguish that has befallen our community in

the last 70 days. Look in the faces of the people here today - you’ll see pain, frustration and disappointment. The Klamath Project, once an unparalleled example of individual accomplishment and western development, has been turned upside down

due to being blamed for all of the environmental problems in the Klamath Basin.

The reallocation of water, called for by federal officials, is causing tremendous

hardship in our community. And our situation is getting worse by the day. Crops

are dying, livestock are running out of water and feed, topsoil is blowing away, and

there is no certainty that the three species for which our water has been taken will

even benefit from it. Many have been sympathetic about our situation. But sympathy doesn’t pay the mortgage, the grocery bills or our kid’s education. This mess

must be fixed before the damage goes any further.

The reckless and irresponsible implementation of the Endangered Species Act by

U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service

(NMFS) will have disastrous human and environmental impacts for years to come.

I understand the requirement under this law to prepare ‘‘reasonable and prudent

alternatives’’ to protect threatened and endangered species. But where does the law

say it reasonable and prudent to take water from thousands of families to meet politically motivated goals? Is it reasonable and prudent to devastate an ecosystem

that has relied upon agriculture for over 100 years? It is not reasonable and prudent

to deprive an irrigation project of its water supply, and to cause property values to

drop, jobs to be lost, and families to face bankruptcy. Please tell me how it is reasonable and prudent to operate an irrigation project without water.

Aside from the terrible damage this decision has caused our community, there are

significant legal and scientific problems related to the federal effort to protect the

Lost River sucker, the shortnose sucker and the coho salmon. The record is clear

that these problems include the manipulation of science and the abuse of the scientific process. Many of these problems are described in a report our association

prepared earlier this year; ‘‘Protecting The Beneficial Uses Of Waters Of Upper

107

Klamath Lake; A Plan To Accelerate Recovery Of The Lost River And Shortnose

Suckers.’’ There are also serious financial implications from the decision. How ironic is it

that we are spending our hard earned dollars to defend ourselves from a bureaucracy that our tax dollars supports? This is insulting.

I believe our situation can be resolved by the Administration. But in the long run,

this crisis illustrates all too well why the Endangered Species Act must be amended.

The law must require independent peer review of all science. And it should require

the U.S. Secretary of Interior must approve any action that will cause severe economic impacts.

In regard to our situation, it seems the agencies are more interested in harming

the Klamath Project than protecting the species.

Since the two sucker species were listed in 1988, the Klamath Water Users Association has attempted to work cooperatively with the USFWS to improve habitat for

these native fish. In 1993, we prepared a comprehensive recovery plan that the

USFWS promptly ignored. Over the years, we supported numerous restoration

projects, including the removal of over 20,000 acres of farmland for the purpose of

creating wetlands—wetlands the USFWS said would solve water quality problems

in Upper Klamath Lake. Each time the USFWS wanted to acquire another parcel,

they promised us that particular acquisition would solve the problem, and that it

would reduce further regulations. We supported every request. They failed to live

up to their promise—each time.

This year, we reviewed the science in their decisions and determined they were

implementing steps that could actually harm these two species, and ignoring others

that would benefit the suckers. So we prepared a new sucker restoration plan to

accelerate the recovery of these fish. The Service ignored it as well.

The situation is equally bewildering in regard to the Klamath River. For over a

decade, a disjointed course of federally funded research, dominated by tribal interests, has resulted in politically motivated fishery requirements. The Yurok Tribe describes the Hardy study on the Klamath River as ‘‘the most thorough, carefully researched and credible study yet to be produced on the flow needs of anadromous

fish in the Klamath River. As such it is the best available science to guide the federal agencies in making this decision.’’ But what was the purpose of the Hardy study? According to documents provided

by the Department of Justice, Dr. Hardy was contracted as an expert witness on

behalf of the U.S. for the Yurok Water Rights Adjudication. And for his so called

‘‘carefully researched’’ work he has been paid hundreds of thousands of dollars. To

say information prepared for tribal litigation with Department of Justice dollars is

pure, unbiased science is outrageous. It’s just one example of a process out of control.

In an attempt to deflect criticism of the federal decision some are now blaming

the drought for this crisis. Drought is not to blame. There is no question the snow

pack is low and water supplies are severely limited. The fact is, however, irrigation

of lands in the Klamath Project will be seriously impacted in all but the most extreme wet years due to the demands of the biological opinions issued by the two

agencies. These demands require the project to provide more water than is available. Earlier this week, over 1700 cubic feet per second (cfs) was being released from

Upper Klamath Lake down the Klamath River. Yet, the inflow to Upper Klamath

Lake was roughly 200 cfs. Average inflow to the lake is 1400 cfs.

Is sending over 8 times the inflow of Upper Klamath Lake down the river reasonable and prudent in a drought? It clearly shows that the NMFS is taking water that

was stored for project irrigation. Total flows below Iron Gate Dam from April

through September in 2001 will be roughly twice the level of flows required in the

drought of 1994 and three times as much as the drought of 1992.

Upper Klamath Lake levels required by the USFWS are roughly three feet higher

on September 30th than in the drought years of 1992 and 1994. Is it reasonable

and prudent to take an additional 200,000 acre-feet of water away from project

farms and ranches in a drought? Here again, it’s clear the agencies are taking water

that was stored for irrigation purposes. If the requirements for the two sucker species and for the coho salmon were relaxed even slightly, there would be water supplies for agricultural purposes, and for the wildlife refuges. So clearly, it is not the

drought that has caused this crisis.

Over allocation of water supplies has also been cited as justification for taking

Project water. The only over allocation in this basin is the over allocation of water

for environmental purposes this year. In an average year, farmers in the Klamath

Project use approximately 400,000 to 500,000 acre-feet of water, less than evaporated off these lands prior to the development of the project. The Klamath Basin,

however, encompasses over six million acres and produces 10–20 million acre-feet

108

of water. Our water use is but a fraction of the water in the basin. Nonetheless,

the two agencies are not restricting any use of water outside the Klamath Project.

Why? This is another example of the inequity of the federal decision. If these two

agencies are so concerned about these species that they have taken all of our water

supplies, why have then not done anything else? Why have they not required other

federal agencies outside the Klamath Project to restrict water use? Doesn’t the Endangered Species Act apply to areas outside the project?

Some people also argue that many of these issues were considered in recent litigation. Earlier this year, a federal court in Eugene, Oregon did not issue a preliminary

injunction as we sought in this matter. Going into that proceeding, however, we well

understood the difficulty facing the court, on such short notice, to throw out the

agencies conclusions or to find them arbitrary or capricious. That case continues. A

far better policy is for the agencies to confront reality and to be objective over how

we more forward in the Klamath Basin.

It is our hope that we’ll all first focus on the actions necessary to make this community whole. A critical part of that process is for a thorough review of all of the

actions taken to date, and those not taken, to protect the species that need our protection.

I urge this Committee, Congress and the Administration to take the following

steps to undo the damage caused by these two federal agencies to our community.

First, farmers, ranchers and the community must be provided adequate financial

assistance for the water taken from them this year. I urge Congress to increase the

$20 million now included in the supplemental appropriations bill. While it is appreciated, that amount is inadequate to mitigate all of the financial impacts the federal

decision has caused this year. Of course, we would prefer to have our water supplies

instead of any federal funds.

Second, the administration must conduct an independent peer review of the

science and the process that led to the biological opinions, including a thorough investigation of the Hardy study.

Third, the Department of Interior should complete an Environmental Impact

Statement for the Long Range Operations Plan of the Klamath Project. The effort

now underway must be withdrawn because it is tied to the biological opinions and

will reflect all of their flaws as well. A new effort worthy of the seriousness of the

issues must begin - with Congressional oversight.

Fourth, Congress should appropriate funds for irrigation districts in the Klamath

Project to begin on-the-ground restoration measures, such as the completion of a

fish screen at the ‘‘A’’ canal. Oxygenation of Upper Klamath Lake and modifications

to Chiloquin Dam would be appropriate measures as well.

I believe farming and a healthy environment are compatible in the Klamath

Basin. History will show that the people who rely upon this project have fulfilled

their commitment to the U.S by working hard to build a successful community and

to improve the habitat of these species. Now it’s the federal government’s turn to

fulfill its commitment to us.

Mr. POMBO. Thank you very much.

Mr. Foreman, Mr. Fletcher, I agree with much of your testimony.

I think the greatest mistake that I and many of my friends and

neighbors made years ago was we sat by silently when your rights

were being violated, and we—I believe all American citizens are

paying the price for that now, because we allowed it to happen. At

any time anyone’s rights are violated in this country, we all need

to stand together and fight against that, because once you establish

a pattern, once you establish a precedent that the government can

do something, they eventually will do it to you, and I think we’re

all paying the price for that right now. And I appreciate your offer

to work with all of us to find a solution, because the solution to this

problem is something that is going to involve all of those who have

a legitimate right in this situation, so I appreciate your testimony.

I thank you for being here today.

And, Mr. Solem, just to follow up a little bit on your testimony.

Now, you testified that the annual use was between 400,000

109

500,000 acre feet of water for irrigation in the valley. Is that accurate?

Mr. SOLEM. That’s correct, in the Klamath Project.

Mr. POMBO. Okay. And yet there is about—and I believe what

you said—20 million acre feet that are produced out of the watershed.

Mr. SOLEM. Correct, yes. It’s a huge watershed, 6 million acres.

The USGS reports it’s an average of about 13 million acre feet that

flow out at the ocean, and it’s been as much as 23 million acre feet

within the last few years.

Mr. POMBO. And that 13 million acre feet that you’re talking

about is not developed water. It’s not being used.

Mr. SOLEM. That’s correct. I mean, the Klamath Project is unique

in that the irrigation is on the east side of the mountains and is

a river that flows through the Cascade Divide and into the ocean.

Most of the water is generated on the west side, farther downstream.

Mr. POMBO. Okay. Can you tell me what the approximate cost of

water for farming is in this area?

Mr. SOLEM. I can tell you what the O and M costs are, if that’s

what you want. In the Klamath Irrigation District, our O and M

assessments are $25.50 per acre, per year. We have no construction

component to that. Our district paid off the construction costs in

1954.

Mr. POMBO. So it’s $25.50 per acre?

Mr. SOLEM. Correct.

Mr. POMBO. Is there a cost per acre foot, or is that just based

upon historic water rights?

Mr. SOLEM. It’s based on historical water use. The Klamath

Project, because of the integral design of the system where water

that gets past us becomes another district’s source, it doesn’t really

work in the typical per acre foot type of pricing system.

Mr. POMBO. How would you—if you needed to come up with a

value of the water that is being diverted to another use right now,

how would you come up with that value?

Mr. SOLEM. The value is really to the producer and the owner of

that land that the water is pertinent to. I mean, it’s really their

property right. The district is just the distributor. I think it’s all

of the value of the land. And maybe that’s not the answer you

want, but if we don’t have water on this land, it won’t produce, period.

Mr. POMBO. Now, maybe I can ask Mr. Bishop this question. You

used a number of figures to determine what the agricultural value

was in the valley. Would there be a way to somehow come up with

a figure as to what that water is actually worth?

Mr. BISHOP. In terms of irrigated property versus non-irrigated

property, certainly you could arrive at some kind of a number.

We’ve done studies here in the Tulelake Basin, and land values

have declined some over the last 2 years, and values for irrigated

property range from somewhere between $2,200 to $3,000 an acre.

If you take the water away from it—this is only anybody’s guess —but it could be $100 to $500 an acre. I mean, we don’t know. We

have no sales to back that up. We’re trying to figure it out ourselves.

110

Mr. POMBO. Do any of you know if anyone has sold water or

leased water on an annual basis in the recent past, and if so, what

they were able to get for that water?

Mr. SOLEM. In Oregon there really isn’t a system of marketing

like in California, so it isn’t really that type of a scenario. Bureau

of Reclamation did pay irrigators not to irrigate on an annual

basis, and those values ranged greatly, just depending on the crop

in a particular farmer’s situation. I really don’t—.

Mr. POMBO. Was that voluntarily?

Mr. SOLEM. That’s correct.

Mr. POMBO. And can you give me a range?

Mr. SOLEM. I think it ranged from somewhere from a hundred

dollars to several thousand dollars, because it really—.

Mr. POMBO. Per acre.

Mr. SOLEM. Per acre. But it was more based on crop values than

the water values.

Mr. POMBO. And that was the Bureau of Reclamation?

Mr. SOLEM. That’s correct.

Mr. POMBO. Okay, thank you. Mr. Walden.

Mr. WALDEN. Thank you very much, Mr. Chairman. Mr. Fletcher, I want to commend you for your comments today and the spirit

with which you offered them, and Mr. Foreman, you as well. You

made a comment I wanted to follow-up on, though, Mr. Fletcher,

about your belief that—if I heard you right—that other parties

should have participated. You would have welcomed—maybe is a

better way to say it—other parties participating in the Hardy discussions. Is that an accurate—

Mr. FLETCHER. Well, it’s a little different. The Hardy work and

the National Marine Fishery Service biological opinion was based

on years of different studies, years of discussion, years of efforts.

The Klamath Task Force in ’96 and ’97, of which Klamath County

is a representative in that body and can have a technical worker’s

representative, began scoping on flow issues in the entire Basin.

Hardy has extracted some of that. Hardy has shown up to the

group on a number of occasions, has offered to share and discuss

any and all the information that he has. We do studies, Fish and

Game does studies, the Fish and Wildlife Service does studies as

well, and that’s kind of a sounding group.

Now, I understand that out of the detailed, specific discussions

on Hardy, that the irrigators didn’t have an opportunity to be

there, and that should be corrected, but I—.

Mr. WALDEN. And I guess that’s the point I want to make, because one of the things I’ve learned in this processes is, not only

didn’t they have an opportunity to participate in those early discussions, they were precluded, prevented by the Federal Advisory

Committee Act, FACA.

Mr. FLETCHER. I would have a different opinion, because I sat on

the Klamath Task Force. I asked people to show up at these meetings, to have their technical people there. The Hardy study is just

one component to what NMFS considered. They considered a

Trihey study that the Yurok—.

Mr. WALDEN. But within the context of the Hardy study itself,

is it not true that the water users were excluded because of FACA?

111

I mean, that’s what the Department of the Interior has told me.

That’s what the water users have told me.

Mr. FLETCHER. Well, I know specifically—and you can look at the

Task Force minutes where Dr. Hardy briefs the Klamath Task

Force about both Phase 1 and Phase 2, and he actually says, ‘‘I’ll

be around all day. Anybody that has any questions, come ask me,’’ those type of things.

Mr. WALDEN. But the tribes were specifically included, because

you are a separate nation, right? Under the trust responsibilities

of the Department of Interior, you had an absolute right—. Mr. FLETCHER. Yeah.

Mr. WALDEN. —as you should, to participate. But I believe that

the case is that, with the waters users, they were—this came up

at a March 21 hearing back in Washington where I took the questions I got from the water users, saying, How come we can’t sit in

and participate? And it gets to the point, I think—some of us are

concerned about—you spoke about the need to have this science out

on the table throughout the process so you can participate and they

can. Isn’t that really the same case, Chairman Foreman, in terms

of the science—the scientific underpinnings of the biological opinion

on the suckers really originated through the Department of Interior

and the BIA for use for the Klamath Tribe in adjudication, isn’t

that correct? And then was shared with Fish and Wildlife at that

point?

Mr. FOREMAN. Yeah, and I’m not fully aware of the process that

was used at that point. But we do agree that everyone should participate.

Mr. WALDEN. And I guess that’s—if we’re going to make decisions of this magnitude, you can see where people get very concerned about having the feeling they’ve been shut out, either by a

Federal law, FACA, the Federal Advisory Committee Act, or some

trust responsibility the department has. But be that as it may, it

raises credibility issues, frankly, do you agree? Yeah, Mr. Fletcher.

Mr. FLETCHER. The bottom line is, I too want a crack at the

science that is on the opposing side, and I think that everybody

needs to be at the table and we need to hash that out. It’s only

going to benefit the end product. I know the FACA concerns, but

I think you need to appreciate, Hardy wasn’t the only thing looked

at in NMFS’ decision. There was a collective body of information.

Mr. WALDEN. But it was a considerable piece of it, wasn’t it?

Mr. FLETCHER. It was a considerable piece that used additional

information that was available to everybody.

Mr. WALDEN. But as you well know, there are lots of questions

about Hardy and the Hardy study still circulating out there.

Mr. FLETCHER. Yes.

Mr. WALDEN. And I think that raises another issue about using

the—I don’t remember the exact terminology—the best available

science, or commercially something or other science. Those are

issues that are coming up. What does that really mean? Whose do

you take? I appreciated Mr. Vogel’s comments about the need to

have a blind peer review process, if you’re going to have one. I can

see where, you know, you can end up with problems absent that.

Mr. Solem, if I could quickly go to you before my time expires.

I appreciate your comments, as well as some others, about the difVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00115 Fmt 6633 Sfmt 6602 73135.TXT HRESOUR1 PsN: HRESOUR1
112

ferent projects we can go do to improve habitat and all, and I want

to raise the issue about oxygenation above the Klamath Lake and

modification of potentially to Chiloquin Dam, or at least a fish passage and mitigation efforts. If we move forward, as the Bureau of

Reclamation is doing, and initially, as I’ve encouraged, to look at

oxygenation in the lake, do you have a concern that if that proves

to be beneficial to the suckers, that there is a very difficult ability

or an inability to determine whether it was the higher lake level

or oxygenation that produced the improvement? Because I don’t

want to go do something that produces improvement in the suckers’ viability and have it credited to some other thing, like the higher

lake level.

Mr. SOLEM. I understand your concern. I think we will have to

look at the design of the experiment just to see how that would

work. We are looking at doing it in deeper water as compared to

shallower water. There are short-term and long-term restoration

activities and we want to be able to look at both, because in order

for us to operate there has to be short-term restoration things that

we look at and that can benefit fish and their habitat.

Mr. WALDEN. Thank you. Thank you, Mr. Chairman.

Mr. POMBO. Mr. Gibbons.

Mr. GIBBONS. Thank you, Mr. Chairman.

First of all, I’d direct my question to Mr. Solem. And you indicated in your testimony today that the water irrigation district for

the Klamath area has fully paid for the cost of the diversion works

to the Bureau of Reclamation in, I think you said, what was that,

1934.

Mr. SOLEM. Our district paid off in 1954.

Mr. GIBBONS. ’54, thank you. Since that time, have there been

any actions with regard to the Federal Government in conveying

the title to those works to the irrigation district?

Mr. SOLEM. No, sir. The Klamath Project title still is in the Federal Government—the right of ways, the facilities—and there

hasn’t been any decision or movement to transfer those facilities.

Mr. GIBBONS. Has the irrigation district attempted to work with

the Bureau of Reclamation on acquiring the title to those works?

Mr. SOLEM. I’ve been with the district for nearly 20 years, and

it’s kind of a cyclical thing. We, about every 10 years, seem to bring

up the issue. We are currently looking at that situation again and

the possibility of transfer.

Mr. GIBBONS. Well, it would seem natural that once you’ve paid

for something, you want to receive the title to it. I think that’s

probably the premise under which it was constructed. The other

issue I have is in knowing that they are not delivering their water

to you, have they approached you in any fashion to offer you relief

from the expense of O and M on this project?

Mr. SOLEM. No, we have— I know that certain districts have

paid their O and M to the Bureau already this year. You know, we

have a contractual obligation, that we don’t want to violate our contracts, but up to this point, the $325,000 of annual O and M, the

bills have gone out from the Bureau to be paid.

Mr. GIBBONS. It seems to me that their breach of their contract

to deliver the water to you should relieve your obligation to pay the

O and M for this structure.

113

Mr. SOLEM. I would agree.

Mr. GIBBONS. I have a question also, if you could help me. Obviously, there’s some things that can be done, that you talked about

earlier, from the Bureau of Reclamation—the 10 to 15 million dollar project, including fish screens to keep fish out of the irrigation

canals. Where does that project lie? What’s its current status right

now? Is the Bureau of Reclamation coming up with the required

money, since it’s their project, obviously, to fund that program.

Mr. SOLEM. That’s a very good question, because it’s a requirement, a reasonable and prudent alternative on the funding, it’s

necessary that the funding goes along with it. To this point, there

is some money in 2002. I believe it’s 3.5 million in the Bureau of

Reclamation’s budget, so I mean, it’s clear that that’s inadequate

to construct these facilities. The problem is that the district is

going to be held to a deadline for construction of those facilities. We

have paid out of our pocket for the preliminary engineering design

and are more than ready to move forward on the final design and

get construction going, but Reclamation at this point has not been

really too forwarded in getting funding.

Mr. GIBBONS. Mr. Chairman, I would suggest that when the Bureau of Reclamation comes before us in Washington, that we do

take this issue up and make that a very pointed consideration for

our efforts back in Washington.

I want to just briefly talk with Mr. Bishop here for a second, because America probably has a very small idea of how much family

farmers put at risk on a day-to-day basis, whether it’s planting

seed in the ground and hoping that something becomes of it, to taking out a loan through your institution to help defray the costs.

Can you help us, in the brief time that I have remaining here, talk

a little bit about the risks and the costs of an average farmer, what

they have to go through, what they have to invest in? Why do they

come to you to get this loan, and then why are we so concerned because of the outstanding indebtedness of a farm or a ranch, or

something like that, when we start talking about shutting off the

water? Obviously, they’ve got a debt that has to be paid, just as the

obligation we talked about with Mr. Solem. Would you help us with

something like that?

Mr. BISHOP. We are a farmer-owned cooperative system that was

established, as I said earlier, in 1916, through the wisdom of Congress, to provide a dependable, short, intermediate and long-term

source of financing to farmers and ranchers through bad times as

well as the good times. And because we are farmer/borrower owned

and they own stock in our organization, they have something to say

about the direction of the organization and participate in governance of our organization.

They come to our organization to borrow operating funds, to buy

the seed and pay for the operating costs, to buy equipment and machinery, and to buy real estate. And we provide a very important

role, public policy role to America through being that lender that,

in the good times and bad times, can be depended upon to be here.

We have extensively used the FSA guarantees that I referred to

earlier to help us to work with farmers through times of distress.

It’s very important that that program continue to function, and

that they’re not allowed to put additional conditions on those loan

114

guarantees, that they’ve never before put on those loan guarantees,

that will enable us to stick with the farmers, restructure their

loans, perhaps re-amortize their loans, so that they won’t have to

face another payment, which would have been paid from the 2001

crops that obviously aren’t going to be there to make that installment, to allow them the time necessary to do some of the things

that have been referred to by some of the previous witnesses here

today. That’s what farm credit is all about. We are very concerned

about the farming and ranching families here. We want to do everything we can to support them.

Mr. GIBBONS. Thank you, Mr. Chairman.

Mr. POMBO. Mr. Simpson.

Mr. SIMPSON. Mr. Chairman and Mr. Bishop, I want to follow

that up just a little bit. You’re conditioning their loan reorganization, and so forth, based on a full water allocation for 2002? Do I

understand that to be the case?

Mr. BISHOP. Yes. We’ve been told that while normally the FSA

guarantee loan program would be based on normal conditions, that

perhaps this year they would be conditioned on the full water allocation, yes, sir.

Mr. SIMPSON. How can you do that when you don’t know what

the water’s going to be, what the snow’s going to be, you know,

what the conditions are going to be in 2002? So who’s going to give

that guarantee of a full water allocation? I mean, have we conditioned it on something that we can’t promise.

Mr. BISHOP. Yes, Congressman. That’s exactly my point is that

by the agency placing that condition on the loan guarantees to provide the credit enhancement that we need, the farmers don’t have

the certainty that we will re-amortize their loans. We need to start

that process immediately, so there is certainty that they’re not

going to have to pay the next installment from a crop that’s going

to be nonexistent. And that’s where we need the congressional support to work with that agency to ask them to follow their own policy and regulations when issuing these guarantees to our loans so

that we can work with the farm families.

Mr. SIMPSON. Thank you.

Mr. Solem, in the testimony that I was reading of the Pacific

Coast Federation of Fishermen’s Association, there’s a statement

that I’d like you to clear up, because we’ve talked a little bit about

whether the irrigation district paid for their project, and so forth.

They say in here, ‘‘The Project users have not paid more than

about 30 percent of the total cost of the Project since 1905, and not

even a 70 percent tax payer subsidy.’’ Which seems to be a little

bit in conflict with what you were saying. Could you explain that

difference or what it means?

Mr. SOLEM. The project debt was paid off in a variety of ways,

and there were other things that happened with this project beginning in 1905. We went through a depression. There were times

that there were some payments actually dropped during that period of time. We had land—the Klamath City Airport was actually

land within the district. That land was excluded. They didn’t require that land to pay their construction obligation for that number

of acres. I think that—you know, the other part of it is that it’s

kind of a complicated formula for Tulelake Irrigation District and

115

they went through an inability to pay. Construction payments were

paid with lease revenue from those lease lands and the agricultural

production on them. But the bottom line is those obligations have

been paid, period. There was no subsidy. And again, I think Mr.

Crawford read something that, actually in the mid-fifties, it was already generating tax revenues way in excess, from those lands, of

any investment that the government made.

Mr. SIMPSON. So to put it clearly, they have paid their obligation.

Mr. SOLEM. Absolutely.

Mr. SIMPSON. And I was interested in why, once those obligations—we have encouraged, the Congress, those Bureau of Reclamation projects to be transferred to the ownership of the districts, and so forth, and I know that’s been a slow process. Why

hasn’t this one been transferred?

Mr. SOLEM. I think one of the reasons why is the pay outs occurred at different times. Our district, the Klamath Irrigation District, is one of the first districts that paid out. You had a build-up

of the project lands. Ours started early, paid off early. Some other

lands started the development a little later—their payment.

Tulelake’s was within the last 5 years—the final payment. We also

have a little bit different situation than maybe your districts, is

there is a component of reserve works that are actually operated

and maintained by the Federal Government, even though those facilities were—there was construction payments made on them by

the districts. That’s the O and M that we continue to pay. But I

think the time is now that we do ask for transfer. But I can tell

you, the Bureau of Reclamation here said, You are going to be

fighting an uphill battle, just because of the complexities and the

issues that we’re dealing with here in the Klamath Project.

Mr. SIMPSON. Thank you.

Mr. Fletcher, in your testimony you wrote, ‘‘No one involved with

the water problems in the Klamath Basin believes that the annual

operations plans for the Bureau of Reclamation is the best way to

manage the Project.’’ You share that view. What changes would you

make in the management plans of the BOR?

Mr. FLETCHER. Well, if I were king of the—first off, the EIS

needs to be done—long-term planning. That has got to happen, because we need the same thing that I think Dave and others need.

We need certainty. You know, the worst thing is for us on an annual basis to make a migration back to D.C. to plead our case, and

then we both live with whatever comes out the back end. We have

the same problem that the irrigators do. There needs to be a good

look at the science. There needs to be an EIS that’s developed for

a long-term basis. And the longer we prolong that—because we’ve

been hearing EIS since ’95, ’96, and every year we need to get to

an EIS, but the annual crisis prevents us from getting to an EIS,

but it’s got to happen.

Concurrent with that, we’ve got to have negotiations and mediations on a bigger scale. It’s not fair, like I said earlier, that the

Klamath Project is singled out. I fully agree with that. We need to

pick on everybody equally and do what we can to fix these problems in the basin.

Mr. SIMPSON. A better way to put that might be for everyone to

share the burden.

116

Mr. FLETCHER. Okay, there you go. You know, and I can fully appreciate the frustration, because we have the same frustration. We

look above the lake and we look in the Shasta and the Scott, and

there are problems. The Scott River is dry. It’s going to go dry this

year. So I don’t think we need a peer review—you know, zero water

in the channel is not good for fish. I mean, there’s certain things

that need to be done so—. Mr. SIMPSON. And I want to echo what the Chairman said at the

first of this, that whenever we’ve seen anybody’s rights trampled

on, it’s spread to everybody’s rights. And I do share what he said,

as I have studied with Native American tribes in my district, the

problems that they’ve had, and quite frankly, the way they’ve been

treated.

Mr. POMBO. Mr. Herger.

Mr. HERGER. Thank you, Mr. Chairman. And I thank each of our

witnesses and everyone who is here today. I really do not have a

question, but I would like to make some observations, if I could.

And that is, it would appear to me that really the problem that

we have—the major problem we have is not that of the drought

and not enough water, in my opinion. We’ve had droughts before.

We have them periodically. The fish have made it, the people have

made it. Had it in ’92, we’ve had it in the seventies and the

eighties. To me, that’s not really the problem.

And I think—Mr. Chairman, I think you hit on it before in an

earlier panel when you mentioned something to the extent that the

ESA, Endangered Species Act, is not being applied the same way

in the East and the West. You gave the example that we’ve been

becoming aware of here in the last few months, on the Potomac

River in Washington D.C. where they’re literally, every month,

dumping huge amounts of toxins in the river, and our good environmental friends aren’t saying anything. As a matter of fact,

they’re ignoring it. And we have even brought it to their attention,

and they still ignore it. So we see what is clear, or it would seem

clear to me that we’re really seeing a war in the west. We’re seeing

a war on western states, and I think Mr. Kerr summed it up.

The idea is that, as someone mentioned, in this county, 57 percent of your county is federally owned. I have counties in my district that 92 percent are federally owned and 78 percent are federally owned—in the entire State of California, over half of the State.

But to our friends in the extreme environmental movement, that’s

not enough. They want it all.

And so we hear what so bothers me every time I hear it—please

excuse me, but this willing seller. I mean, we bankrupt someone,

we make it so their property is worth something, and then we force

them into either foreclosing to the bank or becoming a willing seller. And again, it seems for some reason we see it in the West, not

so much in the East where we have so many of our environmental

extreme friends seem to reside. And it’s not just here in the Klamath Basin. It’s not just with farmers.

At a levee on January 2 of 1997, very close to where I live, down

in the southern part of my district near Marysville and Naraboga

area—the Corp of Engineers in 1991 came in and said, There will

be a loss of life if this levee isn’t repaired on the Feather River.

Our good friends in the extreme environmental movement sued.

117

And Mr. Kerr, I have looked through your statement, your testimony that you have printed, and I respectfully feel very resentful

how even in your testimony one of your comments is, ‘‘Our attorneys are salivating at the prospect,’’ basically of suing, having to

do with the God Squad. Salivating. Now, I salivate on chocolate

chip cookies, but to think of salivating— It would be humorous if

it weren’t so tragically serious.

On this levee, 6 years later, 5 years later, three people lost their

lives on a levee that the extremists within the endangered species

community or the extreme environmental community, they also

were salivating to sue, and they did sue, and they sued, and they

held it up for 5 years and three people drowned there. And you

know what their comments were afterwards? Not that much different than what we’re hearing now. ‘‘We should never have built

those levees. These rivers should meander. That’s what they all

did. They were built on flood plains.’’ We should all live in the

mountains, I guess. It’s the only place in the valley that doesn’t

flood.

Somehow that doesn’t make sense, and somehow a country that

can put men on the Moon in the 1970’s—now, I’m old enough to

remember that and I’m also old enough to remember, in the earlier

1960’s, just in high school, when John F. Kennedy—we didn’t even

have air conditioning in our cars at that time, but he made a statement that we were going to not only put men on the moon, but we

going to bring them back alive. And we did that in 10 years, and

yet somehow we cannot work together to solve what challenge has

been going on for thousands of years, of droughts and floods and

everything else, so that we can both protect endangered species

and homo sapiens, humans, as well? That’s wrong. That’s tragically

wrong, Mr. Kerr. And an even though I respect you, I very much

resent— I sincerely respect you, personally, but at least the statements and what you have written here, that rather than working

together, that you salivate to sue if we should work together to try

to solve this problem, really concerns me and I think really shows

us what we’re up against. The extreme environmental community,

which evidently it would appear that you represent, has declared

war on us. And you know, we are not going to cry uncle. We’re not

going to give up. We’re going to stand up for our rights and we’re

going to win the war.

Mr. POMBO. Mr. Hastings.

Mr. HASTINGS. Thank you very much, Mr. Chairman. I want to

thank the panel also for being here. I want to add my congratulations, I guess, to Mr. Foreman and Mr. Fletcher for the tone in

which you said you wanted to work together. And I say that recognizing that there is tension between tribes and people, and that

goes on. I have two tribes in my district and there is tension that

is always about and will probably never go away. That’s part of the

challenge of a self-government in the first place. But I think the

difference in your tone, and certainly the tribes in part in my district, is that you live here, your families live here, you work here,

and you want to find solutions to the problems. That’s very hard

to come by, but the idea is the willingness to sit down to come to

common ground. And I think the trick that we have to do, the chalVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00121 Fmt 6633 Sfmt 6602 73135.TXT HRESOUR1 PsN: HRESOUR1
118

lenge that we all have is to try to find that area, those areas that

we have common agreement from the start, and work from there.

One area, for example, in my congressional district, where there

is broad agreement with the tribes—probably not unity, but certainly broad agreement—is an issue that hasn’t been brought up

here, but I know exists here to a certain extent regarding the salmon, with the debate of wild and hatchery salmon. The tribes, for example, in my district, for the most part want to see salmon return

and they’re not so hung up on the idea of whether they’re wild or

salmon because I think that they look at the science and they agree

there’s not a whole lot of difference. And just briefly, do you share

that the main concern is to try to get the fish back? Let’s not get

too hung up on the science. Is there a broad agreement with you

on that also? You’re more the salmon—. Mr. FLETCHER. I’m the salmon guy, yes. We need adequate numbers of fish to provide for a robust fishery sufficient to meet a

whole host of needs. The issue about natural versus hatchery salmon, that’s a big, long debate that there’s all kinds of issues on, but

we typically support—on the Klamath River, for example, the

Klamath Fishery Management Council is a body of commercial,

sport, Federal agencies, tribes, and we come up with the best management practices for our respective harvests. We come up with

harvest objectives, we come up with escapement objectives. And at

present, for fall Chinook, we average for a 66 percent harvest on

fall Chinook, natural populations, and we have a floor of 35,000 fall

Chinook, natural population. Within that, the population of the

hatcheries—the return to the hatcheries will swing up and down.

I would say that the natural populations are equally as important

as the hatchery fish, and I don’t want to say that you can replace

those populations with hatchery fish. You just can’t do it.

In the Klamath Basin there’s still a lot of tributaries that are

pristine—the Salmon River, the north fork of the Trinity, the south

fork of the Trinity, New River on the Trinity, even the Shasta and

the Scott. Those are all natural producing systems that the hatchery can’t replace the production from those systems.

Mr. HASTINGS. Yeah, and I wasn’t suggesting that, because again

on the extreme side, the extreme side says you can’t co-mingle

whatsoever. And I mentioned in my opening remarks about the

clubbing of the fish. Let me suggest that there may be a solution

to this that we all ought to be aware of, because the first issue is

the one that I addressed earlier about how much water is enough.

And I think as we go along, we’re going do somehow agree how

much water is enough. The minute we do that, we’ll find a solution.

And we will find a solution, I have no doubt in my mind, which

will lead then to the next argument of the debate between wild and

hatchery, and I think we’ll have to find it out the. But I think it’s

worth an anecdote in order to illustrate that even that solution is

probably at hand.

When I was growing up I heard about the buffalo on the great

plains of the United States, and was well aware of when we settled

the great plains, we moved out of the natural habitat, the buffalo.

And pretty soon, when the wheat country grew up and settled in

the great plains, there was no buffalo. But somebody thought that

the buffalo was worth saving. Now, I don’t know if that person was

119

down to the last two buffalo or not, but the point is, they thought

it was worth saving, and they made that decision before the Endangered Species Act was put into place. And now, of course, we

know—I have buffalo in my district, people raise buffalo. Buffalo is

a commercial product. Let’s just remind ourselves of what we’re

talking about. They are hatchery buffalo. And so I say that in a

sense. If the Klamath Basin has not been faced with this yet, it’s

coming. Just keep that anecdote in mind.

And then as far as the solutions are concerned, nobody is suggesting that the people in the great plains—Topeka, Lincoln, Wichita—completely move out so that the buffalo can have their wild

habitat. Nobody is suggesting that. Yet in the Northwest, when

there was discussion about removing the dams on the Lower Snake

River, that was precisely what they were asking us to do. Again,

it’s a double standard that the Chairman pointed out. So I am confident that in the long run, when the people are more and more

aware of the issues that are being driven, from my point of view,

by the extreme environmental side—we’re seeing this in California

on power right now, and that awareness is higher. But when the

awareness gets higher, people become educated, they ask the right

questions, and what do they find at the end of the day for everybody? They find a solution. So I am encouraged about the willingness to work this out. We have to get through this tough time for

the people living here this year. That’s the challenge that we have.

Thank you, Mr. Chairman.

Mr. POMBO. I want to thank this panel for your testimony. I’m

going to go ahead and excuse this panel, but if there are any further questions from the Committee, they will be presented to you

in writing, and if you could answer those in a timely manner for

the Committee, I’d appreciate it. Thank you.

I’d like to call up our fourth panel; Mr. Zeke Grader, Mr. Bill

Gaines, and Mr. Robert Gasser.

STATEMENTS OF ZEKE GRADER, EXECUTIVE DIRECTOR, PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATION;

BILL GAINES, DIRECTOR OF GOVERNMENT AFFAIRS, CALIFORNIA WATERFOWL ASSOCIATION; ROBERT GASSER,

KLAMATH BASIN BUSINESSMAN

Mr. POMBO. I want to thank this panel for joining us here today.

And again, I would remind you that if you can try and limit your

oral testimony to 5 minutes—your entire written testimony will appear in the record, but if you can try to limit your oral testimony

to 5 minutes, we’d appreciate it. Mr. Grader, if you’re ready, you

can begin.

STATEMENT OF ZEKE GRADER

Mr. GRADER. Thank you, Congressman Pombo, and thank you

Congressman Walden, Congressman Herger, Congressman

Hastings and our friends here also from Nevada and Idaho for

holding this hearing today. I know this is a very difficult issue.

Mr. POMBO. Would the gentleman suspend for just a minute? If

I could have order with the audience, please. I’m even having a difficult time understanding him, so please— Go ahead.

120

Mr. GRADER. Thank you again for bringing this hearing to Klamath Falls. I would hope that also at some point the Committee

could also come out to Eureka to hold a similar hearing and basically get testimony from people on both ends of the Klamath River

system. I think it would be very helpful in your deliberation as we

seek to bring everybody together to try and find some solutions for

these very difficult issues.

My organization represents working men and women in the commercial fishing fleet, mostly in California, but we also have members in Oregon and Washington as well, and probably the bulk of

our members are what they call commercial salmon trollers, people

who make their living fishing on the ocean. They are food producers, which I need to remind people of now and then. You have

a copy of my testimony so what I’d like to do is just briefly talk

to you. I know this has been a long day and a long hearing, so let

me just try and be brief and just make a few points.

The Klamath Basin, as you know, historically was the third

major salmon producing Basin in the lower 48 States. It was a tremendous system, probably a million or so fish at one time, second

only to the Columbia system and the Sacramento, San Joaquin system. Myself, I grew up in the fishing industry in a place called Fort

Bragg on the north coast. Some of you may be familiar with it. Up

until about 15 years ago, that port was the largest ocean salmon

port along the Pacific coast. More fish caught in the ocean were

landed in that port than any other place along the coast. That was

then. Today is now. Today we have a fraction of the fish going

there, mostly because of closures that have been imposed to protect

Klamath River Salmon.

The history of our salmon is not something new. In 1971 the

California legislature, a couple years before, had put together

something known as the California Advisory Committee on salmon,

steelhead, trout. And in 1971 it issued its first report called an Environmental Tragedy. Now, 30 years ago most people didn’t even

know what the word environmental meant, and it was at least a

year or two before the passage of the ESA, the Clean Water Act,

the National Environmental Policy Act. But these people, made up

of commercial and sport fishermen, I believe a tribal member, as

well as fishery biologists, pointed out then some of the ongoing

problems that we’re looking at in the salmon fishery, and particularly the diversions in the Trinity River system. Of course, the

Trinity goes into the Klamath system. That was being diverted to

another Federal water project, the Central Valley Project. There

were also problems identified full well with some of the land use

practices that were going on, as well as the diversions, and the

threats that were being made to the salmon populations.

Fast forward now 7 years to 1978. At that time the Bureau of

Indian Affairs came out to California and said that we have to

begin restricting ocean fishing of Klamath stocks to provide for the

Indian tribal rights there, particularly for the Yurok and the Hoopa

Tribes. That’s fine, except that in the 1950’s this very same Bureau

of Indian Affairs and Department of Interior were saying that

there were no such rights, and the fishing industry based their production, gearing up, building new boats, on the fact that pretty

much they had clear rights to these fish in the ocean. In fact it was

121

the same Department of Interior at that time that the Federal

Fishery Agency was under, known then as the Bureau of Commercial Fisheries, the precursor to out modern National Marine Fishery Service.

We had fishing vessel guaranty programs, tax programs for fishermen to be able to set aside money to build new boats. Indeed,

Production Credit Association, who we heard from in the last

panel, was lending money to the fishing fleet to buy new boats, so

we were being told by another Interior agency, Go ahead, build up

your fleet, these fish will be there. At the same time, as we well

know, the Bureau of Reclamation, yet a third agency of the Department of the Interior, were telling farmers, both in this Basin as

well as those serviced by the Federal Central Valley Project, that

there would be plenty of water for them.

Well, I think that’s where we are today. We’ve got a situation

where we had the Federal Government promising much that it

could not deliver on, often times in conflict, apparently not talking

to one another. The situation is that in my hometown now there

virtually is no commercial salmon fishery left. There isn’t along

much of the California coast. In fact from San Francisco all the

way to about the mid-coast of the point of Oregon, much of that is

closed for all or a good part of the season to protect Klamath

stocks—to try and protect them. This year, even with the predicted

abundance of our Sacramento fall run Chinook, we cannot get to

those fish because, whoops, the fish moved north this year. They’re

not being found off the central valley coast, and this happens in nature. They follow the feed, they follow current patterns. So right

now we have a fleet that’s pretty much tied up along the California

coast because they cannot access the fish because they have implemented to try and protect those remnant stocks.

The situation, of course, with Coho salmon, which was what

brought on part of the crisis we’re faced with here today, or caused

at least the bi op and the order to restrict the water—I should remind everybody that we have not had a Coho fishery since 1994.

So it’s obviously not a problem in the ocean of fishermen taking

them. We have not been able to fish them, so I just want to make

that issue clear.

Now, there have been many here today that have said, Well, the

problem is the Endangered Species Act. I would respectfully disagree. I think the Endangered Species Act, while it may not have

always been implemented correctly, is more so than anything a

messenger, and going after the ESA, in many respects, is like trying to kill the messenger. There have also been some that have

said, Well, it’s the fish. Well, you know, it doesn’t take a lot of rocket science to know that fish gotta swim. In fact I think that was

Oscar Hammerstein that said that, and we’ve heard that today

from some panel members. We do know that fish have to have

water, unless we develop some genetic engineering that allows

them to grow legs and lungs. Right now, today, the way fish are,

they’ve got to have water.

And, third, people have said, Well, it’s those greedy fishermen

that have caused the problem. Again, I would disagree. I think that

the problem has been that what we’re left with in the fishing industry is we’re just trying to save what remnant populations we

122

currently have. We’re trying to restore some of them, but we don’t

have any illusions about bringing them back to their historic levels,

but we would like to save some of them so our people can continue

working, can continue producing fish.

Now, I think there are some solutions here, and I think we heard

some today. I think one is, despite what we heard from some of the

crowd, is that for those people that do want to get out, that they

be offered just compensation. This is no different than what we’re

proposing right now for our ground fish fleet. Senator Wyden has

a bill that would help buy out the ground fish fleet. There again,

the government promised fish that weren’t there, and we’re trying

now to give some of those people a way out so that we can provide

stability for those that remain.

Second, I think, obviously, we do need to have some immediate

disaster relief. What the growers in this area experienced here was

no different than what we experienced in the fishing fleet when we

had the severe El Ninos, what ordinarily occurs when we have

floods and hurricanes. This was a natural disaster. You’ve had an

extreme drought. They ought to get some money and they ought to

be compensated so we can keep these communities alive.

Finally, I think we do need to provide some Federal assistance

in helping develop some of the ground water basins here, to take

a look, so you’re not entirely dependent on surface water, so you

have this mix so that in drought years you have other sources of

water to access.

Finally, I think we need to come up with a good restoration plan.

I think I would agreed with my friend Troy Fletcher and some others. We need to get everybody in this Basin together. I know I’ve

learned a lot here today from listing to various people and what

they say, and I think that probably the best solution we can have

is to bring everybody together. We started that under the Klamath

Restoration Program in the 1986 legislation by then Congressman

Doug Bosco, and I think we need to continue on that process. I

think we’ve got everybody’s attention now. I won’t quote Lyndon

Johnson, but I do think that we need to bring everybody together

and see if we can’t work out some ways to where—I think we need

some good restoration programs on that might then free up some

additional water that could then be used in this basin. Thank you.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Grader follows:]

Statement of William F. ‘‘Zeke’’ Grader, Jr., Executive Director, Pacific

Coast Federation of Fishermen’s Associations

Good morning. I am the Executive Director of the Pacific Coast Federation of

Fishermen’s Associations (PCFFA), the west coast’s largest organization of commercial fishing families. PCFFA represents thousands of working men and women of

the west coast commercial fishing industry and has member fishermen’s associations and individual members in ports from San Diego to Alaska.

We are a major west coast industry, generating many billions of dollars annually

to the region’s economy, and supporting tens of thousands of jobs in coastal communities as well as providing high quality seafood for America’s tables and for export.

However, it is no exaggeration to say that many of those coastal fishing-dependent

economies are now in economic crisis as fisheries have declined coastwide. This is

particularly true for salmon fishermen, who have suffered enormously from the loss

of salmon habitat and the de-watering of many of our most productive salmon-bearing rivers and streams. This impact has hit especially hard in the Klamath Basin.

Now the Klamath River suffers from major fish kills as a result of low flows to such

123

an extent that we now have several basin species listed under the federal Endangered Species Act (ESA), including once abundant coho salmon.

The Klamath Basin (9,691 sq. miles) was once the third most important salmon

producing river system in the nation, producing an estimated 660,000 to 1,100,000

million adult fish annually. Now river conditions are so bad that most of these runs

are either gone or so reduced in numbers as to be nearing extinction. At present,

the ‘‘recovery’’ goal for this system is to return at least 97,500 natural spawners to

the system each year, a very modest goal that has still never been met. Even if met,

this still means a total reduction of Klamath salmon populations by 89%. As a result, commercial fishing is almost non-existent throughout the ocean area in which

Klamath salmon most frequently travel, the ‘‘Klamath Management Zone (KMZ).’’

A big part of the problem for downriver salmon is reduced water quality and

quantity from upper river sources because of the Klamath Project. The Klamath

Basin works as a hydrological whole, and what affects water quality in the upper

basin has a huge impact downriver.

Unfortunately, diversion of natural waterways and draining of wetlands has

taken an enormous toll on the Klamath Basin’s ecology and wildlife. More than 75

percent of the Upper Basin’s wetlands have been drained and converted to agriculture, down from 350,000 acres to about 75,000 acres. Each acre of wetlands represents an enormous natural storage sink for water to buffer dry seasons and

drought, as well as nature’s most efficient water filtration system to keep water

quality up. As a result of the loss of both water storage and water quality filtration

of wetlands, fish and wildlife populations have declined dramatically. Klamath River

Coho salmon are now listed as a federally threatened species and all species of

salmon are now extinct above Irongate Dam because that structure provides no passage for fish. C’wam and qadpo (i.e., the Lost River and short-nosed suckers but

originally called ‘‘mullet’’), once widely abundant and a mainstay in the diet of the

Klamath Tribes as well as a major and valuable recreational fishery for the Upper

Basin, are now also on the endangered species list.

The Klamath Irrigation Project and other development in the upper Klamath

Basin has had three major impacts: 1) wildlife habitat has been destroyed; 2) water

quality has been degraded; and 3) the natural water storage capacity of native wetlands and other habitats has been lost. The hydrology of the Klamath River has

been greatly altered, both reducing the overall storage capacity of the system as well

as compounding the competition for water that is the impetus for this hearing.

A number of restoration projects are underway in the Klamath Basin, but without

real change in overall water and land management, the current state of affairs is

simply unsustainable. According to the U.S. Fish and Wildlife Service, for example,

if water management proposals now under consideration by the Bureau of Reclamation are implemented, 12,000 to 18,000 acres of the 23,000 acres of wetlands on the

Lower Klamath National Wildlife Refuge will go dry during the fall waterbird migration in half of all future years. Smaller but still significant impacts would occur

in an additional 28 percent of future years. This year, for instance, the refuges may

go dry entirely, devastating protected bird populations from all over the west coast

who use the Pacific Flyway.

In recent years, water quality from the upper Klamath Basin has been so poor

that massive salmon die-offs have resulted far downstream. In 2000, more than

300,000 salmon deaths were recorded in the lower river, directly attributable to elevated temperatures caused by too little flow. Even the Iron Gate Hatchery cannot

operate with water conditions so poor as they have been in many recent years.

CRUCIAL ECONOMIC IMPORTANCE OF THE KLAMATH BASIN TO WEST COAST FISHERIES

Both Oregon and Northern California coastal communities are directly affected

economically by the environmental degradation that has been allowed to occur within the upper Klamath Basin by the operations of the Klamath Project.

First off, Iron Gate Dam in Northern California (just south of the Oregon border)

is the end of the line for Pacific salmon, since it was originally built with absolutely

no fish passage, and all salmon runs above that dam are now extinct. More important for this discussion, however, is the diminished water quality and quantity flowing through Iron Gate Dam, coming directly from the Klamath Irrigation Project.

Water released by the Klamath Project has for many years been of such poor quality, and such minimal quantity, that Iron Gate Hatchery (the largest and most important salmon hatchery in the basin) functions only very poorly or not at all. Iron

Gate Hatchery uses river water for its operations. Whenever river water is too hot,

too polluted or just too little in flow, that hatchery fails! Even if some juvenile fish

do emerge from that hatchery, in many years in-river hot water temperatures and

124

1Salmon are cold-water fish and need cold water or their eggs will not hatch. Mortality of

incubating salmonid eggs greatly increases as water temperatures rise from 56 F. (13.3 C.) to

60 F. (15.6 C.), which is usually considered the lethal limit. Water temperatures downstream

from just below Iron Gate Dam downstream routinely exceed this lethal limit through mid–October. Spring-run chinook spawn from mid–August to mid–October, and fall-run chinook spawn

from mid–September through early–December. High water temperatures at Iron Gate have thus

greatly narrowed the spawning windows for both these subspecies and also greatly reduced the

range of ESA-listed coho salmon by blocking access to cold water tributaries. 2 Nitrate laden runoff from agricultural fertilizers creates algae blooms which steal dissolved

oxygen from the water that fish need to breath. The fish die of suffocation. 3See for instance, Diminishing Returns: Salmon Decline and Pesticides, a publication co-sponsored by the Institute for Fisheries Resources, available on the Internet at: http://www.pond.net/

?fish1ifr/salpest.htm. 4Figures from Initial Assessment of Pre- and Post–Klamath Project Hydrology on the Klamath River and Impacts of the Project on Instream Flows and Fishery Habitat, Balance

Hydrologics, Inc. (4 March, 1996) prepared for the Yurok Tribe. There is a fiction being espoused

by upper river irrigation interests that the original flows above Iron Gate dam were only 2%

of total Klamath river flows at its mouth, but this number is patently incorrect. The actual percentage varied seasonally, but peaked at about 35% in a typical August according to 1911–1913

pre–Project flow records and was generally above 25% from July—October when those flows

were most important.

pollutants are so bad that water conditions kill them quickly. 1 Furthermore, declining water quality and nitrate pollution coming out of Iron Gate Dam 2 lead to

downriver water quality problems that extend for many miles downriver, which also

disrupts natural production of wild salmonids.

It is not just hatchery fish that suffer, but many wild runs as well. Salmon must

have cool, clear and abundant water just to survive. The extremely high volume irrigation diversions managed by the Upper Klamath Irrigation Project have, as a disastrous side effect, literally de-watered several key salmon spawning grounds in the

Klamath River below Iron Gate Dam for parts of most years. It is not uncommon

to loose 25% or more of all salmon nests to dewatering, in spite of all efforts to save

them, amounting to a huge economic loss to coastal salmon fisheries and triggering

major fisheries closures.

Even the water that is released from the Klamath Project is often filled with agricultural fertilizers, pesticide residues and waste from runoff in the fields. These pollutants in and of themselves can kill of much of the aquatic life below the dam.

Young salmon and salmon eggs are much more sensitive to toxic chemicals than

fully mature adults, and scientists have already documented many long-term and

debilitating problems, including developmental deformities, as a result of chronic

pesticide exposures in even very small amounts well below current expose standards. 3

In essence, the lower river system has been engineered to be, and is often treated

as, nothing more than a huge drain for the Upper Klamath Basin. However, the

Klamath is not a drain, it is a river, and its ecological needs must be respected. This

means that adequate water quality and quantity must be released from the Klamath Project sufficient to support salmon spawning and rearing, which in turn supports coastal salmon-dependent economies and communities.

Unfortunately, the way the Klamath Irrigation Project is currently managed has

greatly changed both the amount and nature of natural river flows we get

downriver. Prior to Project construction, the Upper Klamath contributed as much

as 35% of the total flow of the whole Klamath River at its mouth in a typical August. Today as much as 90% of that amount of water is captured by the Klamath

Irrigation Project, particularly in a dry year, with the remaining 10% released below

Iron Gate Dam essentially agricultural waste water of such low quality that it routinely triggers major downriver salmon fish kills. 4 In other words, the total impact

of Project operations has been an order of magnitude reduction in total flows below

Iron Gate Dam, a complete change away from natural seasonal flow characteristics,

and highly degraded water conditions for what remains and is released. These highly degraded conditions are clearly major contributing factors in overall salmon declines in the lower Klamath Basin, often resulting in major fish kills.

Klamath River salmon, once they reach the ocean, swim both north and south

where some portion of them are then available for harvest. In the past, roughly 30%

of all fall chinook landed between Coos Bay, OR and Fort Bragg, CA, for instance,

were Klamath River stocks in origin (See Table 1). Thus when these fish decline,

as we have seen in recent years, major fishing ports from Ft. Bragg, CA to Coos

Bay and Florence, OR are severely impacted economically. Currently, all ocean and

recreational salmon harvests within this ‘‘Klamath Management Zone (KMZ)’’ is

specially restricted by the Klamath Fisheries Management Council or by state agencies to promote recovery of these severely depressed fish. As a result, when stocks

125

5These are estimates done by the Institute for Fisheries Resources (IFR) for an as yet unpublished report, The Cost of Doing Nothing: The Economic Burden of Salmon Declines in the

Klamath Basin, based on reconstructions of historic salmon runs and using standard, well accepted economic analysis.

are low (as we have seen for many years) most commercial fishing in the KMZ area

is either closed or severely restricted, resulting in tens of millions of dollars in

losses.

The Klamath stocks are also key indicator species for harvest levels all the way

from central California to the Canadian border. All of our ocean salmon fisheries

are now managed on a ‘‘weak stock management’’ basis. This means that the weakest stock becomes the limiting factor on ALL OTHER FISHERIES, regardless of

how abundant those other stocks might be. The requirement to avoid catching any

severely depressed Klamath chinook stocks, or any ESA-listed coho, therefore limits

harvest opportunities on all the otherwise abundant (hatchery origin) fish populations from the California Central Valley well into areas above Oregon.

In other words, it costs fishermen tens of millions of dollars in lost economic opportunities just in order to reduce fishing impacts to a minimum on all these severely depressed Klamath River stocks. Klamath-driven closures and restrictions

thus result in lost fishing opportunities for ports as far south as Monterey Bay and

as far north as to the Canadian border.

Restoration of the Klamath Basin’s salmon production is thus critical to the future

of salmon fisheries over much of the west coast north of central California.

OVER–ALLOCATION OF KLAMATH PROJECT IRRIGATION WATER HAS DEVASTATED

WATER DEPENDENT COASTAL COMMUNITIES

To be blunt, the Klamath Project has simply over-allocated the available water.

As a direct result, there is too little water for downriver salmon production (and

ESA listings there), too little water to maintain fish in the upper Klamath lakes

(and ESA listings there) and too little water provided to the national wildlife refuges

(and major bird kills there). The Klamath Project is simply using more than its fair

share, leaving far too little water to maintain overall aquatic health.

The fact that there are several species of Klamath Basin fish already on the Endangered Species Act list, serious problems with Iron Gate Hatchery operations, and

major downriver fish kills nearly every year now should tell us that something is

seriously wrong. What has gone wrong is that there are too many acres now irrigated in what has historically always been a very dry and water-limited basin. We

will face increasing water conflicts unless the Project either reallocates and conserves the water it now has, including making sure we have adequate instream

flows for fish and wildlife and to the refuges, or more water storage is developed

quickly. Frankly, things are so bad now that we must do both.

The fate of downriver and ocean salmon fisheries are directly tied to the quality

and quantity of water released by the Bureau or Reclamation through Iron Gate

Dam. In spite of our arbitrary political boundaries, the whole basin is hydrologically

interconnected. Thus, as we have seen, whatever happens in the Upper Klamath

Basin dramatically impacts downriver fishing-dependent communities and their allied businesses. In past years, as water released past Iron Gate Dam has been reduced in total flow and become more and more saturated with nitrate-laced runoff,

sediment and agricultural chemicals, these downriver impacts, particularly on fishing-dependent communities, have accumulated to the level of an economic disaster.

Downriver economic losses have already been staggering. Roughly 3,780 family

wage jobs have already been lost in these downriver fishing-based economies (representing a net loss of economic impacts of $75.6 million/year) by the failure to protect and restore salmon within the Klamath Basin, and several thousand remaining

jobs are now at risk. 5 While Klamath Project operations have not been the sole factor leading to recent major in-river fish kills, poor water quality, nitrate pollutants

and too little in-river flows directly related to over-appropriation of water by the

Klamath Project for agriculture have certainly been a major factor.

Every dead salmon in the lower river is another fish that can never be harvested,

and will never provide income to hard-working downriver salmon fishermen. Right

now very little fishing is allowed in the Klamath Management Zone for just that

reason, because the fish are simply not surviving increasingly hostile river conditions.

We support the right of upper Klamath farmers to a fair share of the water, but

the irrigators are not entitled to take it all. Sufficient water must be reserved for

salmon production for our industries and our families as well, both for sound biological as well as sound economic reasons.

126

Water left in the river has just as much economic value to coastal Oregon and

Northern California ports as it does used on the ground for Klamath Falls agriculture. A fishermen’s job is no less valuable than a farmers, a fishermen’s family

no less deserving.

Millions in federal funding is now going toward salmon restoration in the Klamath. It does no good to pour millions of dollars into ecosystem restoration when federal funds are also simultaneously used to de-water rivers we are trying to save.

It is much cheaper to prevent disasters than to fix them once they have occurred.

WATER PLANNING MUST BE ON A BASIN–WIDE BASIS, INCLUDING BOTH STATES AND

ALL INTERESTS

It is all too often forgotten in Oregon, my home state, that roughly two thirds of

the Klamath Basin lies in California. Thus the Klamath Irrigation Project, which

over the years has reduced the total flows from the upper Klamath River to California by nearly an order of magnitude and polluted the whole upper river, has had

tremendous impacts over the border in California. In a real sense, Oregon has simply exported its pollution to California.

Any solution to Klamath Basin water issues MUST involve elected officials as well

as the agencies of both states. Any solution MUST also involve the full range of

stakeholders, including the downriver Northern California coastal communities that

have seen their fisheries-based economies systematically strangled, and also including the lower river Tribes whose cultures have been violated and whose fishing

rights have been rendered all but meaningless.

Unfortunately, the Bureau of Reclamation has long managed the Klamath Project

simply to provide as much water to irrigators as possible, but without regard to the

environmental consequences or to other downriver and coastal economic sectors. The

consequence has been to create unnecessary conflict between Tribal rights, fisheries

and wildlife on the one side with Klamath Falls farmers on the other, a conflict that

is unnecessary and ultimately counterproductive. In a wet year, these conflicts were

apparent and pervasive but largely ignored by the Bureau and therefore unresolved.

Now, in this extremely dry year, these conflicts have reached crisis.

FARMERS SHOULD STOP BLAMING THE ESA AND GET TO WORK SOLVING THEIR REAL

PROBLEMS

As small-scale family food providers, commercial fishing families are very similar

to, and generally very sympathetic to, the plight of upper basin farmers who may

be facing a year with no water because of forces over which they have no control.

However, we must also inject a note of reality into the current near-panic. The problems facing upper Klamath Basin agriculture are not primarily driven by either

water shortages (except on a short term basis) nor the increasing need to protect

flows for fish and wildlife. Nor can the blame be ascribed, as some would have it,

to the Endangered Species Act, which is after all only the messenger. Upper Klamath Basin farmer’s problems are much more pervasive and systemic, including:

1. Climate and Location of the Klamath Basin Is Not Ideal for Agriculture: The

high elevation of the upper Klamath in and around Klamath Falls (in excess

of 4100 feet), and the resulting short growing season with both late and early

frosts, has made it difficult to grow a wide variety of crops. Reliance on traditional temperature-hardy crops such as onions, sugar beets and potatoes, however, has created problems in itself because these commodities are in oversupply in both US and world markets.

Likewise, Klamath Falls is not near any major transportation hubs of the region,

and so farmers there have more difficulty and expense in shipping their produce

to world markets than farmers in many other regions. These problems add to

their total production costs.

2. Many Upper Klamath Farming Operations Can No Longer Compete in World

Markets: Because of the additional transportation costs, short growing seasons,

and other added costs of Klamath Falls agriculture, many growers can no

longer compete in the world markets. Some Upper Klamath Basin potato farmers, for instance, chose last year to plow their potatoes into the ground because

they would have lost money competing on saturated and depressed world markets. Many of these crops have been declared as ‘‘surplus’’ and their growing

operations are supported not by a healthy market, but by federal surplus crop

payments from the federal Treasury. Klamath Basin cannot even compete cost

effectively with potato production in Idaho, much less foreign markets, and the

same is true for many of its products.

3. Processing Capacity Has Left the Basin: Secondary or value-added processing

is one major ways agriculture remains profitable and serves a variety of marVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00130 Fmt 6633 Sfmt 6621 73135.TXT HRESOUR1 PsN: HRESOUR1
127

kets. However, potato and sugar beet processors and other processing plants

have left the basin, largely because of the first two factors mentioned. It is no

longer economically feasible for major processors to remain in the basin because of transportation costs, limited and uncertain production, and oversupplied world markets.

4. Conflicting Uses: Some 20,000 acres of the national wildlife refuges (public

lands) is now leased out to private parties for row crop farming. Oddly, these

lease lands have first call on water that would otherwise go to the refuge. In

other words, even when the refuge wetlands themselves are threatened with

drying up, the farms on the refuge continue to receive full water! Additionally,

those farms are allowed to use pesticides and agricultural fertilizers that are

well known to damage wildlife in the refuges. Lease land farming on the refuges is clearly a conflicting use, and should be phased out by nonrenewal of

these leases, which are on five-year renewable terms. In order to keep those

farmers whole, there are a number of opportunities at present to simply move

lease holders to farmland now for sale outside the refuges on a willing seller—

willing buyer basis, and this would be a good use of federal funds, freeing up

additional water for the refuges as well as allowing those farmers who wished

to continue in operation to do so.

Most of these problems have little or nothing to do with ESA listed species, but

rather with the costs of production, conflicting uses, global gluts and an increasingly

volatile and interconnected world market. Klamath Basin farmers are far more oppressed by world trade agreements and increased global competition than by any

endangered species.

Fortunately the Klamath County economy has been swiftly diversifying in recent

years, and the farming sector now accounts for only about 6 percent of total county

employment. Most new jobs in recent years, and those projected over the next several years, will be in other sectors as the economy matures. The Klamath County

economy will survive, and even thrive in the long run, if traditional agriculture

within the county is cut back to more sustainable, and ultimately more profitable,

levels.

WORKING TOWARD LONG–TERM SOLUTIONS

However, there are several things that can be done in the long term to prevent

future water conflicts, and to move the upper Klamath Basin toward an agricultural

base that is truly sustainable. At present there is not enough water to meet Project

needs in 6 out of 10 water years, and as the drought this year clearly shows the

present water allocation system is not sustainable. The following are some suggested short term and long term actions that should be considered for addressing

the current drought situation, for restoring a healthy, naturally diverse, and productive Klamath Basin ecosystem and for meeting future water supply needs:

1. Emergency Relief for the Crisis. The Klamath Basin is in the middle of what

appears to be the most severe drought in recorded history for the region, with less

than 21% of rain inflow to the Upper Klamath Lake in a region that normally gets

less than 12 inches of rain a year. Because of the severity of this water emergency,

disaster relief funds should be made available to farmers in the Klamath Basin

similar to the support other farmers nationwide receive when they suffer form natural disasters. However, the drought is not caused by the ESA or any other statute.

The drought is caused by lack of rainfall. No amount of lawsuits, protests or politicians can make more rain.

Because this is a natural disaster, all necessary steps should be taken to qualify

the Klamath Basin farmers for emergency relief funds and to help the many who

are likely to have little or no water this year. PCFFA strongly supports the effort

to get disaster relief for affected farmers.

2. Reform the Management of the Klamath Project. Protecting fish and wildlife,

as well as maintaining the basin’s wildlife refuges, should also be explicit purposes

of the Klamath Project, not just the delivery of water for farming. The Project

should be explicitly managed to first meet the needs of species listed under the Endangered Species Act. The Bureau of Reclamation should meet the river flow, lakelevel and refuge water requirements as set forth in the applicable biological opinions

and ultimately should seek means to meet the full water requirements of the refuges and downriver fisheries, while recovering fish species to harvestable levels.

The Bureau of Reclamation should also have a drought contingency plan. Reclamation and the Service should look at ground water development that can be

brought on line this year, which includes approximately 30,000 acre-feet of groundwater already purchased by Reclamation this year, and using any carryover water

from Clear Lake and Gerber reservoirs. In the long term, the State of Oregon has

128

6From Economic Profile of Klamath County, Oregon, an economic study by The Wilderness

Society (2000), available from The Wilderness Society, 1615 M. Street, Washington, DC 20036

(202)833–2300.

said that 200,000 acre-feet of ground water could be made available from a combination of existing ground water pumps as well as new well development. While it will

be too late to make much difference in crop cycles this year, this ground water

should be developed in any event to prevent future drought disasters of this magnitude.

3. Terminate Lease Land Farming within the Wildlife Refuges and Use Lease

Lands Water to Keep the Refuges Viable and for Wetlands Water Storage: Four

years ago Congress passed the National Wildlife Refuge System Improvement Act

of 1997. That law was intended to improve the health of America’s wildlife refuges.

It directs the Secretary of the Interior to provide necessary water to national wildlife refuges and to maintain the biological integrity and ecological health of these

special places.

The official policy of the Bureau of Reclamation is that the wildlife refuges in the

Upper Klamath Basin, among the most important in the country for bird migrations, are in fact last in line for water from the Klamath project with a junior water

right to almost everyone else. Even more troublesome is the fact that no water has

yet been allocated to the refuges this year even to meet the minimum refuge water

needs to support ESA-listed bald eagles as required in the current USFWS biological opinion. A secure source of water needs to be obtained to meet the refuges’ water

requirements. One immediate action that should be taken to meet the water requirements for the refuges is the termination of the refuge lease land farm program.

Currently 20,000 acres of federal refuge land within the Tule Lake and Lower

Klamath Wildlife Refuges are leased for commercial agriculture. Commercial agriculture of these lands is simply not compatible with refuge purposes, especially at

a time when there is not enough water to meet refuge needs. Commercial agriculture within the refuges should be eliminated and the lands should be returned

to their natural habitat condition as wetlands. The water rights associated with

these lands could then be transferred to refuge purposes. This would allow management of these lands in a normative manner that could allow for storage of thousands of acre-feet of water that could be devoted to refuge needs. This would greatly

reduce water shortages to refuge wetlands while easing the irrigation season water

demands on the Klamath Project. This would also allow the conversion of these

lands to habitats more productive for wildlife, eliminate the use of pesticides and

fertilizer on the refuges, allow refuge personnel to devote more time to refuge management, and help secure a reliable source of water for refuge purposes.

Many basin farmers now have private land for sale on the open market in areas

outside the refuge. There is a proposal to buy these for-sale farmlands using a combination of private land trust funds and federal funds, and then to lease these lands

back to the local irrigation district so that the district can sublease those lands to

farmers now leasing within the refuges as replacement lands as they are moved off

the refuges. This would recapture more wetlands for the refuges (i.e., add more total

water storage), eliminate conflicts between farming and the refuges, and give those

farmers now leasing lands on the refuge itself replacement land for row crops at

a comparable price. It appears to be a win-win solution to these conflicts and should

be pursued actively. In the meantime, no new farm leases on refuge lands should

be issued and those which can be terminated should be. At present these federal

leases have a 5-year rollover period by which approximately 20% will terminate

each year.

4. Willing Seller Buyouts. Simply put, the limited water resources in the Upper

Klamath Basin has been grossly over-allocated in the Klamath Project. A necessary

as part of any solution must be to downsize the Klamath Project and to purchase

and retire many water rights in the Upper Basin.

The impacts of global competition have been devastating on Klamath county.

Farming is no longer very profitable in the arid Upper Klamath Basin. Real personal income from farming and agricultural services declined 66% between 1969 and

1998 in Klamath County, 57% in Modoc County and 26% in Siskiyou County. Most

farm families now have second incomes from work outside the farm, and the farm

sector now only employs about 6% of the total workforce in Klamath County, 17%

in Modoc County, and 7% in Siskiyou County, according to readily available government economic and census data. Income from farming in Klamath County now represents only two-tens of one percent of total county personal income. Agricultural

support services accounted for six-tens of one percent of total income in 1997, only

a slight decrease since 1969. 6 This is why so many have recently offered to sell out,

well before the current water crisis has hit the region. The reality is that many of

129

7Wetlands is nature’s best water storage system. One acre of wetlands holding one acre-foot

of water, for instance, has stored 325,851 gallons of water which would otherwise be lost to

evaporation or waste or floods. Wetlands naturally release this water into the system to buffer

the effect of droughts and seasonal rainfall. (1 acre-foot = 43,560 cu. ft. x 1,728 cu. in. per cu.

ft. = 75,271,680 cu in. of water. One gallon = 231 cu. in. Divide one by the other = 325,851

gallons/acre-ft. of wetlands storage).

those traditional farming operations in the basin are simply no longer profitable.

Most of the crops grown there, with its short growing season and 4100 foot elevation, are now classed as ‘‘surplus crops’’ (potatoes, sugar beets and onions) that

can only be grown profitably in today’s worldwide glut of these products because of

major agricultural subsidies.

There are currently tens of thousands of acres for sale in the Klamath Basin,

most of it for sale long before the current drought. Many farmers in the Klamath

Basin were financially stressed long before this year’s drought, because of global

market competition.

A voluntary but targeted buyout program will give financial assistance to the

farmers, who want to sell their lands, by buying their lands at a fair price. This

would be an equitable way to reduce overall water demand, provide farm families

some transition money, and provide more future water security to those who want

to stay in the business. A federally funded buyout program should be developed and

implemented for this purpose.

Water right acquisitions should be focused on the Klamath Project, and target

areas where acquisition of associated land is also a priority for habitat and refuge

restoration, areas where acquisitions would help meet tribal and other federal reserved water right claims, areas where acquisitions would improve water quality,

and areas where acquisitions would have multiple benefits. In other words, disaster

relief payments in the form of buyouts should be targeted to do the most good toward long-term solutions.

5. Restore Fish and Wildlife Habitats. Although fish and wildlife habitats have

been degraded throughout the Klamath Basin, it remains one of the few major river

systems in the US where substantial restoration is still possible. Reclaiming and restoring wetlands, especially in the Lower Klamath and Tule Lake Wildlife Refuge

areas and around Upper Klamath Lake, are important to obtaining a more natural

hydrological regime, improving and increasing fish and wildlife habitat, and improving lower river water quality and quantity for salmon restoration, and generally increasing total water storage. 7 The area lying north and west of Lower Klamath National Wildlife Refuge known as the Klamath Straits should be among the highest

priorities for purchase and restoration. Riparian areas need to be protected and restored, especially in the Upper Basin tributaries in Oregon and the Shasta and

Scott Rivers in California. Dams and diversions need to be screened and provided

with appropriate fish passage facilities, or removed. No fish screens have ever been

installed by the Klamath Project, in spite of obvious need.

Upland impacts also play an important role in water quality. The water retention

and flow regulation capability of upland forested ecosystems need to be restored

through reforestation, canopy retention and work to reduce the impact of extensive

unpaved road systems, a constant source of excessive silt.

There are existing and effective habitat restoration efforts within the Basin, including those of the Klamath River Basin Fisheries Restortion Task Force, created

by P.L.–99–552 (October 27, 1986) as amended by P.L. 102–570 (16 U.S.C. 460ss–

3 et. seq.). The Task Force has representation from the whole basin and a well established restoration plan, but pitifully little money with which to accomplish its immense tasks. Providing better funding to the Task Force is certainly one way to assure that Basin habitat restoration efforts continue.

6. Restore Normative Hydrology and Flows: The Upper Basin as a whole has a

highly disturbed hydrology, and needs to be brought into more ‘‘normative’’ conditions. That is not to say that pre–Project conditions could ever be re-established, but

that the Project could operate in such a way as to roughly emulate or imitate the

more biologically important natural hydrological conditions under which the many

unique species of the Basin evolved.

a) Instream Flow Protection and Water Right Acquisitions. Meaningful instream

and lake level flows need to be established and met throughout the basin. Successful

adjudication of federal and tribal reserved water rights needs to be completed, and

the water needs that ESA-listed fish need for their recovery should be determined

and provided for. An active water right acquisition program to transfer water rights

from willing sellers to instream purposes should also be established and funded.

Again, such a process would allow compensation to those who wanted to discontinue

farming for whatever reason, while providing more water certainty to those who

130

continue. Water right acquisitions should be focused on areas where acquisition of

the associated land is also a priority for habitat and refuge restoration, where acquisition would help meet Tribal and other federal reserved water right claims, and

where the acquisition would have multiple benefits. For instance, acquisitions in the

basin above Klamath Lake could assist in meeting Tribal and other federal reserved

water right claims in the upper basin, provide needed instream flows in the upper

tributaries, assist in maintaining Klamath Lake levels, improve water quality in

Klamath Lake, and add to the water supply to meet project water needs, refuge

needs and downstream flow needs for the re-establishment of the salmon fishery.

b) Water Conservation and Improved Water Management. Improving water use

efficiencies and conserving water can increase water supply at critical times and improve water quality. There should be a thorough analysis of irrigation needs in the

basin. Opportunities for improving conveyance system and on farm efficiencies

should be carefully assessed, funded, and implemented. Water use efficiency standards and goals should be set. Detailed basin-wide conservation plans, including

water conservation plans required of project users under the Reclamation Act of

1982, should be established and implemented to meet the efficiency goals. A full

range of other measures should also be considered to reduce irrigation demand, including changing crop types, developing rotation schedules, and fallowing land.

c) Better Water Measurement, Reporting, and Enforcement. Given the demands

on the water resource, we can no longer afford to have anyone taking more than

their lawful share. This is unfair to other water users and adversely affects

instream flow conditions. The States of Oregon and California need to assume greater responsibility in managing and regulating water use. Very little water monitoring

or enforcement is actually being done today. Water use measuring and reporting

need to be required, and an active enforcement program needs to be implemented.

A recent study of water use from the Wood River in Oregon has shown that requiring measuring devices can reduce illegal use and increase streamflow.

d) Reduce Out-of–Basin Transfers. There are approximately 30,000 acre-feet of

water transferred each year from the Klamath Basin to the Rogue Basin. Some of

this water is managed by the Bureau of Reclamation as part of the Rogue Basin

Project. An examination should be made as to how the Rogue Project could be managed differently to help with the situation in the Klamath Basin, and if possible

these out-of-basin transfers eliminated at least in low water years.

7. Fully Meet Water Quality Standards. The Klamath River and several of its

tributaries have been listed as water quality ‘‘impaired’’ under the Clean Water Act

from the headwaters to the ocean. In fact, water in the Klamath River in the Upper

Basin is the most polluted in Oregon, and among the most polluted in California.

Total maximum daily loads (TMDLs) should be established and implemented for the

impaired streams, preferably on a bi-state basis. The U.S.EPA, Oregon DEQ, and

California Water Quality Control Board Northwest Region should immediately act

to establish and implement interstate TMDLs in the Lost and Klamath Rivers.

8. Implement and Fully Fund P.L. 106–498 to Develop More Water Storage. Since

at least July, 1994, when I personally testified on these very same issues before this

very same Subcommittee in a field hearing in Klamath Falls, we have been strong

supporters of efforts to increase overall storage of water in the Basin. More recently,

we supported the Smith–Wyden Bill (S. 2882) in the 106th Congress, now P.L. 106–

498, as a good if belated beginning, and we commend both Senators for their efforts

in this regard. I also testified in support of full funding for P.L. 106–498 in a hearing before this same Subcommittee on 21 March 2001.

Now once again we urge this Committee and other Members of Congress to fully

fund P.L. 106–498 and urge the Administration to support including that funding

in the Budget. No good idea is worth much if it cannot be implemented. Inherent

in P.L. 106–498 also is language that allows us to look at some creative solutions:

‘‘Sec 2(3): The potential for further innovations in the use of existing water resources, or market-based approaches, in order to meet growing water needs consistent with State water law.’’

This means finding creative ways to better conserve and reuse existing water supplies, as well as considering a water marketing system to make more efficient economic use of the supplies we do have. All these are proven methods.

Although the Bureau of Reclamation is using some P.L. 106–498 funds this year

to purchase about 30,000 acre-feet of water, conservation, in the short run, is the

only option that we have this year to stretch water supplies to their furthest, and

even that will be nowhere near enough. However, making more efficient use of a

scarce resource always makes sound economic sense. Reduced water demand can

also be accomplished in part though aggressive water conservation.

9. Meet all Fish and Wildlife Obligations to the Greatest Extent Possible: Obligations under the ESA to prevent extinction of valuable public resources, and obligaVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00134 Fmt 6633 Sfmt 6621 73135.TXT HRESOUR1 PsN: HRESOUR1
131

tions to Tribes to provide instream flows sufficient to assure fisheries and protect

their culture, are primary obligations that the courts have ruled must be satisfied

ahead of Bureau obligations to water contractors. Klamath Water Users Assn. vs.

Patterson, 204 F. 3d 1206 (9th Cir. 1999), cert. denied, 121 S. Ct. 44 (2000). See

also O’Neal vs. United States, 50 F 3d 677 (9th Cir. 1995). This is the law of the

land. Though not as clear in the courts, the same policy considerations should also

apply to protection of migratory bird species on the national wildlife refuges, which

are protected under the Migratory Bird Treaty Act and under international treaties.

Bald eagles on the refuges (which support the largest population in the lower 48

states) are also protected under the ESA. Obligations to public resources must be

met first, under the law, by public agencies before meeting the needs of private

farmers to make a profit using publicly subsidized water.

In summary, it is unfortunate that in serious drought years like this one that limited water supplies may create hardships for some farming families. We should seek

to do all we can to: (1) avoid such conflicts in the future by increasing the overall

water supply and making the most efficient use of the water we do have through

conservation and sustainable land use practices, and; (2) where cutbacks on irrigation water do cause hardships, take all reasonable and necessary steps to see that

farmers are reasonably compensated for the hardships they must endure through

no fault of their own.

Federal financial assistance and support will be needed in resolving the numerous

issues and conflicts over water in the basin. This is totally appropriate, in our view,

as it was after all the federal government who largely created these problems

though gross over-appropriation of limited water as well as years of negligence in

dealing with the fundamental biological limits imposed by a limited (and variable)

water supply.

We need to do what we can to reduce the economic hardships this year’s drought

has brought on Klamath Basin farmers without sacrificing the incredible resources

of Klamath Lake, the Klamath River, the Klamath Basin Refuges and a large part

of the west coast salmon runs. We hope you will give the above suggestions for longterm solutions your careful consideration.

For more information see: http://www.pcffa.org/klamath.htm

132

133

134

135

136

THE OREGONIAN EDITORIAL

THE KLAMATH DUST BOWL

Water crisis in the Klamath Basin isn’t just about suckers vs. farmers: It’s about a

century of unresolved problems

Sunday, May 13, 2001

A 3-year-old girl, daughter of one of Klamath Basin’s desperate farmers, stood

amid 8,000 people at the bucket—brigade protest in Klamath Falls thisweek clutching a sign that read simply ‘‘We need water.’’

The little farm girl, Peyton Hager, her family and hundreds of other families cut

off from irrigation water face a bitter summer. But if their farms are to ultimately

survive, they need more than a token share of what little water is available in

Upper Klamath Lake.

They need immediate drought relief, and they need responsible leadership to resolve a tangle of problems rooted in the basin’s history and its dry soil.

So far, all these farmers are getting are cover crops to prevent thousands of acres

of dry fields from blowing away in the hot summer wind. That, and the political

equivalent of cover crops——big talk, lots of bluster about amending the Endangered Species Act, but no effort to dig deep into all that needs to be done for the

people, the land and the wildlife of the Klamath Basin.

The Klamath crisis won’t be solved by elected officials who fly into town on borrowed corporate jets to join protests and shout about how farmers are more important than endangered sucker fish. Political hay isn’t a cash crop for Southern Oregon farmers.

This crisis is not just about the worst water year in recorded history in the Klamath, and not just about the federal government’s decision to use the available water

to protect endangered sucker fish and threatened coho salmon.

It is about decades of failure to resolve conflicts over water rights that allow some

upstream irrigators to take more water than they are entitled to, while others are

left high and dry.

It is about the facing the reality that the government long ago promised settlers

and farmers more water than it could deliver without destroying some of the most

significant marsh lands, wildlife refuges and wild salmon runs in the nation. There’s

not enough water, even in years of average rainfall, to sustain all of the farms in

the Klamath Basin. The government must work with willing sellers to retire some

farmland.

These farmers need water, but they also need federal agencies to stop warring

over their particular turf—fish runs, or irrigation delivery, or waterfowl refuges—

and begin working in concert to restore wetlands, improve water quality, screen irrigation canals and conserve water.

The Klamath drought is a true crisis, and perhaps a catalyst for a serious reexamination of the Endangered Species Act. Put a picture of that little farm girl with

the plaintive sign, ‘‘We need water’’ up against a shot of a slimy sucker fish, and

for many people it’s not even a close call.

Yet it’s not that simple, and nearly everyone close to the Klamath crisis understands that. It’s also about the people and communities downstream from the Klamath Basin, the commercial fishermen and their families who have lost their livelihoods, their way of life, because of the way water is diverted, sprinkled and polluted

across the arid basin. The Klamath River system once was the third most productive salmon river in the United States. Now it’s a warm shadow of what it once was,

the Klamath coho is a threatened species and fishermen are out their jobs.

It’s about the Klamath refuge system, among the nation’s oldest and most important waterfowl refuges. These refuges host 80 percent of the waterfowl that migrate

along the Pacific Flyway, and are home to the largest wintering population of bald

eagles, yet they are abused. They are last in line for water, behind suckers, salmon

and farmers, and what little arrives through myriad dikes and ditches is polluted.

This winter, the U.S. Fish and Wildlife Service is worried that as many as 950 bald

eagles—it’s hard to even imagine that many of the great birds in one basin—will

be harmed by the drought.

There is a better way. It must begin with responsible elected officials, a strong

local community open to change and a real commitment from the federal and state

governments.

It should end with restored wetlands, a lake clean and sufficient enough for fish,

a river with enough cool flow for coho salmon, and last but not least, a Klamath

Basin with a sustainable level of irrigated family farms.

137

Copyright 2001 Oregon Live. All Rights Reserved.

A Eugene, Oregon Register–Guard Editorial

May 27, 2001

DON’T BLAME THE FISH: GOVERNMENT POLICIES CREATED KLAMATH BASIN CRISIS

It’s tempting oh so tempting - to oversimplify and distort the Klamath Basin

water crisis by declaring that it’s all about protecting sucker fish and salmon at the

expense of farmers.

That’s no more accurate than saying, as many did, that the Northwest timber crisis was solely about protecting the spotted owl at the expense of timber workers,

an explanation that ignored the government’s primary role in allowing decades of

overharvesting of national forest lands.

It’s that same federal government - and not the suckers and salmon that bears

the ultimate responsibility for the Klamath crisis.

It’s that same federal government that dug dams, drained marshes and built hundreds of miles of canals and ditches in the early 1900s, and then promised farmers

that they would forever have irrigation water to feed crops across the breadth of

what once had been an arid basin.

It’s that same federal government that for years has ignored its own scientists’

warnings about the Klamath Project’s devastating impact on the region’s fish runs

and waterfowl refuges.

It’s that same federal government that has failed to craft a cohesive water policy

that balances the needs of farmers against those of fish and wildlife - and the Native American tribes, fishing industries and downstream communities that depend

on them.

The understanding that it’s the federal government - and not the sucker and

salmon or those fighting for their survival- that is the true culprit is critical to understanding new developments.

An example is environmentalists’ demand last week that the government stop the

trickle of water that continues to flow to a few of the more than 1,000 farms served

by the Klamath Project. The environmentalists say water is needed to save more

than a thousand bald eagles and other waterfowl that depend on wildlife refuges

in the Klamath Basin and that were the very reason these refuges were created.

Without this water, they say, eagles may perish in the months ahead.

Federal wildlife biologists have issued similar warnings. Yet the federal government, at the insistence of Vice President Dick Cheney, allowed the symbolic diversion of 70,000 acre feet of water to irrigate cattle pastures in the Langell Valley east

of Klamath Falls. It was an irresponsible, unscientific and blatantly political decision that could devastate the largest winter population of threatened bald eagles in

the lower 48 states.

Ironically, the plight of the eagles could serve a useful purpose. It’s harder to

blame a beloved national symbol for farmers’ predicament than it is to blame the

sucker and salmon - and the Endangered Species Act that protects them.

Klamath Basin farmers can make it through this crisis intact, provided the federal government gives them the financial assistance they need and deserve, and

moves quickly to develop a long-term strategy that balances the needs of the basin’s

people, its wildlife and the land itself.

But government grants and low-interest loans won’t get the eagles, salmon and

sucker fish through the dry months ahead; they must have the water they need to

survive.

It was the federal government that laid the groundwork for the Klamath water

crisis. Now it’s the federal government that must fix this mess.

Source: http://www.registerguard.com/news/20010527/ed.edit.klamath.0527.html

138

THE OREGONIAN

KLAMATH SOLUTION TAKES COOPERATION BY ALL

There are no easy answers in this drought year or for the future; many interests must

negotiate

Friday, June 1, 2001

IN MY OPINION John A. Kitzhaber DEAN ROHRER/NEWSART The current

water crisis in the Klamath Basin has been 150 years in the making and serves

as a reminder to us all that we are stretching our natural resources beyond their

limits.

Even in a normal year, the water in the Klamath Basin cannot meet the current,

and growing, demands for tribal, agricultural, industrial, municipal and fish and

wildlife needs. And with this year’s near-record drought, the consequences of our actions have hit home in a disastrous way.

While we are working hard at the state level to address the short- and long-term

impacts of this drought, the history of the Klamath Basin bears some scrutiny so

we can understand how we got here in the first place—and can avoid getting here

again in the future.

The history of the Klamath Basin includes tribal rights resulting from the 1864

treaty and later settlement of the basin at the urging of the federal government,

which offered land and water to veterans of World Wars I and II. The Klamath

Basin historically contributed significantly to coastal recreational and commercial

fishing—an industry that has lost 7,000 jobs over the past 30 years related to Klamath species decline. Traditional tribal fishing for suckers in the basin stopped in

1986, two years before the Endangered Species Act listing, because of tribal concerns over population declines of these species.

This is the context in which drought has hit. The drought, in conjunction with

the need to provide water in Upper Klamath Lake for listed suckers and in the

Klamath River for listed coho, resulted in only 70,000 acre-feet of water available

for irrigation from the Bureau of Reclamation Klamath Project, versus the usual

500,000 acre-feet. In addition, this year, no water is allocated for wildlife refuges,

home to hundreds of bald eagles and a major waterfowl stopover on the Pacific

Flyway.

As a state, we have taken a number of steps to try to avoid, minimize or mitigate

these impacts. A drought emergency has been declared for Klamath County. At my

request, the U.S. Department of Agriculture has also declared a drought disaster.

Furthermore, before the final biological opinions were released in early April, I

urged the secretaries of Commerce, Interior and Agriculture to exercise maximum

flexibility and share the burden, given the severe drought conditions.

At my request, state Attorney General Hardy Meyers asked the U.S. District

Court in Eugene to supervise court-ordered mediation of all parties to resolve both

the short-term and long-term issues in the basin. Three days of mediation occurred

in late April in an attempt to find a compromise for this year. While the state put

serious proposals on the table, the parties were unable to reach agreement. However, mediation will resume on the long-term issues in the basin this month. The

state is taking the lead in offering the court a proposal on the conduct, scope and

timing of continued mediation.

We have learned that many of the traditional federal disaster-assistance programs

do not fit the needs in Klamath County. I have asked members of the congressional

delegation to make a specific request for the Klamath as part of any supplemental

appropriations bill for this fiscal year. I have also asked the federal agencies to return to mediation with a willingness to bring long-term solutions to the table.

Oregon’s state agencies already have made available programs, services and assistance to individuals and businesses in need.

Oregon’s Water Resources Department has been working to process emergency

water permits and limited licenses to tap groundwater sources.

Having heard concerns about the science being used in the basin to make decisions about water allocation, I have asked the Independent Multidisciplinary

Science Team, created as part of the Oregon Plan for Salmon and Watersheds, to

review the available science and to offer an opinion about the reliability of that information for making decisions that have such critical effects on the basin.

All of these efforts, however, will not solve the underlying problem in the Klamath

Basin: A demand for water that exceeds the supply of water.

No court can solve this problem; no one person can solve this problem. It will take

all the parties coming to the mediation table—leaving their positions at the door—

139

ready to roll up their sleeves and design a long-term solution that will sustain the

Klamath Basin for the benefit of communities, the economy and the environment.

The recent political rhetoric about amending the Endangered Species Act is just

that—political rhetoric, making for good sound bites, but doing nothing to solve the

current crisis in Klamath County. I am on record supporting changes to the act that

were proposed in Congress a few years ago. It is clear from that experience, however, that there is not the national consensus or will to amend the act. This is even

more true of this Congress than the last.

Only the people in the Klamath who care about the future of their watershed,

their economy and their communities—working with tribal, state and federal officials—have the tools to meet this challenge. Increased water storage, decreased demand, enhanced conservation, habitat improvements and many more actions can

and should be taken to ensure a sustainable future for all species in the Klamath

Basin. I will continue to do all I can to bring these actions about.

Copyright 2002 Oregon Live. All Rights Reserved.

Mr. POMBO. Mr. Gaines.

STATEMENT OF BILL GAINES

Mr. GAINES. Thank you, Chairman Pombo, members of the Committee. It’s a pleasure to be here today in Klamath Falls to talk

with you about the California Waterfowl Association and our concerns with the water allocation decisions that have been made recently, in the last few weeks. My name is Bill Gaines. I’m the director of Government Affairs for the California Waterfowl Association, and on behalf of our 15,000 members throughout the Pacific

Flyway, thank you for the opportunity to speak to you today.

The Upper Klamath Basin is the most critical waterfowl staging

area in North America. So important is the Klamath Basin to

North American waterfowl on their annual migratory trek, that if

you look at a Pacific Flyway map, which I happen to have right

here—I don’t know if you can see this or not—you can easily find

the Klamath Basin simply by looking at the big black dot because

that’s where the apex of the Pacific Flyway funnel is. It’s right

there, right on the Klamath Basin. We estimate that about 75 to

80 percent of Pacific flyway waterfowl either nest or stage here at

some time during their annual migratory trek.

Historically, this Basin contained about 350,000 acres of naturally occurring waterfowl habitat. Today, however, largely due to

the construction of the Klamath Reclamation Project, we only have

about 25 percent of that historical habitat remaining. Yet each

year, as I mentioned, a full 75 to 80 percent of our Pacific Flyway

depend upon this Basin’s few remaining wetlands to address their

habitat needs.

In addition, these birds depend upon wildlife-friendly agriculture

for critical staging habitat as well. In addition to waterfowl that depend upon these remaining wetlands—which, by the way, nearly

all of which are contained within the Klamath National Wildlife

Refuge complex—a documented 430 other wildlife species depend

upon this Basin for habitat, including the largest wintering population of bald eagles in the lower 48 States.

Because of the Klamath Reclamation Project and the manner in

which it changed the Upper Basin’s natural hydrology, nearly all

of our remaining wetlands today must now be managed. In other

words, they have to be artificially irrigated and intensely managed

to maintain marsh conditions. In effect, similar to the farmers that

are struggling with the water allocation, the public and private

140

wetland managers in the Klamath Basin are also. As a result of

this condition, the quantity and quality of wetland habitat available in any given year is nearly entirely dependent upon the allocation of water it receives from the Klamath Reclamation Project,

local irrigation districts and other sources.

Tragically, the Upper Basin’s highly limited surface water supply, combined with the regulatory actions mandated by the two recent biological opinions, will result, as you know, in no water to the

refuges this year, and little or no water for wetland habitat in all

but the wettest of future years.

Some environmentalists, in their zeal to protect both fish and refuges, have called for the elimination of agriculture in this Basin to

free up the water necessary to address listed species concerns. Our

Association, as a spokesman for waterfowl and their environments,

can assure you that this is not the answer. With only 25 percent

of our historic wetland habitat available in this region, it is critical

that we manage our remaining habitat to maximize these wetland

values and functions. Yet, even if we have sufficient water to maximize the wetland values of our few remaining wetlands, it still is

not enough.

These waterfowl depend heavily on the wildlife-friendly agriculture provided by local agricultural production to help meet their

nesting and foraging needs. In fact with the agriculture that’s

going to be eliminated with the lack of water this year, it’s going

to reduce the normal total wetland food base and the waterfowl

food base in this Basin by nearly one-half. That’s how much these

birds depend upon local agricultural production in addition to the

habitat provided on the refuges.

As we’re all well aware, the two biological opinions released in

early April have not only shut off the critical water deliveries to

the Klamath refuge complex, but also, of course, to the agriculture

in the surrounding basin. To make matters worse, because these

waterfowl are going to be forced to crowd onto the few remaining

wetlands, we are very likely to see significant avian die offs due to

avian botulism and cholera as well. The serious stress placed on

these birds by the lack of habitat, coupled with the anticipated dieoffs due to disease, may mark the beginning of the end for our Pacific Flyway waterfowl resource.

Gentlemen of the Committee, three species of fish are currently

holding our Pacific Flyway, the bald eagle, roughly 430 other wildlife species, over 1200 local families, and an entire local economy

hostage here in the Upper Klamath Basin. The California Waterfowl Association does not believe that this was Congress’s true intent when they passed the Endangered Species Act a few short decades ago. Truly, as our nation becomes more urbanized, conflicts

between our fish and wildlife species and our human environment

will become more frequent. Today’s crisis in the Klamath can only

be viewed as the ‘‘canary in the mine shaft’’ for what we can expect

in the future should resource agencies continue to be allowed to implement the ESA as they do today.

To address these very real concerns, we ask Congress to join us

in seeking a few solutions. First, in the short-term, we call for the

U.S. Department of Interior and its agencies to fully consider the

impacts and risks to waterfowl and other wildlife and the imporVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00144 Fmt 6633 Sfmt 6602 73135.TXT HRESOUR1 PsN: HRESOUR1
141

tance of wildlife-friendly agriculture before making water allocation

decisions based on the current biological opinions.

Secondly, ground water is being talked about as the silver bullet,

if you will, to address these concerns. We can assure you that

ground water will help address these concerns, but it cannot be

viewed as a silver bullet. We must get a ground water management

plan in place to assure that the ground water resource will be

available over the long-term to assist in meeting our water needs

here in the Klamath Basin.

Over the long-term, we ask you to join us in seeking careful common sense amendments to the Endangered Species Act. If there

were ever a poster child for the need for Endangered Species Act

amendments, it’s what we’re looking at right now in the Upper

Klamath Basin. In addition, we’d like you to work with us in seeking changes in the Migratory Bird Treaty Act, which helps to elevate our internationally shared migratory waterfowl resource to a

par with local and regional listed species. We’d also like you to

work with us in appropriating Federal funding for projects which

could provide incentives to local growers to do wildlife-friendly agriculture on their lands, or maybe even fallow marginal land when

necessary, which can also provide upland habitats for a variety of

species.

And finally, helping us to call for peer review of future biological

opinions. Outside peer review is commonplace before biological

opinions, if you will, within the scientific community are accepted

as credible. It should also be commonplace when biological opinions

have the ramifications of the ones that we’re currently looking at

up here in the Klamath Basin are also put into play.

In closing, we urge the Committee to recognize that the most important environmental asset of the Klamath Basin, its waterfowl,

are also the most costly victims of the current water management

decisions. It is important to recognize that waterfowl hunting provides a financial and emotional commitment to the conservation

and enhancement of wetlands throughout North America. These

habitats directly or indirectly support hundreds of wildlife species

as well as more than one-half of our currently listed species in

California. Water allocation decisions mandated to address the

needs of three listed species in the Klamath Basin are seriously

threatening the future health and well-being of the entire Pacific

Flyway. Should the flyway be devastated, I can assure you that

many thousands of acres of privately managed wetlands throughout California and Oregon will also go away, because there will be

no incentive for these people to annually manage those lands, year

round, to provide waterfowl habitat or habitat for other species as

well.

The California Waterfowl Association appreciates your close attention to this serious crisis and the opportunity to provide testimony today. We believe that we can all work together to find solutions which meet the needs of the local community, the Pacific

Flyway, other wildlife and the fish species, and we look forward to

working with Congress and all interests in seeking these solutions.

Thank you.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Gaines follows:]

142

Testimony of Bill Gaines, Director, Government Affairs, California

Waterfowl Association

Good morning. Mr. Chairman and Members of the Committee, my name is Bill

Gaines, and I am the Director of Government Affairs for the California Waterfowl

Association. On behalf of our Association’s 15,000 members, and waterfowl enthusiasts throughout the Pacific Flyway, I would like to thank you for coming to Klamath Falls, and for providing us the opportunity to present our concerns regarding

the serious water crisis currently confronting the Upper Klamath Basin.

Founded in 1945, the California Waterfowl Association (CWA) is a private nonprofit organization dedicated to the conservation of California’s waterfowl, wetlands

and our sporting heritage. The California Waterfowl Association effectively pursues

this mission through waterfowl research, habitat projects, education and outreach

programs, and Government Affairs activities.

The Upper Klamath Basin is the most critical waterfowl staging area in North

America. So important is the Klamath Basin to North American waterfowl on their

annual migratory trek that the region can be easily located on a flyway map simply

by locating the ‘‘apex of the Pacific Flyway hourglass.’’

Historically, this Basin contained over 350,000 acres of naturally occurring seasonal and permanent wetland habitat. Today, however, largely due to the construction of the Klamath Reclamation Project, over 75% of these historic wetlands have

been destroyed. Yet, each year, a full 75% of Pacific Flyway waterfowl depend upon

this Basin’s few remaining wetlands and wildlife-friendly agricultural lands for critical staging habitat. In addition to waterfowl, remaining wetlands in the Basin—

nearly all of which are now contained within the Klamath National Wildlife Refuge

Complex—also provide critical habitat for many other species. In fact, more than

430 other wildlife species have been documented in the Upper Klamath Basin—including the largest wintering concentration of bald eagles in the lower 48 states.

Recognizing the importance of the Upper Klamath Basin to migratory waterfowl,

and the tremendous loss of waterfowl habitat resulting from the construction of the

Klamath Reclamation Project in 1906, President Teddy Roosevelt established the

Lower Klamath National Wildlife Refuge by Executive Order just two years later.

Nearly one hundred years later, the Klamath National Wildlife Refuge Complex remains the most important waterfowl refuge in the entire National Wildlife Refuge

System.

Because of the Klamath Reclamation Project, and the manner in which it changed

the Upper Basin’s natural hydrology, nearly all of the region’s wetlands must now

be ‘‘managed’’—artificially irrigated and intensely managed to maintain marsh conditions. In effect, public and private wetland managers in the Klamath Basin must

‘‘farm for ducks’’. As a result of this condition, the quantity and quality of wetland

habitat available in any given year—most notably the exceptional habitat available

on the Lower Klamath National Wildlife Refuge—is almost entirely dependent upon

availability of wetland water supplies from the Klamath Reclamation Project. Tragically, the Upper Basin’s highly limited surface water supply, combined with the

regulatory actions mandated by the two recent Biological Opinions, will result in no

water to the refuges this year, and little or no water for wetland habitat in all but

the wettest of future water years.

Some environmentalists, in their zeal to protect both fish and refuges, have called

for the elimination of agriculture in this Basin to free up the water necessary to

address listed species concerns. Our Association, as a spokesmen for waterfowl and

their environments, can assure you that this is not the answer. With only 25% of

our historic wetland habitat available in this region, it is critical that we manage

our remaining habitats to maximize values and functions for waterfowl and other

wetland dependent wildlife. Yet, even if we have sufficient annual water available

to maximize the waterfowl values of these few remaining wetlands, we still could

not meet the biological needs of the tremendous numbers of waterfowl that depend

upon this region. As such, similar to California’s Sacramento Valley where rice production provides vitally important surrogate habitat and food for waterfowl, cereal

grains and other wildlife-friendly agriculture in the Basin are critical to meeting the

needs of Pacific Flyway waterfowl. Removing wildlife-friendly agriculture from the

Upper Klamath Basin—regardless of the quantity of water it may free up for refuge

use—would gut our Pacific Flyway waterfowl resource by eliminating roughly half

of the food base annually available to these birds.

As we all are aware, the two Biological Opinions released in early April have not

only shut off critical water deliveries to the Klamath Refuge Complex, but also to

the important waterfowl food resources provided by local agriculture. To make matters worse, as waterfowl are forced to crowd onto what little wetland habitat that

may remain, there will likely be significant die-offs due to the increased risk of

143

avian botulism and cholera. The serious stress placed on birds by the lack of habitat, coupled with the anticipated die-offs due to disease, may mark the beginning

of the end for our Pacific Flyway waterfowl resource.

Ladies and gentlemen of the Committee, three species of fish are currently holding our Pacific Flyway, the bald eagle, roughly 430 other wildlife species, 1,200 families and the entire local economy hostage in the Upper Klamath Basin. The California Waterfowl Association does not believe that this was Congress’’ true intent

when they passed the Endangered Species Act a few short decades ago. Truly, as

our nation becomes more urbanized, conflicts between our fish and wildlife species

and our human environment will become more common. Today’s crisis in Klamath

can be viewed as the ‘‘canary in the mineshaft’’ for what we can expect in the future

should resource agencies be allowed to continue to implement the ESA as they do

today.

To address these very real concerns, we ask Congress to join our Association in

immediately seeking some solutions. First, in the short-term, we ask you to join our

Association in:

1. Calling for the U.S. Department of Interior and its agencies to fully consider

the impacts and risks to waterfowl, other wildlife and the importance of wildlife-friendly agriculture before making water allocation decisions based upon

these Biological Opinions.

2. Calling for a groundwater management plan that will ensure that the groundwater resources used to help address our short-term water supply needs will

remain viable over the long-term. It is important to recognize that groundwater

is not the ‘‘silver bullet’’ to addressing the Basin’s water needs. Groundwater

quality must be checked to ensure that it is not harmful to agriculture and wetland plant growth. In addition, the excessive temperature of some groundwater

sources could be harmful to waterfowl and other wildlife. Finally, we must fully

understand the ramifications of using this resource. Past use of groundwater

has reportedly resulted in the drying up of naturally occurring spring fed wetlands.

Finally, over the long-term, we ask for your help in:

1. Seeking changes in the Migratory Bird Treaty Act which elevates our internationally shared migratory waterfowl resource to a par with local or regional

listed species.

2. Seeking careful, common sense amendments to the Endangered Species Act. If

ever there were a ‘‘poster child’’ for the need to amend the ESA in order to ensure it considers impacts upon other non-listed species and our human environment, it is the current crisis in the Klamath Basin.

3. Appropriating federal funding for projects which serve to increase the surface

water annually available to meet the region’s water needs. For example, offstream storage facilities to capture excess flows when available, and tail-water

return systems which more effectively utilize available supplies could play a

vital role in addressing the region’s water woes. In addition, these types of facilities, if properly managed, can also provide additional waterfowl habitat and

groundwater recharge benefits.

4. Calling for appropriate ‘‘peer review’’ of future Biological Opinions. Full outside

peer review is required throughout the scientific community before any opinion

is considered credible.

5. Creating federal programs which provide incentives to encourage for wildlifefriendly farming and ranching practices.

The Upper Klamath Basin is the most important waterfowl staging area in all of

North America. Yet only about 25% of the Basin’s historic wetland habitat base remains today. With nearly all of these remaining wetlands contained within the

Klamath Basin National Wildlife Refuge Complex, it is critical that we allocate sufficient water to address the needs of the waterfowl, bald eagles and hundreds of

other species which depend upon this habitat. But we must not stop there. When

allocating limited water supplies, we must also consider the vitally important wildlife benefits provided by local agriculture, and, of course, the importance of farming

to local families and the community.

In closing, we urge the Committee to recognize that the most important environmental assets of the Klamath Basin—its waterfowl—are also the most costly victims

of the current water management decisions. Waterfowl hunting provides a financial

and emotional commitment to the conservation, and enhancement of wetlands

throughout North America. These habitats directly or indirectly support hundreds

of wildlife species, as well more than one-half of our currently listed species. Water

allocations mandated to address the needs of three listed species in the Klamath

Basin are seriously threatening the future health and well-being of the entire Pacific Flyway. We urge the Committee to reject the current action, and demand water

144

management strategies to assure that waterfowl, including the farm and ranch food

resources, are protected.

The California Waterfowl Association appreciates your close attention to this serious crisis, and the opportunity to provide testimony today. We do not believe there

can be only one ‘‘winner’’ in this crisis. We believe that if we all work together we

can find solutions which meet the needs of the local community, the Pacific Flyway,

other wildlife and the fish species. We look forward to working with Congress and

all interests in seeking these solutions.

Mr. POMBO. Mr. Gasser.

STATEMENT OF ROBERT GASSER

Mr. GASSER. Mr. Chairman and members of the Committee, I’m

the witness you’ve been waiting for—the last. Thank you for coming.

My name is Bob Gasser. I’m co-owner of Basin Fertilizer Company, Merrill, Oregon, located on the Oregon/California border in

the heart of the Klamath Basin. My great-grandfather, Frank

Zumpfe, selected the town site of Malin, and established a Czech

settlement there in 1909. The Czechs were drawn here to the area

by the Klamath Irrigation Project. My wife and I are both descendants of these Czech settlers.

My partner, Chris Moudry, and I started our company in 1975

when we were both in our early twenties. With the help of our employees, we built Basin Fertilizer into a successful operation that

employees 26 people and provides ag-services to over 600 basinarea family farms.

We have a loyal, family oriented company. The average employee

worked for us for over 15 years. We have worked hard and built

the businesses into the kind of solid, tax paying company that the

American dream is built upon. Our company supports 80 individuals, and last year our employees paid over one half million dollars

in taxes. These taxes are being used against us to fund agencies

like National Marine Fishery Service, the U.S. Fish and Wildlife.

Today, many previously solid Klamath Basin ag-dependent businesses are in serious trouble due to bad decisions that have been

made by our government.

The National Marine Fishery Service and the U.S. Fish and

Wildlife Service caused the Klamath Basin crisis. These two agencies came up with misguided biological opinions using unproven

voodoo science. These opinions handed down under the authority of

the ESA have been used to justify the destruction of an entire basin’s economy, ecosystem and thousands of lives. Lives are being

destroyed.

When the decision was announced on Black Friday, April 6th,

2001, my first thought was, How is my business going to keep

afloat? Later that evening a valued employee approached me with

tears in his eyes, wondering if he would still have the job that he

loves. My focus immediately changed. How can I and the people

who helped build this business survive together? From that point

on, all my attention has been strictly focused on simple survival.

No one could believe that their country, the United States, land

of liberty and justice for all, could actually tear apart the very fabric of their lives based on such unjust, unfounded reasoning. This

kind of arbitrary decision making happens in dictatorships, not

145

here. Most farmers and ranchers felt that surely someone in Washington D.C. would use common sense and rescind this ludicrous

order to deliver zero water before it was actually too late to plant.

That was not to be. Today, many businesses are in dire straits. My

company is projecting a loss of 85 percent of revenue. Other businesses are also taking a severe hit.

I have 17 letters from a variety of ag-dependent businesses.

There has been an immediate drop in ag-sales and projected sales

ranging from 15 percent at a local restaurant to 95 percent at a

Tulelake irrigation business. I’d like to submit these to the Committee. They’re all trying to hang on.

Bankers are reluctant to make operating loans. Mortgage payments can’t be made. Property and equipment values have plummeted. The labor force is leaving. The value of businesses, including blue-sky, will never again be what it should, due to the fear

of this happening again at the whim of some misinformed government agency. The American dream of owning one’s own business

is shattered. Now that dream is a nightmare and a liability.

In your June 7 memo, you asked me to discuss what I’m doing

to help repair the situation. I’ve had no choice but to step away

from my normal business routine and devote my volunteer energy

working to solve this crisis. I’ve been involved in planning community efforts to draw national attention to this crisis, including the

tractor rally, the forum with Governor Kitzhaber, the May 7th

Klamath Basin Bucket Brigade which drew an estimated 18,000

frustrated people to the streets of Klamath Falls in protest. Where

else but in Southern Oregon could 18,000 protestors leave the

streets cleaner after the protest, with no vandalism or violence?

Klamath Basin people are the backbone of America, but our backs

are being broken by our own American Government.

I’m on the Committee that developed the economic impact report

to evaluate the damage our community has endured. This report

has been submitted to Congress. You can help by urging your colleagues to support this package to mitigate the unjust, regulatory

drought. In addition to the Relief Package, Congress is considering

a $20 million program in the supplemental appropriations process.

While this is a start, it only begins to cover the massive financial

impacts of the April 6th taking of our water.

We need your help now. There must be an immediate independent review team to assess the data used in this year’s biological opinions for the two sucker species and the Coho salmon. I also

urge you to amend the ESA so that people are finally considered

along with the needs of fish, wildlife and plants. We must consider

people, families and common sense.

My partner and I made a pledge to our people to keep them employed for this 2001 season. To do this we have already cut hours,

wages, overtime and health benefits. We’re trying to keep our welltrained, licensed employees, even if we have to make no profit and

are forced to take out loans to pay them. To lose this valuable work

force would surely be the death of our company. Please take a look

at those two pages, with pictures I provided for you. These families

are hard-working, self-motivated Americans. If you choose not to

help the Basin farming and ranching community, I’d like you to

choose which page of people I should let go. I’d also like your help

146

when I have to tell these families that their livelihood is gone. I’m

not sure I can deliver that message and ever look at our flag with

pride again. Thank you for coming, and thank you in advance for

your determination to end this crisis.

Mr. POMBO. Thank you.

[The prepared statement of Mr. Gasser follows:]

Statement of Robert E. Gasser, Owner, Basin Fertilizer Co.

My name is Bob Gasser. I’m co-owner of Basin Fertilizer Co. in Merrill, Oregon;

located on the Oregon and California border in the heart of the Klamath Basin. My

great-grandfather, Frank Zumpfe, was the scout who selected the town site of

Malin, Oregon, and established a Czech settlement there in 1909. The Czechs were

drawn to the area by the Klamath Irrigation Project and the opportunity it provided

to help hard-working people rise from poverty. My wife and I are both descendants

of those Czech settlers and have planned on living here our entire lives, surrounded

by friends and family members who also desire a wholesome, family and community

oriented, country lifestyle.

My partner, Chris Moudry and I started our company in 1975 when we were both

in our early twenties. With the help of our employees, we’ve built Basin Fertilizer

into a successful operation that employs 26 people and provides ag services to over

600 Basin area farm families.

We have a loyal, family oriented company. The average employee has worked over

17 years with us. We have worked hard and built this private business into the kind

of solid, tax-paying company that the American dream is built upon. Our company

supports eighty individuals and collectively the 26 employees paid a minimum of

over ° million dollars in taxes last year. These taxes are being used against us to

fund agencies like National Marine Fisheries Service and Fish and Wildlife.

Today, many previously solid Klamath Basin ag-dependent businesses are in serious trouble. We are in trouble not from a natural disaster or any decisions of our

own. We are in trouble because of bad decisions that have been made by our government.

The National Marine Fisheries Service and the U.S. Fish and Wildlife Service

caused the Klamath Basin Crisis. These two agencies came up with misguided Biological Opinions using unproven ‘‘voodoo science’’. These ‘‘opinions’’ handed down

under the authority of the Endangered Species Act have been used to justify the

destruction of an entire basin’s economy, eco-system and thousands of personal

lives.

Seriously, gentlemen, lives are being destroyed.

When the decision came on Black Friday, April 6th, 2001, my first thought was— ‘‘How is my business going to keep afloat?’’ Later that evening, a valued employee

approached me with tears in his eyes wondering if he’d still have the job he loves.

My focus immediately changed. ‘‘How can I and the people who helped build this

business survive together?’’ From that point on all my attention has been strictly

focused on simple survival. It’s hard to believe that this is happening in a productive area that works hard to feed our nation.

For three to four weeks following this devastating decision, I found my customers

in denial and disbelief. No one could believe that their county, the United States,

land of liberty and justice for all, could actually tear apart the very fabric of their

lives based on such unjust, unfounded reasoning. This kind of arbitrary decision

making happens in dictatorships or war-torn countries, not here. Most farmers and

ranchers felt that surely someone in Washington D.C. would use common sense and

rescind this ludicrous order to deliver zero water before it was actually too late to

plant. That was not to be.

Today, businesses such as mine are in dire straits. We are projecting a loss of 85%

of revenue in the Klamath Project lands that are receiving no water. The 15% remaining business is due to the limited number of ag wells.

How are ag dependent businesses in the Klamath Basin affected?

• Bankers are reluctant to make operating loans.

• There has been an immediate drop in sales ranging from 15% at a local restaurant to 90% loss at a recently closed auto repair shop in Tulelake.

• Mortgage payments can’t be made.

• Property & equipment values have plummeted.

• The well-trained labor force is forced to leave the area.

• The value of businesses (including blue-sky) will never again be what it should

be due to the fear of this happening again at the whim of some misinformed

government agency.

147

• The American dream of owning one’s own business is shattered. Now that

dream is a nightmare and a liability.

The business impacts from shutting off our water are far-reaching. Oregon Employment Department reports that in the three counties of Klamath, Siskiyou and

Modoc, approximately 2,061 farm labor jobs will be lost for a total of $36 million

in lost wages. These figures do not include approximately 880 more farm labor jobs

that are not covered by the unemployment insurance program.

• Agricultural Employment in Klamath County represents—35% of total employment countywide

• Agricultural Employment in Siskiyou County represents—58% of total employment countywide

• Agriculture represents 27% of total payroll in Klamath County, 47% in Siskiyou

County

This data provides evidence that not only is the agricultural financial infrastructure demolished but also the economic base of all three counties is seriously compromised. This man-made disaster has torn through Northern California and Southern Oregon like a tornado, leaving a wake of financial, physical and mental destruction.

In your June 7th, memo, you asked me to discuss what I’m doing to help repair

the situation. When this decision came down, I had no choice but to step away from

my normal business routine, and devote my volunteer energy working to solve this

crisis. I’ve been involved in planning a variety of community efforts to draw attention to this crisis, including the tractor rally, Kitzhaber Forum, and the May

7th,Klamath Basin Bucket Brigade which drew an estimated 18,000 frustrated people to the streets of Klamath Falls to protest the zero water allocation. Where else

but in Southern Oregon could a mass of 18,000 protestors leave the streets cleaner

after the protest with no signs of vandalism or violence. Unlike the radical so-called

environmental groups, we don’t destroy other’s property and lives to further our

cause. Klamath Basin People are the backbone of America but our backs are being

broken by our own American government.

I’m on the committee that developed the Economic Impact Report. We’ve submitted this report to Congress. You must provide relief with the Economic Relief

Package of $221 million to help mitigate this unjust regulatory drought. Oregon

State University Department of Ag & Resource Economics has concurred with the

damage amounts suffered by this basin. Recently, President Bush signed a supplemental appropriations package for $20 million. While this is a start, it in no way

begins to cover the massive financial impacts of the April 6th taking of our water.

We need your help now. There must be an immediate independent review team

to assess the data and scientific method used in this year’s biological opinions for

the two sucker species and the coho salmon. We believe that the suckerfish were

mistakenly listed and should be delisted immediately. No science available can

prove their endangered status. History has proven that these unprecedented high

lake levels and high stream flows will kill more suckers and salmon, not save them.

Undoubtedly, this government decision will kill the fish, wreck our basin eco-system

and devastate thousands of people, financially, physically and mentally. The people

making these drastic decisions must be held accountable for the destruction of the

entire Klamath Basin. We can and we must amend the ESA to prevent future disasters of this nature. We must consider people, families and common sense.

My partner and I made a pledge to our employees to keep them on the job for

this 2001 season. To do this, we’ve already cut hours, wages, overtime and health

benefits. We’re trying to keep our well-trained, licensed employees even if we make

no profit and are forced to take out loans to pay them. To lose this valuable work

force would surely be the death of our company. I’d like you to take a look at the

two pages of pictures I’ve provided for you. They’re all hard-working, self-motivated,

non-subsidized Americans. If this crisis is not solved quickly, I’m going to have a

real problem. These people will find their lives ruined when we can no longer provide them with the jobs they depend on. Please take a careful look at these families.

If you choose not to help the Basin farming and ranching community, I’d like you

to choose which page of people to let go. I’d also like your help when I have to tell

these families that their livelihood is gone, maybe forever.

I’m not sure that I can deliver that message and ever look at our flag with pride

again.

Thank you for coming, and thank you in advance for your determination to end

this crisis.

Mr. POMBO. Mr. Hastings.

148

Mr. HASTINGS. Thank you, Mr. Chairman. And, Mr. Gasser,

thank you for that testimony. Before I got into this job, I was a

businessman in the Tri-city area at the same time that the public

power, the nuclear plants were being terminated. You probably

don’t recall that, but I saw overnight the revenues drop precipitously, not to the scale that you’re going through, but I understand

exactly what you’re going through, and we will obviously do everything we can to try to alleviate that pain.

Mr. Grader, is it Grader?

Mr. GRADER. Grader.

Mr. HASTINGS. In your oral testimony, you sounded very much

like you wanted to find solutions to the problems that are facing

us, and you expressed the concern of the fishing industry in general and gave us an historical perspective. But then I read your

written testimony and I see what I would consider a bit of an inflammatory sentence here, and I’ll quote it. It says, ‘‘Farmers

should stop blaming the ESA and get to work solving their real

problems.’’ And then I read the rest of this, and quite frankly—and

then I looked over at Mr. Kerr’s testimony and it sounded like it

came out of the same playbook.

Now, the concern I have—and I want to give you a chance to

make amends here—is that Mr. Crawford, who is a farmer here,

in his testimony—in his oral testimony and his written testimony—

said very specifically that this is not an either/or situation. He supports the fishing industry recovery, and yet you’re representing the

fishing industry and you’re coming in here with this rather inflammatory statement.

Mr. GRADER. Well, first of all, I don’t even know Mr. Kerr. Secondly, I think as far as the ESA goes, it’s the same thing I tell my

own membership, and we had some very serious problems, as

you’re probably aware of, on Stellar sea lions in Alaska. They’re

very serious problems that we have off of California at times

where, for example, we’ve been closed, had our fishing restricted to

protect winter run fish. And I go back and tell my members, I said,

What is it with the ESA? Well, we’re being shut down. And I said,

Well, why? Well, because the fish numbers are down. Well, that’s

the problem.

In this particular instance, I think it’s a situation where there

is not adequate water. And what water is remaining, to prevent a

couple species from going instinct, are being allocated to them right

now to prevent their extinction. We can keep the human people

here from extinction by some immediate cash relief from the Congress. That will help—.

Mr. HASTINGS. Okay—.

Mr. GRADER. Let me finish, because I think there are some other

solutions. That’s why I said we need to get everybody together. I

think we can find ways between the restoration programs and better use of some of the water. Some of it might be looking at, for

example, the removal of Iron Gate Dam, which right now is a heat

sump. It’s causing a lot of hot water to go down into the Klamath

River itself. The removal of that, basically, a dam which regulates

water from an upstream hydro-project, is located in the wrong location. It’s heating up the water. That may mean, for example, that

149

we don’t have to release as much water then downstream if we can

get that water so it has areas where it’s kept cool.

There are other things we can do. This is not a lot different— and I know Congressman Herger probably realizes where we were

10 years ago when we had the winter run listed, and what we had

to do then. We made some changes and nobody went broke.

Mr. HASTINGS. Well, but my point is—and I know there’s solutions to that and I know you take them—I now you’re very sincere

in your approach. What I’m addressing, though, and I’ll just make

the final point here, is that in your statement—and your association apparently agrees with this statement or you wouldn’t have

said it—‘‘Farmers should stop blaming the ESA and get to work

solving their real problems.’’ Mr. GRADER. Exactly, and that’s the same thing I tell my own

members. Stop blaming the ESA and let’s get on with the real

problems, and sometimes that’s been working to try and bring back

winter run salmon—. Mr. HASTINGS. Right, well—. Mr. GRADER. —which, let me add, because that’s a success story.

We listed the winter run salmon. It took 4 years to list them. It

didn’t happen overnight. People have been saying, Well, you can

automatically get these suckers listed. You don’t. It took 4 years to

get them listed, after the agency was in big-time denial. We had

to first get them listed under our state act. After that we had to

threaten to sue a number of people changing the Federal Shasta

Dam operations to cold water. We then had to change a couple

major irrigation districts, their pumping policies, get them to

screen their pumps, also fix a dam downstream. We did all those

under the ESA, and those fish are coming back now.

Mr. HASTINGS. I appreciate that, but my only point I’m saying— and I understand the sense that you’re saying that—but in your

testimony here, then you criticize exactly the same way, ‘‘Well, you

know Mr. Coronada is immaterial,’’ but you simply say this area

is not suitable for agriculture, and I think that that is wrong.

Now, my time is up and I’m going to have to leave here very

shortly, Mr. Chairman. But what I would like to say in my closing

remarks is, number one, to thank everybody for your patience in

coming down and hearing what is perhaps your first Congressional

testimony or Congressional hearing. I am very pleased to have the

privilege of coming down here and being part of this panel, since

I don’t sit directly on this panel. But this issue interests me so

much, because of what I have learned and what I have gone

through in my district in Central Washington, that I wanted to

come down here today.

And I was very impressed this morning when I saw the grocers

come down with the supplies for the food bank. Boy, I have to tell

you, that shows what Oregonians are all about, and particularly,

Oregonians in rural areas. This is a very compassionate society,

and certainly this part of Oregon is very compassionate.

But here is something that I am very concerned about, and this

isn’t directed to any of you that are sitting here. As a matter of

fact, it’s directed to the press. I understand that we have national

press here. They should be here. This is a huge story. People’s lives

and livelihoods are potentially cut off with an act of the Federal

150

Government, with absolutely no time for people to react. But if the

only story—if the only story is a story about how compassionate

people are in this part of the country, without saying why that

compassion has reached this level—namely, the need to amend the

Endangered Species Act—then quite frankly, the media will have

not gotten the story right.

Now, one of the things that we that are elected should probably

not do is to tell the free press what to print, but I’ll tell you this.

This area is a rural part of America, just like my district is a rural

part of America. And the story was always missed, because it did

not talk about the root cause that caused these hearings to be held

in rural America, and that’s the need to amend the Endangered

Species Act. I hope that that message gets out to the media that

is here today.

Mr. Chairman, I want to thank you very much for the consideration that you’ve given me and my colleagues. Thank you.

Mr. POMBO. Thank you. Mr. Herger.

Mr. HERGER. Well, Congressman Hastings, I want to thank you

again for taking time out from your district on a Saturday morning

and afternoon to be here with us. We’re very grateful to you. And

I just have to also comment too, you know, the greatness of our

country is that we can disagree and hopefully not be too disagreeable, unlike China or the former Soviet Union where they would

maybe throw you in jail, or worse.

But, Mr. Grader, evidently the Endangered Species Act has been

much kinder to your fisherman than they have been to the constituents that I represent, or you would never begin to make the

statement that it should not be at least brought up and modernized

and updated. And again, let me just allude to three—in addition

to what’s happening here, where basically zero water is going to

these farmers. That’s not right. Where we can get extreme environmental groups that can sue because of the way the law is written

and be able to stop—a couple biologists, without peer review, can

shut off this water, and you can listen to them and not listen to

all the other information, that’s not right. And a law that’s set up

that way, I would respectfully say, is in dire need of being reformed.

And I can go on to the three people who drowned on a levee,

where they couldn’t replace a levee, where they could sue—a highway—and these are all in the district I represent. A highway where

just as of yesterday the 149th head-on collision, resulting in a fatality, where they can’t widen the road because of a meadow fern.

They’re fighting it there. Again, my good friends in the extreme environmental community, lawsuits are holding up that highway.

And a high school in Chico where they cannot build, or they built

it over more than two-thirds for a bond issue to increase, to build

a new high school because they’re over-crowded—cannot build it

because of this. That is wrong and something needs to be done.

And I’m grateful that your people aren’t being affected nearly as

dramatically as the ones I know, but I would like to urge you to

consider the other areas of this. But let me, if I could—and I want

to thank you for being here, Mr. Grader. We can work together, I

believe. In essence, maybe we have a little bit of disagreements

151

here or there, but for the most part, I think most of the people here

today do want to work and solve the problem.

Mr. GRADER. In fact we have, Congressman Herger, as you know,

in your district, in dealing with a lot of the salmon issues, and as

a result both farmers and fishermen are doing pretty well now.

Mr. HERGER. Yeah, and one of my good friends, Doug Bosco,

former Congressman, we worked very closely on these issues affecting you. And, Mr. Gaines, I want to thank you for being here.

Mr. GAINES. Thank you.

Mr. HERGER. And some of the irony, the tragic irony of the Endangered Species law—one more example why it must be reformed,

just for the sake of the environment is, supposedly to save two endangered species, we’re endangering I don’t know how many countless more. And maybe I’d like to have you respond to that just a

little bit. But you indicated in your testimony that the leased land

provided important food and habitat for migrating waterfowl, but

this year, because there is no water for farming on private lands,

on leased lands or for the refuge, there will be no habitat for migrating waterfowl. And I understand that the United States is

under a certain obligation to provide habitat for migrating waterfowl, pursuant to the Migratory Bird Treaty. And if you would, if

you have any details about this treaty, do you know what kind of

impact this zero water decision will have on the United State’s obligations under the treaty, and do you know if these impacts were

considered on other endangered species.

Mr. GAINES. Congressman, I’m glad you asked me the question

about the Migratory Bird Treaty, because that treaty was written

about 80 to 90 years ago. It’s a treaty that has been signed by the

Federal Governments throughout the North American continent,

and it is a treaty that simply is outdated. It was largely passed

many, many decades ago to deal with the taking of waterfowl, to

try to deal with issues such as market hunting and other issues

that, you know, we don’t really worry about today, but still there

is an obligation to help protect and embrace our international migratory waterfowl resource.

Another agreement between the Federal Governments of Canada, Mexico, and the United States that is incredibly important to

waterfowl is the North American Waterfowl Management Plan,

which is a plan that recognizes that the waterfowl populations

have suffered tremendous losses and that we as a continent need

to work together to provide habitat to address their needs. The

Klamath Basin, again, as far as the Pacific Flyway is concerned,

is the most important staging area we’ve got. It’s the most important staging area in all of North America.

You may remember, one of the long-term solutions that I asked

for Congress’s help in seeking was to strengthen the Migratory

Bird Treaty Act so that it can raise waterfowl and the other wetland dependent species that depend upon their habitat to somewhat of a par, if you will, with the suckers and salmon and other

listed species.

Another point that I made that I’d like to mention one more time

is that the wetlands not only provide habitat for waterfowl, but the

Central Valley Habitat Joint Venture, which is a component of the

North American Waterfowl Plan down in California’s Central ValVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00155 Fmt 6633 Sfmt 6602 73135.TXT HRESOUR1 PsN: HRESOUR1
152

ley, estimates that half of California’s listed species are dependent

upon the same exact habitat that our waterfowl depend on as well.

The single species focus of the current Endangered Species Act just

doesn’t make any sense. Again, you’ve got three species holding

over 430 species hostage, and that’s above and beyond the impact

to our human environment and local economy. It just doesn’t make

sense.

I work for a wildlife organization. You would think that we’d be

hanging our hat on the Endangered Species Act. We’re not. It

causes us as much pain as it does the people here in the Klamath

Basin and elsewhere. When we put in a waterfowl project, if we

want to take marginal farm ground out of production and restore

it to managed waterfowl habitat—habitat that provides benefits for

all of those listed species—we might as well go and try to build a

Wal-Mart. We have to go through all the same steps that somebody

would if they want to put blacktop over the top of it. It just doesn’t

make any sense. It needs to be amended. It needs to have careful,

common sense amendments, and we look forward to working very,

very closely with Congress in doing so. Thank you.

Mr. HERGER. Thank you very much. Thank you, Mr. Chairman.

Mr. POMBO. Mr. Simpson.

Mr. SIMPSON. Thank you, Mr. Chairman. And I’m glad to have

all of you testifying. And there’s a couple questions I want to ask

that have absolutely nothing to do with just the basin right here,

but the ESA in general.

Mr. Gaines, is it true that—because this affects my district—that

the terns on Rice Island, which was created by dredging the mouth

of the Columbia River, that they are protected under the Federal

Migratory Bird Act?

Mr. GAINES. I’m sorry, the last piece of that question again? I’m

sorry.

Mr. SIMPSON. Are those terns protected under the Federal Migratory Bird Act?

Mr. GAINES. All migratory birds? No, The Caspian terns.

Mr. SIMPSON. The Caspian terns, yeah.

Mr. GAINES. If they’re migratory. I’m not sure if they’re migratory, but if they’re migratory, they are, absolutely.

Mr. SIMPSON. So, you know, my constituents in Idaho, my farmers, have a real hard time trying to understand why these Caspian

terns that thrive at this banquet of salmon that go down the river

and out to the ocean, past a man-made island, a federally protected

bird eating a federally protected fish, and they’re being asked to

give up their water to make this happen. Quite frankly, they just

shake their heads and they wonder if there’s any common sense

left.

And I will ask you, Mr. Grader. There is one other question to

ask, by the way. Are there any other listed endangered species that

we actually kill?

Mr. GRADER. That we actually kill?

Mr. SIMPSON. Yeah. I’m just asking this —I mean, I like to meet

them so I don’t mind your industry.

Mr. GRADER. Well, keep in mind—well, let me just add something here. There are none that we have a deliberate plan for killing on. What we do have is there are regulations in place, very seVerDate 11-MAY-2000 14:16 Apr 15, 2002 Jkt 000000 PO 00000 Frm 00156 Fmt 6633 Sfmt 6602 73135.TXT HRESOUR1 PsN: HRESOUR1
153

vere regulations that have been put in place on the commercial

fishing industry to avoid any take of a listed species. Likewise, we

also have restricted certain land uses, timber harvest practices, for

example, certain water things have all been implemented to try

and give some level of protection. The level of take is very marginal

right now, and like I say, we cannot get at healthy runs of salmon

right now off California, because they’ve moved into a closed area.

And ordinarily those fish are found off the Central California coast

where they’re available to our fleet, but because of this year’s currents and that, they moved into this closed area. We’re hoping it’s

not going to stay that way, but we could very well be seeing a

whole fleet of salmon trollers likewise requesting some sort of disaster insurance. At the same time, we understand that we’ve got

to do something to get back some of these wild fish.

Keep in mind, we’ve also talked about industries being held hostage to the ESA. My industry this last year, or part of it, was held

hostage to the Migratory Bird Act. We have a fishery for California

halibut off of the Monterey coast and off of the San Luis Obispo

area. That fishery was shut down because of incidental take of not

an endangered species, but a bird that is under the Migratory Bird

Act. Now, we could have gone and I guess come forward to all of

you and said, Let’s get rid of the Migratory Bird Act or let’s reform

it so it doesn’t apply to us. Instead, what we’re trying to do is figure out a way where we can design those nets where we can avoid

the take of the birds, and I think that’s a better solution.

Mr. SIMPSON. Well, I appreciate your answer, and I don’t mean

to sound like I’m against your industry. As I said, I enjoy those

salmon an awful lot. But it is a question the people of Idaho often

ask. You talk about conflicting actions by Federal agencies. They

want to bring Grizzly bears back into Idaho at the same time they

want to bring salmon back in, but they tell us that they’re going

to bring Grizzly bears who are herbivores. These won’t eat salmon.

Mr. GRADER. Well, I suspect those Grizzly bears would be eating

very well. They’re probably very healthy, because if they’re eating

wild salmon they’re getting a lot those good Omega 3s, so that

means they’re probably going to have good hearts, they’re probably

going to be immune from any type of cancer, and who knows what

other health benefits they’ll have, so you’ll have some very healthy

Grizzly bears.

Mr. SIMPSON. Well, I want to make sure that whoever I’m with

out in the forest I can out run. But there is right now in the Stanley Basin—and I’ll give you an example. You mentioned all the difficulty we have—and farmers face it every day—dealing with different Federal agencies charged with different goals. Right now in

the Stanley Basin there is a case going on where several years ago

an individual dug an illegal diversion, a canal in the Salmon River.

It was illegal. Everybody admits it. It was done probably 15 years

ago. Today the Army Corps of Engineers— The land was subsequently sold to an individual that now owns it. Today the Army

Corps of Engineers is telling the new land owner to fill back in that

diversion. And NMFS is telling him, Well, there’s spawning salmon

in there so don’t fill it back in. We’ve got a land owner stuck in

the middle here, and he’s going to lose a ton of money just defending himself one way or another.

154

You know, last night I heard on television—I got back to my

room and I watched this hour long program of what’s going on here

in this Basin, and I noticed that everyone who supported the farmers not getting their water—maybe that’s the wrong way to say it— the environmentalist, or whatever you want to say, that were on

the program—expressed a great deal of sympathy and sorrow for

the farmers that this had to happen. But I got to tell you, it’s sort

of like my dad told me one time, you know, ‘‘Sorry don’t feed the

bulldog,’’ and that’s kind of the way I look at this. I really hope

that in the end that we as a society have the wisdom to save the

environment from the environmentalists.

Mr. POMBO. Thank you. Mr. Gibbons.

Mr. GIBBONS. Thank you very much, Mr. Chairman. And, gentlemen, thank you for your testimony here today. I know that, like

the rest of these fine people sitting in this audience, that it took

dedication and time out of your busy day to come here and help

us better understand this. And, gentlemen, let me say, as someone

who comes from Nevada, which probably is drier than any other

state, except for whiskey— Well, whiskey is for drinking. Water is

for fighting over. But I’m really troubled. I’m troubled when I hear

organizations that say there’s a better use for this water than

farming. I’m very troubled by that because—I’m troubled because

I don’t believe that, Mr. Grader, your fishermen in California are

any more important than these farmers who are growing food here

in the Klamath Basin.

Mr. GRADER. That’s exactly right, Congressman, we’re not. And

we’ve never said that we were. What we’re trying to do, and I think

one of the reasons we’re concerned is that we have some critters

that are probably—and the science we have, and it’s the best

science available, indicates that they may go over. That is, if

they’re lost—as the old saying goes, extinction is forever. We’ve

been working ever since 1986 with the passage of the Klamath Restoration Act to try and come up with solutions that would work for

everybody, and we’re still doing that. And I would readily agree. I

think one of the problems we got into the trouble we’re in right

now is that for a long time people considered somehow fish and

fishermen as some sort of lower species, for an awful long time,

and that was a sad thing. I think now we’re getting on a par—we

certainly don’t—and I think if you know of my work in California,

we’re working very hard with the water users, we’re working hard

with the rice growers. We have worked very hard, and sometimes

in the face of a lot of environmentalists who want to take their

water, and saying, We’ve got to protect out food producers. But

those food producers also include fishermen.

Mr. GIBBONS. So then you would say that it would be just as fair

for the Federal Government to come in here and mandate buying

out your fishermen to stop them from fishing.

Mr. GRADER. They’re doing it.

Mr. GIBBONS. Well, Mr. Chairman, I know that this hearing has

gone on a long time, and what I would like to do in just the brief

time remaining that I have is kind of do what our colleague from

Washington did, just sort of sum up what I think is important that

we have taken away from this hearing. And that, of course, is the

hope that all America can understand what the issue is about

155

today and that the problems that we have here, the problems that

these wonderful people, the farmers and ranchers in this area are

suffering through, is not about this year’s drought and it’s not

about the agricultural industry being present here today. It’s not

about the farmers trying to feed this nation. The problem, Mr.

Chairman, is about the misapplication and the abuse of the Endangered Species Act, and it’s the misapplication and the abuse of

science that’s gone in to support it. In fact it’s been poor science

and a reliance on emotion and politics rather than science to support that issue.

And highlighted today, which I think we’ve all heard that clearly

today—and I hope everyone gets this and all America gets this— that it’s time to amend the Endangered Species Act. It’s time we

gave our farmers and the agricultural industry the same access to

decisions and the process of those decisions that some of our extreme environmentalists have had over the last several years. We

want to give them the same opportunity to be part of the decision

process and to put sound science, as I said earlier, and common

sense back into the law, back in the front of the decision process,

and take the emotion and politics out.

And I think it’s time, as we heard also, to begin the restoration

projects on the ground here, to get these species into recovery so

that we can get them off the list. And any law—this is common

sense—any law that can only meet the requirements of the application of justice must be applied fairly and equally. And we can’t save

every species, and maybe that’s the way it should be. And under

the current Endangered Species Act, the way it has been misapplied gives me pause to stop and say thank you. Thank you that

we don’t have dinosaurs roaming around the country today.

Mr. Chairman, I do want to thank you and Mr. Walden and Mr.

Herger for bringing this issue to our attention. I’m from Nevada,

as I said. It’s an important issue that’s going to apply not only just

to this area, but all across the West, all across America, if we don’t

stand and fight it today. It is time for us to go to work, time to

amend the ESA, and I just want to say thank you for allowing us

to be here today, and that’s my statement. Thank you.

Mr. POMBO. Mr. Walden.

Mr. WALDEN. Thank you, Mr. Chairman. I beg to differ with my

colleague from Nevada. He says there are no dinosaurs running

around today. Actually, they are. They oppose reforming the ESA.

They are the dinosaurs.

Mr. Grader, I want to go back—you made a comment that intrigued me how about how back 30 years ago, which would be

about 1971, most people didn’t even know about the word environment. And it raised a point, because in about the 1971 session of

the Oregon Legislature, Oregon passed its landmark Bottle Bill,

and that section of the report dealt with Land Use Planning, which

is still a controversial topic here, but indeed, it looked at that. It

was engaged aggressively in cleaning up a very, very polluted Willamette River, and there’s still obviously work to be done there.

And it set aside its beaches for the benefit of the general public.

And the reason I say that all that is because the thing that frustrates me the most in the last 2-1/2 years of being in Congress is

being told—and I’m not saying you did this today—but this sense

156

that no matter what we do to improve habitat, to improve water

quality and quantity in basin after basin after basin, you never get

credit for it. And you see it right here in the mitigation efforts that

have been taking place with the false promise that if you take this

land out of production it will help you over here on the regulatory

side where you get water. And I’m sure your industry has been

through this as well, and it’s an extraordinarily frustrating thing.

When I look at Oregon’s history, and the people I’ve met with and

worked with throughout this district, and the projects they’ve

shown me in this Basin, we’re making good progress and doing

good things. And a lot more needs to be done, obviously, but we

need to get some credit for what we’re doing too.

When you said, ‘‘Going after the ESA is like killing the messenger,’’ if troubles me, because I don’t think you heard any of us

up here say, Go after and eliminate the ESA, although, there may

be that sense. But what you did here today I think is hard to argue

against. And the question I would raise for any of you is, Does anybody disagree with the notion of requiring blind peer review of the

science, yes or no?

Mr. GRADER. No, they do not.

Mr. WALDEN. You don’t disagree with that? Does anybody disagree with that? Does anybody disagree with requiring public access to that science so that everybody has a chance to look at it,

yes or no? Do you agree or disagree? Is that a bad thing to but into

the act.

Mr. GRADER. No.

Mr. WALDEN. Those are the things I get, coming out of this hearing, that would strengthen the Act and lend credibility to the

science by allowing everybody to have a chance to look at it. And

you made another comment that intrigues me, about the Chinook

runs. And if I heard you right—and correct me if I didn’t—but that

they have moved north because of the ocean currents. And some of

us have argued with NMFS for a long time that the ocean conditions have as much, if not more, to do with salmon survival as

what happens upstream.

Mr. GRADER. They both do.

Mr. WALDEN. They both do. The difference is, in the Columbia

Basin—and I represent probably as much of the Columbia River as

anybody now that Doc Hastings has left the room. It is the farmers

and those before us who have had the whole blame laid on them.

And I have had NMFS say to me in a hearing, We can’t deal with

what goes on in the ocean. We can only deal with what goes on upriver, from the mouth, which is where all the focus seems to be.

Now, you’ve had pressure on harvests and things of that nature,

but in effect there are natural occurrences that take place in the

ocean environment that are way beyond our control, and yet the

penalty and the price is paid by those up-river—in many cases, to

their extinction.

Mr. GRADER. Well, yeah, I don’t disagree with that, and obviously

ocean conditions are critical. We saw that in the Columbia River.

We could contrast that with California. In the past few years—. Mr. WALDEN. About every 10 years—. Mr. GRADER. Well, in the past few years we’ve had excellent

ocean conditions off California, and off the Columbia Basin they did

157

not. And we know full well— NMFS is saying it’s now—because

they’ve done just about everything they could to our commercial

fleet, and then they began looking at some of the upstream causes.

And it’s a balance, and there are no simple solutions. But, obviously, we do need to have, and I think it’s well-known in science,

a certain minimal level of water in streams.

Mr. WALDEN. Sure.

Mr. GRADER. We need to protect those watersheds from certain

types of activities, and much of this is do-able. The problem is getting people to the table to talk about it, getting them out of denial.

And it’s no different than what happened in my fleet 30 years ago

when we were saying that some of our fishing activities were resulting in over-harvest. It took a while, but finally our guys took

a look at the numbers and said, We better correct it, and they went

about doing that. But, you know, it’s a whole combination of things.

I think we are moving out of denial. I think we’re moving into acceptance. I think we’re going to be able to resolve this issue. It may

mean that there may be a few less farms in this district, but it may

mean that there’s going to be better conditions for Mr. Gaines’ waterfowl and it may mean more security for the remaining farmers

here as well as providing the water we need here and providing the

minimum flows.

Mr. WALDEN. Well, let me make two points. One gets back to this

issue of hatchery fish versus wild stocks. And I am told, and I’ve

been told this several times, and I’m going to go get it in writing

from somebody, that when it comes to the recovery plan for the

east coast—the Atlantic salmon recovery efforts—they count the

hatchery fish, and they don’t out here. And the only place where

we have environmentally sensitive units, or whatever the technical

term is for ESU, is in the northwest—Ecologically Significant

Units—is in the Pacific Northwest. NMFS does that apply that

anywhere else in the country.

Mr. GRADER. The ESUs are applied throughout the West, in California there as well.

Mr. WALDEN. But they’re not applied in the East, are they?

Mr. GRADER. Well, let me just add that I think—. Mr. WALDEN. They are not applied— Yes or no—. Mr. GRADER. You’re right, you’re right, no, but that is—that’s a

big issue with us because—. Mr. WALDEN. Thank you. That’s a bigger issue with us.

Mr. GRADER. Yeah. Because in Maine, for example, we were just

appalled at the way that they handled—.

Mr. WALDEN. At their recovery program.

Mr. GRADER. Yeah. There was no recovery program. It’s a joke.

Mr. WALDEN. Well, we have reached an agreement here, because

it wasn’t a joke, because they apply a different standard in Maine

than they do in the Pacific Northwest. They count hatchery fish

there. They ignore them here. We had one of the biggest runs of

Chinook in our history, even preceding construction of the dams in

the Columbia River this year, and our farmers are going broke and

being shut off from their water up there, and we’ve shut down our

forests.

And let me conclude with one other comment, because I think we

all have to gauge and measure our rhetoric, and I realize mine has

158

gotten hot today on occasion, but I would draw your attention to

your comments and those of Pietro Pavarano?

Mr. GRADER. Paravano.

Mr. WALDEN. Thank you. And Glen Spain, from your Fisherman’s News Letter of June of this year.

Mr. GRADER. Right.

Mr. WALDEN. And I’m going to quote from it. It says, ‘‘However,

real water reforms always come at a price for irrigators who have

become dependent on bloated and federally subsidized water

projects. These growers, who now find themselves with less water

for irrigation, are blaming Federal laws and fishermen for stealing

water’’—and I’m quoting here—‘‘they themselves have stolen from

the ecosystem and lower river fisheries over many decades. It’s a

little like the owners of chop shop and the bad cops they had on

their payroll complaining after a bust about the cars and their

parts being returned to their rightful owners.’’ I would suggest that that sort of rhetoric is probably not the kind

of conducive verbiage that we need if we’re all going to sit at the

same table and try to come to a result.

Mr. GRADER. Thank you.

Mr. WALDEN. Mr. Chairman, if I could just take the liberty of introducing into the record a letter from the Horton family here, residents of Klamath County, Oregon, which I’ll make it available. And

also a letter from United States Senator Gordon Smith in which he

explains that he is very supportive in helping to get the 20 million

disaster assistance emergency supplemental, and it says if it does

not stay in there, he will filibuster the bill until it is in there. Further, he is introducing the Endangered Species Act Reform Bill

with Senator Max Bacchus of Montana as a co-sponsor in a bipartisan effort, and other material, so I will put that in the record as

well. And on a final note, because I was asked to do, this hearing

will be cable cast on Klamath Cable, Channel 3, Sunday at 2:00,

for those who want to sit through it a second time. But we do appreciate the Klamath Cable Channel for you being here.

Mr. Chairman, I appreciate your diligence in the way you’ve conducted this hearing. And to my colleagues, thank you for taking

your time to be here. And to the members of all of our panels, we

appreciate your taking your time to be here as well. Thank you.

Mr. POMBO. Well, I could go back to Mr. Grader and ask some

more question—. Mr. GRADER. I feel sorry for the other members here who don’t

share the same popularity I have with all of you.

Mr. POMBO. But I feel he’s probably answered enough for right

now, and there will be an opportunity in the future to answer some

more. But I will tell you that, for you and your organization, that

if you want to be part of a constructive solution to the problem

then you’ve got to work for it and you’ve got to stop throwing

bombs.

Mr. GRADER. Well, I’ll tell you—thank you, Congressman, but we

have, in fact if you look at our track record in California, we have

a good record—. Mr. POMBO. I can look at your track record, and if you want to

get into it, we can. Because some of the most abusive testimony I

have ever received as a Chairman of a Committee has come from

159

your organization, and some of the most outrageous testimony I

have ever received as a Chairman of this Committee has come from

your organization. I want to work with you. I have supported compensating fishermen when we take their private property or destroy the value of their private property by destroying their fishing

industry. I have supported that in the past. Your organization has

opposed compensation for farmers when the Endangered Species

Act takes away their private property.

Mr. GRADER. Congressman, I respectfully disagree. We have

never done to that and you must—.

Mr. POMBO. You testified—.

Mr. GRADER. I have never testified to that.

Mr. POMBO. Well, I’ll provide it to you. And it wasn’t you. It was

one of the other gentlemen who was representing your organization

at a hearing.

Mr. GRADER. I have never done that nor authorized anybody to

do that.

Mr. POMBO. Well, they’ve done it.

Mr. GRADER. I’d like to see it, because—I mean, I think that’s

one of the values of these type of hearings, because there’s a lot of

charges flying around and we’re getting at the truth of this. We not

only need peer review science. I think perhaps peer reviewing some

of the statements that are made, and I guess that’s the reason that

it’s necessary for all of us to get together. But if there are those

type of statements, I’d like to find them. Likewise, I’ve heard other

statements here that are, frankly, not true. For example, this is the

first time the ESA has ever been used, and this type of thing, and

it was not. We saw what happened in the—well, Congressman

Herger knows what happened to the growers in the Glen Claus Irrigation District, but we got that resolved, when their water almost

got cut off.

Mr. POMBO. This is not the first time the Endangered Species Act

has been used to that end, and all I have to do is look at my own

district to explain it. And so it’s a matter of, if we are going to work

toward a constructive solution to this particular problem, everybody needs to put down their swords for a minute and sit down and

try to work toward that.

Mr. Gaines and I have worked together for years, and that does

not mean we’ve always agreed. There have been times when we

have very vocally disagreed on topics, but no matter what happened, he has always come back on the next issue and we’ve tried

to work it out, and I respect him a great deal for that, because he

has always been willing to work with us and try to find a solution.

Sometimes my growers, my farmers are at odds with what his organization wants, and we try to work something out on it, and I

respect him for always doing that, and I appreciate that.

Mr. Gasser, I don’t have a good answer to give you. I wish I did.

If I had a good answer to give you to what to tell your employees

and what to tell your family, I’d probably tell it to everybody in my

district, because I’m going through the same thing. There is not

one square inch of my district that is not habitat or potential habitat for something, and we don’t do anything unless we check with

Wish and Wildlife Service.

160

In fact I’ve got a letter sitting on my desk back in Washington

that was sent from our local Fish and wildlife Service in Sacramento to the United States Department of Agriculture representative, saying that before the farmers plant this year’s crop, they

better check with us to see if they have any endangered species

problems. And what are we going to do about that? I mean, that’s

these people’s attitude. And, you know, a lot of these guys are in

the same boat that a lot of your people are in. They’re going broke,

through no fault of their own, nothing they did. They are not inefficient. They didn’t change their operations. They didn’t go out and

spend all their money. Government actions killed them. And there’s

got to be a way for us—for us to sit down with you guys and figure

out an answer and come up with some kind of a solution that is

good for Fish and Wildlife, but allows human beings to be part of

the environment and continue to be there.

I just want to close this hearing by thanking all of you for being

here, thanking all of our witnesses, for those of you that took your

time to be here today. I’ve got to tell you that being a witness in

front of a Congressional hearing is not the easiest or most comfortable thing in the world to do. Not only are some of them pretty

nervous about coming up here, they also know they’re going to be

up for some abuse when they do, and I appreciate all of our witnesses who did agree to be here and to testify. The hearing would

not have been possible without you, so thank you very much for

doing that.

I would also like to thank the local peace officers for being here,

for helping us keep everything orderly here today. That has meant

a great deal to us. I’d like to thank our staffs for coming out here

and all the hard work they put in to make this hearing a success.

And I would like to also add a special thank you to the security

detail from Washington who came out, because many of them are

fathers just like us, and they’re going to all be running for planes

right now, trying to get back home to be with their kids tomorrow,

and I appreciate what they did and what our staffs did to make

this work. Thank you.

In conclusion, I just want to say, you know, we’ve got problems

in this country. And I get extremely frustrated with things that

happen under our government, actions that are taken under our

government, mistakes that we’ve made, mistakes that we will

make. And we will continue to work, we will continue to fight, we

will continue to argue, we will continue to try to make things better. And our jobs as elected representatives are to try to fix problems and to try to abide by our constitutional ability to fix what

is wrong with the way our government is working, and we will continue to do that. Your jobs as citizens are to participate in the political process, and you are doing that by being here today, and I

appreciate that.

But at times, especially at times like this, you get extremely mad

and frustrated and everything else, but I’ve got to remind you that

you still live in the greatest country on earth. Just a couple of

weeks ago we had 14 people who died in the Arizona desert trying

to sneak into this country. We are still the only country on earth

that employees a full-time police force to keep people out, not to

keep people in. You still live in the greatest country on Earth. We

161

just need to make it better. And I appreciate you all being here,

thank you. This hearing is adjourned.

[Whereupon, at 2:55 p.m., the Committee was adjourned.]

[The items listed below were submitted for the record:]

1. Letter from Senator Gordon H. Smith

2. Letter from Patricia L. Horton, et al

3. Statement from Jack Roberts, Oregon Labor Commisioner

4. Miscellaneous pictures and letters submitted for the record

UNITED STATES SENATE

GORDON SMITH

Dear Friends

It is encouraging that so many members of the Committee have traveled to Klamath Falls to examine the crisis you are facing.

It has been over two months since the Bureau of Reclamation announced that no

water would be delivered to agriculture in the Basin. In that time, the inequity of

your situation has attracted national attention, having been recognized by Fox

News, The New York Times and The Wall Street Journal. Congressman Walden and

I have taken your cause to the floors of the U.S. House and Senate, to federal agencies and to the President.

President Bush has included $20 million in disaster assistance in the Emergency

Supplemental appropriations bill, and I am working to ensure that it will remain

there in the Senate version. Otherwise, I intend to filibuster the bill, and will hold

it up until the money is restored.

I know that at this time of year you would rather be working your land than attending hearings and worrying about making it through this year. At the Bucket

Brigade last month, I promised that I would introduce legislation to amend the Endangered Species Act. My bill, S. 911—which connotes the urgency of the problem

- seeks to return objective science to species management, provide more stability for

landowners, and allow for locally developed management plans. I am very gratified

that Senator Max Baucus of Montana joined me in this bipartisan effort as an original cosponsor of the bill.

I recognize that this will come too late to affect the current situation with the

Klamath Project. That is wiry I am encouraged that the Department will undertake

an independent scientific review of the science that has been used to develop the

current biological opinions. I continue to believe that other reasonable and prudent

alternatives can be developed that would allow for much more flexibility in the operation of the project and thereby ensure water deliveries to farmers and ranchers.

Friends, rest assured that I am with you in this fight, and will be until we prevail.

Warm regards,

Gordon H. Smith

United States Senate

To The House Endangered Species Act Working Group,

First let me thank you for taking the time to travel and hold this hearing where

people can feel they too have a voice in a very complicated system of government.

I would like each of you to know and take back to Congress the knowledge, that

the residents of this basin are descendants of pioneers and that makes us much

stronger than the average American, we have strong genes in our blood and soles.

Knowing that, understand we will fight this fight to the end. Please understand that

we are true and good stewards of our land and have held that proud tradition for

generations here in The Klamath Basin. Please understand that the dams around

here only hold the water longer, they do not and have never raised the ‘‘historic’’

level of the lake. Please know that the Sucker fish do not and have never thrived

in high water (too much ammonia). The Original draft of the Biological Opinion

162

stated this on three pages, but those pages did not find their way into the final

draft. Please know that we are going to harm the salmon, when the overly warm

water that is being held in Klamath Lake is sent down stream. We will need water

from the Trinity to cool the warm water before it kills the fish. What we are urging

you to do is stop the destruction of this entire ecosystem. We have 500 other species

that are being directly affected by this singular act. What about their well being?

What we are urging you to do is to find a compromise between mankind and the

environment. Know we too provide much needed habitat for the species that live

here and travel through the basin each year. Remember that 20% of the world migratory water fowl travel through here every year. What are they to do this winter

when the much needed food for their long journey is not here? Know and remember

that we do and have always cared about our lands and environment. We need to

stop the junk science for good and it needs to stop right here right now!

Sincerely,

Patricia L Horton

Alice M Horton

Doyle D Horton

Ronald L Horton

Maxwell P Horton

Residents of Klamath County Oregon

Statement of Jack Roberts, Oregon Labor Commissioner

For the record, my name is Jack Roberts and I am commissioner of the Oregon

Bureau of Labor and Industries. I would like to thank you for this opportunity to

testify before your committee. Because I know there are many people who also want

an opportunity to share with you both their insights and their experiences as they

relate to the Klamath Basis Water Crisis, I will be brief.

Others will give testimony regarding the human and scientific aspects of this

problem. I would like to speak to you about the economic impact, specifically the

impact thus situation, and the federal policies which have been prescribed to deal

with it, will have on the jobs and the incomes of the people of the Klamath basin.

It is obvious that no water for irrigation means no crops, which means no harvest

and therefore no employment for those who work in the fields and harvest the crops.

Payments to farmers to compensate them for the loss of their crops, while welcome,

will not replace the lost income of those who would have been employed on those

farms, or the local merchants and landlords who would have profited by selling or

renting to those workers.

In this regard, the Klamath Basin Water Crisis may seem no different than any

other crop failure or economic disaster that can befall a community. However, this

crisis must be seen against the broader backdrop of what has happened to rural Oregon generally, and to the Klamath basin specifically, in order to appreciate its full

import.

On a national basis, unemployment in rural communities is roughly the same as

unemployment in urban areas. As recently as 1995, this was also true in Oregon.

Since that time, however, while Oregon’s urban unemployment rate has been the

same as, or lower than, the national rate, unemployment in rural Oregon has soared

to 3, 4 or even 5 percentage points higher throughout the last six years. This growing employment gap has corresponded to the adoption of restrictive new federal environmental policies, particularly those virtually banning the harvest of timber on

the federal lands that make up most of Oregon’s territory.

Unemployment here in Klamath County has been in excess of 10 percent most

of this year. In nearby Lake and Harney Counties, employment in recent months

has reached 13 and 15 percent, respectively. And these figures are computed on the

basis of civilian, nonagricultural employment.

A lack of jobs outside of agriculture is but one half of the cruel equation creating

poverty and distress in rural Oregon. The other half is the fact that those who are

employed invariably end up working for less money than those in our major cities.

In Oregon, per capita income is just 95 percent of the national average. Yet even

this statistic is misleading. Only four of Oregon’s 36 counties have an average income that is above the statewide average, and all four of these have incomes above

the national average as well. Three of these counties—Multnomah, Clackamas and

Washington—form the greater Portland metropolitan area, while the fourth–Bentonis a small county that is home to Oregon State University and a large Hewlett–

Packard manufacturing plant.

163

The other 32 counties all have incomes below our state average, which means

they have an income well below the rest of the country. In fact, 22 of Oregon’s 36

counties have incomes that are less than 80 percent of the national average. All are

rural counties. Klamath county, even before the current water crisis, ranked just

31St out of our 36 counties in income. Its per capita income was less than threequarters that of the rest of the county, and just 65 percent of the average income

earned in by people living in Portland.

This is the economic situation confronting farmers and farmworkers who will be

displaced in the current crisis. And who are those workers? More than a fifth, 22

percent, will be Hispanic-nearly three times their percentage of the Klamath county

population at large. Another 10 percent will be Native Americans more than twice

their share of the population.

Ninety percent of them have no more than a high school education, and 41 percent have never completed high school (double the rate of the total Klamath County

population). Only 15 percent are under 21 years of age, the ones who can most easily be educated or retrained for other employment. Nearly a third are 40 years of

age or older, the hardest age group to retrain or reeducate. And more than 80 percent of agricultural workers are men, usually the sole or primary support for themselves and their families.

All of these statistics point to a single, irrefutable fact: Denying farmers in the

Klamath basin the water they need to irrigate their crops will have a devastating

impact on communities and families that are already reeling from the effects of

other federal policies that have driven a growing wedge between urban and rural

Oregon. Somehow, at some level of government, there must be a recognition that

people are part of the environment, too, and that our natural habitat is a growing

and productive economy.

164

[The following pages includes some of the many photographs and

letters submitted for the record from residents of the Klamath

Basin. All items submitted for the hearing record have been retained in the Committee’s files.]

165

166

167

168

169

170

171

172

173

174

175

176

177

178

179

180

181

182

183

184

185

186

187

188

189

190

191

192

193

194

195

196

197

198

199

200

201

202

203

204

205

206

207

208

209

210

211

212

213

214

215

216

217

Æ