U.S. GOVERNMENT PRINTING OFFICE

44–214 CC u WASHINGTON : 1997

HEARINGS ON THE DECISION–MAKING PROCESSES

AND INTERAGENCY COOPERATION OF THE

NATIONAL MARINE FISHERIES SERVICE NORTHWEST REGION

HEARINGS

BEFORE THE

SUBCOMMITTEE ON FISHERIES CONSERVATION,

WILDLIFE AND OCEANS

OF THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

JULY 24 AND AUGUST 15, 1997—WASHINGTON, DC

Serial No. 105–34

Printed for the use of the Committee on Resources

(
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

JOHN SHADEGG, Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MICHAEL D. CRAPO, Idaho

GEORGE MILLER, California

EDWARD J. MARKEY, Massachusetts

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

MAURICE D. HINCHEY, New York

ROBERT A. UNDERWOOD, Guam

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

WILLIAM D. DELAHUNT, Massachusetts

CHRIS JOHN, Louisiana

DONNA CHRISTIAN-GREEN, Virgin Islands

RON KIND, Wisconsin

LLOYD DOGGETT, Texas

LLOYD A. JONES, Chief of Staff

ELIZABETH MEGGINSON, Chief Counsel

CHRISTINE KENNEDY, Chief Clerk/Administrator

JOHN LAWRENCE, Democratic Staff Director

SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

JIM SAXTON, New Jersey, Chairman

W.J. (BILLY) TAUZIN, Louisiana

WAYNE T. GIL.CHREST, Maryland

WALTER B. JONES, JR., North Carolina

JOHN PETERSON, Pennsylvania

MICHAEL D. CRAPO, Idaho

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

FRANK PALLONE, JR., New Jersey

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

HARRY BURROUGHS, Staff Director

BONNY BRUCE, Legislative Staff

ELIZABETH BIRNBAUM, Democratic Counsel
(III)

C O N T E N T S

Page

Hearings:

July 24, 1997 ..................................................................................................... 1

August 15, 1997 ................................................................................................ 67

Statement of Members:

Abercrombie, Hon. Neil, a Representative in Congress from the State

of Hawaii ....................................................................................................... 2

Crapo, Hon. Michael, a Representative in Congress from the State of

Idaho .............................................................................................................. 2

Prepared statement of August 15 ............................................................ 68

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

Jersey ............................................................................................................. 1

Prepared statement of ............................................................................... 1

Young, Hon. Don, a Representative in Congress from the State of Alaska,

prepared statement of ................................................................................... 2

Statement of Witnesses:

Bowles, Edward C., Anadromous Fish Manager, State of Idaho Department of Fish and Game ................................................................................ 124

Prepared statement of ............................................................................... 429

Boyer, Lionel, Fisheries Policy Representative, Shoshone-Bannock Tribes 28

Prepared statement of ............................................................................... 249

Bruce, Dr. Steven M., President, Idaho Steelhead and Salmon Unlimited . 98

Prepared statement of ............................................................................... 345

Campbell, Scott, Idaho Farm Bureau prepared statement of ....................... 309

Casavant, Dr. Ken, Council Member, Northwest Power Planning Council . 94

Prepared statement of ............................................................................... 333

Dehart, Douglas A., Chief of Fisheries, Oregon Department of Fish and

Wildlife ........................................................................................................... 122

Prepared statement of ............................................................................... 425

Deurloo, Robert, Meridian Gold Company ..................................................... 45

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

Grace, Stan, Council Member, Northwest Power Planning Council ............ 43

Prepared statement of ............................................................................... 274

Grunke, James W., Executive Director, Orofino Chamber of Commerce .... 79

Prepared statement of ............................................................................... 326

Hayes, Justin, Save Our Wild Salmon Coalition ........................................... 47

Prepared statement of ............................................................................... 290

Little, Jim, Grazing Permittee, Idaho Cattle Association ............................. 100

Prepared statement of ............................................................................... 348

Martinez, Eluid, Commissioner, Bureau of Reclamation, Department of

the Interior accompanied by Ken Pedde, Assistant Regional Director,

Bureau of Reclamation ................................................................................. 70

Prepared statement of ............................................................................... 307

McFarland, Dave, Chairman, Lemhi Riparian Conservation Agreement .... 24

Prepared statement of ............................................................................... 170

Penney, Samuel N., Chair, Nez Perce Tribal Executive Committee ............ 25

Prepared statement of ............................................................................... 216

Charles Ray, Idaho Rivers United, ................................................................. 96

Prepared statement of ............................................................................... 340

Rohleder, Joseph, Northwest Sportfishing Industry Association ................. 41

Prepared statement of ............................................................................... 257

Semanko, Norman, Twin Falls Canal Company and North Side Canal

Company ........................................................................................................ 49

Prepared statement of ............................................................................... 297
Page

IV

Statement of Witnesses—Continued

Smith, Bruce, Rosholt, Robertson & Tucker .................................................. 76

Prepared statement of ............................................................................... 313

Stelle, William, Regional Administrator, National Marine Fisheries Service, Department of Commerce ...................................................................... 127

Prepared statement of ............................................................................... 442

Additional material submitted by ............................................................ 304

Strong, Ted, Executive Director, Columbia River Inter–Tribal Fish Commission ........................................................................................................... 125

Prepared statement of ............................................................................... 431

Yost, Jim, Senior Special Assistant, Idaho Governor’s Office ....................... 22

Williams, Dr. Richard N., Chairman, Independent Scientific Advisory

Board .............................................................................................................. 102

Prepared statement of ............................................................................... 353

Wilson, Peter K., Vice President, Port of Lewiston ....................................... 78

Prepared statement of ............................................................................... 323

Additional material supplied:

Batt, Philip E., Governor, Boise, Idaho .......................................................... 166

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

prepared statement of ................................................................................... 4

Additional materials submitted by .......................................................... 6

Memorandum of decision-making processes of the National Marine Fisheries Service’s Northwest Region ................................................................. 160

The Pacific Rivers Council, Eagle, Idaho, prepared statement of ................ 455
(1)

OVERSIGHT HEARING ON THE DECISIONMAKING PROCESS AND INTERAGENCY COOPERATION OF THE NATIONAL MARINE

FISHERIES SERVICE NORTHWEST REGION

THURSDAY, JULY 24, 1997

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON FISH- ERIES CONSERVATION, WILDLIFE AND OCEANS, COM- MITTEE ON RESOURCES, Washington, DC.

The Subcommittee met, pursuant to notice, at 10:07 a.m., Room

1334, Longworth House Office Building, Hon. Jim Saxton (chairman of the subcommittee) presiding.

STATEMENT OF HON. JIM SAXTON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW JERSEY

Mr. SAXTON. Good morning. The Subcommittee will come to

order. The purpose of today’s hearing is to review the authority and

decisionmaking process of the National Marine Fisheries Service’s

Northwest Region. As many in this room know, the Columbia River

Basin is the focus of much debate and controversy regarding the

appropriate actions needed to restore the declining salmon populations.

Our colleague, Mr. Crapo of Idaho, has been grappling with the

problems surrounding this issue for many years. We are holding

this hearing at his request so he can get specific answers to questions about interagency dynamics, tribal concerns, interstate cooperation, and the interests of commercial and recreational fishing

sectors, as well as those of environmental organizations.

I am looking forward to this hearing and hearing from our witnesses. Thank you for traveling to Washington today to share with

us your expertise and your feelings on these matters. At this time,

I will turn to the Ranking Member, the gentleman from Hawaii, for

any opening statement he may have.

[Statement of Mr. Saxton follows:]

STATEMENT OF HON. JIM SAXTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE

OF NEW JERSEY

Good morning. The Subcommittee will come to order.

The purpose of today’s hearing is to review the authority and decision-making

processes of the National Marine Fisheries Service’s Northwest Region. As many in

this room know, the Columbia River basin is the focus of much debate and controversy regarding the appropriate actions needed to restore the declining salmon

populations. Our colleague, Mr. Crapo of Idaho, has been grappling with the problems surrounding this issue for years. We are holding this hearing at his request,

so he can get specific answers to questions about inter-agency dynamics, tribal con-
2

cerns, interstate cooperation, and the interests of the commercial and recreational

fishing sectors, as well as those of environmental organizations.

I am looking forward to hearing from our witnesses. Thank you for traveling to

Washington to share your expertise with us.

[Memorandum may be found at end of hearing.]

[The prepared statement of Mr. Young follows:]

STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS FROM THE STATE

OF ALASKA

Mr. Chairman, this is a very timely and necessary hearing being held at the request of Congressman Mike Crapo.

The National Marine Fisheries Service is the Executive agency responsible for the

revitalization of the Columbia River Basin salmonid populations. Congressman Mike

Crapo represents areas in Idaho that have a major interest in any recovery efforts

implemented by the National Marine Fisheries Service to restore these declining Columbia River Basin salmon populations.

We will hear testimony today commenting on the National Marine Fisheries Service’s leadership and their ability to implement recovery options. I am interested in

hearing the views of our witnesses on how their concerns were reflected in the agency’s decision making and how we can improve the consultation process in the future.

It is clearly in our nation’s interest to rebuild and revitalize the salmon stocks of

the Columbia River Basin.

Thank you, Mr. Chairman.

STATEMENT OF HON. NEIL ABERCROMBIE, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF HAWAII

Mr. ABERCROMBIE. Thank you, Mr. Chairman. I would just like

to incorporate your remarks as my own and look forward to the

hearing. Thank you very much.

Mr. SAXTON. Thank you very much. I would like to turn at this

time to the gentleman from Idaho who is, obviously, very interested

in this. He may wish to make an opening statement and introduce

panel number 1.

STATEMENT OF HON. MICHAEL CRAPO, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF IDAHO

Mr. CRAPO. Thank you, Mr. Chairman. I appreciate very deeply

your holding this hearing on the decisionmaking process of the National Marine Fisheries Service and hope that we can use this

hearing as an opportunity to not only delve into the issues at hand,

but to help educate members of this committee and their staff on

some of the critical issues in the Pacific Northwest.

I noted when I attended one of the hearings we held with regard

to the fishing issues in Hawaii a month or two ago how I was very

unaware of those issues before the hearing but fascinated with

what I learned. And I hope that that same process can take place

with regard to the issues we face in the Pacific Northwest with regard to other members of the Committee.

It is my pleasure today to welcome several citizens from Idaho

and others from the Pacific Northwest who are here to discuss the

issues and to point out that under the Endangered Species Act the

National Marine Fisheries Service has the authority in the Pacific

Northwest to be the lead agency for the recovery of the endangered

Pacific Northwest salmon stocks.

I acknowledge that this issue is very complex and divisive and

could produce many losers, one of which could be the salmon. For

the salmon to be recovered, it is imperative that consensus within
3

the region be found and that public support be gained. There is

growing concern in the region that NMFS has not recognized the

power of a consensus decisionmaking process for salmon recovery.

There is great concern that the National Marine Fisheries Service is developing a public policy that will not recover salmon, while

failing to take into account the other interests and concerns of the

region. This growing concern and frustration has caused the State

of Montana and four of the 13 Indian tribes of the region to withdraw from the regional forum dedicated to finding consensus on

salmon recovery.

These fish are incredible creatures. The salmonids are hatched in

streams and tributaries of the Columbia and Snake River and

swim sometimes over 700 miles to the ocean where they will spend

the majority of their lives. Not only must they migrate such a long

way to the ocean, they must then at the end of their lives migrate

back up the river system.

These streams and tributaries provide water that is the lifeblood

of irrigation, recreation, power production, and transportation industries of the Columbia and Snake River system. The majority of

the region’s population live and work around some form of water

in the watershed. And an adequate and dependable supply of water

is the backbone of the region’s economy. The streams and tributaries that empty into the Snake and Columbia River weave

throughout the Pacific Northwest.

Because the salmonids are hatched in and use the streams and

tributaries of the Columbia and Snake River as their highway to

the ocean, NMFS has oversight over all land and water use policies

that could potentially impact salmonid migration to and from the

ocean. This includes oversight over irrigation, mining, grazing, timber harvesting, river transportation, energy production, and recreation.

NMFS has a virtual veto over many aspects of the Columbia and

Snake River systems that are the economic base of the region, and

many times some of us have felt that NMFS has made decisions

in a vacuum without taking into consideration the benefits to the

fish or the impact to the economy.

I recognize that the objective of the Endangered Species Act as

written is the recovery of endangered or threatened species, and I

agree with that objective. However, the bottom line is that there

is a legitimate concern that the fish will not be recovered and that

collateral damage will be caused to the region’s economy.

Today, we have invited individuals, representatives of two tribes,

representatives of State government, business, and environmental

interests. These people have been invited because they and the interests they represent constitute the critical mass of consensus that

must be achieved if we are to succeed in recovering the species.

Given that the National Marine Fisheries Service is intending to

make a policy decision in early 1998, it is imperative that we

evaluate the processes involved well enough in advance of the decision in order to improve the odds of success.

This is the first of two scheduled hearings on this issue. There

were far too many people who have shown an interest to testify to

be accommodated here today, and Chairman Saxton has been gracious in allowing another hearing to be held in Boise, Idaho. This
4

hearing will give more affected interests the opportunity to be

heard, and this hearing will include the testimony by NMFS.

Again, Mr. Chairman, I thank you for your attention to this very

important issue. And Senator Dirk Kempthorne from Idaho has

asked if there would be permission for his statement to be entered

into the record.

Mr. SAXTON. Let me just ask unanimous consent at this point

that all members’ statements be included in the record, including

the Senator’s.

[The prepared statement of Senator Kempthorne follows:]

STATEMENT OF SENATOR DIRK KEMPTHORNE, A SENATOR IN CONGRESS FROM THE

STATE OF IDAHO

Good morning Mr. Chairman, ladies and gentlemen. Thank you for holding this

hearing on salmon recovery and the National Marine Fisheries Service’s performance as the lead Federal agency in salmon recovery efforts. I would like to share

with you my recent experience with the NMFS.

On April 16, 1997, I wrote to Will Stelle, Administrator for the Northwest Region

of the National Marine Fisheries Service to object to the National Marine Fisheries

Service’s (NMFS) decision to disregard the concensus proposal on steelhead and

salmon migration promoted by the State of Idaho. At a meeting of the Executive

Committee for recovery of Columbia/Snake River salmon and steelhead the consensus proposal to transport Chinook Salmon and Steelhead was rejected by the National Marine Fisheries Service. Instead, the NMFS adopted daily full transport of

the Chinook and the Steelhead.

I asked Mr. Stelle to explain to me the biological basis of this decision. With the

advice of some of the best biologists, water managers, and stakeholders Governor

Batt had devised a plan for ‘‘spreading the risk’’ between in-river migration and

barging. This plan was subjected to a facilitated negotiation process that involved

stakeholders from throughout the Columbia/Snake River Basin. The resulting proposal deserved to be considered for its ability to recover two of our regions most important fish species, and for its ability to bring together stakeholders from throughout the basin.

I urged Mr. Stelle to reply to me quickly as the migration was in full swing. I

needed to know why we were transporting such a high percentage of fish during

this good water year. Ironically, I support transport of a high percentage of the fish.

The National Academy of Sciences in their report on the salmon crisis in the Northwest has described transport as the best interim solution to getting smoults downstream until we have developed better technology for getting them around the dams.

But, because this ‘‘spread the risk’’ policy is the result of an Idaho effort, supported

by Idahoans, and negotiated with the best fish managers in the region, I support

them and their efforts.

As time went by, I repeatedly contacted Mr. Stelle’s office. On June 5, 1997 I

wrote Mr. Stelle again to express my concern about the National Marine Fisheries

Service’s (NMFS) decision to disregard the 1997 consensus proposal on steelhead

and salmon migration. And, I must admit I was frustrated by the lack of a response.

After all, the NMFS had chosen to transport more fish rather than fewer during

this good water year. During the time he had failed to respond to my letter, or to

my staff inquiries, ever higher numbers of fish were transported down the Snake

and Columbia Rivers.

I am sorry to report that the apparent strategy to ignore me and the stakeholders

who worked together to obtain a compromise until the migration season was over

seems to have worked. The NMFS letter from Mr. Rollie Smitten purporting to

explaine their actions, dated June 9, 1997, finally arrived in my office on Friday the

13th of June.

Frankly, the letter and the studies which it cited did little to convince me that

the NMFS acted in a thoughtful way using data that supported their position under

these water conditions. Without taking the Committee’s time with detailed comment

and rebuttal, suffice it to say that the decision-making ability of the NMFS, as demonstrated by this incident is seriously in doubt. Most importantly, it appears to me

decisions that should be made by the fish managers on the scene are regularly being

made in Washington DC by people in the Administration.
5

Mr. Chairman, I would like to submit my letters and Mr. Smitten’s reply for the

record. In addition, I would like to include the analysis of the NMFS letter by Idaho

Fish and Game.

Mr. Chairman, thank you for your time.

[Additional material submitted by Senator Kempthorne follows:]
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10
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15
16
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18
19
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Mr. CRAPO. Thank you, Mr. Chairman. Would you like me to introduce the first panel? Thank you, Mr. Chairman. In our first

panel, we have with us today Mr. Jim Yost, who is the Senior Special Assistant to the Idaho Governor’s Office, Idaho Governor Phil

Batt; Mr. Dave McFarland, who is Chairman of the Lemhi Riparian Conservation Agreement; Mr. Samuel Penney, the Chair of the

Nez Perce Tribal Executive Committee; and Mr. Lionel Boyer, the

Fisheries Policy Representative for the Shoshone-Bannock Tribes.

And I certainly welcome each of you here and thank you for the

time and attention you have given to this matter. And, Mr. Chairman, I turn the time back to you.

Mr. SAXTON. Well, Mr. Crapo, we want to thank you for framing

this issue for us. Those of us from other parts of the country, obviously, have not lived with or dealt with this issue as you have. And

so we are, obviously, anxious to be helpful in helping you and your

constituents and others who are interested in this issue come to a

successful resolution.

Let us turn at this point to panel number 1. Just to give you an

idea of the ground rules, we have three little lights there in front

of you. One is green, one is yellow, and one is red, and the colors

of those are that way for obvious reasons. However, you have come

a long way to share your thoughts with us. So when the red light

goes on, you will know that your 5 minutes has expired.

However, we can grant some latitude so that you can finish your

thoughts in a constructive way. So, Mr. Yost, why don’t you begin,

and then we will move across the table, and we are anxious to hear

your thoughts on this which is a very important matter. You may

begin.

STATEMENT OF JIM YOST, SENIOR SPECIAL ASSISTANT,

IDAHO GOVERNOR’S OFFICE

Mr. YOST. Thank you, Chairman Saxton, Congressman Crapo,

and Congressman Abercrombie. The Governor of Idaho extends his

pleasure at having had the opportunity to send someone to visit

with you about these issues.

One of the primary issues that the Governor asked me to represent to you is that Idaho does care about anadromous fish and

resident fish, and we are making every effort and we are proud of

the effort that we have made thus far in trying to participate in

the regional forum within the area.

The problem is compounded in the region because of the decisions and the time lines that have been established thus far in fairly much a uniform and mutual-consented arena. That is, we have

a biological opinion on anadromous fish listed under the Endangered Species Act to be decided in the spring of 1999. There is an

effort underway at this particular time to advance that time line

into the spring of 1998.

There isn’t a real concern that the region will make decisions in

the proper time line. However, we are finding it very difficult to

reach any type of decision in the region because of the forum that

is currently established.

Originally, there were three or four different efforts being attempted, one through the Northwest Power Planning Council, another through the NMFS forum or the National Marine Fisheries
23

or Federal agencies forum, and we participated in all of those hoping that there would be an ultimate regional forum that we could

build consensus and reach some of the decisions that are important

for the region.

That process is not working. It is marginal at best, and it seems

to be crumbling a little bit more each month as we go by. The

struggle is being made now to restore a regional forum, and the

Governors are becoming more involved from the four States—

Idaho, Oregon, Washington, and Montana. But there are too many

avenues in which to try to reach a regional forum to reach consensus in which to make some of those decisions that the region

needs to make and in the time line that they have.

Specifically, when you look at the NMFS forum, the technical

management team level, the implementation team level, which is

midpolicy decisions and the Executive Committee process that has

been established, which is higher level decisionmaking, the process

is extremely complicated in that the representation has not been

well-defined, and there are some folks who are not adequately represented and who have withdrawn their representation from that

process.

The time that it takes for the four States to send their representatives to participate in that process is extensive, and they are willing to make the effort. But the process then becomes convoluted because once you reach a regional consensus with the participants at

the table, then as an example, Idaho has developed an Idaho strategy for operations for this year. Idaho was able to get consensus

from all of the participants in the region—the Corps of Engineers,

BPA, and the four States—the State fish and game—all of the participants at the table except NMFS.

Somewhere along the process of three or 4 months, NMFS should

have said that they were not going to agree with the process instead of waiting until the very end to veto the decision that was

reached by consensus for the rest of the region.

The timing of NMFS is, obviously, slow. The Hanna Slough issue

that was recorded in my testimony—the length of time that it took

for NMFS to make a decision there was too lengthy. It was an important, critical area. They just were unable to make a decision at

the local level. They weren’t even able to make a quick decision in

an expedient manner at a higher level in Portland.

The same event occurred on Salmon River floaters where we had

commercial tubing and activities on the Salmon River, and everyone agreed that there was a process that would have been in place

for 3 years, and NMFS restricted that unilaterally.

I guess if there was one message that I would like to present

today is that the NMFS makes unilateral decisions without actively

participating in the consensus building at the local level. The process either needs to be changed, or we need a different regional

forum within the region. I thank you very much, Mr. Chairman.

[Statement of Governor Batt can be found at the end of the hearing.]

Mr. SAXTON. Thank you, Mr. Yost. Mr. McFarland.
24

STATEMENT OF DAVE McFARLAND, CHAIRMAN, LEMHI

RIPARIAN CONSERVATION AGREEMENT

Mr. MCFARLAND. Mr. Chairman, Committee members, my name

is Dave McFarland. I represent the people of Lemhi County, Idaho,

as an agent of the county commissioners. As a rancher with Federal grazing permits, I also represent those interests.

During these hearings, you should hear plenty of negative testimony concerning National Marine Fisheries Service. I concur. In

Lemhi County, recovery of endangered salmon is a laudable and

very popular goal. Yet, National Marine Fisheries Service is held

in lower esteem than the IRS.

Mr. SAXTON. Excuse me. That is pretty low, isn’t it?

Mr. MCFARLAND. That is true. NMFS decisions seem to occur in

a vacuum. Nevertheless, some good decisions have been made by

National Marine Fisheries Service personnel, and some of these

have occurred in Lemhi County. I have observed that many of the

best solutions have occurred when the best communication happens.

We propose these suggestions for improving dramatically protection of endangered salmon and improving National Marine Fisheries Service’s effectiveness. One, National Marine Fisheries Service must actively participate with diverse interests to make optimum decisions. Decisions openly made are easier to implement,

less divisive, and generally meet their goals better.

Number 2, instead of hiring more people, NMFS should ally with

or in some other manner use the expertise already hired by other

Federal agencies. The Endangered Species Act is not about building kingdoms. It is about protecting species. I have talked to many

flora and fauna experts in the Forest Service and BLM who would

be glad to guard the interests of the ESA.

I back my points with the followinG: several years ago, Lemhi

County residents developed a method of communication with Federal and State management agencies. It is a semiformal method

whereby the agencies and county representatives meet to discuss

long and short-range planning for all of Lemhi County. Although

not perfect, the process has succeeded spectacularly.

By being included in the process, we have given Federal and

State land managers information to make better decisions. By

keeping us informed and involved, we have been able to support

difficult decisions like road closures, changes in management practices, and so forth. Throughout this entire process, all participants

have been aware of the need to protect our natural resources and

endangered species, even prior to listing.

Graphically, I refer you to the orange booklet given members of

the Committee. This is a trend report on riparian conditions from

1988 through 1995. Note the quick-to-reference charts on the gains

in riparian conditions, and then also peruse the photos. As you do

that, please note the different management schemes.

As we explored ways to contend with species listings in many of

our planning sessions, two things became apparent. Number 1, single species management could not be the best recovery strategy.

There are too many species and too many unknown variables. And,

number 2, intense management of Federal land alone would probably fail. Only 8 percent of Lemhi County’s approximately 4 million
25

acres is privately owned, but that contains 90 percent of the occupied salmon habitat.

From these two tenets, we arrived at our Riparian Habitat

Agreement, which is appended to this testimony. I urge you to

glance through it. It is a simple but powerful document. Basically,

the signatories agree to protect riparian habitat to the best of their

knowledge and ability. Importantly, the county and its residents

freely offer private land to the same scrutiny Federal lands are required to have.

On the signatory pages, the absence of National Marine Fisheries

is conspicuous. We have repeatedly asked them to actively participate. On two occasions, NMFS has met with us primarily to tell us

they won’t actively participate. I submit to you that this reduces

their effectiveness.

The last point I would like to make is that soon Congress must

make a political decision. It seems evident that bull trout may be

listed in the Northwest streams. This will put NMFS, U.S. Fish

and Wildlife Service, and the Federal agencies all in charge of the

same small stream reaches.

We ask that you, as Members of Congress, designate U.S. Fish

and Wildlife Service as lead agency under the ESA for inland

streams. They have already shown greater experience, plus they

have demonstrated the ability to communicate with our interests.

The budget outlay for their management should also be less. Respectfully submitted, Dave McFarland.

[Statement of Mr. McFarland can be found at the end of the

hearing.]

[Conservation agreement will are being held in the Committee

files.]

[Progress report can be found will are being held in the Committee files.]

Mr. SAXTON. Thank you very much, Mr. McFarland. Mr. Penney.

STATEMENT OF SAMUEL N. PENNEY, CHAIR, NEZ PERCE

TRIBAL EXECUTIVE COMMITTEE

Mr. PENNEY. Thank you, Mr. Chairman. Good morning to the

members of the Subcommittee. My name is Sam Penney. I am the

Chairman of the Nez Perce Tribal Executive Committee. I would

like to thank you for this opportunity to testify on our views on the

recommendations of the National Marine Fisheries Service and

their role in salmon restoration efforts especially in the Pacific

Northwest.

From the Nez Perce Tribe’s point of view, reversing the decline

of Columbia basin salmon is more than just a matter of professional interest or a legal obligation or a cost of doing business.

Since time immemorial, our people have fished for salmon in Nez

Perce country, which originally encompassed over 13 million acres

in what is today known as north central Idaho, southeastern Washington, and northeastern Oregon. Salmon have always been and

continue to be intricately linked to our people’s way of life, our

economy, our beliefs, and our culture.

The Nez Perce Tribe’s legal basis for its role in salmon restoration efforts stems from the supreme law of the land, our treaty of

1855 with the U.S. Government in which we expressly reserved the
26

right to take fish. The United States also owes a trust or fiduciary

duty to the Nez Perce Tribe.

The United States’ trust responsibility permeates every aspect of

the Federal Government’s relations with the Tribe and imposes a

duty on the Federal Government to safeguard natural resources

which are of crucial importance to Indian people. I will provide a

copy of the paper entitled. ‘‘Columbia River Treaty Fishing Rights’’

to the Subcommittee so you will understand the legal and moral

obligations of the United States to the Nez Perce Tribe, as well as

other tribes.

The Nez Perce Tribe is committed to doing everything we can to

ensure that these declines of salmon are reversed and that all species and all stocks of salmon are restored. We know in our hearts

that our vision and plan for salmon restoration will provide a sustainable fishery resource for the benefit of all peoples in the Pacific

Northwest and Alaska.

We recognize that we have more to lose than anyone if these declines are not reversed. It is from this perspective that we provide

the following observations in hope that the National Marine Fisheries Service will have the opportunity to respond to our concerns

that we and others are bringing before this Committee today.

First, I would like to address the Endangered Species Act’s role

in salmon restoration. Although the Endangered Species Act has

received a great deal of attention for its potential role in the recovery of salmon in the Pacific Northwest, the ESA is but one legal

commitment that is relevant to salmon restoration efforts. The ESA

operates like an emergency room focused on recovery of the listed

fish.

The ESA does not guarantee fulfillment of the 1980 Northwest

Power Act’s promise of parity between salmon protection and hydroelectric generation and that Act’s call for a program to restore

fish and wildlife populations to the extent affected by the development and operation of the Columbia basin hydroelectric system,

nor does the ESA guarantee fulfillment of the United States’ treaty

promises to our people to protect our aboriginal right to take fish

at all usual and accustomed fishing places or the Federal Government’s trust obligation to the Nez Perce Tribe.

In contrast to the ESA, the Nez Perce Tribe’s vision for salmon

restoration, shared by other Columbia River treaty tribes and contained in the Spirit of the Salmon, is substantially broader. Our

peer-reviewed plan, which I will provide to this Subcommittee, is

focused on restoration of all species and all stocks to provide harvestable populations of fish for our people, as well as the citizens

of the Pacific Northwest and Alaska.

One would think that the purposes of the ESA could be read consistently with the Northwest Power Act, the Tribe’s treaty reserved

fishing rights, the Federal Government’s trust responsibility to the

Tribe, as well as with the case law principles developed in United

States v. Oregon and United States v. Washington, and the rebuilding program envisioned by the United States v. Oregon Columbia River Fish Management Plan and the Pacific Salmon Treaty.

Second, I would like to address the Nez Perce Tribe’s standard

for evaluating whether NMFS is properly implementing its authori-
27

ties under the ESA. This standard may simply be stated as follows:

NMFS’s decisions must be consistent with the biological requirements of salmon, emphasize reductions to the largest sources of

salmon mortality, equitably allocate the conservation burden, and

be consistent with the United States’ legal obligations.

Our written testimony details our experience with NMFS’s implementation under ESA over the last 6 years. NMFS has not effectively recognized our treaty-reserved fishing rights and the Federal

Government’s trust obligation.

I would like to quickly summarize our concerns with the National Marine Fisheries Service. First, we are concerned that

NMFS has accepted an extremely high level of risk in its short and

long-term recovery strategy. We are also concerned that NMFS

failed to consider the best available science in the initial biological

opinions on the Federal Columbia River Power System.

We are concerned that NMFS designated an ESA implementation process that failed to recognize the Tribe’s treaty rights and

the Federal Government’s trust obligation to the Tribe. We are concerned that NMFS is not taking action necessary to ensure protection of salmon habitat.

We are concerned that NMFS is not assembling the data necessary to make the long term recovery decision concerning modifications to the hydrosystem through natural river drawdown or

major improvements in the barging program and may be approaching this as solely an ESA issue.

We are concerned that NMFS is stifling responsible supplementation programs designed to restore salmon. We are concerned that

NMFS may unlawfully attempt to restrict tribal harvests in violation of treaty right principles, and Federal Government’s trust responsibility to the tribe.

Now, I would like to conclude by offering a few recommendations

for our future relationship with NMFS and its administration and

also concerns implementation of the ESA. We hope that the NMFS

will honor the Federal Government’s obligation to the tribes, and

we believe that this commitment would result in a better decisionmaking process in further decisions and would help alleviate many

of the concerns we have presented as mentioned by the previous

witnesses.

There have been many meetings which tribal input is not seriously considered. We are one of the tribes that did withdraw from

the NMFS process, and we would hope that in the future that

NMFS would recognize the input not only of the tribes but all the

others that are involved as well so that there can be some consensus in the Northwest.

And also to Congressman Crapo—the Power Summit, I think, on

Energy Deregulation also adds to this issue as well, the uncertainty of the deregulation of the utility industry in the Northwest

further complicates the problem. But I would like to thank you for

this opportunity, Mr. Chairman, and members of the Subcommittee.

[Statement of Mr. Penney can be found at the end of the hearing.]

[Columbia River treaty can be found at the end of the hearing.]
28

Mr. SAXTON. Thank you, Mr. Penney. Well, you may have just

heard the buzzers and so on. That means we have to go vote on

the House floor. It will probably take us about 15 or 20 minutes

to get there and back, and when we come back, we will hear your

testimony. And then at the conclusion of that, we will begin to ask

some questions which we each have beginning with Mr. Crapo.

Thank you.

[Recess.]

Mr. SAXTON. We kept our word to get back as quickly as possible,

and so we will now proceed with Lionel Boyer. You may proceed,

sir.

STATEMENT OF LIONEL BOYER, FISHERIES POLICY

REPRESENTATIVE, SHOSHONE-BANNOCK TRIBES

Mr. BOYER. Thank you, Mr. Chairman, and members of the Subcommittee. My name is Lionel Boyer, Fisheries Policy Representative for the Shoshone-Bannock Tribes of the Fort Hall Indian Reservation located in southeastern Idaho.

I come here today to express my tribes’ frustration with the National Marine Fisheries Service’s representation of the trust responsibility of the United States to the Shoshone-Bannock Tribes.

The lack of equitable management of the Endangered Species Act

with my tribes’ rights that are guaranteed under provisions of the

Fort Bridger Treaty of 1868.

The Shoshone-Bannock Tribes have taken the position that the

ESA does not apply to our people. To enforce the ESA on tribes

would be an abrogation of our treaties unless there was proper consultation leading into an agreement or understanding as to how

and what would apply to tribes. Otherwise, the treaty, which is the

supreme law of the land, would be enforced.

We have said unofficially that we would work within the ESA

provided it serves our concerns. The Shoshone-Bannock Tribes did

use the ESA to petition for the listing of the depleted runs of the

redfish lake sockeye salmon, and today we have within our fisheries program a recovery effort to save this magnificent animal for

the future generations. I might add that the redfish lake sockeye

would have become extinct if the Shoshone-Bannock Tribes had not

acted to petition for the ESA listing.

Mr. Chairman, I would like to talk briefly about the concerns

that are in the written testimony that is before you. There are

many more concerns that we have, but this is a few of them in conjunction with the National Marine Fisheries Service.

NMFS’s failure to significantly improve the migration corridor.

NMFS has continuously failed to give a jeopardy opinion against

the dam specifically—the four lower Snake River dams. They continue to annihilate from 80 to 99 percent of the juvenile fish migrating to the main Columbia River and then to the ocean.

NMFS has continued to allow the slack waters created by the

dams to increase in temperatures that is deadly for any cold water

fishes. The NMFS has continually allowed the Shoshone-Bannock

Tribes’ position to breach, mothball, or remove the dams to fall off

the tables of discussion.

The NMFS has continually pursued the flawed position of transporting the juvenile fish in barges past these dams. This is and was
29

a band-aid approach of 20 years or so. It has not brought any recovery of the runs, only added costs and a continued misguided belief that it would bring about recovery.

Recent studies indicate a positive probability of recovery with

breaching of the dams would occur, but NMFS continues to maintain status quo and the continued expenditures to maintain the

studies, approve construction of unproven methods on the very

problems that continue to destroy the runs and the dams.

NMFS’s failure to provide equitable harvest opportunity to the

Shoshone-Bannock Tribes. The data clearly shows that about 57

percent of the salmon that enter the Columbia River were destined

for the Snake River. NMFS allowed harvest grades for downriver

fisheries in 1997 that could not be maintained by the ShoshoneBannock Tribes.

The Shoshone-Bannock Tribes had a biological analysis of the

Shoshone-Bannock Tribes’ proposed harvest of salmon presented to

NMFS since early spring. This was approved by them, but when

the Shoshone-Bannock Tribes were preparing their tribal regulations, NMFS all of a sudden had a problem. We had to scramble

and go through the process to have a technical review by the Technical Advisory Committee. The Technical Advisory Committee did

not see any conflict with our proposal but NMFS did; consequently,

no consensus.

We had to call for a review by the USB Oregon Policy Committee. Again, the policy committee had no problem with the numbers but NMFS did; again, no consensus. Our next step was to take

it before the Master of the Federal Court, Judge Marsh. Before our

appointment with the Court, we had a hurried meeting with NMFS

and was able to get an interim harvest for an interim period with

the Biological Opinion which was to be presented for signature.

The technical review of the numbers returning updated the data

which clearly indicated that the NMFS was using data that no one

else had and also that it was flawed. The Shoshone-Bannock Tribes

did request an increase in the harvest because of the large numbers of salmon that was returning, but we continually ran into conflict with the NMFS.

The State was approved to have its sport harvest by NMFS, and

today there is fish returning that far surpass the hatchery quota,

and now they, the State, are proposing outplanning for sport harvest in the Boise and Payette Rivers. The Shoshone-Bannock

Tribes are still having to jump through the hoops that NMFS has

placed for our treaty and ceremonial harvest.

But the State can do what they want. What happened to the concern of recovery? Now, it is a bathtub fishery with what they call

surplus fish. With so many fish returning, they should be used for

supplementing the weak spawning areas to recover the salmon, not

to put more dollars in the State’s coffers.

NMFS’s failure to designate adequate critical habitat for recovery. Designated ESUs—they are arbitrary and without merit scientifically and technically—simply a means to eliminate and exempt historic and natural production areas to keep them out of the

purview of the ESA. NMFS has failed to promote and assure the

recovery of the Snake River salmon by eliminating the Middle
30

Snake River which historically produce 70 percent of all the listed

stock ranges.

NMFS’s failure to provide adequate production opportunities.

The wild stocks continue to plummet in the Snake River. NMFS

does not allow the Shoshone-Bannock Tribes to increase production, NMFS’s definition of 150 individual fish being the minimum

viable population. The returns of the wild salmon number less than

100 in historic stream and river systems.

The Snake River salmon are effectively or genetically eliminated

in many areas. NMFS refuses to improve the migration corridor.

NMFS must allow substantive reintroduction by using hatchery

populations. NMFS is arbitrarily separating wild fish and wild fish

production areas from hatchery fish.

NMFS’s failure to fulfill trust responsibility to tribes. Each year,

the Biological Opinion is held in abeyance by NMFS to delay our

ceremonial and subsistence fisheries. This year, the fishery opportunities are more than half over, and we still have not received the

complete Biological Opinion.

The tribes’ right to fish is provided in the Fort Bridger Treaty

of 1868, and NMFS continues to protect industry and other causes

through the demise of the salmon and refuses to bring a jeopardy

opinion against the dams, but continues to abridge the ShoshoneBannock Treaty of 1868.

The NMFS does not have the authority to abrogate my tribes’ or

any other tribes’ treaty. Rendering a treaty null and void is not

within the agency’s right or authority. The NMFS cannot define a

tribe as a person as they are attempting in their administering of

the ESA. Ours is a tribal sovereign right, not an individual right.

In conclusion, as I state in my testimony, we have other concerns

about the recovery of our brother, the majestic salmon, and we can

provide potential solutions to these questions in the near future if

requested. Again, we believe our concerns would be appeased and

that the salmon would quickly be recovered if NMFS provided a

natural corridor through the Lower Snake River.

Again, I thank you for this opportunity to express some of our

concerns about the continued demise of the still majestic salmon.

We need to wake up and provide for our future generations the

continued existence of these great fish or forever be haunted by the

loss of them. Thank you.

[Statement of Mr. Boyer can be found at the end of the hearing.]

Mr. SAXTON. Thank you very much, Mr. Boyer. Let me just express my appreciation to all four of you for very articulate testimony wherein you not only point out the facts of the case, but also

your frustration with the seeming inability of the Federal agency

to play a productive role. We are going to each have some questions

for you at this point, and we will begin with Mr. Crapo.

Mr. CRAPO. Thank you very much, Mr. Chairman. I would like

to start out, Mr. Yost, with you. As you may recall, were you at

the hearing in I believe it was Lewiston which we held in May,

which Chairman John Doolittle of the Water and Power Subcommittee held with regard to drawdowns?

Mr. YOST. Mr. Crapo, no, sir.

Mr. CRAPO. At that hearing, I asked virtually every witness from

whatever perspective they may have come whether they felt that
31

the process that NMFS was following was allowing them and their

point of view to be adequately heard, and virtually every witness

said no.

Now, I realize that whenever you are the lead agency on an

issue, you are going to face discontent and concern by the various

parties who are concerned. But it was remarkable to me that every

witness, whether it was from one angle, one perspective or the

other felt that the process was not working in terms of allowing

them to have access and feeling that their point of view was being

heard.

The reason I lead in with that is that Idaho has in the last year

or two developed a salmon migration plan or policy that it has proposed in the negotiations. Is that not correct?

Mr. YOST. Mr. Chairman, Congressman Crapo, yes, sir. Idaho

tries to bring all of the affected and interested parties in Idaho together each year to formulate a river operations strategy for that

particular year because the State of Idaho’s position is that in an

effort to restore salmon and assist resident fish that we utilize the

resources that we have in the best available manner.

Those resources change year by year; that is, the amount of rainfall and snowpack we have depends on the amount of flows that

come out of Idaho that are used to assist salmon. Also, the number

of smolt that go out each spring is different year to year. So each

year we develop a particular river operation scenario for that particular year, spring and summer.

Mr. CRAPO. And in the last 2 years, it has been very successful

in terms of at least achieving the agreement of all of the major interests involved. Is that not correct?

Mr. YOST. Mr. Chairman, Congressman Crapo, that has been correct. We have had a major component of our proposal accepted by

the region. All of the interests in the region have accepted the majority of our proposal.

Mr. CRAPO. And when that proposal was presented at the appropriate time and location with the National Marine Fisheries and

other managing agencies and so forth, it is my understanding that

it was very broadly accepted by most, if not all, of the other parties

present. Is that correct?

Mr. YOST. Mr. Chairman, Congressman Crapo, 12 of the 13 participants accepted that. The only dissenting vote was the National

Marine Fisheries Service.

Mr. CRAPO. So in the face of virtually all other participants, the

National Marine Fisheries rejected the policy?

Mr. YOST. Mr. Chairman, Congressman Crapo, that is correct.

Mr. CRAPO. Mr. McFarland, would you describe for me your experiences with National Marine Fisheries personnel as you have tried

to work with them or reach agreement on habitat protection?

Mr. MCFARLAND. Generally, it has been very difficult to get any

positive participation from National Marine Fisheries. They constantly have the excuse that they have no personnel. They don’t

have enough people. But when the time comes that we do get some

people to our meetings to work with us, they show up in droves.

I mean, I am calling three a drove. But we would much rather have

one three times than three one time.
32

There are some positive things going on though. We have finally

got through to some of the lower echelon units. And since we have

began communication, there are some positive things going on in

our area.

Mr. CRAPO. All right. Thank you. And, Mr. Penney, the Nez

Perce Tribe and three other tribes have pulled out of the National

Marine Fisheries Executive Committee, and I think that you have

explained in your testimony the reasons for that. Could you tell me

what it would take for you to come back into the process, if you

have authority to state what it would take for the Tribe to come

back into the process?

Mr. PENNEY. Mr. Chairman, Congressman Crapo, on June 3 in

Portland, Oregon, there was a meeting between the various Indian

tribes and the State Governors, which I felt was very productive for

a first meeting. But at that meeting also, the Governor of Montana

expressed his concerns on the process as well.

I think our concern from the Nez Perce Tribe is the NMFS process itself—it seemed like every meeting that either myself or our

staff attended—supposedly a consultation meeting to decide some

of these issues that some of these issues were already in place, and

we were simply informed what was going to take place.

And we didn’t think that was a very productive forum for the Columbia River Tribes, including the Umatilla, Yakama, and Warm

Springs Tribes. We decided that the forum was no longer productive for us, and we would not participate in that forum unless there

were changes made in how it was structured.

Mr. CRAPO. Would you participate in some type of a forum that

involved—what I am hearing you say is that you felt the decisions

were made and that your participation did not really impact the

decisions. Is that correct?

Mr. PENNEY. Well, I believe the tribal input, as I mentioned in

my testimony, that a lot of the best available data, science are not

fully considered when those type of decisions are being made. And

when we do get to the meetings, we are informed that this was the

direction NMFS is going to take.

Mr. CRAPO. Do you feel that a decisionmaking process that gave

decisionmaking authority to a regional body of some type that represented the sovereigns in the region would be acceptable?

Mr. PENNEY. Mr. Chairman, Congressman Crapo, I think that

was the intent of our June 3 meeting, that the States, the Federal

Government, and the tribal governments need to be fully involved

in any decisions that are made. In fact, the title of that meeting

was the meeting of the three sovereigns, Federal, State, and tribal.

And I believe that is the proper way to address this regional—especially the Northwest issues.

And I think going back to some of the issues that have been stated previously that we want to keep it a regional issue. As mentioned earlier, the bull trout, the steelhead, there are a number of

other stocks that are in trouble at this time. So we need to reach

a regional consensus among those——

Mr. CRAPO. If that approach were taken, what about—how would

the interests such as irrigators or the transportation concerns or

fish and wildlife advocates—how would their interests be represented in the decisionmaking body?
33

Mr. PENNEY. Well, I co-chair the Snake River Basin Adjudication

as well for the Nez Perce Tribe, and all of those interests are represented under the State. And I would assume there would be representatives of the State under the umbrella of the State.

Mr. CRAPO. All right. And, Mr. Boyer, I note that the ShoshoneBannock Tribes have not withdrawn from the process at least at

this point. I assume, however, that you share the same concerns

from your testimony. It appears you share very many of the same

concerns that the Nez Perce Tribes do. Is that correct?

Mr. BOYER. Mr. Chairman, Mr. Crapo, correct. The ShoshoneBannock Tribes, as the other tribes have, since the formation of the

Executive Committee have opposed the Executive Committee. It is

a committee that was—as in your briefing here is an informal committee. However, being an informal committee, it develops policy

decisions without our participation. That is our concern.

It was presented to the Members Committee of Columbia River

Basin Fish and Wildlife Authority in 1995—it was presented, and

the members at that time, which is made up of the 13 tribes, the

four States, and the Federal agencies, minus the Corps of Engineers and the Bureau of Reclamation, sitting at one table. It was

presented and at that particular time the 13 tribes did not accept

that process.

Mr. CRAPO. Thank you. I just have another question or two of

Mr. Yost, if I might, Mr. Chairman. Mr. Yost, in the discussion

that we just had with regard to regional decisionmaking or changing—moving to a process where the decisions were actually able to

be made in a regional decisionmaking body of some sort, there has

been a lot of discussion, as we just had, with regard to whether the

sovereigns ought to be the ones that make up that decisionmaking

authority, or whether it ought to be a more broad-based decisionmaking group that involved representatives of different interest

groups. Do you have a position on that?

Mr. YOST. Mr. Chairman, Congressman Crapo, I think that the

regional forum that currently exists has to be radically changed.

Either NMFS has to change the way they operate now, or there

has to be a completely different regional forum established. I think

the region can decide who should be on the committee or how it

should be established.

I think they can come to an agreement within the region as to

who should be on the—participate in the regional forum. There is

a difference of opinion now, but it is being discussed between the

three sovereigns, as was mentioned—the Federal, State, and tribal

sovereigns. It is either going to have to be done in the region, or

Congress or the Courts will have to decide what happens.

Mr. CRAPO. Does it appear to you that the National Marine Fisheries Service views the research and data from the States and the

tribes and other sovereigns on the same level and accuracy and

usefulness as it views its own research data?

Mr. YOST. Mr. Chairman, Congressman Crapo, no. The National

Marine Fisheries Service does not consider scientific data or scientific opinion from the other Federal partners or their sister agencies in the Federal Government—the Corps of Engineers, BPA, or

the Bureau of Reclamation, nor any of the tribal fish and game de-
34

partments, nor other information and data that is available from

the private sector.

And that is part of the problem. If they have to go out and research and prove all of the—or disprove all of the data that is

there, they want to make their own decisions. The problem with

that is is that there is a diversity of information and data within

the region. If I can reach consensus in the region with everyone but

NMFS, are they part of the process? Are they part of the solution?

Are they participating in the process? Or are they making unilateral decisions?

I think the evidence that you hear today and the evidence we

have experienced in the last 2 years in that regional forum will indicate that they make unilateral decisions. Either they want their

science—to use their science to promote their principles or objectives, or they want to pick up their marbles and go home.

Mr. CRAPO. Thank you. I just have one final point to make again

with you, Mr. Yost. I started out asking you about the consensus

that had been reached with regard to the Idaho proposal, the Idaho

policy. And it seems to me that the decision that NMFS made to

move in a different direction has resulted in an immediate and

long-term threat to many water uses along the Snake and Columbia River system—threats to irrigation, commercial, residential

water users, and the entire regional economy—a threat that is not

justified by the science, nor designed in my—or likely, in my opinion, to have a significantly positive impact on salmon recovery.

And it is also an immediate and long-term threat to State water

sovereignty and not just with regard to the State of Idaho either.

And I just would like to have you comment on it. And I am going

to talk to the next panel about that as well.

But would you please comment? Do you agree with my observation there with regard to the impact of the current policy being

pursued by NMFS and its potential implications for water sovereignty and other water uses in the region?

Mr. YOST. Mr. Chairman, Congressman Crapo, the issues are

very critical when you are dealing with river governance in the

State of Idaho. Those issues are so sensitive and so volatile and so

critical to the entire livelihoods of everyone in the Northwest. It

has a tremendous impact on power and how power is used. You

can’t separate the operation of the river system in power that pays

for fish mitigation.

We have to have the biological solution to save the fish and to

restore the salmon runs. We have jurisdictional issues and sovereignty issues that have to be maintained. Each issue is critical

and is complex. And, of course, those decisions will be best for the

region that are made within the region with as much consensus as

possible. We need to have NMFS as a player, not as someone who

would make a unilateral decision regardless of the consensus

reached by the other participants in the process.

Mr. CRAPO. Thank you very much. And, Mr. Chairman, I would

yield back my time at this point.

Mr. SAXTON. Thank you, Mr. Crapo—excellent questions. Mr.

Abercrombie.

Mr. ABERCROMBIE. Thank you. Mr. Chairman, before I get to individuals, I want to comment to you and to Mr. Crapo and I guess
35

to the panel and those upcoming as someone who is very much interested in trying to be a useful catalyst in this process to you, in

just thinking about, very frankly, Mr. Chairman and Mr. Crapo, a

water distribution question that we are dealing with in the Island

of Oahu right now.

You can imagine the parallel interests that I would have when

you are an island in the middle of the Pacific utterly and totally

dependent upon an aquifer, which must remain pristine, cannot in

any respect be contaminated except at the immediate peril of everyone there, and a competition for the use of such water right.

But I was thinking to myself I thought that was complicated

until I got to this today. Now, just in—I haven’t covered it by any

means, but, Mr. Chairman, I detect so far five Federal agencies,

five States, 13 tribes, three categories—I don’t even want to break

the categories down, but they include commercial and environmental and recreational—leading to legislative acts from which

plans come, opinions, systems, committees, teams, and boards—almost all in the plural. And in order to deal with the acts, plans,

opinions, systems, teams, committees, and boards, there are councils, groups, authorities, and forums, regional, State, tribal, et

cetera. Have I got it so far?

Mr. CRAPO. Mr. Chairman, Mr. Abercrombie, I think you have

been a very quick read on this. The only thing you left out was

there was another foreign nation as well, the Nation of Canada,

that is also involved.

Mr. ABERCROMBIE. Oh, that is a nation. OK. Right.

Mr. CRAPO. Add a nation to your list.

Mr. ABERCROMBIE. Right. So I have an idea that the National

Marine Fisheries Service has either by default or design or both become the czar in this and is pretty much regarded by everybody the

way the czar was regarded in 1917 or 1918.

As of yet, apparently, the head of the National Marine Fisheries

hasn’t suffered the same fate as the Romanovs, but that is not necessarily out of the picture, apparently. So by no means am I trying

to make light of it or go into a Pontius Pilate mode and wash my

hands of it because it is complicated and detailed.

But I do think—would I be correct, Mr. Yost, Mr. McFarland, Mr.

Penney, and Mr. Boyer—would it be fair to say then that the

human dimension in this, obviously, causes great strain in trying

to deal with all of these abstract categories? I think that that is—

everybody would agree.

So the question then becomes, for me, is it possible to achieve a

consensus, not agreement—not so much a consensus agreement,

but a consensus approach on how we would deal with this legislatively? Because I have an idea that as odd as it may sound, the

Congress might prove useful in this because we could act as an

honest broker.

I mean, I realize it is fashionable these days to trash government, but we are here after all under the Constitution a free people

trying to decide on the basis of what is good for the community,

what is good for the polis, what is good for us as a Nation. And,

obviously, this is a national resource.

I am correct, am I not, that all interested parties here regard the

issue at hand here as something which involves a national treasure
36

and resource, as well as the individual attachments that people

may have? That being the case, my suggestion, Mr. Chairman, is

rather than ask questions, I think, as you mentioned, all of the

people have made their positions very clear.

But I think there is a common theme running through all of the

testimony, at least that we have seen so far, which is that there

is an agreement that there is a decline in the salmon stocks, that

the elements which have to be taken into account include ocean

conditions, the dams themselves, water use, overharvesting, habitat destruction, hatchery impacts, and the question of the reservoirs associated with the dams.

It would seem to me then, Mr. Chairman, that perhaps we could

devise some legislation which would cross the various entities here

and the various jurisdictions in a way that would help us to come—

help the decisions to be made which would advance the cause of

increasing the stocks and access to them in a reasonable way which

takes historical necessities into account.

My bottom line on this would be, Mr. Chairman, that representing as I do a State which has a history of native peoples not

being taken into account, any solution that we come up with I

think, Mr. Chairman, has to have as a fundamental proposition

recognition of an adequate attention paid to the rights in a modern

context of the native peoples.

I don’t think it is possible probably given the fact that you have

eight dams and significant change in the actual physical characteristics of the river to apply literally and rigidly the terms ‘‘usual and

customary’’ with respect to tribal use. But we certainly can have

as an ongoing admonition that maximizing the intent of customary

and usual use for tribes should be foremost in whatever legislation

appears.

Mr. CRAPO. Thank you. Would the gentleman yield?

Mr. ABERCROMBIE. Certainly.

Mr. CRAPO. I appreciate your approach to this, Mr. Abercrombie.

Many times I have said and one of the things that I am advocating

is that we need to find a decisionmaking process I believe focused

in the Pacific Northwest so that all of the people and interests and

concerns in the Pacific Northwest are represented in the process

and feel represented in the process and actually have decisionmaking impact in that process. And I feel not only your interest

but your offer of the fact that perhaps Congress needs to help find

that solution is a wise and helpful observation.

Mr. ABERCROMBIE. Well, the final thing I would say then—thank

you very much—is that perhaps the National Marine Fisheries

Service is not the best agency to be the final arbiter, if you will,

but I have an idea that no matter what entity is either selected or

created that that entity, as I think you indicated in your commentary, is likely to be the villain.

So I don’t think that that is not an argument against coming to

a legislative conclusion. If anything, it should spur us to say,

‘‘Look, then let us try and figure out a way that everybody can

agree allows for participation, and then having had that participation, I think you have to make decisions and not just string it out

and let the difficulty of it prevent us from coming to a conclusion.’’
37

And then we support it with appropriations if that is what is needed or legislation or both.

But I certainly would pledge my every effort to you and to the

Chairman and to our guests here today to try to be a constructive

force in achieving a just and fair conclusion which will advance the

cause I think that everybody ultimately has allegiance to.

Mr. CRAPO. Thank you and I look forward to working with you

on that.

Mr. SAXTON. Thank you, Mr. Abercrombie. Let me just make a

couple of observations and ask some questions for purposes of my

clarification. Mr. Yost—well, first of all, let me say that my two colleagues who are here with me today know that I am from New Jersey, and one of the things about resource management that I have

learned since I have been in Congress is that resource management

works best when the resources that affect the people who are the

closest are managed by those people. In other words, local decisions

mean an awful lot in terms of the success of whatever resource it

is that we are trying to manage.

In New Jersey, for example, the most densely populated State in

the country, we take some degree of pride in the degree of environmental protection that we have been able to provide for our resources, but we have done it out of necessity, quite frankly, because

there are so many people who have decided or inherited this little

piece of real estate called New Jersey. And we have found out that

out of necessity we have to be very careful of our resources because

there are so many of us who can muck them up real quick.

So we have a Department of Environmental Protection and environmental protection laws that are very, very burdensome as compared to States that are less densely populated. But it works because New Jerseyans decided that that is what we needed to do.

And I suspect or know that other parts of the country have the

same kind of desire to manage resources appropriately for that region of the country.

Now, a week or so ago, we all participated in trying to help

straighten out another issue where local people had some desires

and a management plan that they tried to put in place and were

foiled by another Federal agency known as the U.S. Forest Service.

A plan was developed by Mr. Herger, the gentleman from northern

California, and his constituents.

And the Forest Service played NMFS, and we ended up a week

or so ago legislating a law that we knew—a bill that we knew as

the Quincy Library Group proposal to put in place legislatively a

management plan that was developed by local people because that

is what we believe ought to happen.

Now, Mr. Yost, you indicated that there were 13 agencies or 13

parties to an agreement—potential parties to an agreement. Is that

right?

Mr. YOST. Mr. Chairman, there were 13 participants at the Executive Committee in the region who had agreed to—who were at an

Executive Committee meeting. Twelve of those supported us. There

were those who—the only one who opposed us in the region at that

particular vote was the National Marine Fisheries Service.

Mr. SAXTON. All right. Now, were there other Federal agencies

in attendance represented?
38

Mr. YOST. Mr. Chairman, yes, the Bureau of Reclamation, Bonneville Power Administration, Corps of Engineers, U.S. Fish and

Wildlife Service.

Mr. SAXTON. And they were among the 12 that agreed with a

plan that would have managed the river resources for a season or

a year. Is that correct?

Mr. YOST. Yes, sir, Mr. Chairman.

Mr. SAXTON. And there were local participants to that potential

agreement as well?

Mr. YOST. Mr. Chairman, there were the representatives of the—

there were representatives of three States. Montana had withdrawn from the process, but there were representatives from three

States. And the downstream tribes approved that as well. There

was no objection from the tribal sovereigns.

Mr. SAXTON. So there were 12 parties to the agreement that had

worked through a series of negotiations, along with the power company association which, obviously, made some concessions. The way

I understand that agreement, and I don’t mean to oversimplify it,

and you can correct this if I am oversimplifying it, but it provided

for something like a 6-week period of time when the river would

be is the correct word open? Freeflowing more or less?

Mr. YOST. Mr. Chairman, it was a combination of providing flows

when the smolts were in the river, and it also included a scenario

for the amount of fish that would be barged versus the number of

smolts or percentage of smolts that would be allowed to go downstream in river.

Mr. SAXTON. And, obviously, there must have been some biological considerations and conservation considerations which the U.S.

Fish and Wildlife Service is not an easy agency to deal with, and

apparently they agreed as one of the 12 parties that this was a

good conservation plan?

Mr. YOST. Mr. Chairman, that is correct. Even Will Stelle of the

National Marine Fisheries Service agreed with the percentages. He

just reneged on that situation later. What is what I am saying—

is that Idaho doesn’t expect to get everything it wants. I am not

here to complain that Idaho didn’t get their proposal 100 percent.

What I complain about and what I am concerned about is that

Idaho can go into the region and get consensus of other Federal

agencies, of tribes and States, and fish and game departments from

the States. I can get consensus there except for NMFS, and they

unilaterally make a decision when all of the other entities or participants have kind of agreed. No one was really happy with the

agreement. There were those on both sides who wished it would

have been something different, but at least we had reached a consensus except for NMFS.

Mr. SAXTON. Now, since NMFS is not here today, it would be appropriate to be kind to NMFS. They are actually here—observers

are here, but the spokesmen are not here today. So can you shed

any light on or find a reason or explain to me why it is that NMFS

was the outparty and couldn’t agree?

Mr. YOST. Mr. Chairman, the response from NMFS for the request was that they considered that they wanted more chinook

salmon barged than were allowed to go downstream in river. What

they did was take into account hatchery fish that are not listed
39

stocks. And National Marine Fisheries Service does not have jurisdiction over hatchery stocks. They are not listed. They are not on

the endangered species list.

Only native wildfish are on the endangered species list and listed

under ESA. Those are hatchery-produced fish out of Idaho for supplementation, and yet we can identify those fish and we do. All we

ask was that there were more hatchery fish and steelhead smolts

allowed to go inriver because of the excellent conditions for inriver

migration for this particular year because of the runoff.

Mr. SAXTON. So I am not sure that I get into the—I don’t mean

to use the wrong word here but, you know, the biological minutia

of one fish from another, but I don’t understand that logic I guess

is what I am saying. Maybe Mr. Crapo would like to help me understand.

Mr. YOST. Mr. Chairman, we didn’t understand it either.

Mr. CRAPO. Yes. I believe what it boils down to, and at our next

hearing we will have NMFS present and can ask them these detailed questions, but without trying to speak on behalf of NMFS,

I think what it boils down to is that they believe that the dams are

one of the major causes of mortality of the smolt.

And there is a disagreement by the NMFS officials as to the best

way to get the smolt around the dams. They tend to believe in

what is called transportation or the barging, whereas there are

other advocates who wanted to have a larger percentage of the fish

left inriver and spilled over the dams.

And many of us don’t know the answer but felt that this would

be a good year to even out the percentages because we had the waterflow that could get the spills successfully accomplished, and then

we could have better studies on which approach worked more effectively. Is that a good explanation of it, Mr. Yost?

Mr. YOST. Mr. Chairman, Congressman Crapo, that is correct.

There are certain years in Idaho when we have high flows. River

conditions are excellent to carry the smolt downstream. When we

have those types of conditions, it seemed to us to make more sense

to leave the smolts in a natural setting inriver rather than collecting them at the facilities, putting them in barges, and transporting them downriver.

Mr. ABERCROMBIE. Would you yield, Mr. Chairman, a moment?

Mr. Yost, we are going to have to vote soon. I want to make sure

I get this. You mean to say this whole thing went up the chute because you were arguing over the detail of what by definition—I

guess by definition is a scientific impossibility right now? You don’t

know these things. It has to be worked out.

Isn’t that something that if you had the overall agreement year

by year you could try to decide which approach you were going to

take depending on the riverflow and all the rest? Why on earth

would you knock down the agreement of the whole over the detail

of how it was going to be implemented when by definition that

would change from year to year?

Mr. YOST. Mr. Chairman——

Mr. ABERCROMBIE. Have I missed something?

Mr. YOST. [continuing] Congressman Abercrombie, no, sir. You

haven’t missed it. NMFS agreed that we could have up to 50 percent of the fish inriver and 50 percent in barges. The regional con-
40

sensus was a little bit higher than that but at least there was

agreement that we wanted to have more fish in the river and less

in the barges.

Mr. ABERCROMBIE. But my point is is that couldn’t you get an

overall agreement of something nailed down in writing then that

this is the way you would do it every year? You have your vote;

you come out; you get your consensus. You are able to achieve that.

Now, we don’t know whether you were going to be right or

wrong, but that is not the point in this, right, because this is an

inexact science—make the parallel to the case I mentioned on the

Island of Oahu. I am not sure whether you got the exact number

of millions of gallons per day of water that are going through.

Maybe we will be off. Maybe it needs an adjustment, that you could

make a mechanism for doing that. But once you have this in place,

it seems to me that that should have been it and that should be

the ongoing institutional way of dealing with this.

Mr. YOST. Mr. Chairman, Congressman Abercrombie, we had an

agreement in the region from everyone except NMFS.

Mr. ABERCROMBIE. OK.

Mr. YOST. And even NMFS agreed at one time and then they

changed their mind a few weeks later.

Mr. ABERCROMBIE. Thank you.

Mr. SAXTON. Now, let me just clarify a couple of other things.

You have talked about NMFS at one point in the process being in

agreement with the plan, and then they for some reason changed

their mind and, in effect, vetoed the plan. Do representatives from

the National Marine Fisheries Service work along with you

through the process in trying to arrive at a conclusion with regard

to some plan?

Mr. YOST. Mr. Chairman, yes. NMFS agreed on several various

components as we tried to negotiate what the specific numbers

would be inriver and in the barges. We had NMFS agreeing with

Idaho and other members on various components. But the plan

that reached the most consensus NMFS objected to.

Mr. SAXTON. Were they a productive worker along the way?

Mr. YOST. Mr. Chairman, I would say that they were able to

agree with us on certain issues. Why they changed their mind at

the last minute, I don’t know.

Mr. SAXTON. Well, thank you. As you can see, we are going to

have to go vote again. It disturbs me that one Federal agency in

the context of what I gather, and correct me if I am wrong on this,

but every player that I have heard referred to is trying to save or

rebuild the salmon stock.

Without exception, NMFS has as its mission the same thing, and

I find it quite amazing and, in fact, disturbing that NMFS apparently was the showstopper in trying to arrive at a locally conceived

plan to accomplish those goals.

And, Mr. Crapo, I think, you know, the next hearing will be extremely interesting. In fact, let me suggest that you and I not wait

until the next hearing. Why don’t we see if we can get a private

meeting with the folks from NMFS between now and the time we

go home——

Mr. CRAPO. I would appreciate that, Mr. Chairman.
41

Mr. SAXTON. [continuing] to see if we can find some answers that

may be helpful. You are not alone in your frustrations I must say

to the four of you and others who are here from the Northwest.

NMFS is not just less popular than the IRS in the Northwest, it

also happens to occur to a large degree in the Northeast. And so

we will try to work with NMFS here in the next week or so to try

to get a quick meeting to try to see if we can’t make some progress

on this matter.

We are going to have to go vote again, and so I want to thank

all of you. I assume that we can say that you have been extremely

helpful in that we don’t have further questions for this panel. So

we thank you, and, unfortunately, I have a 12 o’clock appointment

that I must keep so, Mr. Crapo, if you would chair the hearing

when you return, and I will try to catch up with you in the next

45 minutes or so. Thank you very much.

Mr. BOYER. Mr. Chairman, I do have some news articles that recently came out of the Boise Statesman. Congressman Crapo probably has access to it. It is a three-part series on the problem that

we are discussing here today.

Mr. SAXTON. OK. Thank you very much. I would love to be able

to have that, if I may.

Mr. BOYER. I have two parts. I don’t have a third part.

Mr. SAXTON. Thank you.

[News articles follow:]

[Recess.]

Mr. CRAPO. [presiding] The hearing will reconvene. We apologize.

This is sort of standard operating procedure around here. We are

having more votes than usual because there is a bunch of fighting

going on on the floor so we apologize for that.

Mr. Abercrombie and the Chairman both had luncheons to go to,

and Mr. Abercrombie and I are both involved in an amendment on

the sugar part of the Farm bill later on. So they are going to try

to get back, and we will do our very best to move ahead expeditiously.

Let me introduce the second panel now and welcome Mr. Joseph

Rohleder of the Northwest Sportfishing Industry Association; Mr.

Stan Grace, Council Member for the Northwest Power Planning

Council; Mr. Bob Deurloo from the Meridian Gold Company; Mr.

Justin Hayes of the Save Our Wild Salmon Coalition; and Mr. Norman Semanko of the Twin Falls Canal Company and the North

Side Canal Company.

We welcome you all, and I would just remind you to try to stay

as close as you can to the 5-minute window there because of the

timing problems we have in this hearing. But please feel free to

make your points as well. And we will start out with you, Mr.

Rohleder.

STATEMENT OF JOSEPH ROHLEDER, NORTHWEST

SPORTFISHING INDUSTRY ASSOCIATION

Mr. ROHLEDER. Thank you, Congressman Crapo. My name is Joe

Rohleder. I live in Waldport, Oregon. I am testifying today on behalf of the Northwest Sportfishing Industry Association and the Association of the Northwest Steelheaders.
42

NSIA consists of hundreds of businesses and thousands of jobs

in the Pacific Northwest dedicated to keeping our rivers, lakes, and

streams healthy and full of fish. The Steelheaders are the largest

angling group in Oregon. Sportfishing generates over $3 billion per

year to the overall economic health of the Pacific Northwest States.

My background—I am a trained geologist. Since 1986, I have operated ocean charter boats, fishing boats, and tour boats on the Oregon coast and in southeast Alaska. This last year I worked extensively with the Oregon legislature for adoption and funding of Governor Kitzhaber’s Oregon Coastal Salmon Restoration Initiative.

During that process, I worked regularly with National Marine

Fisheries Service.

Thank you for inviting fishing businesses and sportanglers to testify today. Our businesses literally live or die by how well National

Marine Fisheries Service does its job. As we see it, that job is restoring fishable populations to Northwest salmon. Only fishable

populations contribute to economies, communities, and cultures.

In brief, here are some of the concerns of fishing business people

and the Steelheaders. Salmon are not being restored. The measures

taken by National Marine Fisheries Service to date would have to

improve by 500 percent in order for adult returns to sustain recovery. The numbers of Wild Snake and Columbia River salmon and

steelhead are lower now than when NMFS took over in 1992.

In the Columbia basin, NMFS invests too much effort going after

small sources of human mortality—harvest and hatcheries—and

too little going after the large sources—Federal dams and reservoirs. NMFS has drastically reduced sports, commercial, and

tribal harvest to salmon in many cases to virtually zero. They have

also focused substantial resources analyzing and regulating hatcheries.

Meanwhile, the Federal hydrosystem, which is responsible for

from 60 to 90 percent of the human caused mortality of Snake

River salmon, has only slightly changed operations under National

Marine Fisheries Service direction.

NMFS communication and outreach to anglers, businesses, and

communities is about the worst that we have seen. Now, the groups

I represent work with several dozen agencies including other agencies that regulate us like National Marine Fisheries Service does.

Our approach in all cases is to seek to be effective partners because

that is good business, it is the right thing to do, and it is the only

way that we are going to solve the Northwest salmon crisis.

More than any other agencies, National Marine Fisheries Service

has not effectively built partnerships with anglers and fishing businesses. The agency does not communicate well. They don’t listen

well. They don’t share control well, nor do they build consensus

well. This is true on the Columbia and on the Oregon coast.

National Marine Fisheries Service’s scientific credibility is very

low. An example of the apparent misuse and premature information release occurred this year with the preliminary results of the

1995 PIT-tag study. A PIT-tag is a tag that is put into the fish that

is an interactive transponder.

The study is incomplete. The data has not been peer reviewed by

State, Federal, tribal managers, and it is just one study amongst

many that the National Marine Fisheries Service is doing right
43

now. Yet, high NMFS officials are publicly releasing preliminary

data to the media and to Congress claiming that it shows fish barging worked in 1995.

The National Marine Fisheries Service is not exerting effective

leadership with the other Federal agencies, with the Northwest

States and Indian tribes, or with Northwesterners in general.

There will not be recovery without regional unity. But instead of

building institutions and attitudes to achieve it, National Marine

Fisheries Service has alienated partners away from the table.

We acknowledge that creation of the regional unity is not just

NMFS’s responsibility, but the Administration must lead the effort,

and NMFS is the Administration’s designated agency in charge of

salmon.

We appreciate this Committee’s attention to Northwest salmon,

and we look forward to working with you in the future. Our suggestions briefly are there must be upward accountability on the Columbia. NMFS has neither the will nor the full authority to make

decisions and then enforce those decisions on other Federal agencies.

The majority of Federal resources must focus on the primary

causes of mortality, habitat degradation especially caused by Federal dams. NMFS and the Federal hydroagencies must recommit to

a scientific partnership with Northwest States and tribes. And

NMFS and the Administration should embrace now the scientific

principle that fish need rivers.

We just restore more natural watershed processes, recreate damaged habitats, and restore fishable populations of salmon and

steelhead. The groups I represent stand ready to assist and partners in these efforts whenever and wherever appropriate. I thank

you very much, Mr. Chairman.

[Statement of Mr. Rohleder may be found at end of hearing.]

[Disclosure requirement may be found at end of hearing.]

Mr. CRAPO. Thank you, Mr. Rohleder. We appreciate your testimony, and I understand that you may have to leave early. If we

don’t finish by the time you have to leave, please feel free to excuse

yourself.

Mr. ROHLEDER. Thank you very much, sir.

Mr. CRAPO. And next, Mr. Stan Grace for the Northwest Power

Planning Council. Mr. Grace.

STATEMENT OF STAN GRACE, COUNCIL MEMBER,

NORTHWEST POWER PLANNING COUNCIL

Mr. GRACE. Thank you, Mr. Chairman. My name is Stan Grace.

I am a Montana member and former chairman of the Northwest

Power Planning Council. In the council’s planning, we were required to balance the needs of fish and wildlife against the hydroelectric system. We treat the Columbia River and its tributaries as

a system as we were required by law.

I am also Montana’s representative on the Executive Committee,

an advisory forum of river interests created by the National Marine

Fisheries Service to assist in decisionmaking about Columbia and

Snake River operations.

My message today is that in my experience, the NMFS decisionmaking process fails in two ways. First, the NMFS fails to take
44

into account the impact of Columbia and Snake River recovery operations on Montana’s fish and wildlife, particularly the impact of

reservoir drawdowns to augment flows downstream for endangered

Snake River salmon.

Second, related to the first, there is a definite lack of cooperation

between the NMFS and Montana. This stems from the lack of consideration by the Fisheries Service for Montana’s fish and wildlife

resources. Montana is unique in this respect. We have no salmon,

but we do have bull trout, cutthroat trout, and sturgeon on our Columbia River tributaries.

These fish are adversely affected when the Fisheries Service orders drawdowns at Libby and Hungry Horse reservoirs to augment

Columbia River flows. These drawdowns also impact the ecology of

two major reservoirs on these tributaries—Lake Koocanusa behind

Libby dam and Hungry Horse reservoir behind Hungry Horse dam,

as well as 125 miles of river below the dams.

Because the Power Planning Council treats the Columbia and its

tributaries as a system, the council adopted operating guidelines

for Libby and Hungry Horse dams that protect fish and wildlife,

provide flood control, and meet hydropower requirements, as well

as contributes significant amounts of water to salmon recovery efforts.

These protections developed in the public process are called integrated rule curves. They are operating rules for Libby and Hungry

Horse dams that limit the depth of reservoir drawdowns and strive

to avoid refill failures.

This significant investment in time, manpower, and money has

been ignored by the Fisheries Service in its Biological Opinion on

hydropower operations. The Fisheries Service claims that

drawdowns at Libby and Hungry Horse dams boost water velocity

in the Columbia River and that the additional velocity helps juvenile Snake River salmon migrate to sea.

In truth, the velocity increase is insignificant. There is no scientific proof that this marginal increase benefits salmon recovery

efforts. However, the adverse impacts from 20-foot drawdowns on

resident fish at Libby and Hungry Horse are real and they are documented.

Montana attempted to participate in NMFS river operations

forum, but the Fisheries Service repeatedly ignored our concerns

about the drawdowns imposed by the Biological Opinion at Libby

and Hungry Horse dams. Our frustration with the NMFS process

led to our withdrawal from a forum that offered us no opportunity

for relief.

Montana is also concerned that the Fisheries Service intervened

in recovery planning for Kootenai River white sturgeon in an attempt to discredit the integrated rule curves despite unanimous

support for these operational curves by the scientists working on

sturgeon recovery.

In conclusion, Mr. Chairman, Montana believes that NMFS managing Montana’s resources through the Biological Opinion is managing, and that this amounts to management by a damage standard. In other words, NMFS does not seek to protect the needs of

native fish in Montana, but rather manages to what they have determined to be a level of the ‘‘acceptable impact.’’
45

After repeated attempts to have our concerns heard in the NMFS

process, Governor Racicot suspended Montana’s participation. We

now seek legal remedies as our alternative. The National Marine

Fisheries Service charges with implementing the mandate of the

Endangered Species Act in the Columbia River basin must take a

broader view in choosing recovery actions.

We will continue to work for the recovery of the three listed

salmon stocks, but measures to recover them should not be detrimental to other native species. We hope this Committee, as well as

the Administration, will urge the Fisheries Service to implement

an ecosystem approach to Snake River salmon recovery. Thank you

very much for your invitation to speak today.

[Statement of Mr. Grace may be found at end of hearing.]

Mr. CRAPO. Thank you, Mr. Grace. We appreciate your traveling

to get here, and we know that you had to make special arrangements in your schedule to do so. Next, Mr. Deurloo.

STATEMENT OF ROBERT DEURLOO, MERIDIAN GOLD

COMPANY

Mr. DEURLOO. Mr. Chairman, I am Bob Deurloo. I am General

Manager of Meridian Gold Company’s Beartrack Mine near Salmon, Idaho. Beartrack employs 160 people, and we contribute approximately 20 percent to the economy of Salmon. We are located

on Napias Creek which flows into the Panther River which flows

into the main stem of the Salmon River.

We have spent literally millions of dollars to ensure clean water,

and I join probably everyone in this room in desiring the return of

the salmon. And I would say the Napias Creek is in better shape

now than before the mine started construction 3 years ago primarily because of wetlands rehabilitation which was damaged by

past mining practices.

We have dealt with National Marine Fisheries for over 4 years,

and I have some specific examples of our dealings. We are frustrated, number 1, by the timeliness of their decisions. By statute,

they have 135 days for consultation.

In our case, it took over twice as long, and we almost missed the

short summer construction season at 7,000 feet up in the mountains and almost were delayed for another year till the next construction season. And we would have been delayed had not our

elected Representatives intervened and pressed NMFS to make a

timely decision. We didn’t ask for any special considerations, just

a timely decision.

When we did finally get the Biological Opinion, National Marine

Fisheries found that Beartrack was not likely to affect the salmon,

but that we were in critical habitat, which leads me to our second

major frustration. We feel the National Marine Fisheries don’t follow their own rules and regulations, and I will elaborate.

As you know because you have been there, Beartrack is located

seven miles above a falls on the Napias Creek. No one has ever

documented or seen a salmon above these falls. We have found

three government studies from 1938 on that have examined these

falls, and all have described the falls as impassable cascades.

One of those in 1938 by the Bureau of Fisheries, which is a predecessor to NMFS, found that they were impassable. These falls are
46

also natural which can be seen by the huge boulders, and the tree

up on top the falls is over 200 years old.

National Marine Fisheries regulations state that all areas above

natural and passable falls are not critical habitat. And critical

habitat is defined in their own regulations as areas currently occupied by the species at the time of listing. Areas outside that occupied at the time of listing shall be designated as critical habitat

only if such areas are essential for the conservation of the species.

I think we all know that habitat is not the limiting factor for

salmon conservation. Nevertheless, when our Biological Opinion

was issued, National Marine Fisheries found, ‘‘These are cascades

with resting areas within them and are not a vertical waterfall.

The possibility of chinook salmon passage is increased. The site visited by National Marine Fisheries staff verified the possibility of

chinook salmon once spawning upstream from the cascades.

‘‘Therefore, until conclusive data are available to confirm that the

cascades were historically impassable, National Marine Fisheries

will assume for the purposes of defining critical habitat that the

upstream habitat was accessible.’’ So, the regulations say if it is not

currently occupied, it is not critical habitat. But NMFS says it may

have been possible once upon a time so it is critical habitat.

According to NMFS, if we want to change the designation, we

must prove that no salmon were above the falls prior to 1860, or

we have to prove that the falls are not passable and none of man’s

activities have negatively influenced this passage.

So we spent considerable time and money trying to comply with

their dictates. We have performed geomorphology studies which we

prove that the falls are natural, and I think NMFS has bought off

on that. We have also performed extensive hydraulic and gradient

studies which our fish biologists feel prove that the falls are impassable. But when presented to National Marine Fisheries, their

response is, ‘‘That is all well and good, but you would be amazed

at what a fish can do.’’

Our only appeal is to petition the Secretary of Commerce for

habitat redesignation, which we have done, but we don’t know if

we will get an impartial hearing, and this process could take years.

So here we are, tightly regulated. We must seek NMFS’s permission for all of our activities, and their decisions are slow in coming.

Mining is a dynamic process. Prices change, conditions change,

reserves are added. Even with minor changes, we are threatened,

‘‘Well, this will reopen your Biological Opinion.’’ And with this, we

would be in a whole new ballgame. This happened to Hecla, and

now they have to curtail their operations during periods of wet

weather. A similar restriction on our operations would threaten our

$80 million investment.

So we feel National Marine Fisheries needs to be more timely,

more reasonable. They shouldn’t be solely focused on only salmon

considerations, but also should consider other factors as well. We

also feel there should be a better appeal procedure rather than just

suing in the Courts.

We feel the National Marine Fisheries should reevaluate their

regulatory chokehold on small interior operators that have minor

effect on salmon; instead, concentrate on fixing the dams and then

the salmon won’t be endangered. Thank you.
47

[Statement of Mr. Deurloo may be found at end of hearing.]

[Disclosure statement may be found at end of hearing.]

Mr. CRAPO. Thank you, Mr. Deurloo, and you are correct. I have

been there at those falls, and, you know, in my questions I want

to go into that a little further with you. Next, Mr. Hayes.

STATEMENT OF JUSTIN HAYES, SAVE OUR WILD SALMON

COALITION

Mr. HAYES. Thank you. I am the conservation scientist and DC

area representative for Save Our Wild Salmon. Save Our Wild

Salmon is a coalition of 47 conservation, fishing, and fishing business organizations.

As you know, the National Marine Fisheries Service is charged

with overseeing efforts to restore the federally listed Columbia

basin salmon. Since NMFS took on this task, salmon have continued to decline. In fact, several additional stocks of salmon, several

stocks of steelhead, and the seagoing cutthroat trout have now

been proposed for listing on the Endangered Species Act as well.

Why with the attention by the Federal Government, years of effort, and the expenditure of hundreds of millions of dollars have

these species continued to decline? Why? Because the National Marine Fisheries Service has failed to take the active leadership role

required to recover these fish.

Currently, there are three separate recovery plans—a Federal, a

State, and a tribal plan. Over the last 3 years, NMFS has failed

to exert the leadership required to reconcile the differences and

merge these three documents into a single binding recovery plan.

In the absence of a single agreed-upon plan, the Northwest salmon recovery effort has virtually self-destructed. In addition, NMFS

has focused far too narrowly on fulfilling only the procedural requirements of the Endangered Species Act. As a result, the recovery plan the National Marine Fisheries Service has put forth focuses on procedure rather than substance.

The National Marine Fisheries Service’s plan, even if implemented, will not result in the recovery of the Snake River salmon

to self-sustaining harvestable levels. Their own studies prove that

under their plan not even juveniles are surviving to adulthood and

returning.

Another stumbling block has been NMFS’s failure to incorporate

other Federal agencies, the States, and the tribes into the decisionmaking process. Substantive issues raised by others are infinitely

passed from one meeting to the next because the National Marine

Fisheries Service or the Army Corps of Engineers objects. This

process has become such an obvious waste of time that many of the

tribes and the State of Montana have withdrawn.

The National Marine Fisheries Service’s failure to bring the region’s Federal, State, and tribal agencies together has created a

leadership vacuum. As a result, many agencies in the Northwest

have staked out their very own salmon turf. There is no better example of this than the U.S. Army Corps of Engineers. The Corps

has decided that it is the ultimate authority over the management

of the dams that are killing the salmon.

This is so even when the operations of their dams directly contradict the management plans of the National Marine Fisheries
48

Service. As a result, the Corps has managed the river poorly for

fish, spending hundreds of millions of dollars on controversial

projects.

NMFS is like a deer frozen in the headlights. Rather than make

a decision, it chooses to stand right in the middle of the road in

the path of the oncoming truck. This fear has resulted in the National Marine Fisheries Service’s pursuance of process over substance. They refuse to work cooperatively with others on substantive issues. They do not seem to want to pursue these issues

and reach a solution.

Recently, the State of Idaho and many of the region’s tribes

brought forth their proposal for managing the 1997 salmon migration. This plan called for leaving more young salmon in the river

to benefit from the expected high water. As you know, this plan

was widely supported and scientifically very credible.

An extensive report by NMFS’s own independent scientific advisory board cautioned NMFS against its continued use of widespread, large-scale barging of juvenile fish. This report stated that

there has never been any evidence that the practice of barging fish

will lead to the eventual recovery of the salmon.

At the Executive Committee meeting level, only the National Marine Fisheries Service objected to the Idaho and tribal proposal. In

spite of overwhelming support, NMFS made the unilateral decision

to barge many more juvenile salmon than other members of the

committee thought was acceptable. Thus, the National Marine

Fisheries Service ignored its own best scientific evidence, and it

overruled the wishes of the other sovereigns in the region.

The National Marine Fisheries Service’s very poor leadership and

its process over substance approach is not recovering and is not

leading toward the recovery of the basin’s salmon. It does not satisfy the requirements of laws or treaties which commit this Nation

to restoring Columbia basin fish.

Likewise, it does not satisfy the needs of the thousands of families dependent on commercial and recreational salmon fishing for

their livelihood, and it does not satisfy the needs of the hundreds

of thousands of recreational anglers who pump money into the

economies of the Northwest.

For this issue to move forward, several things must occur. First,

the Administration needs to make a higher level presence felt in

the region. It needs to have a presence in the region that is capable

of giving orders to the other Federal agencies.

Second, the Federal, State, and tribal plans need to be pulled together into a single binding recovery plan, and the States and

tribes must be given co-management authority. Third, until these

previous two occur, recovery efforts, especially spending, need to

focus on components found in the three plans. This needs to be

done so as not to prejudice one plan over the other in future decisions.

And, fourth, the authoritative, scientific views of the National

Marine Fisheries Service’s own independent scientific advisory

board need to be given more credence by NMFS itself and by the

Administration. This is the best science available, and they are ignoring it. Rather, NMFS relies far too much on the decidedly

unindependent scientists that are in charge of its own fish barging
49

program to create their future policy. I thank you very much for

the opportunity to speak before you, and I will gladly answer any

questions when this panel is done. Thank you.

[Statement of Mr. Hayes may be found at end of hearing.]

[Disclosure requirement may be found at end of hearing.]

Mr. CRAPO. Thank you, Mr. Hayes. We appreciate your testimony. And, finally, Mr. Semanko.

STATEMENT OF NORMAN SEMANKO, TWIN FALLS CANAL

COMPANY AND NORTH SIDE CANAL COMPANY

Mr. SEMANKO. Thank you, Congressman Crapo, Mr. Chairman,

members of the Subcommittee, ladies and gentlemen. I am here

today representing the Twin Falls Canal Company and the North

Side Canal Company. I am an attorney with the law firm of

Rosholt, Robertson & Tucker in Twin Falls. We appreciate the opportunity to be here today and testify regarding NMFS and their

role in the recovery of salmon in the Northwest.

I appreciate being here today. I have been in this room several

times as a staff member, and things haven’t changed here much,

and, unfortunately, neither has the status of the salmon since

Larry Craig was in this Committee room.

Mr. CRAPO. And the fact that they call votes in the middle of

your testimony, right?

Mr. SEMANKO. Would you like me to proceed, or do you want me

to——

Mr. CRAPO. No. Please go ahead and proceed.

Mr. SEMANKO. Our primary concern with NMFS is the role that

Idaho water, including water from Federal reservoirs, is being

asked to play in recovery of the salmon. The current Biological

Opinion requires that 427,000 acre-feet be provided each year from

the Upper Snake; that is, above Brownlee reservoir.

The bulk of this water has been provided from reclamation reservoirs in Idaho. This is despite the fact that the listed salmon do

not exist in this part of Idaho and, above Shoshone Falls, have

never existed.

While Idaho irrigators do not believe that there is any scientific

or legal justification for this, they have, nonetheless, cooperated; in

fact, going so far as to support legislation at the State level in 1996

that specifically allows this amount of water to go out of the State

through the year 1999.

Nineteen ninety nine is the year that NMFS is scheduled to

make some type of major decision with regard to the system. Are

they going to go to a drawdown or a breaching of the dam-type of

system, or are they going to go with an enhanced transportation

system?

The long-term solution, as stated in the 1995 Biological Opinion,

is not to include flow augmentation. Flow augmentation has been

framed as a temporary solution to the problem—a stopgap measure

to get us by. And it is perhaps worth noting that if you read the

Biological Opinion, and maybe this is where some of the frustration

comes from today, the period between 1995 and 1999 is meant only

as a period in which to avoid extinction of the salmon.

It is not supposed to be that way, but they decided that they

need to run an adaptive management program, an experiment to
50

see which process, neither of which is really being implemented

right now, is better to save the salmon sometime after 1999.

Somehow, the fact that flow augmentation should be a temporary

solution is being lost in the mix. Last year, several environmental

groups, joined by the State of Oregon and some of the tribes, sued

NMFS and other Federal agencies in a case entitled American Rivers v. NMFS.

And the gist of the concern was that the flow targets at Lower

Granite and other places on the Snake and Columbia Rivers are

mandatory targets which must be met each and every day of the

season. There was also a concern that NMFS had not and the Bureau had not consulted on Upper Snake River project operations;

that is, those dams that are above the Lower Snake River.

The Judge, in an April 3 opinion, rejected all claims and decided

that, ‘‘no,’’ these flow targets are not something that need to be met

every day. The way NMFS and the region are trying to manage the

process is that when the fish are there and the water is available,

then we will go ahead and use it. They aren’t firm targets.

Despite this resounding victory, and I think everyone at the time

regarded it as a victory for NMFS, NMFS and the Bureau have

nonetheless decided to give the environmentalists and the other

parties involved exactly what they asked for. One of the things

they asked for was consultation on the projects in the Upper

Snake. We are, frankly, baffled at this prospect.

Why? I think with regard to one of the issues that we we’re talking about this morning, why did NMFS decide that they want to

barge more fish and not have more fish in the river? The reason

for that as I understood it, one of their arguments—an easy one to

lean on—was, ‘‘Well, the Biological Opinion says we are doing an

experiment. We need to share the risk. It needs to be 50/50 so we

can have an accurate experiment and decide which one to go with.’’

Whether that is a good decision or not, they decided to rely on the

Biological Opinion.

In the Biological Opinion, it also says, ‘‘Bureau of Reclamation,

if you and in cooperation with the State of Idaho and irrigators can

provide 427,000 acre-feet through the year 1999, you are not going

to have to consult on Upper Snake operations. If you can’t do that,

if you can’t get significant progress on that, then you will have to

consult.’’

So what has happened? We have had significant progress on securing that water. It has been provided every year of this Biological

Opinion. And all of a sudden now NMFS and the Bureau decide we

need to consult on those Upper Snake projects anyway. We don’t

know what the rationale for that is, frankly, other than perhaps

politics.

Our very clear message for NMFS and the Bureau today is that

this consultation process cannot and should not be used as a vehicle to increase the 427,000 acre-foot requirement. We have been assured at certain levels that this will not happen, that what goes in

the front door of the consultation will come out the back door, but

we are still skeptical.

Rather, the consultation should confirm that operation of the

Upper Snake River basin reservoirs does not adversely impact the
51

salmon. The problems exist, as has been noted here today, downstream and in the ocean and should be addressed at the source.

In addition, the NMFS/Bureau consultations should not remove

the requirements in the 1995 Biological Opinion that water be acquired only from willing sellers and only in accordance with State

law. Flow augmentation is a temporary solution. We ask for congressional oversight on that issue.

I have also detailed in the testimony, which I won’t go over, some

concerns about the downstream recovery concerns and also about

the expanding role of NMFS. But the last comment I would like to

make is with regard to this decisionmaking process. There has

been a lot written and said about having a regional forum.

And we would like to point the Subcommittee, certainly Mr.

Crapo, to an example of what is going on in the Upper Colorado

basin. There effectively what the agency—in that case, the U.S.

Fish and Wildlife Service—has done is stepped back away from the

process, allowed the other players—the States, et cetera—to go forward with the process and stay as much as possible out of the way.

And, in our opinion, that is what needs to happen in the Northwest. The States need to be allowed to take the lead and decide on

what the proper regional forum should be. Thank you.

[Statement of Mr. Semanko may be found at end of hearing.]

[Disclosure requirement may be found at end of hearing.]

Mr. CRAPO. Thank you, Mr. Semanko. And I believe that this is

probably the time I am going to have to slip out and go vote. Perhaps Mr. Abercrombie and Chairman Saxton will be able to get

back for the questioning period. And regardless of whether they do

or do not, I think you could tell from their questions earlier they

are very interested in this issue.

And they and their staff are going to review the testimony very

carefully. And I am confident that this Committee is going to pay

very careful and close attention to what it can do to help find a solution here.

I apologize for the disjointed manner in which we have had to

run the Committee today. But if you will please excuse me to run

and vote, I will get back as soon as I can. And I do have some very

important questions to ask so I would encourage you to all stay

here. I slipped out during the last vote and got a candy bar and

a pop. Feel free to do that. You have got time.

I know that we have held you now till well into or maybe past

your lunch hour and will probably go a little longer. So why don’t

you take this break as an opportunity to get a little bit of something to eat if you can, but please try to be back in about 10 or

15 minutes at the most. Thank you.

[Recess.]

Mr. CRAPO. I think we will go ahead and get started even though

I got back faster than I thought I would, and Mr. Semanko has followed my advice and slipped out for a minute. And, Mr. Rohleder,

I will start out with you just in case you do have to slip out to an

airplane or anything. And the first question I have for you is what

impact does the steelhead and salmon fishing contribute to the region’s financial base?

Mr. ROHLEDER. Mr. Chairman, our best guesstimate is that the

sport salmon and steelhead fishing in Oregon, Washington, and
52

Idaho contributes about $3 billion in economic impact every year.

My testimony includes a fact sheet on economic impacts. It is near

the end of the package.

Mr. CRAPO. OK. Is that the one with the charts in it?

Mr. ROHLEDER. Yes, sir, that is correct.

Mr. CRAPO. Now, do these charts include any kind of assumptions, or is this based on the current circumstances, or does this include assumptions with regard to having a fully recovered stock of

salmon and steelhead?

Mr. ROHLEDER. These are based on fully recovered stocks. We

figure that we have lost half of our economic input because of the

lack of recovery in the Pacific Northwest.

Mr. CRAPO. So currently we are at about half of these figures in

terms of what is happening today?

Mr. ROHLEDER. Yes, Mr. Chairman, that is correct.

Mr. CRAPO. OK. And, Mr. Grace, what are your recommendations

to improve the communication process between the Northwest

Power Planning Council and the National Marine Fisheries Service? Do you have some recommendations on what could be done?

Mr. GRACE. Mr. Chairman, at this time, probably I don’t have

specific—as a member of the State of Montana and the Governor’s

Office, we are willing to go anyplace where we have assurance that

there is a fair balanced sort of structured process that everybody

can be heard in. And there need to be rules for participation and

rules for dispute resolution.

Our Governor also believes that the Northwest Power Planning

Council with some adjustment may be a better body as a forum for

the region. However, as far as the Power Planning Council dealing

with National Marine Fisheries, we have had limited success there.

We don’t really have any current communications going on along

that line.

Mr. CRAPO. And I realize that you probably don’t have authority

to answer this on behalf of the State of Montana, but just in your

personal opinion, what do you think it would take for the State of

Montana to get back involved in the process or a process?

Mr. GRACE. Oh, I think I can speak for the Governor there, and

that would be the assurance that you had a fair opportunity to be

heard. Frankly, I was the one that asked or told the Governor that

I thought that the process the National Marine Fisheries had and

the Executive Committee was flawed, that it was, in my words,

akin to playing in the house poker game or the house cut to deal

the cards and then make the rules after the deal. It just wasn’t a

fair process.

Mr. CRAPO. In terms of this concept of a regional decisionmaking

process, you alluded to a dispute resolution process or something

like that. Do you agree with me that the decisionmaking authority

for this issue or this group of issues should be one in which the ultimate authority to make the decision is vested in a regional body

or a regional group of some sort rather than in a Federal agency?

Mr. GRACE. I certainly do because I guess our bottom line is that

the National Marine Fisheries under the ESA have a very narrow

approach to the problems of the region—I mean, by mandate the

ESA. And although those—and there need to be a broader look

across the region. Again, we think that we should be looking at the
53

total fish and wildlife community when we make the decisions

to——

Mr. CRAPO. Even though the total fish and wildlife community

may not include all endangered species——

Mr. GRACE. Right.

Mr. CRAPO. In other words, all the species involved in that look

may not be endangered or——

Mr. GRACE. That is right.

Mr. CRAPO. [continuing] threatened. Do you believe that that

would require an adjustment to the Endangered Species Act or at

least some type of a special authorization for this regional decisionmaking body to operate under different rules or to adjust its evaluations in some way that it is not allowed now by the Endangered

Species Act?

Mr. GRACE. I believe so, sir.

Mr. CRAPO. Do you believe that Federal agencies should be participants in such a project or such a body, or should they be the

implementors of the decisions that are made by that body?

Mr. GRACE. In my own personal experience, sir, I think they

should have some—they should be in that process, but they should

be co-managers, not, as they were referred to earlier in the questioning, as czars of the region.

Mr. CRAPO. OK. And one last question. There seems to be a significant amount of concern—on this topic—there seems to be a significant amount of concern about whether if we move to a regional

decisionmaking authority whether that authority should be made

up solely of sovereigns—for example, the Federal Government entity or entities, State governments, tribal governments, and so

forth—or whether it should be broader and should include interest

groups such as salmon advocates, transportation concerns,

irrigators, and so forth.

Do you have an opinion on what the makeup—and I am not asking you for details necessarily, I am more talking concept here—

but how should the makeup of this decisionmaking body be approached?

Mr. GRACE. In my mind, sir, I believe that we still have to deal

with the three sovereigns that otherwise we would get too unwieldy. I know in the State of Montana we do our utmost to represent the other interests as far as the environmental commercial

interests that otherwise I don’t know how we could bring it to bear.

Mr. CRAPO. Mr. Rohleder and Mr. Hayes from the—I kind of put

both of you in the camp of salmon advocates or steelhead advocates. Could you respond to the same question, the question being

if we move to a decisionmaking body of some sort in the region,

should that body include only sovereigns and then we expect the

sovereigns will represent the various interests of the region? Or

should that body be broader and include interest advocates such as

your groups or transportation advocates or irrigators or miners and

so forth?

Mr. ROHLEDER. Mr. Chairman, it has been my experience working with these situations that you can’t have every special interest

group represented on the governing body. You are always going to

have somebody who is not represented. So if you had this govern-
54

ing body be the sovereigns, then they would have the responsibility

to represent and to interface with the special interest groups.

In other words, we, the environmentalists, the sportfishermen,

the irrigators, the farmers would work together with our elected

representatives to shall you say lobby or input our States, and then

our States would be expected to represent our views. And I agree

with Mr. Grace. I think that anything else would be unwieldy.

I personally feel pretty good about working with the farmers and

the irrigators on several task forces that I have been appointed to

by the Oregon Governor. And then we present our findings or our

views to a State body, and then they legislate. Thank you.

Mr. CRAPO. Thank you. Mr. Hayes? And I am going to ask the

same question to Mr. Deurloo and Mr. Semanko as well but, Mr.

Hayes?

Mr. HAYES. I think it is safe to say that I would agree with everything that Joe said but maybe highlight a little bit more the

need for, you know, some below the decisionmaking level but, you

know, some organized meetings or participatory bodies where interest groups can have a say.

And then there needs to be some assurances that their say will

be translated into something that moves up the chain, not that

they will just, you know, stand up in a room and shout into open

space that, you know, ‘‘We think salmon need to be considered.

Thank you very much,’’ and then that message never gets conveyed

up the chain.

Mr. CRAPO. So you are talking about something more than—I

think our current system where you have a public hearing and you

come in and each side says what they want to say and hopes the

press reports it—you are looking for something more than that?

Mr. HAYES. Yes. That is a nice forum to sort of air your views,

but it has absolutely no impact on policy, in my opinion. You know,

I can say whatever I want there, and I can write whatever comments I want to an impact statement, and they are virtually meaningless beyond, you know, taking up my time.

Mr. CRAPO. All right. Thank you. Mr. Semanko, do you have any

thoughts on that?

Mr. SEMANKO. In fact, I do. One of our concerns is that NMFS

just simply doesn’t get down to the citizen level, and States and the

tribes are able to do that. We do believe that irrigators and environmental groups should be involved in the process. But in the decisionmaking, that has got to be done by the sovereigns.

I mean, the goal of this thing I hope will be to reach consensus

among all of the sovereigns. If you try to reach consensus among

all the constituencies of those various sovereigns, you are never

going to do that. But you may be able to appease most of those so

that you as a sovereign feel comfortable in going and agreeing to

something, and I think that that is the best that we can do. And

each State or each sovereign should be left to figure out how to do

that.

An example, what is going on with TMT right now, as I understand it, they are trying to make some decision on the timing of

the 427,000 acre-feet from Idaho. If I wouldn’t go on the Internet

and look and see the minutes from the last couple of meetings, I

would have no idea about that. So I am confident that the State
55

of Idaho would bring us into that process more fully—just that as

an example.

Mr. CRAPO. Thank you. Mr. Deurloo, do you have anything to

add to that?

Mr. DEURLOO. I would echo what these people said. I think a

group of special interests would be pretty unwieldy, and we would

trust someone like the Governor’s Office to represent our interests

in the council.

Mr. CRAPO. All right. Thank you. Mr. Deurloo, let me go to you

next with regard to Napias Creek, and let me first by way of introduction and clarification to the other people who are here in the

hearing room indicate that I have been to the location and have observed it and have contacted NMFS directly about the issue.

But if I understand your testimony correctly, and if I understand

what I observed there correctly, there is no evidence that salmon

ever have been able to pass the falls at is it Napias Falls?

Mr. DEURLOO. Yes, it is Napias Falls and that is correct. We

know of no evidence that there have ever been salmon or steelhead

above those falls.

Mr. CRAPO. And you referred to a tree there. If it is the one I

remember, I have actually stood right at the base of that tree, and

there is a rock around—I guess it grew up through the rock. Is that

correct?

Mr. DEURLOO. Yes. Its roots are wrapped around the rock, and,

you know, National Marine Fisheries—one of their points was that

these rocks could have been placed there by roadmaking activities

in the 1860’s, and, you know, this tree was there long before the

road was in place.

Mr. CRAPO. So you can date the life of the tree?

Mr. DEURLOO. We have. We have corded the rings.

Mr. CRAPO. And by that you can tell that the rock was there at

some time before the tree was there. Is that correct?

Mr. DEURLOO. Correct.

Mr. CRAPO. And the tree has been there how many years?

Mr. DEURLOO. Over 200 years.

Mr. CRAPO. OK. So if there was a road—if man did create this

falls, which is I think quite a stretch from what I have seen at the

location, he did it more than 200 years ago?

Mr. DEURLOO. Correct.

Mr. CRAPO. And yet you were being asked by NMFS to prove

that some humans didn’t create this falls after 1860?

Mr. DEURLOO. That is right. The falls were not negatively influenced by man’s activities ever.

Mr. CRAPO. Again, I have already asked you this, but I want to

be very clear about this. There is no evidence on which NMFS relies to require you to prove—in other words, to suggest that there

were salmon above this falls at anytime. It is just that you are

being asked to prove that they weren’t?

Mr. DEURLOO. Yes. We are being asked to prove the negative.

They say that there is the possibility it may have happened once,

and now it is up to us to prove otherwise.

Mr. CRAPO. Now, wouldn’t you believe that—I mean, first of all,

if I was told that, I would think that an agency was being flippant
56

with me because it would seem to me that they were asking me

to prove the impossible?

Mr. DEURLOO. That is our feeling.

Mr. CRAPO. Except then you come up with a tree that is 200

years old that proves that the rock that the tree is growing through

was there at least 200 years ago, and that that is one of the rocks

that supposedly through some theory man put there. And it seems

to me that that is evidence—I wouldn’t have thought you could

have come up with any evidence, but it seems to me that that is

pretty good evidence.

Mr. DEURLOO. But in defense of NMFS, I think they bought off

that maybe the falls were natural, but then we are put in the position of, ‘‘Well, now prove that the salmon can’t get up there.’’ And

there is no evidence as to what exactly a salmon can do.

I mean, will it jump 30 feet or jump 10 feet, or, you know, how

fast the water—scientifically, salmon is not well-defined. So we do

all the measurement of the water and the falls and the grading and

everything else, but then we are told, ‘‘Well, you would just be

amazed at what these salmon can do.’’

Mr. CRAPO. Well, I remember we discussed that when I was at

the location, and I remember walking up the falls area and looking

at areas where perhaps the salmon could make it. And I saw a few

pools that you could by a stretch believe that a salmon could somehow get from one to the other.

But it seems to me there were a couple of them, like two or three

or four in different locations, where you would have had to assume

the salmon could literally leap out of the air very significant distances in order to make it. Is that not correct?

Mr. DEURLOO. Right. There is at least an 11-foot jump at the

head of the falls, but the thing is there is really no pool at the bottom of that to get a run to make the jump. I mean, a salmon probably can jump that kind of height where they can get a run at it,

but here there is just not that opportunity.

Mr. CRAPO. So, in other words, you are being asked—and I assume that the impact of this decision is not minor or you wouldn’t

be worrying about it so much?

Mr. DEURLOO. That is right. I mean, everything we do is totally

regulated. We have found some possible additional reserves that

will extend the life of the mine 2 years, which will require additional permitting. But we don’t know whether the hassles will be

worth it.

Mr. CRAPO. And so you are being asked to incur significant economic as well as other practical burdens where there is no evidence

that salmon ever existed above this falls and where it is only a

stretch to assume that a salmon could make it up the falls?

Mr. DEURLOO. That is correct. But, you know, I don’t know how

we were put into this position to begin with. And the critical habitat is not supposed to be designated in areas that aren’t currently

occupied by the species. And there are clearly no salmon there.

Mr. CRAPO. So the next point is—probably the first point that

should be made is that the very standard you are being asked to

meet is one that is not authorized by the regulations?

Mr. DEURLOO. That is correct.
57

Mr. CRAPO. Now, on the timeliness, I recall that the request that

you had of me was simply to encourage the agency to respond to

you. Is that not correct?

Mr. DEURLOO. That is right. I mean, we were ready to start construction in 1994. We were ready to go, and you just have a narrow

window of opportunity up there in the mountains of Idaho to do

dirtwork in the middle of the summer. And this decision just kept

dragging out and dragging out and dragging out, and finally we

pulled all the strings we knew to pull just to get a decision.

Mr. CRAPO. If I remember correctly, one of the—I won’t use the

word threats, but one of the statements that was made to you was

that if you wanted them to go back and look at this, they would

have to reopen the entire Biological Opinion. Is that correct?

Mr. DEURLOO. We hear that statement quite a bit.

Mr. CRAPO. Does that dampen your interest in taking strong contentions with the agency?

Mr. DEURLOO. Well, we do have to deal with National Marine

Fisheries for the life of the mine, and we would rather it be a harmonious relationship rather than a contentious one.

Mr. CRAPO. All right. Thank you. Let me go on, Mr. Hayes, to

you for just a moment. As a representative of the environmental

organization that you represent, were you supportive of the Idaho

I guess I call it policy that was put together last year that we had

discussed earlier in the hearing? Was your organization supportive

of that policy?

Mr. HAYES. Yes, sir. You know, the Governor’s plan was not the

end-all, be-all, and there were things that we would have liked to

have seen incorporated into it and, frankly, some things that we

would have liked to have seen not in it. But we took the document

as a whole.

You know, we agreed to the concept of moving forward on this

issue. We have seen NMFS and the Corps of Engineers drag their

feet for too long and make no progress and maybe even move backward on this issue. We are very appreciative of efforts by the Governor’s Office and others in the State to, you know, take the bull

by the horns and come to a conclusion, that we think that they did

an excellent job of rounding up all the interest groups in the State

and really many of them in the region and incorporating their

input into the plan.

And it would be nice to see this sort of cooperative working relationship that they have developed used as a model by the National

Marine Fisheries Service or, frankly, some other, you know, administration or agency moving forward with this. We need to, you

know, get moving.

The thrust of my testimony was that there is absolutely no leadership at the National Marine Fisheries Service on this issue. And

I think that while the members of the various panels may disagree

as to exactly what needs to be done, we can all agree that the National Marine Fisheries Service is not doing any of it.

And I did or our organization did support the Governor’s plan in

many components, and we were with him in spirit at the Executive

Committee meeting arguing for it. And we were working with the

other sovereigns in the region to try and get that passed.
58

Mr. CRAPO. And I take it that that is one of the reason why you

would feel comfortable in your answer to my earlier question in

saying that you feel that your interests could be adequately represented through the State sovereign in a decisionmaking body?

Mr. HAYES. You know, we need to be careful that we feel that

our interests are, in fact, being represented, but I think that, you

know, the imperative is there that we need to move forward on this

issue, and that if every interest group has a voting seat at the

table, this issue will not move forward.

Mr. CRAPO. I see kind of a difficult but interesting issue to address here. If we determine that we need to move to a regional decisionmaking body, the question I asked earlier about whether that

should be sovereigns only who make the final decision, certainly

moving that direction solves the problem of complexity and of deciding how many interest groups get to be at the table and getting

the table too large and all of those concerns.

On the other hand, I think that there are interest groups who

are currently raising strong concerns about that model because

they are saying that there is no assurance that their point of view

will be represented by the sovereign. An example—and I am not

going to refer this example to any current politician, but some people would not trust one Governor to represent their interests as opposed to a different Governor depending on how the outcome of an

election were.

And so I am struggling in my own mind with the way to try to

make sure that people are confident that their point of view will

be represented at the table by an advocate or at least that their

point of view will be worked into the process in a way that is much

more than just an opportunity to go to a hearing and submit some

testimony but not get the project too complex.

Mr. HAYES. May I jump in here?

Mr. CRAPO. Yes, please.

Mr. HAYES. That is a very valid concern and one that I share and

that many of the organizations that I represent here today share.

I think that as long as the process moves forward grounded in

science with the ultimate goal of recovering these species to selfsustaining harvestable levels, you know, that is a pretty good road

to be driving down. You may wobble back and forth on each side

and get on the shoulder a little bit, but as long as we are moving

forwards utilizing the best available science, you know, there are

sidebars in place.

Not everyone is going to get everything that they want. My organization wants to see sustainable harvestable populations of salmon that is mandated under Federal law, State law, and treaties

with other nations and Indian tribes. And I think those are pretty

good sideboards. I hope that the fish won’t get lost in the forest on

this one.

Mr. CRAPO. I understand that concern. Let me move to you, Mr.

Semanko, and I want to talk water. That doesn’t surprise you. As

I said earlier, I am very concerned that the policy direction that the

National Marine Fisheries Service is taking on salmon recovery

issues represents an immediate and a long-term threat to irrigation, commercial, and residential water users, and to the entire regional economy and does not represent much of a gain, if anything,

and
59

maybe even a negative gain for salmon and steelhead. And it is

also an immediate and long-term threat to State water sovereignty.

And I am not just referring to the State of Idaho in these comments. First of all, do you agree with me on that?

Mr. SEMANKO. I do agree with you on that. There is an immediate threat through the current consultation that is going on, and

there is an underlying threat with the fact that NMFS seems to

suggest that they are giving us a concession by saying, ‘‘We will acquire water under State law only because we say we want to do

that. If we didn’t say we wanted to do that, we could go ahead and

just take it.’’ There is that underlying long term and short-term

concern.

Mr. CRAPO. Has NMFS ever put into writing any kind of a statement, to your knowledge, as to what authority it has or does not

have with regard to taking water for purposes of salmon and

steelhead recovery?

Mr. SEMANKO. Yes. Mr. Chairman, during 1993 I believe it was,

the Regional Director for the Bureau of Reclamation, John Keys,

asked the Solicitor’s Office for an opinion on what his authority

would be to acquire water for salmon, whatever amount that would

be.

And of the several responses—several alternatives that went

back to Mr. Keys in the response was the alternative to release

water held under contract. In other words, water that is held in

Federal reservoirs that irrigators have contracted and paid for

could be released. It doesn’t even go on to state whether compensation would need to be paid or not. So that has been put in writing.

It is often referred to as the 1993 Solicitor’s Opinion.

And I would be remiss if I didn’t say after that opinion came out,

there was an uproar, and some meetings between the congressional

delegation and NMFS and others resulted in the appeasement in

the current Biological Opinion that it would be acquired only under

State law and from willing sellers.

Mr. CRAPO. That is correct. I was in those meetings between our

congressional delegation and various Federal officials, and you are

correct. They did make the verbal assurances that they would not

exercise the authority that the Solicitor’s Opinion declared that

they had. And, therefore, supposedly there was no problem. The

problem I see is that that is only a verbal assurance for this Biological Opinion, and even that could be changed. Am I correct

about that?

Mr. SEMANKO. I think you are right, although it is in writing in

the Biological Opinion that the water will be acquired under State

law from willing sellers and is one of the reasons why we are concerned about the current consultation.

Mr. CRAPO. Well, I can tell you from being in the meeting that

my understanding of what was said in the meeting was that although assurances were made by the various Federal officials that

they would seek to acquire water only on a willing buyer/willing

seller basis under this Biological Opinion. I don’t believe that there

was any relinquishment of authority to take water if that decision

were to be changed.

And given that context, I am referring now to a letter of May 19

from Will Stelle, the Regional Administrator of NMFS, to Elizabeth
60

Ann Moler, the Chairman of the Federal Energy Regulatory Commission. Are you familiar with that letter?

Mr. SEMANKO. Yes, I am.

Mr. CRAPO. Without objection, I would place this letter into the

record.

[Letter of Mr. Stelle may be found at end of hearing.]

Mr. CRAPO. I am going to refer to the second paragraph on the

second page, and I am not going to read it all. But parts of it state

that, ‘‘The effectiveness of the efforts to protect operations seeking

to achieve the Biological Opinion in riverflow objectives is dependent on water diversion activities in the Middle and Upper Snake

River basin and upon the operation of the Hells Canyon Project situated in between.’’

And then a little further down, ‘‘Specifically, the Biological Opinion adopted the council’s requirement for immediate provision of

427,000 acre-feet and progress on securing additional water from

the Middle and Upper Snake River and specific drafting levels for

Brownlee reservoir of the Hells Canyon complex in May, July, August, and September.’’

What I am getting at here is it seems to me that this letter,

which is a very recent letter, very specifically opens the door, if not

openly states, that the National Marine Fisheries Service is evaluating seeking additional water from the Middle and Upper Snake

River regions beyond the 427,000 acre-feet that we have been dealing with in the past. Do you read the letter the same way?

Mr. SEMANKO. I do, Mr. Chairman. An overall concern about this

letter is that it is a letter from NMFS to FERC telling FERC that

they strongly suggest that they, FERC, begin consultation with

NMFS. The overall concern there is that FERC is the one that

should make that decision.

Second of all, the first sentence of the paragraph, you are talking

about effectiveness is dependent upon water diversion activities in

the Middle and Upper Snake River basin. To us, that is signal language. That is a signal to a recently completed study by the Bureau of Reclamation called the Cumulative Effects Study.

And in the Cumulative Effects Study, basically what NMFS and

the Bureau are saying is that but for irrigation diversions, we

would meet the flow targets at Lower Granite almost every summer. The concern there is twofold; one, the validity or nonvalidity

of flow targets; and then, second, how they are interpreting that

‘‘but for irrigation diversions.’’

What they are saying is if you had no impoundments, you had

no storage reservoirs in the Upper Snake at all and no irrigation

at all, the effects—the flows would be about the same as they are

now. But if you take those reservoirs that have been built and you

change their function from irrigation and flood control to helping

the salmon—in other words, send all the water down—then you

can meet the flow targets in the summer. Now, if that is their interpretation of how we are impacting the Snake River salmon, then

we become very concerned.

Mr. CRAPO. Assuming that you are correct, and that is the way

I read it as well, have you heard estimates of how much additional

water may be sought for those purposes?
61

Mr. SEMANKO. We have heard none. There are numbers to look

at for guidance, but we have heard none.

Mr. CRAPO. Have any groups made claim or suggestion in either

litigation or in notices of intent to sue or in negotiations of the

amounts of water that they would like to see from the Upper Snake

River?

Mr. SEMANKO. There are certainly a lot of numbers to look at.

The Northwest Power Planning Council’s plan that was adopted in

December 1994 looks for 1.427 million acre-feet from the Upper

Snake.

Mr. CRAPO. One point four two seven.

Mr. SEMANKO. One point four—it would be a million acre-feet

more than what currently comes from the Upper Snake.

Mr. CRAPO. Essentially, a million and a half or close to a million

and a half?

Mr. SEMANKO. The tribal plan and also the tribes’ position in the

American Rivers would suggest that they are looking at a number

even bigger than that. And I will caveat that with, of course, their

position is that the dams would be breached, and perhaps that

would reduce the reliance on water. But as long as those dams are

there, then perhaps that water will be needed. So I don’t want to

say they are looking for that water under all conditions, but certainly that——

Mr. CRAPO. As an alternate position in the litigation?

Mr. SEMANKO. That is correct. But with the way the system is

configured right now, I think that is their position, which leads me

to a side issue. I want to point out because of the attention that

the Idaho Stateman’s 3-day editorial is going to receive in our

State, and that is that one of the justifications that the Idaho

Statesman puts forth for supporting the breaching of the Lower

Snake dams—and we don’t have a position one way or the other

on that—but the justification—one of them is that that will relieve

the pressure for Upper Snake water, that no Upper Snake water

will be required. And where they got that assurance we would like

to know. We have never heard a decoupling of those two, that if

you breach the dams, there would be no more requirement for

Upper Snake water.

Our concern is that if you do that and you begin to rely on velocity, what happens in the low-flow years? You are going to need

water to augment that flow anyway. And I am not saying there

would be water required or that there wouldn’t be, but we have

never seen that meaningfully addressed.

So if we are going to go into looking at that option, we would like

to know the answer to that question. This was also a question that

we asked about the Andrus drawdown plan. Is that going to require water? And that was never really meaningfully addressed.

Mr. CRAPO. Mr. Hayes, I don’t know how closely you were paying

attention to that answer there but——

Mr. HAYES. Very closely—taking notes actually.

Mr. CRAPO. Do you have an opinion on that?

Mr. HAYES. I share those concerns and view them all as valid.

I think that, you know, I represent a coalition, and, as such, it is

very difficult to speak for all parties. It is a little bit like hurting

snakes or cats or whatever the saying is.
62

But I think that historically we can look at the flow of the Snake

River, and perhaps we can base—you know, if those dams were removed—I am not saying in their current configuration, but if those

dams were breached, I think it would be appropriate to look at the

historical flow patterns of the Snake to see what types of water we

need to be talking about.

And historically late summer or early fall has been relatively

low-flow periods in that river system. Somehow the fish manage to

survive for thousands of years in that environment. Of course, the

dams weren’t there. But if those dams were removed, it seems appropriate to once again go to a lower-flow environment.

Mr. CRAPO. I think you answered the question I asked or what

I was seeking to get at, but I want to be sure. And so both Mr.

Hayes and Mr. Semanko, I would like to ask you to respond to this.

Recognizing that you, Mr. Semanko, just said you want to have

some assurances on where this approach came about, whether moving to a more natural river would reduce the need for flows, and

what I heard you just say, Mr. Hayes, is that you would tend to

think that that would be generally correct?

Mr. HAYES. It sounds very reasonable to me. I am unfortunate

in the position that I cannot give you a definitive answer and speak

for all the members of our coalition.

Mr. CRAPO. I guess you just answered what I was going to say

then, Mr. Hayes. I just wanted to know, in general, if that is what

you expected to be the general relationship; namely, that there

would probably not need to be much or as much water for flow augmentation needed if there were some type of a natural river option

pursued?

Mr. HAYES. If the natural river option was undertaken, I, for one,

would work like crazy to make sure that this issue was resolved

appropriately.

Mr. CRAPO. And, Mr. Semanko, what I understood you just to say

is that you want some real strong assurances of that, and I recognize that. Are you aware of any reason why we would expect for

more flows to be needed if we moved to a more natural river option?

Mr. SEMANKO. I am not aware of any, but I am also not a scientist or a technical expert. And I would like to flip the Biological

Opinion over for a minute and say also if the long-term decision in

1999 is to go with the enhanced transportation alternative, we

would also like to know what justification there is for providing

water or additional water for that scenario.

And the question we would hope could be asked of NMFS at the

next hearing is: ‘‘In 1999 you are looking at two different options.

How does either one of those require water from Idaho, and if it

does, what amounts are we talking about?’’ Because right now we

are providing the 427,000 as part of a band-aid stopgap approach

that in theory isn’t going to be around after 1999. So those are the

kinds of questions we are struggling with.

Mr. CRAPO. Thank you. And, Mr. Semanko, back to you again on

the water issues—could you excuse me 1 second? Let us just take

the Power Planning Council numbers you gave me a minute ago

that would essentially if pursued from 1994’s figures would require

another million acre-feet, if another million acre-feet on top of the
63

427,000 acre-feet that is already being provided were called for,

what kind of an impact would that have on irrigated agriculture?

Mr. SEMANKO. Well, first of all, the 427,000 acre-feet that is

being provided is being provided for the most part because we have

had good water years since the Biological Opinion was enacted. If

that weren’t the case and we had two dry years in a row, we would

be having real problems. And a large chunk of that water comes

from rental water that irrigators don’t need; because of the conditions they are able to put it into the water bank.

Mr. CRAPO. So you are saying that just at the 427,000 acre-foot

level there is no major impact assuming normal water years?

Mr. SEMANKO. That is true.

Mr. CRAPO. OK. Let us assume that. Let us assume normal

water years. Then what would be the impact of an additional one

million acre-feet?

Mr. SEMANKO. Well, the only reliable estimate I have to go on

is one that was put together by the Bureau of Reclamation. It is

contained in a November 22, 1994, report of the Actions Work

Group to NMFS as part of the aftermath of the 1993 decision

where Judge Marsh struck down the old Biological Opinion.

And what the Bureau said was that in acquiring 1.427 million

acre-feet with any reasonable assurance, you would have to dry up

somewhere in the neighborhood of the same number of acres—that

is, 1.4 million acres—in the Upper Snake River basin.

Mr. CRAPO. And I don’t know if you have this kind of information, but can you give me kind of a percentage or a comparison as

to what that is with regard to the entire acreage being farmed in

the basin?

Mr. SEMANKO. I don’t have those exact figures. My round math

that is in my head tells me that there is about a million acres in

Idaho that is irrigated from groundwater and about 800,000 to

900,000 that is irrigated by surface irrigation. Now, there is also

irrigation, of course, in eastern Oregon which is part of the Upper

Snake basin. But those are the numbers that come to mind for me.

There are approximately I believe 8 million acre-feet in the Federal

storage system above Brownlee and about 4.1 million acre-feet

above Milner.

Mr. CRAPO. Which could be used if another million acre-feet were

called for?

Mr. SEMANKO. I am sorry?

Mr. CRAPO. Well, let me get to it this way. If I understood you

correctly, there is the possibility of 1.4 million acres of irrigated agriculture going out of production if 1.4 million acres of water were

used. Did I understand that correctly?

Mr. SEMANKO. If I am correct, those are the Bureau’s numbers

from that report I referred to. Yes.

Mr. CRAPO. Let us assume that it is not even that much. I mean,

what I am hearing you saying is that hundreds of thousands of

acres of irrigated farmland would have to be taken out of production in southeastern Idaho. Is that accurate?

Mr. SEMANKO. And what the Bureau looked at is all the available

water data that there is for the last 60 or 80 years or whatever it

is. And if you are going to have that as a long term recovery mechanism and provide that each and every year for the next 24 years
64

or 48 years or whatever the recovery period is, and you want a 95

percent reliability probability of that, then those are the numbers

they threw out.

There are millions of dollars that would be spent directly by the

Federal Government to acquire that water. There would be even

more millions of dollars of indirect effects on the farm economies,

and yes, there would have to be irrigated acres dried up. In effect,

the purposes of those projects would be shifted, at least in part,

from irrigation to salmon recovery. So you would see a loss in irrigation.

Mr. CRAPO. All right. And let me ask you this. Given the current

political climate—and not the political climate so much as the current circumstances that we face with regard to the decisionmaking

process as it is moving along, do you expect that there will be a

claim for or a request for more water from NMFS than the 427,000

acre-feet?

Mr. SEMANKO. I am afraid that we do. This letter that you have

referred to is starting to play a little bit loose with the current Biological Opinion, in my opinion. It states specifically the Biological

Opinion calls for the immediate provision of 427,000 acre-feet and

progress on securing additional water. What the Biological Opinion

actually says is ‘‘427,000 acre-feet to be secured by 1998 and then

an additional amount as may be necessary for recovery to be acquired after that.’’

Now, they are not saying ‘‘as may be necessary for recovery.’’

They are assuming that there needs to be more water acquired,

and nobody is explaining to us, and maybe we will get this in the

consultation, why that additional water is needed, especially in

light of the fact that the Biological Opinion said, ‘‘If you can provide the 427,000 through 1998, we are not going to require consultation.’’ So we see that. We don’t have any firm numbers. We

don’t have any firm conclusions out of NMFS or the Bureau at this

point, but we are highly suspect because of what is going on.

Mr. CRAPO. Thank you. Mr. Hayes, there has been some discussion about encouraging NMFS to move its decisionmaking date

from 1999 up to 1998. Can you tell me if your organization supports that?

Mr. HAYES. Many of the organizations in our coalition do support

that. We feel that a significant amount of money is currently being

spent on projects that will be wasted if a decision is made in 1999

that is not in line with their current spending priorities. We would

like to save that money that amounts to hundreds of millions of

dollars of taxpayers’ money.

We would like to, you know, keep that in the pot for salmon recovery later on and not just throw it down the pipes. We also would

like to see those decisions be made utilizing the best available

science which NMFS currently is not doing even though some of

their own scientists are urging them to do so.

Mr. CRAPO. All right. Thank you very much. Please excuse me

for just 1 second. All right. Nobody has any more questions that

they want to be sure I get into here. So I will conclude my questions. And again as I said earlier, although Mr. Abercrombie and

Chairman Saxton have not been able to get back, each time we

went out to vote we had some very interesting discussions. And
65

they are very interested in this issue. I am sure they are going to

review the record, and we are going to have some more discussions

of all of the issues that we have raised here today.

I think it is important to quickly summarize. At this hearing

today, I think we have addressed a number of issues that I hope

get a lot more public attention, the first being the question of how

NMFS is operating in the Pacific Northwest and whether we are

seeing the kind of cooperation and proper implementation of process to effectively resolve the myriad of issues that we face as we

move toward salmon and steelhead recovery.

The second being what type of a decisionmaking process really

should we have? And we didn’t get into it a lot in this hearing because it is not an exact jurisdiction of this Committee, but I think

it is very interrelated to issues that go beyond salmon and

steelhead and reach out to issues such as power production and the

entire electric energy restructuring debate that is going on in other

committees in this Congress.

The third issue that I hope we have brought some significant

public attention to is the question of water, State sovereignty, and

the implications on the management, allocation, and use of water

in the States as we proceed forward in the path that is apparently

being pursued by the National Marine Fisheries Service, a path

which I think I have already strongly indicated and others have indicated they do not believe is the correct path for the recovery of

the salmon.

So I believe we may be seeing a path pursued that is not designed to support or effectively recover or is not going to effectively

recover salmon and steelhead but is headed toward very significant, negative impacts in the short term and the long term on

water and other uses and allocations of water, including but not

limited to irrigation.

And I believe it is very critical that the region focus on that

issue, as well as the power issues and the salmon and steelhead

issues which then get wound back into the decisionmaking question

as to how we should approach the management of the river.

I appreciate the time and the attention that you witnesses and

the others who testified here today have given. I know that the

interruption in schedules that it requires to travel to Washington,

DC, and to put together testimony before a Committee like this.

I want to assure you that it is not only appreciated, but that it

will be carefully reviewed and evaluated as this Committee evaluates what options it might pursue to bring proper resolution to

these issues. And with that, unless there are any other—no other

questions from members of the Committee, if there are any other

issues, then this Committee will stand adjourned. Thank you.

[Whereupon, at 1:40 p.m., the Subcommittee was adjourned.]

(67)

FIELD HEARING ON REVIEWING THE AUTHORITY AND DECISION-MAKING PROCESSES OF THE NATIONAL MARINE FISHERIES SERVICE NORTHWEST DIVISION

FRIDAY, AUGUST 15, 1997

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE, AND OCEANS, COMMITTEE ON RESOURCES, Garden City, Idaho.

The Subcommittee met, pursuant to notice, at 9:08 a.m., in the

Garden City Council Chambers, 201 E.50th Street, Garden City,

Idaho, Hon. Michael Crapo presiding.

Member present: Representative Crapo.

Ladies and gentlemen, we welcome you here this morning.

The Subcommittee on Fisheries Conservation, Wildlife, and

Oceans will come to order. The Subcommittee is meeting today to

hear testimony on one of the most important issues in the Pacific

Northwest, particularly related to the role of the National Marine

Fisheries Service and other Federal and State agencies, as well as

interested parties, in reaching resolution of the—I guess I would

describe it as the overall issue of salmon and steelhead recovery

and the related issues to water management that are posed by that

aspect of the issue that is facing us here in the Pacific Northwest.

Under Rule 4(g) of the Committee rules, any oral opening statements are limited to the Chairman and the Ranking Minority

Member, neither of whom are present today, and so I will, as the

designate of the Chairman of the Committee, make an opening

statement. And I should indicate to you on his behalf—he told me

that he truly wanted to be here but because this is the August recess and members have jam-packed schedules in their own districts

primarily during the August recess, he asked if I would carry this

hearing forward. And frankly, it was one that we asked him if he

would allow us to hold in Idaho, rather than holding it in Washington, because we wanted to let people who could not make it to

Washington have a better opportunity to testify. And with that understanding he agreed, recognizing that he may or may not be able

to make it here, and ultimately was not able to do so.

I do want to indicate on behalf of both the Chairman and the

Ranking Member, Mr. Abercrombie, that as a result of the first

hearing that we held on this issue in Washington, DC, both are extremely interested in this matter and we have had a lot of discussions outside that hearing afterward to evaluate the issue and I am

confident that both the Chairman and the Ranking Member are

going to be very interested in the record today as well as in the
68

submission of written testimony that the witnesses have brought

with them.

I would like to make just a brief opening statement and then

move forward quickly to the testimony. But before I do so, I would

like to lay out a few ground rules for those who are going to be witnesses today and to tell you how the hearing will proceed.

If you have seen a copy of the witness list, you will realize that

this is a very full hearing, and we are, because of that, going to

be extremely pressed for time. And I am one of the members who

likes to ask a lot of questions, which is going to make an even more

full hearing, and because of that, I believe that it is going to be

very important that we adhere to the time limits.

Each of the witnesses who has been invited to speak has been

advised in advance that there will be a 5-minute time limit on the

presentation of your oral testimony. Each of the witnesses also has

been requested to provide written testimony. I will tell you that

those who have already submitted it, I have already read your testimony and those who will submit it today or subsequent to this

hearing, I will read your written testimony in its entirety.

I believe that the other members of the Committee, particularly

the Chairman and the Ranking Member are also going to be dedicated to that and will review this record very carefully.

What I am getting at is I would like to ask you—we are going

to have this system of lights here, which will be green for 4 minutes, then it will turn yellow for the last minute and then red when

the time is up. When the red light comes on, I would ask you to

please summarize your remarks. And if you are like me, your 5

minutes is going to go a lot faster than you thought it would, and

you may not be done at that point in time. I would encourage you

to recognize that I have read your written testimony, and to use

the 5 minutes to summarize the succinct points that you would like

to be sure are made. And as I said, when the red light comes on,

so that we can move ahead expeditiously and have time for question and answer and interaction, would you please try to summarize your remarks as quickly as possible after the red light comes

on.

STATEMENT OF HON. MICHAEL CRAPO, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF IDAHO

Mr. CRAPO. I would just like to indicate at this point in time

that, as I started to say at the beginning, this is a very critical

issue for the entire Pacific Northwest, and a number of issues with

regard to the decisionmaking process about how we deal with the

critical issues of water, salmon and steelhead recovery and the system of dams on the Columbia and Snake River and their role in

whatever recovery plans are put together, and the entire set of

issues that we address is perhaps one of the most important issues

facing us in this community, the Pacific Northwest, today.

I have often said, in talking about this issue of electric energy

restructuring, that it is probably the biggest issue we face, but that

is because I believe that it must necessarily include as one of its

elements resolving the issues of river governance that will include

much more than simply how we govern the river with regard to

power production. It will include how we govern the river with re-
69

gard to all of the traditional uses of the river, including irrigation,

power production, flood control, recreation, fish and wildlife, and in

particular as the focus of this hearing, the tremendously important

issue of restoring the salmon and the steelhead runs, and transportation. The list just goes on and on in terms of how we—what we

expect in the Pacific Northwest from the water, the Snake and the

Columbia River system in which we live.

As a result of that, I think the issues we will discuss today are

going to have an impact on the lives of people in the Pacific Northwest in multiple ways and that is one of the reasons why I have

asked our Subcommittee to make this an issue of primary focus,

and I was very glad to see the attention that our Chairman and

our Ranking Member, Mr. Abercrombie, gave to this issue when we

held our first hearing in Washington, DC. They are both very adept

and well-informed on these issues in general, and were very quick

on the uptake in terms of the issues that we presented specifically

from the Pacific Northwest. I am pleased that they have agreed to

give such an important focus on the issues that are so critical to

us in the Pacific Northwest.

With that, I will tell you that we have had a bit of a change in

the schedule and we are going to add an additional panel at the

very beginning. So everybody who thinks that they are on a certain

panel, you are on the next one.

So panel No. 1 will now be—and do I pronounce this Mr. Eluid

Martinez? Did I get it right?

Mr. MARTINEZ. That is right.

Mr. CRAPO. The Commissioner of the Bureau of Reclamation

from the Department of Interior and he is accompanied by Mr. Ken

Pedde, his Assistant Regional Director.

They will be panel No. 1. Everybody else will be one panel higher

than you thought you were on, except that—I had better make a

couple of other corrections to get this correct—Dr. Casavant from

the Northwest Power Planning Council, you will be on panel three

instead of what would have been panel four. And for those who are

here, I should also advise you that Mr. Jay Nelson, the Special Assistant from the Commissioner’s Office of the Alaska Department

of Fish and Game will not be able to make it to today’s hearing.

He has submitted written testimony.

And then one final announcement and then we will get on with

the business of the hearing. Because we were successful in getting

the Chairman to agree to hold this hearing in the Pacific Northwest, we have had a tremendous amount of interest and requests

from people who would liked to have testified. You can see that we

tried to accommodate that with the numerous panels and the extensive—and the size of the panels. We believe we accommodated

most of the people in terms of at least allowing someone from their

point of view an opportunity to testify, but there may be those here

who still were not allowed to be on any of these panels and who

would like to say something. In that regard, the rules of our Subcommittee and our Committee do not allow us to put your testimony into the written record of this hearing unless you submit it

in written format. I will rely on my counsel support here, if those

who are here who were not allowed to testify would like to submit
70

written testimony, the record will be open for 30 days for you to

do that.

In addition, as an accommodation for those who still made it

here, even though they were not given the opportunity to testify,

after the hearing has concluded, we will allow for 1 minute for anyone who would like to say something who was not allowed to testify. That 1 minute statement will not be a part of the permanent

record. Because of the rules of the House, we can only put on the

permanent record the formally invited witnesses. So if you would

like to say something for 1 minute for the edification of those here,

we will allow that and we will try to keep that to a strict time limit

because we will have some pretty significant time constraints

today.

And again, if you would like to have your written statement a

part of the formal record, you will be allowed to do that if you submit it within the next 30 days.

So, with that, Mr. Martinez, would you like to proceed?

STATEMENT OF ELUID MARTINEZ, COMMISSIONER, BUREAU

OF RECLAMATION, DEPARTMENT OF THE INTERIOR ACCOMPANIED BY KEN PEDDE, ASSISTANT REGIONAL DIRECTOR,

BUREAU OF RECLAMATION

Mr. MARTINEZ. Good morning. Thank you for accommodating my

schedule this morning. I appreciate the opportunity to be here

today for a couple of reasons, one is to present some testimony. I

have got some written testimony for the record, so I will not go into

that specifically. But the other reason is to provide me the opportunity to be here with you today and within the time I have available before I catch a flight, to listen to the issues and the concerns

of the community and the folks involved in this important issue.

As you might or might not know, I was a State engineer for the

State of New Mexico before I went back to Washington as Commissioner of Reclamation. And in the American Southwest, we do not

have salmon or steelhead, but we do have squawfish and blunt

nose shiners and silvery minnows, endangered species, that are impacting the way rivers are managed and how people have exercised

their rights to water resources in the past and how they will exercise those rights in the future.

What I find surprising is, notwithstanding the fact that if you

have a stream system that is lacking water or one that has what

people perceive to have a lot of water, these issues are impacting

the ability to divert water and utilize water the way it has been

done in the traditional way in the past.

So this stream system, the Columbia system, is not alone in trying to address these issues. These issues are playing out not only

throughout the American Southwest, but also internationally.

I think what I would sort of like to stress is that you are not in

it alone and these are very, very important issues that need to be

addressed.

I would like to say that the Bureau of Reclamation has a good

working relationship with the National Marine Fisheries Service

and we expect that relationship to continue. What I would stress

is that whatever solution takes place to address this issue needs

to be based, in my opinion, on good science, should result from an
71

inclusive process, in that whatever the solution will be, it will not

meet the full expectations of any given party. I think those are

givens.

The best that we can hope is that we will hopefully come up with

a solution, if that is the appropriate word, that will accommodate,

as best it can, competing demands. Mr. Ken Pedde, the Deputy Regional Director from this area is available to answer specific issues

and questions with respect to what Reclamation is doing and will

be doing in the future. My understanding is that Reclamation’s involvement to date has involved acquiring water from the upper

Snake in the quantity of about 427,000 acre-feet for flow augmentation and we are doing that pursuant to State law and will

continue to do that until the 1999 date, which I understand is a

date that hopefully we will have an answer as to how we will move

forward from there.

It would appear to me that we would follow, in the future, the

same approach, that if additional waters are necessary for flow

augmentation, that we would acquire them pursuant to State law

and pursuant to hopefully an initiative and a solution that will

come from a consensus process involving the stakeholders in the

stream system.

With that being said, I stand ready to answer any questions you

might have, Mr. Crapo.

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

of hearing.]

Mr. CRAPO. Thank you very much, and you finished without

using your entire 5 minutes. I appreciate that.

First, I am very interested in the comments that you just made

about the acquisition of the water for flow augmentation purposes.

I assume you are aware that the Bureau and the National Marine

Fisheries have commenced consultation on the operation of the Bureau’s upper Snake River reservoir.

Mr. MARTINEZ. That is my understanding, yes.

Mr. CRAPO. The question I have is the 1995 biological opinion for

the Snake River salmon provides that section 7 consultation will be

commenced on the Bureau’s upper Snake River projects if the Bureau fails to achieve the 427,000 acre-foot requirement. And as you

just testified, and as you know, John Keys, with the cooperation of

Idaho and the Idaho irrigators, was successful in obtaining that

flow augmentation water. In addition, in recent litigation, Judge

Marsh did not require upper Snake consultation in the American

Rivers v. National Marine Fisheries Service in which he stated in

his order that I reviewed this morning that the allegations in that

regard were too speculative and unripe. I assume he was referring

to the fact that the requirement of the biological opinion had been

met and that any further decisions were not yet ripe for court review.

The question I have then is why has the Bureau decided to initiate consultation on the upper Snake River projects? Is that not

contrary to the biological opinion itself and to the Judge’s statement in his order?

Mr. MARTINEZ. I will defer to Ken for the specifics on that, but

let me try to answer it generally this way: It is my understanding

that there was a notice of intent to sue the Bureau of Reclamation
72

for the operation of those facilities. It is my understanding that

after we reviewed that intent to file and the background, it appeared that we, the Bureau of Reclamation, might have been—

might have some exposure as to our procedural aspects of how we

moved forward with this initiative back in 1995, that might have

put us at risk in litigation. So a decision was made that it would

probably be best for the system and for the Bureau of Reclamation

and the way it operates its reservoirs and projects, to move forward

with this consultation.

I believe that notwithstanding that consultation, we will probably wind up at the same point we are today, of a requirement not

in excess of 427,000 acre-feet.

So it was a decision that was made based on information available to me and our risk of not prevailing in a legal challenge, but

I will—Mr. Pedde might want to elaborate on that.

Mr. CRAPO. Mr. Pedde.

Mr. PEDDE. Mr. Crapo, the Commissioner has essentially stated

it correctly. There was—we reviewed the record, we found procedurally—with our attorneys, reviewed the record and found that

there were some procedural holes. And I would cite for example

that back in 1992 when this process was beginning, we requested

a list of species from the National Marine Fisheries Service, which

is the initial act in beginning consultation. We could find no record

that we ever received a response. There were other gaps, if you

will, in the record, and again, our attorneys, our legal advisors, felt

that there was some considerable risk. Courts are not at all reluctant to send agencies back to jump through the procedural hoops,

and as a result we have decided to enter into consultation to address those procedural issues.

Mr. CRAPO. In that regard, if I understand what you are saying

correctly, the consultation is directed at assuring proper procedural

implementation of the current biological opinion, is that correct?

Mr. PEDDE. Yes, sir, that would be a fair statement. We will describe an operation that includes provision of 427,000 acre-feet

through 1999. We have called it really an interim consultation

until further decisions are made on configuration of lower Snake

dams, things of that nature.

Mr. CRAPO. And it is not a consultation then on procedures or operations subsequent to or following 1999?

Mr. PEDDE. I believe there are some major decisions out there,

sir, that may affect water out of the upper Snake, a number of

issues that may change. So at this point, we do not know what

those decisions will be or where we might head from there, so we

will just have to wait and see.

Mr. CRAPO. You are not consulting on that in this consultation?

Mr. PEDDE. No, sir. I guess we all would expect that even in

1999, there may be some unanswered questions and hopefully our

biological opinion, our consultation, will be sufficient to extend beyond 1999, if we need it, but that is not the intent at this point.

Mr. CRAPO. Well, as you know, there are requests and certain

proposals or different approaches, and in fact I think National Marine Fisheries Service is current evaluating different approaches

that could result in much higher levels of flow augmentation, up

into the one to two million acre-feet levels.
73

So I guess the question I am getting at is, is your consultation

that you are currently undertaking addressing those decision—that

aspect of the decision?

Mr. PEDDE. As I mentioned earlier, our operation that we will describe will talk about 427,000 acre-feet.

Mr. CRAPO. Okay. And Mr. Martinez, in your answer to my question, you indicated that you did not expect that the 427,000 acrefoot requirement would be changed as a result of the consultation.

Is that because you are consulting only on the current biological

opinion requirement?

Mr. MARTINEZ. You know, you cannot second-guess the answer,

but I am advised by knowledgeable staff that they do not believe

that that will change.

Mr. CRAPO. All right. Are you aware of what the Snake River Resources Review is?

Mr. MARTINEZ. No, I am not.

Mr. CRAPO. Could I ask Mr. Pedde, are you aware of the Snake

River Resources Review?

Mr. PEDDE. Yes, sir.

Mr. CRAPO. What is its purpose?

Mr. PEDDE. The purpose of that review was to develop tools and

a data base by which we could address changes as they may be requested in the future. I would say, for example, Mr. Crapo, that the

Boise Valley here is rapidly urbanizing, we have no tools that fairly

address concerns, issues that will arise from that. We have issues

related to groundwater recharge, conjunctive use, and so forth. The

hydrologic models we use now were developed a number of years

ago and there are better tools available. The purpose of this is to

develop modeling tools, data bases that could be used in addressing

questions in the future.

Mr. CRAPO. And where does its funding source come from?

Mr. PEDDE. The funding source is derived under our construction

program and was originally related to ESA issues.

Mr. CRAPO. Does this review provide technical advice to the Bureau in the consultation process we just discussed?

Mr. PEDDE. Technical advice—sir, we will use what tools are

available, and we may not have everything done. The Snake River

Resources Review was not intended to be completed until about

2000, so we may not have all of the tools ultimately we would like

to have. But such tools as are available, for example, if we have

an improved groundwater model or some better relationships between surface and ground water, we would certainly use those tools

in making any kind of evaluations.

Mr. CRAPO. All right. And back with regard to the funding

sources, do you have the ability in your budget to provide the Committee with a clear review of the sources and expenditures for the

review since it was begun?

Mr. PEDDE. We do have that information. I do not have it with

me, sir, we could provide that.

Mr. CRAPO. Could you provide it, please?

Mr. PEDDE. Yes, sir.

Mr. CRAPO. Thank you.

Mr. Martinez, in your statement, you indicated that it was your

understanding that in 1999, there will be further decisions and at
74

that point you may or may not be required to take further action

with regard to obtaining additional water, is that correct?

Mr. MARTINEZ. That is my understanding, yes.

Mr. CRAPO. I was listening very carefully. You indicated that if

that occurred, you would seek to do so pursuant to State law?

Mr. MARTINEZ. That is correct.

Mr. CRAPO. Did you also mean—or let me ask you very specifically, in that context, would any such water obtained be obtained

under a willing buyer-willing seller arrangement, as is imposed by

the current biological opinion?

Mr. MARTINEZ. That would be my recommendation.

Mr. CRAPO. And is there any way that you could assure us of

that at this point?

Mr. MARTINEZ. I do not know if I could bind the Federal Government, but that would be my recommendation and that is my understanding of how we would proceed.

Mr. CRAPO. It is correct, is it not, that there is a Solicitor’s Opinion from the Bureau that if it has to obtain water, that it could essentially take water?

Mr. MARTINEZ. That is the John Leshe opinion.

Mr. CRAPO. Yes.

Mr. MARTINEZ. The official policy of the administration has been

and will continue to be that we would do it under willing buyerwilling seller, under State law.

Mr. CRAPO. So that is current policy, but that policy is not required by law.

Mr. MARTINEZ. As I understand, the Leshe memorandum says by

law—pursuant to law, you have certain options. The policy decision, the administrative decision, was that we would move under

the willing seller under State law. That is still our policy, notwithstanding the legal opinion.

Mr. CRAPO. And your recommendation, regardless of the outcome—of what any 1999 decision is, is going to be that the Bureau

will continue that policy with regard to any water acquisition required in the future?

Mr. MARTINEZ. That would be my recommendation.

Mr. CRAPO. Thank you very much. I have no further questions

of this panel, and Mr. Martinez and Mr. Pedde, you are excused

and we appreciate your attendance.

While the panelists are coming forward, let me apologize to you.

The table is a little small for the size of the panel but I think if

you are able to squeeze in there, we will be able to fit everybody

in.

This panel includes Mr. Scott Campbell—and we will have you

testify in this order—Mr. Scott Campbell representing the Idaho

Farm Bureau; Mr. Bruce Smith from Rosholt, Robertson & Tucker;

Mr. Peter Wilson from the Port of Lewiston. It appears that Mr.

Herb Curtis is not present. Is Mr. Curtis present?

[No response.]

Mr. CRAPO. Mr. Curtis is the Project Supervising Engineer from

the Wells Project. Okay, and Mr. James Grunke, Executive Director of the Orofino Chamber of Commerce.

We will proceed in that order, and Mr. Campbell, you may proceed.
75

STATEMENT OF SCOTT CAMPBELL, IDAHO FARM BUREAU

Mr. CAMPBELL. Thank you very much, Congressman Crapo. My

name is Scott Campbell, I am a shareholder with the Boise, Idaho

law firm of Elam & Burke. I am Chairman of the Environmental

and Natural Resources Section of the firm and I am here representing the Idaho Farm Bureau Federation and its over 47,000

member farm families.

I am a native of Idaho. My ancestors have made Idaho their

home since the 1860’s. I am very fond of this State, its people and

its history and because of this fondness, it is with great sadness

that I address you today.

Idaho and some of its hardest working citizens are basically

under siege by the Federal Government. They are under attack by

what I consider to be insensitive, insulated Federal bureaucrats

who have two primary agendas—self-preservation and central control and regulation of any economic activities involving land, water

or air. I would like to give you two concrete examples of what I am

referring to.

The first involves the Columbia River, Snake River salmon and

steelhead recovery process. I will not focus upon the history of the

ESA problems with the salmon. Instead, I will focus upon the current operations of the Federal facilities in Idaho under the NMFS

biological opinion.

Because of the requirement for 427,000 acre-feet of flow augmentation water to avoid a jeopardy finding for operation of the

Columbia River power projects, the Bureau of Reclamation has embarked upon a very aggressive and in my judgment, unreasonable

approach to acquiring that water. While they have followed the

State law requirement of acquiring the water through willing seller-willing buyer arrangements, they have begged, borrowed, cajoled, cursed and threatened Idaho water users to obtain that

water. One particular example that I would like to refer to is pertaining to existing storage contracts which two of my clients possess for water in Lucky Creek Reservoir. We have commenced the

process for renewing those storage contracts, the Bureau has indicated very clearly that it is unlikely that those storage contracts

will be renewed. They currently run until the year 2004 and we

have been told that that water will not be available because of the

need for the salmon. Those storage contracts in Lucky Creek Reservoir are critical to the operation of the facilities which my clients

operate.

That is just one example, there are many others. That water,

which is acquired for salmon flow augmentation purposes in

drought cycles is critical to the production of agricultural products

which my clients and other rely upon for their income. Frankly, because of the actions of the Federal Government in this respect, I

and my clients feel that they are under siege by the government.

The other concrete example which is somewhat related because

it also involves the operation of the Endangered Species Act is the

Bruneau-Hot Springs snail. While that does not involve NMFS, it

does involve its sister agency, the U.S. Fish and Wildlife Service.

Because of the basically predetermined decision of the Fish and

Wildlife Service to list the so-called Bruneau-Hot Springs snail, the

impacted area farmers in the Bruneau Valley banded together with
76

the assistance of the Idaho Farm Bureau Federation, the Idaho

Cattle Association and the Owyhee County Commissioners to sue

the Federal Government in U.S. District Court based upon procedural violations as well as substantive violations of the listing process. I was asked to represent that coalition of affected farmers.

The U.S. District Judge invalidated the listing because of procedural problems, procedural flaws, finding that the Fish and Wildlife Service had violated the procedural due process rights of those

clients. Unfortunately, two environmental litigation groups appealed that decision to the Ninth Circuit Court of Appeals, which

reversed, mainly on the basis of its need, its perceived need to protect the endangered species even though the procedural due process

rights of the affected farmers had been violated. We are currently

in a re-examination, a relisting process, subject to the corrected

procedural requirements.

The reason I point that out, Congressman Crapo, in the context

of your hearings, is that it illustrates again the basic philosophy,

the basic mindset of the Federal agencies that the impacts to people, the impacts to the economy, the impacts to the real lives of the

citizens of this country in the administration of the Endangered

Species Act is not the focus, the focus is upon the species. And the

consequences to real live people is irrelevant.

And with that, I see my red light. Thank you very much.

Mr. CRAPO. Thank you, Mr. Campbell. Mr. Smith.

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

of hearing.]

STATEMENT OF BRUCE SMITH, ROSHOLT, ROBERTSON &

TUCKER

Mr. SMITH. Good morning, Representative Crapo. My name is

Bruce Smith, I am a private attorney here in Boise. My clients include businesses in the timber, mining and agricultural industries.

I am not here speaking on behalf of any individual client this

morning, but I would like to point out that they share one common

theme. Because they are businesses, their approach to salmon recovery is similar to their approach to business. They are interested

in problem solving.

My comments today come from my perspective, having worked on

the salmon issue since prior to the time the petitions to list were

filed. I was one of the participants in Senator Hatfield’s salmon

summit process which, for those who are new to the issue, was an

attempt to develop a regionally based approach to the recovery effort. Based on this experience, my comments today are focused on

NMFS’ problem solving efforts.

I would like to leave you with two main messages today. NMFS

cannot solve the salmon recovery problem unless it focuses its efforts on solving the problems at the dams. Two, through the use

of some new tools, NMFS has an opportunity to recharacterize its

relationship with State and private entities from that of a regulator

to that of a partner and in the course benefit the recovery effort.

Now, we learned two important lessons from the salmon summit.

One, the problems at the dams are the main obstacles to salmon

recovery. Two, those problems cannot be compensated for by using

Idaho water or by over-compensating with regard to other factors.
77

The reasons are simple. There is simply not enough water in the

State of Idaho to overcome the problems that arise because of the

present configuration of the dams. Furthermore, it is unquestionable that there is already a significant amount of good quality, unoccupied habitat in the State if the fish return.

Personally, I believe NMFS has gone off track somewhat with regard to where it focuses its recovery efforts. It has done this by

under-emphasizing the solutions to the dam problems and trying to

over-compensate with regard to habitat factors. Let me give you

two specific examples.

In its present biological opinion on flows, NMFS has accepted

mortality of 21 percent for spring/summer adults, 39 percent for

fall adults, 24 to 86 percent for juvenile sockeye and for juvenile

fall chinook, a mortality of 62 to 99 percent. Now this is the biological opinion on the major factor affecting salmon decline and recovery. So how does NMFS handle their management activities affecting habitat? NMFS has concluded in another biological opinion that

grazing on one allotment on the Boise National Forest would jeopardize the continued existence of spring/summer chinook. In its Incidental Take Statement which goes along with the biological opinion, NMFS imposed a zero level of take associated with cows stepping on redds. When constructing fences to protect the salmon or

to protect the salmon redds, NMFS required that no more than 20

minutes of temporary displacement occur. Now when I sit down

and compare these two biological opinions, something seems out of

balance to me.

Another example showing a shift to habitat measures is NMFS’

presently proposed rule on what is called Essential Fish Habitat.

What this rule does is set up an elaborate consultation scheme that

largely mirrors ESA consultation efforts and again focuses on habitat. Now I do not think, from my investigation, that NMFS has any

additional money to implement the EFH measure, which raises for

me the question of whether NMFS is going to have to shift recovery

resources to the Essential Fish Habitat effort. Quite frankly, I

think the Essential Fish Habitat rule is so complex and far-reaching—it is a nationwide application—that the Subcommittee should

consider some additional oversight hearings on that issue alone.

As I have investigated it, there are substantial impacts associated with other Federal agencies. I have yet to talk to a Federal

agency that understands or realizes the implications of the Essential Fish Habitat rule. They do not know what it is.

I have attached to my testimony some excerpts of 1950 Congressional Records that show that the success of efforts focused on trying to compensate for the cumulative impacts of dams was suspect

even before the dams were constructed. This goes to show that trying to over-compensate for the problems of the dams cannot be

done by focusing on these other factors affecting the salmon.

Let me quickly turn to my second point, which I see as a real

opportunity for NMFS. Although I think NMFS is over-compensating with regard to habitat issues, that does not mean that habitat management should be ignored. To the contrary, there are several policies in place, primarily on Federal lands, that deal with

habitat. These are the PACFISH and INFISH protocols. However,

there are new policies being proposed called Conservation Agreements with
78

Assurances and Safe Harbor Agreements that offer new opportunities for NMFS to recharacterize its relationship with private and

State landowners. This is a real opportunity for NMFS to seize on

these new policies and change its approach to doing business. I

think that NMFS should be encouraged to embrace those policies

and try to implement them in a way that will effect recovery.

Thank you.

Mr. CRAPO. Thank you, Mr. Smith. Mr. Wilson.

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

hearing.]

STATEMENT OF PETER K. WILSON, VICE PRESIDENT, PORT OF

LEWISTON

Mr. WILSON. Congressman Crapo, my name is Peter Wilson and

I am Vice President of the Port of Lewiston Commission, Lewiston,

Idaho. I have been a member of the Port Commission for 9 years.

Although it is not supposed to be a full time job, I spend as much

of my time on port business as I do trying to make a living raising

a few cows.

As this testimony has been submitted, the written, I think I will

deviate a little bit from that and bring up a few points.

Transportation is a very important part of Idaho and river transportation is an integral part of that. I think we need to reiterate

that the balance of trade without ag exports would be much larger

than it is.

Another thing is on the flow augmentation. As a youth in the

1930’s, I used to swim in the Clearwater River. The Clearwater

River, they had the log drives in there, the log drives come with

the high water and the high water was generally considered a

week plus or minus Memorial Day. Now we have got to take water

out of the Dworshak to keep the Clearwater River, the lower 30

miles of it, at a much higher level than it ever was before. To me,

it is not natural. When I was swimming in the Clearwater River,

there was no dams up there. We used to swim at Spalding and it

was a major accomplishment of the youth to swim the river. It was

not really that far, but it was an accomplishment. Now the water

is cold as they draw the winter water out of Dworshak, and as I

say, it is higher. It does not make sense to me—does not make

sense to me.

Food—the ag production, I need to push that a little bit. I remember in the 1970’s, Khrushchev was over here and they had him

visit a cornfield in Iowa, and he was aghast at the ag production,

he thought if he could do that back in his country, he would be

more of a world power than he already was.

I think that is about all I have to say.

Mr. CRAPO. All right, thank you very much, Mr. Wilson. Were

you finished?

Mr. WILSON. I was just going to say the light is green, you know,

so I will quit while I am ahead.

[Laughter.]

Mr. CRAPO. All right. Thank you, Mr. Wilson. Mr. Grunke.

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

hearing.]
79

STATEMENT OF JAMES W. GRUNKE, EXECUTIVE DIRECTOR,

OROFINO CHAMBER OF COMMERCE

Mr. GRUNKE. Thank you, Congressman Crapo. I would like to

thank you for the opportunity to speak here. I am the Executive

Director of the Orofino Chamber of Commerce and my name is

James Grunke.

We in Orofino think we have a fairly compelling story to tell and

really welcome this opportunity. We are one of the few communities in the entire northwest, and the only one in Idaho, that feels

the direct impacts of salmon recovery every year.

When Dworshak Dam was constructed, it was authorized for five

purposes—flood control, power production, fish and wildlife, recreation and transportation. Transportation being log transportation

down the reservoir. In exchange for this, the damming of probably

the most productive steelhead river in Idaho, the North Fork, certain promises were made, such as continued log transportation and

to be able to maximize the recreational opportunities to offset this.

Also as part of that in the mitigation, they constructed Dworshak

National Fish Hatchery, which is the world’s largest steelhead fish

hatchery. So there were tradeoffs that were made and the community I think grudgingly accepted this and it did become a very

prime recreation source. It is the only pristine, undeveloped, forested lake in the State of Idaho to this extent, it is 53 miles long,

no commercial development is allowed, it is a beautiful facility.

Things were going good for Orofino and then they decided to list

salmon. Our experience with the listing of salmon and the control

of NMFS has been an absolute failure. I would say we would view

the flow augmentation strategy as completely ill-conceived and it

has resulted in every summer draining the reservoir down, this

year they will go down 100 feet, it has been down as low as 115

feet, for salmon recovery. This has resulted in an unusable mud

bog that nobody would want to use to recreate. But this has had

more impacts than just to the recreation. Resident fish have been

dramatically impacted, not only in the reservoir but in the Clearwater River. It is not natural when the main stem of the Clearwater River right now in August is running nearly 70 degrees, that

the fish swim along and they are running into 48 degree water. It

is impacting the fish hatchery because the water is too cold. So it

is retarding the growth of steelhead in the fish hatchery.

So to compensate that, rather than using the selector gates that

were designed to provide the constant cool water for the fish needs,

they have decided in their wisdom to spend over a million dollars

to build boilers to warm the water, when we already know what

we could do. I think we have absolutely seen steelhead impacts. We

drain the water in the summer, we no longer have any water left

in the fall months to use not only to cool the river in the month

of September, but also to attract the fish up from lower Granite

pool. There is evidence from the National Marine Fisheries Service,

their own study, that the cool water has impacted or retarded the

growth of fall chinook in the main stem of the Clearwater River.

And it has had devastating impacts to the community of Orofino.

We were fortunate enough to have the Corps of Engineers conduct

an economic impact study for us in 1995 that demonstrated losses

in excess of $7 million a year in the summer economy. That is also
80

a tradeoff because these efforts have declined the number of

steelhead and that resulted in a closure of the fall steelhead season

in 1996. So we are losing on every side.

So then we need to look at the benefits and I have asked this

question it seems like now for years to NMFS, but does—the question seems fairly straight-forward—does draining the reservoir

produce more salmon, and if it does, how many? The answer is we

do not know, we think that it does. I do not think that we are unwilling to participate, but we are unwilling to share the sole burden for these salmon recovery efforts. NMFS actually has no idea

if they are helping or hindering, they think this is going to work,

but have we seen any results?

I would like to conclude by saying the current operation—the

current system of who is in charge is an absolute rudderless ship,

there is so many agencies, nobody is in charge. We need some clear

direction and this is, I think, the real role for Congress, is to give

the Northwest some clear leadership and get the process moving.

Thank you.

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

hearing.]

Mr. CRAPO. Thank you, Mr. Grunke.

What I would like to do is go through some specific questions I

have for each witness and then I am going to go back and talk in

general about an issue I would like to get into a discussion with

the panel in its entirety on.

But first of all, Mr. Campbell, I was interested in your testimony

where you indicated in your written testimony, I cannot remember

if you covered it in your statement, in your oral statement, but you

indicated that the project authorization statutes for a number of

the dams require the Bureau to comply with State water law. I assume you are aware of the Solicitor’s Opinion which the Bureau

has which indicates that under the Endangered Species Act, it can

essentially take water if necessary. Are you aware of that Solicitor’s Opinion?

Mr. CAMPBELL. Yes, Congressman Crapo, I am aware of that

opinion.

Mr. CRAPO. I am not going to ask you for a legal evaluation here,

but do you believe that there is any conflict between the authorization statutes and that Solicitor’s Opinion on the operation of the

Endangered Species Act?

Mr. CAMPBELL. Congressman Crapo, I believe that there is a

clear conflict between that so-called opinion, the memorandum that

I think you are referring to is basically a two-page or one and a

half page brief letter to the Commissioner of Reclamation at that

time, Daniel Beard I believe, and John Leshe basically informed

the Commissioner that there would be consequences of any action

to release water, notwithstanding the approval of the contract

space holders or the affected irrigators or municipal users, but he

felt, under the Endangered Species Act, that those consequences

were something that the administration would just have to put up

with.

The analysis was questionable, there was no analysis, it just said

there will be consequences. I view the Reclamation Act of 1902—

and I think all water lawyers who have examined this issue
81

agree—that State law is absolutely required, mandated by the Bureau as it relates to the water which is stored in those facilities.

Moreover, the specific Congressional actions which had to be taken

for the construction of those Reclamation facilities in the State of

Idaho, specifically provided for the project uses, the types of uses

of the water which could be stored in those facilities. In virtually

none of the project authorizations by Congress does it provide for

releases of water for flow augmentation purposes.

So from my view—and the U.S. Supreme Court has held that the

water rights which actually are being exercised by the use of those

facilities are really held, the true beneficial owners are the

irrigators, the municipal users, whatever. So if NMFS or the administration determines that it can release water from Bureau facilities notwithstanding no approval, no consent by willing sellers,

willing buyers, I think they will violate vested property rights, they

will violate specific Congressional actions by those project authorizations, and they will be subject to condemnation proceedings, inverse condemnation proceedings or injunctive relief by Federal

courts. That is my view.

Mr. CRAPO. And would you—your opinion that you have just expressed here is with reference to Bureau projects, is that correct?

Mr. CAMPBELL. No, it is with regard to any Federal facility.

Mr. CRAPO. So it would include——

Mr. CAMPBELL. Primarily—excuse me, Congressman Crapo.

Mr. CRAPO. Sure, go ahead.

Mr. CAMPBELL. Primarily Bureau facilities as they relate to the

clients I represent; however, Lucky Peak reservoir was constructed

as a Corps of Engineers facility with coincidental irrigation uses as

well. The Dworshak Reservoir was a Corps facility.

Mr. CRAPO. That is what I was getting at.

Mr. CAMPBELL. That has a specific project authorization and because of that, any—in my view, any action by the Bureau—by the

Corps of Engineers, which is contrary to that specific Congressional

authorization is arguably invalid.

Mr. CRAPO. Let me for just a minute shift over to Mr. Grunke.

Are you aware of whether a legal challenge has been made to the

Corps’ operations, which appear to be in conflict with its authorization statute?

Mr. GRUNKE. Yes, sir. In fact, in 1995, the Orofino Chamber of

Commerce as well as the City and Clearwater County sued in Federal court, the Corps of Engineers over this issue that they had exceeded their Congressional authorization.

Mr. CRAPO. And has that litigation been resolved yet?

Mr. GRUNKE. It is on appeal now to the Ninth Circuit Court. It

was ruled that they were within their parameters.

Mr. CRAPO. So in that case, the Court ruled in favor of the—basically that the Endangered Species Act requirements superseded the

statutory authorization?

Mr. GRUNKE. The ruling was that as one of the project purposes

was fish and wildlife, they were still adhering to that and yes, you

could still recreate and could produce power and flood control. It

is just they were not all equal.

Mr. CRAPO. So I guess what I am getting at is that in this case,

the Court did not address the specific issue of whether the Endan-
82

gered Species Act will allow essentially the violation of the requirements of the authorizing statute.

Mr. GRUNKE. That is correct.

Mr. CRAPO. Would you pass the microphone back to Mr. Campbell?

Mr. Campbell, are you aware of any judicial decisions that

would—that have focused on this issue more specifically than the

Dworshak case?

Mr. CAMPBELL. Congressman Crapo, I am not aware of any pertinent judicial authority which has addressed this issue.

Mr. CRAPO. And you indicated that the Solicitor’s memorandum

that we have been discussing did not contain a legal analysis or

have attached to it a legal analysis, is that correct?

Mr. CAMPBELL. That is entirely correct. It was basically a letter

addressing the options available to the Commissioner of Reclamation with no citation to any statutes, any case decisions of the Federal courts, merely saying that these are your options and including release of water, notwithstanding the objections of impacted

water users who have valid storage contracts in these facilities,

and there will be consequences. But under the Endangered Species

Act you have that authority, without any legal analysis, in my

judgment other than the conclusion.

Mr. CRAPO. Are you aware of any legal memoranda or briefs or

analyses made by the Bureau or any other Federal agencies in this

regard?

Mr. CAMPBELL. Congressman Crapo, I am aware of various

memos which discuss the issue. I am not aware of any dispositive

internal ruling or binding legal opinion from the Solicitor’s Office

that directly addresses the issue, no.

Mr. CRAPO. All right, thank you very much. How about handing

the microphone to Mr. Smith.

First of all, Mr. Smith, you are a water lawyer as well. Do you

have anything to add to the discussion we have just had?

Mr. SMITH. I do not believe so.

Mr. CRAPO. Then I would like to focus with you on a few items

in your testimony. One of the key points that you made in your testimony was—and I will read it to you, you made this in your oral

testimony as well—‘‘Despite the fact that problems with the dams

on the Columbia and lower Snake Rivers remain the foremost obstacle to the salmon recovery efforts, NMFS appears to be searching for a solution based on using Idaho water and habitat management measures to overcome these problems.’’

Would you elaborate for just a moment on your comment there

about the fact that despite the fact that the problems with the

dams on the Columbia and the Snake River remain the foremost

obstacles, NMFS appears to be searching for a solution based on

Idaho water?

Mr. SMITH. The debate during the salmon summit, which was

quite extensive in terms of looking at the problems and trying to

figure out what the major problems were, as well as NMFS’ analysis of what the problems are, there was very little disagreement

about the fact that the hydro impacts—the 4 H’s—hydro, habitat,

harvest and hatcheries—that hydro was the major factor responsible for the decline and was a major factor or the major factor in
83

terms of recovery. When you look at the configuration of the dams

in trying to use flow augmentation to overcome those problems,

when the focus gets to be on Idaho water, one of the things that

is often overlooked is that despite the storage capacity in the upper

Snake, that in drought years when that water is used, you cannot

just look at it on an annual basis. You have to look at the ability

of the system to recover. So when NMFS turns and starts looking

at the use of Idaho water to try and overcome the problems at the

dams, to look at it on an annual basis is very risky. What I was

specifically referring to were the attempts to gain more water, it

was through the section 7 consultation that you referred to earlier

in which NMFS and the Bureau have entered into consultation in

which it, quite frankly, appears to me that they are attempting to

use the consultation process to either ratchet up or try to secure

more water through means of either a jeopardy opinion and reasonable and prudent alternatives or some other measures that would

require additional water above and beyond the 427,000 acre-feet.

Mr. CRAPO. And you were here during the testimony of Mr. Martinez and Mr. Pedde about the consultation, were you not?

Mr. SMITH. Yes.

Mr. CRAPO. Do I understand you to be saying that notwithstanding their assurances that that consultation is not aimed at securing additional water, that you still have concerns about what direction that consultation is heading in?

Mr. SMITH. Yes, I do, because once the Federal agency, pursuant

to section 7 of the Endangered Species Act, enters into consultation

with the National Marine Fisheries Service, there is quite a bit of

discussion, or let me put it this way, a concern over the ability of

private parties to participate in the consultation process. That process under section 7 largely involves the Federal agencies. So when

you are sitting out there representing clients, contract holders who

use that water, there are serious questions about whether they will

be able to participate in the consultation process. When NMFS

then does its analysis, renders it opinion, they will come up with—

if it is a jeopardy opinion, they will come up with a reasonable and

prudent alternative. Their obligation at that point is to—or excuse

me, if they have a jeopardy opinion and they try to come up with

a reasonable and prudent alternative to avoid the jeopardy, they

will attach conditions, if you will, that seek to make it a non-jeopardy opinion. And that is the risk that I see that once that biological consultation starts forward, that you will get terms and conditions imposed on the Bureau of Reclamation that might seek to increase the 427,000 acre-feet, which has been voluntarily, under the

willing buyer-willing seller provisions, been made available to this

point.

Mr. CRAPO. I want to do a quick little sidetrack here on something you said and then get back to this, but you indicated that one

of the problems with the consultation is that it is essentially consultation among Federal agencies.

Mr. SMITH. Correct.

Mr. CRAPO. And that private parties or other interested concerns,

whether they be those who are concerned with salmon recovery or

steelhead recovery or those who are concerned about irrigation or

transportation, are not in the consultation, is that correct?
84

Mr. SMITH. Correct.

Mr. CRAPO. Do you perceive that to be a significant problem in

the decisionmaking process that we are operating under?

Mr. SMITH. Absolutely. Because as you are going through the

consultation process—and let me point out, there are provisions in

the regulations that deal with consultation that allow participation

by applicants for a Federal license to participate in consultation.

But quite frankly, I have represented the timber industry on a

number of matters in which we have had to assert ourselves aggressively to try to participate in the consultation process and it is

one of those areas that is, quite frankly, a little unclear. But in

order to get the best information that is available and in order to

make sure that all the interests that could be affected are heard,

I think it is almost mandatory, it is critically important, that all

those interests be heard.

Mr. CRAPO. That is an issue that I want to talk about with the

whole panel, but before I do that, I want to get back to the line

of questioning I had with you. It seems to me that, focusing on this

consultation process, that the failure of the Federal family or the

Federal agencies in essence, to seriously deal with the mainstem

dams will be paid for if the current direction that we see developing continues—will be paid for by heavy volumes of upper Snake

River water. And that that failure will likely result, in addition to

taking a significant amount of water from the upper Snake River

and the economic impacts that that would cause, will likely also result in the extinction of the fish, or at least in a failure of recovery

efforts for the salmon and the steelhead.

I would just like to ask you your observation or to add your comments on that. Do you agree with the concern that I raise in both

contexts, in the sense that if we do not seriously address the issue

at the main stem dams, that we will then see—if what we now see

from the current direction, that we see from the National Marine

Fisheries Service, that we will see a look instead to significant volumes of Idaho water? Let us start with that. Do you agree with

that?

Mr. SMITH. Yes, I think that is a real possibility, because as

NMFS is trying to find a solution—if you have a problem at the

dams, as they are presently configured, and you want to solve it,

you go to the dams and try to figure out what we can do to make

those things—to reduce mortality. Are you going to go away from

the dams to try and come up with a bandaid approach to try and

fix that problem or do you go to the dams where the problem is and

try to fix it at that site?

If you are going to approach it from the water standpoint by basically securing more and more water from the State of Idaho,

eventually you are going to run out of bandaids and you are not

going to be able to solve the problem.

Mr. CRAPO. Let us go to the second part of my comment. I indicated that I also believe that the failure to focus where the problem

is will—and to focus on basically an increased flow augmentation

approach, will ultimately not help the salmon. Do you agree with

that?

Mr. SMITH. I have not seen any evidence to suggest it will.
85

Mr. CRAPO. Now currently NMFS has rejected the Idaho policy

that was worked out as an effort to try to look at something other

than an increased emphasis on flow augmentation. And NMFS will

be able to testify for themselves later today, but I believe that their

position is that the current status of the scientific record or the

science, is that we must continue with a flow augmentation approach at this time until we figure out how to deal with the dams.

I know that is not exactly how they would say it, but do you have

any comment on that response or on that issue?

Mr. SMITH. I do not know if that is the way they would say it

or not, but I think that is what their approach has indicated, that

we are going to continue to do these interim steps without focusing

on a final solution. And I recognize that the solution—it is a difficult question. NMFS has had to struggle with trying to resolve

the question, but I think that what we are seeing are interim approaches without starting to focus on trying to solve the problem.

Mr. CRAPO. I am shifting gears here. You indicated in your testimony that you felt that a significant part of the solution might be

more reliance by our Federal managers on conservation agreements

and safe harbors and that you thought those were pretty significant. What do you think it will take to successfully implement

those types of agreements?

Mr. SMITH. It is going to require NMFS to take a look at itself

and think about the way it approaches doing business with private

parties and non-Federal entities. A lot of their effort to date has

been focused on their relationship with other Federal agencies such

as the Bureau of Reclamation, the Forest Service and the BLM.

Private parties and States have a different role to play under the

ESA, as far as I am concerned. I think it is going to take clear direction from the higher levels of the NMFS administration to tell

the people at the field level that look, these are new tools, these

give us new opportunities and we are embracing the use of these,

so that when the field people or the people in the field offices get

ready to come out and try to work with private parties, that they

are encouraged to do that, they know they have support from higher up that they can use these new tools in different innovative

fashions. It is critical.

Mr. CRAPO. All right, thank you. I see from the 1950 historical

report excerpts that you attached to your testimony that the problem that we are talking about today was identified clear back in

1950.

Mr. SMITH. Correct.

Mr. CRAPO. And at that time only the Bonneville Dam, of those

we are discussing, was in place, is the correct?

Mr. SMITH. That is correct.

Mr. CRAPO. Did you want to amplify on that at all?

Mr. SMITH. That document that I attached to my testimony was

a report to Congress back in 1950 and what it did was raise the

specter that these programs to try and augment salmon populations by focusing on non-dam-related matters was suspect. It

raised the concern that the program to try and compensate for the

infrastructure that was going into place on the Columbia and lower

Snake Rivers might not work. That was a document that came out

during the salmon summit and it generated quite a bit of comment,
86

mostly along the lines of what you indicated, that we are sitting

here discussing things that are not new.

Mr. CRAPO. All right, thank you. Could you hand the microphone

to Mr. Wilson?

Mr. SMITH. Thank you.

Mr. CRAPO. Mr. Wilson, I was interested to note your testimony

about the need for a regional consensus-building process and that

is the general issue that I want to get into a bit of a panel discussion with you here in a minute.

But could you tell me a little more what you might have in mind

in terms of a regional decisionmaking process? How could we accomplish that?

Mr. WILSON. I think that the tools are already in place with the

Power Planning Council, that group. I do not see any need to put

another layer above or below.

Mr. CRAPO. Do you believe that—in my discussion with Mr.

Smith, we just talked about the fact that a process that involves

only Federal managers excludes not only other governmental entities but also excludes other interests. Would you agree with that?

Mr. WILSON. I think I would have to say yes.

Mr. CRAPO. Now I know that one response to that might be that

the Federal managers are trying to bring together in a decisionmaking process all of the affected—at least affected governmental

entities. Would it be satisfactory to have a decisionmaking process

in place that only—that involves all governmental entities—let us

say it would involve Federal agencies, State governments and their

agencies and tribal governments, and I guess that would be it.

Would that approach be acceptable to you?

Mr. WILSON. Well, yeah, I think that we feel that the tribal—

that has to be recognized.

Mr. CRAPO. Do you—well, let me move to another question here.

I was also interested in your oral testimony about your experiences

with the Clearwater from your youth. And if I understood you correctly, under the current flow augmentation regime by which we

are now managing the flow in the rivers, you are telling us that

the rivers are not running as they used to run when they were natural.

Mr. WILSON. Absolutely.

Mr. CRAPO. Could you give me some time lines there? You said

this, but I did not pick it up, what times of the year are they higher than they used to be?

Mr. WILSON. The high water, generally the people along the

Clearwater or the mid Snake I guess we would call it in the Lewis

and Clark Valley, those people always said Memorial Day plus or

minus a week. And this was very difficult to predict because when

Potlatch had their log drives, the success of that depended upon

hitting the high water. And when the river is on a rise, the center

is high and when it is on a decline, the center is low. So as they

would bring those logs down the river, if the river is on the rise,

they are in the center and they are in the mill pond pronto. If they

hit a slack time and it goes down, the logs all go to the outside and

they pile up and have their jams.

So it is not anything that anybody can really predict, when that

high water is going to be, but generally Memorial Day plus or
87

minus a week, then your flows diminish, as the snow melts, you

know, and depending on what the snow pack is.

Mr. CRAPO. All right. I remember the question that I forgot a

minute ago. With regard to the decisionmaking process—back to

the question of how we make decisions. It seems to me that one

of the big questions we are going to need to ask is whether the decisionmaking authority should continue to be centralized in the

Federal agencies or whether some other decisionmaking entity

should be created. Do you have an opinion on that?

Mr. WILSON. I think the decision should be made in the Northwest with Northwest people.

Mr. CRAPO. I agree with you.

Why do you not pass the microphone—oh, by the way—yes, did

you want to add something?

Mr. WILSON. And on the lighter side, we made up a little quiz.

Lots of chinook showed up in the rivers this year, so the question

is—multiple choice—how did they get there? Did they get there by

barge, were they railed in, were they trucked in or freight, or did

they just slam and swim over the dam?

Mr. CRAPO. Good point. And by the way, I know that both you

and Mr. Grunke—this is a comment to both of you—I know that

both the Port of Lewiston and the Orofino Chamber of Commerce

supported Governor Batt’s initiative and his effort to find some consensus on salmon and steelhead recovery in the 1997 Idaho Policy,

and I just want to thank you for that because we have all been

working very closely with Governor Batt and we realize—we all realize that with the multitude of interests at stake here, that it is

very difficult for people to come, in a collaborative decisionmaking

process, to an agreement, but it was done and you were both—you

and your groups that you represent were both integral players in

that and I appreciate that. I just wanted to let you know that.

Mr. WILSON. Thank you.

Mr. CRAPO. Mr. Grunke, you indicated that—let me turn to your

testimony—in your testimony under recommendations, your very

first sentence says ‘‘Put someone in charge.’’ Would you like to

elaborate on that a little bit?

Mr. GRUNKE. I think the biggest problem that is facing our region is that there are too many overlapping areas of authority and

jurisdiction and that the system, as it is designed now, cannot function to develop a solid, cohesive salmon recovery plan. We have

Corps authority and NMFS authority and Reclamation and then

the States and the tribes and the Power Planning Council and everybody with their different plans, and there is not one driving

force and so we should expect to have the result that we have because of the way the current system is.

Mr. CRAPO. And do you have a—well, if I could hold that question back until we get into it with the panel a little bit—but I assume that Orofino benefited from this year’s salmon season, is that

correct?

Mr. GRUNKE. Yes, sir.

Mr. CRAPO. In the debate that we have over what approach to

salmon recovery, often economics comes up and, you know, one

group will say well, there are jobs in this area that we cannot ignore, irrigation for agriculture and agriculture jobs, or transpor-
88

tation jobs or in this case—and another group will say there are

jobs related to a healthy recreation in the salmon and steelhead industry. I guess the question I have to you is does this year’s experience with the salmon and steelhead runs—or the salmon runs—

give you—cause you to have an opinion on whether if that were

able to be sustained over a period of time that it could be a significant economic boost to your particular community?

Mr. GRUNKE. I would say this gave our community a taste of

what the potential would be for a strong, vibrant steelhead and

salmon season, but I would not say that that is going to be our sole

answer or that it is going to be the new strength of our economy.

It is too unpredictable and what type of jobs is that providing for

us. Is it service or is it jobs that are stable for our community, or

high paying. It currently is an important part of our economy, the

steelhead season, and the salmon would benefit it, but I am curious—whenever I see how great the benefits would be, I see numbers thrown out all the time, but never any documentation how

they got there. The Idaho Statesman said it would be worth $248

million to the State of Idaho, according to somebody, but no citation.

So I do not know. I know what we lose during the summer because of the Corps study, and I do not believe that the steelhead

and salmon season would result in comparable economic gain, that

would be a wash. So if we are losing $7 million in the summer, we

would need to be gaining $7 million in the winter, just to stay

even, and that is not occurring. And I do not think it will.

Mr. CRAPO. I am aware of all the points you just made, in this

debate that we constantly have about jobs and what the impact

will be, so I thought I would just ask somebody from one of the

communities that got to experience it a little bit this year, what

your opinion was. Are you aware of any type of studies that your

community has done or that have been done with regard to your

community that would give a handle on what you, in your community, the people who live there, believe would be the economic impact?

Mr. GRUNKE. No, sir. The only study that I am really aware of

is a number of years ago there was a study by the Idaho Fish and

Game when they had a limited season on salmon in the Rapid

River Hatchery and the economic impact to the community of Riggins, and this very small window was in excess of $200,000. And

I think if you extrapolate that out, I think you could get some

gains, and I think we will see some interesting studies done this

year on both Orofino and—or the Clearwater River and the Riggins

area, to be more concrete, but at this point, there is not a study

that has been done that I am aware of.

Mr. CRAPO. I would just like to conclude with this panel by asking a general question that any of you can jump in on if you would

like to.

One of the concerns that I have is literally, as Mr. Grunke said,

that there is no one in charge—no one in charge. The buck does

not stop somewhere in this whole process of decisionmaking that

we have. And I am convinced that we need to have a system of decisionmaking in place that allows for decisions to be made, for accountability to be enforced and I guess another aspect of it would
89

be for meaningful participation by the people in the Pacific Northwest in the decisionmaking. I assume that no one on the panel is

going to disagree with those broad statements. If anybody does, let

me know and we will explore that.

But the question I would like to ask you to jump in on, if you

have an opinion, is how do we do that. Do we take the current system and tweak it or do we move to a new decisionmaking model?

I am looking for ideas here as to how we can get to a system that

has accountability, the ability to make decisions and to involve the

people of the Pacific Northwest in those decisions. If anybody has

any thoughts or comments, I would welcome them.

Mr. SMITH. Representative Crapo, having gone through the salmon summit process, I have to say it was a real education. I think

if we look at a broad-based coalition, a group if you will, that does

represent the people in the Northwest, that that is our best chance

of coming up with a plan, and of having some accountability. Right

now, things are so spread out that there is very little accountability. My concern is that the process that we have now has basically generated huge amounts of litigation and a huge amount of

decisions, but it is so spread out that it is difficult for me, working

on it on a day-to-day basis, to even keep track of all of it.

In order to come up with the kind of plan that will allow us to

move forward, it is going to require a lot of cooperation. I think

that mandates that we have participation, and heavy participation,

from the State level.

Mr. CRAPO. Any others?

Mr. SMITH. Could I make one other comment?

Mr. CRAPO. Sure.

Mr. SMITH. Awhile ago when you were asking about the consultation process——

Mr. CRAPO. Yes.

Mr. SMITH. [continuing] and I approached it pretty much from

the point that if the consultation on the upper Snake projects goes

forward, and we had a jeopardy opinion. Let me add to that, regardless of whether it is a jeopardy opinion or a non-jeopardy opinion, whatever NMFS includes in that is going to put tremendous

pressure on the Bureau. I am not going to predict how that would

come out, but I think it is important that we recognize that when

the Federal agencies are dealing with one another under section 7

of the Endangered Species Act, the pressures that are generated on

the action agency, which would be the Bureau in this case, are tremendous.

Mr. CRAPO. Does that mean that NMFS—I am looking for somewhere the buck stops. Does the buck stop at NMFS or can NMFS

then say well we are just consulting?

Mr. SMITH. No, NMFS could say we are just consulting. Biological opinions are advisory, they are not mandatory. So NMFS’ response, and I agree with this, is that under the ESA the biological

opinion is advisory. The action agency has a choice of whether it

is going to or not going to follow that opinion. But I will tell you

from my experience that I have yet to see a Federal agency that

did not comply with a biological opinion. The pressure is too great.

Mr. CRAPO. Is that sort of a safe harbor for the Federal agency?

Mr. SMITH. That is a good way of describing it.
90

Mr. CRAPO. Or at least safer than other harbors?

Mr. SMITH. It is a response that you are going to get.

Mr. CRAPO. But you do not get out of litigation by supporting the

biological opinion either, by following it either.

Mr. SMITH. No. I mean biological opinions will generate litigation, the terms and conditions that are imposed will generate litigation. And that is the problem, that we are focusing on things

that are not solving the problem.

Mr. CRAPO. Thank you. Did anybody else want to comment on

the question I had?

Mr. CAMPBELL. Congressman Crapo, I concur totally with Mr.

Smith’s comments concerning the involvement of the States in any

kind of resolution process. I think one of the primary concerns that

I have had throughout the last 6 or 7 years that the salmon issue

has been really on the forefront of Idaho and the Northwest Natural Resource law issues is that the Federal agencies, despite the

fact that they are numerous and diverse in their interests and their

duties, have primarily ignored the States, and as a consequence, ignored the actual citizens of the States. So unless the States have

a more participatory role and have direct authority in any decisionmaking process, not just through the Northwest Power Planning

Council, but in resolution of the problem, I think we are a train

heading for a wreck. And that is regrettable because when you get

right down to it, the only winners in the current situation are the

consultants hired by NMFS and the other agencies, and the attorneys that are hired by the people who are ultimately impacted by

these decisions. And that is not a very positive product for our society. It helps me and it helps Bruce and other attorneys involved

in it because it generates more income for us, but from a societal

standpoint, it is very negative. And I think if we can avoid those

kinds of conflicts, we are going to be better off.

One other comment I would like to add from a factual standpoint

in the context of the consultation issue with the Bureau of Reclamation, approximately 6 months ago, NMFS requested, actually

initially they were going to have it outsourced by a consulting company, but the Bureau of Reclamation volunteered to provide NMFS

with a very bare bones study addressing the issue of what water

from Idaho would be made available from conservation issues or

from the elimination of irrigation diversions. That study was not,

according to John Keys of the Bureau of Reclamation, was not designed to tell the NMFS that this would not have any negative impacts, yet because of that study, which was very bare bones and

merely a hydrologic evaluation, NMFS has now, from what I have

been told, focused upon the end result that yes, if you stop all diversions in Idaho, you will meet—99 percent of the time, you will

meet all of the flow targets, the flow goals, that NMFS is looking

at in the biological opinion, which would require termination of two

million—excuse me, two million acre-feet of storage, as far as use

in Idaho. So we are talking about the use of two million acre-feet

of water presently used in the Idaho economy to accomplish that

purpose. That study, according to John Keys, was not intended for

that result, yet NMFS is relying upon that study to accomplish

that end goal. That is very disconcerting to Idaho water users, it

is very disconcerting to the people who would be directly impacted.
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Mr. CRAPO. Thank you. Did either Mr. Grunke or Mr. Wilson

want to add anything?

[No response.]

Mr. CRAPO. Let me go back then to Mr. Smith and Mr. Campbell

and ask you, do either of you see a legislative solution? I am back

on the how do we get a decisionmaking authority in place that involves people effectively. Do you see a legislative solution, even the

broad outline of anything that we ought to be looking at?

Mr. SMITH. Do you mean a legislative solution to the decisionmaking process?

Mr. CRAPO. Yeah. What I am thinking is, is there some decisionmaking process that we can legislatively create. I do not believe

that Congress ought to start making these decisions, it ought to at

least—if it does anything, it ought to start trying to figure out what

the right process for decisionmaking should be.

Mr. SMITH. I remember Senator Hatfield’s original address to the

salmon summit, he said do not look to DC for the solution, that it

is going to be dependent upon the region and the people in the region to come up with the solution. I have been at this long enough

to recognize that we will have direction, participation, cooperation,

whatever, from DC. I think legislative direction that focuses on

solving the problem in the Northwest, by people in the Northwest,

is probably where we are headed or where we should head.

Mr. CRAPO. Both of you have said that you believe the States

should be involved. I assume you would agree that the tribes

should also be involved?

Mr. SMITH. Absolutely.

Mr. CRAPO. There is a debate, as I understand it, as to whether

that is enough. I mean there are groups I believe that feel that

there should be, in addition, representation on whatever decisionmaking body is created, of the specific interest groups who have

something at stake in the issue. Others say well, their interests

should be represented by whatever government they are a part of

and that it would be very complicated to try to identify a decisionmaking process that had legal decisionmaking authority that identified non-governmental entities as part of that process.

Could you comment on that issue?

Mr. CAMPBELL. Congressman Crapo, from my standpoint, I think

it will be impossible to ever reach any kind of consensus decision

to resolve the salmon-steelhead issues if the process mandates the

involvement of other groups outside of the State government level.

And I would like to expand upon that just a moment.

If the process allows participation—including the tribes, I did not

mean to exclude the tribes—if the process allows private entities,

private interest groups to have a seat at the table, then how do you

make the decision as to which private interest groups are going to

have that seat or how many seats do you have. And if you have

15 environmental groups and 15 water user groups and 15 municipal groups and 15 industrial groups, as soon as you turn around,

it does not take very much legal work to form a new organization,

a new private, non-profit corporation that is focused on one little

aspect of this or has a new name. And then that group has to be

involved.
92

So I think unless you restrict it to the State governmental entities, you know, I have—just reacting here to your comment,I am

certain it is too simplistic, but my concept is get a statute passed

in Congress that directs the State Governors of the four States impacted—Idaho, Washington, Oregon, Montana—to concur on the

appointment of one individual who would drive the process and not

involve the Federal agencies except from the standpoint of information to that process, so that you have the four State Governors who

represent all of the citizens.

Mr. CRAPO. And the tribes.

Mr. CAMPBELL. And the tribes, excuse me, yes and the tribes,

who represent the citizens in the impacted sovereign entities in

this region. Reach a consensus as to that one person and then that

one person drives the process forward and that one person is vested with the authority to come up with a solution which has the

input from the Governors and the tribes.

Mr. CRAPO. And in your scenario there, would that one person—

I assume it could be a person or a board or would you say just one

person?

Mr. CAMPBELL. Well, I think you could have a board, but if you

have more than three members on the board, you are asking for

trouble. And I think if you have one person, then all the participants, all the Governors and the tribal entities, would have to

agree upon one who would represent all. So you would have less

likelihood of having one who represents this group, one who represents that group—a three member panel, you would have the

splintering.

Mr. CRAPO. I see what you mean. And then that person or group,

whatever it may end up being, would have decisionmaking authority.

Mr. CAMPBELL. With regard to overall solution, keeping in context that that solution would have to incorporate and consider all

of the property rights of the various interests throughout the

Northwest and evaluate those in the context of the States who are

represented in the process.

Mr. CRAPO. And if I hear you right, that decisionmaker would

not be given the ability or the authority to ignore current law.

Mr. CAMPBELL. No.

Mr. CRAPO. The decisionmaker would have to make his or her or

its decisions consistent with applicable Federal and State law.

Mr. CAMPBELL. Correct.

Mr. CRAPO. So the legal parameters would not change, but the

decisionmaking process would be changed.

Mr. CAMPBELL. Correct.

Mr. CRAPO. All right. Mr. Smith.

Mr. SMITH. I had not honestly thought of this until you asked the

question. I am used to dealing with corporations, with businesses.

Maybe an arrangement setup like a board of directors with a CEO

is the kind of approach that might be feasible. I absolutely guarantee you there is accountability in that setup, and if you have a

board that is made up of the respective interests, and a CEO or

something like that, that may be the type of approach that you are

looking at.
93

And I will tell you, I firmly believe that the tribes have a tremendous role to play in this, they cannot be left out of it, they have

too many interests, they have legitimate rights to be there, and

they are key to coming up with a solution to the recovery effort.

So maybe a board of directors and a CEO.

Mr. CRAPO. Well, I appreciate your willingness to speculate with

me here and to kind of brainstorm, because one of the things that

we want to do with this hearing is to generate ideas and maybe

on further reflection those ideas will turn out to be good ones or

bad ones or have to be modified or adjusted, but we are trying to

figure out a path forward and what the proper role of Congress is

in trying to help that path develop and become real. And I appreciate your observations.

Mr. SMITH. And of course the CEO stock options are going to be

something to be seen, so——

Mr. CRAPO. That is right.

One last question and this is to Mr. Campbell. I wanted to followup on your statement about the study with the two million acrefeet of storage water that was identified. Do you have any—let us

assume that that two million acre feet were—that the diversions

for those two million acre feet for irrigation were stopped. Do you

have any information that would indicate to you what type of an

impact on irrigated land that would cause? Would it cause some irrigated land to go out of production?

Mr. CAMPBELL. Congressman Crapo, I have not seen anything

that analyzes the impact upon the State of Idaho, but I do know

that Idaho has, if I am correct, approximately 5.6 to 6 million acrefeet of storage capacity in its various facilities, Federal facilities

primarily. So if you remove two million acre-feet out of a total of

six million acre-feet, you are cutting out a third of the productive

capacity of the State’s agricultural economy, recognizing that some

of that water is not just for agriculture, it is for municipal use, industrial use, et cetera.

Mr. CRAPO. So there will be impacts beyond agricultural impacts.

Mr. CAMPBELL. Oh, certainly, no question about that. The primary impact that I think most people fail to realize is that with

the priority system that currently is in place in the State of Idaho

for regulation of water rights, if you take out the storage water

from the existing systems, then the older priority water rights

come into play and those older priority water rights can force termination of more junior, newer groundwater rights including the

rights of the cities like Treasure Valley. The United Water of Idaho

supplies virtually all of the municipal water for the city of Boise

and all of their water rights are much newer, much more junior

than the old river rights on the Boise River. And if there is elimination of some of the storage contracts or attempts by NMFS to

force the Bureau to release water from the storage reservoirs, I

have no doubt that I would advise my clients to exercise those prior

rights to force termination of groundwater withdrawals for cities

that have potential impacts on those supplies.

Mr. CRAPO. And this impact would not just be in southeastern

Idaho, this would be all along the Snake River.

Mr. CAMPBELL. Oh, the entire southern portion of the State, no

question about it.
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Mr. CRAPO. Mr. Smith, you wanted to comment?

Mr. SMITH. Yes. In looking at another issue recently on this

question of taking lands out of production in order to increase

flows, I will get you the specifics later if you would like, but my

recollection is that to increase stream flows or provide a million

acre-feet, required taking 400,000 acres out of production.

Mr. CRAPO. And that is a million on top of the 427?

Mr. SMITH. Yes.

Mr. CRAPO. So you would be taking 1.427 million acre-feet of

water would reduce irrigation by 400,000 acres?

Mr. SMITH. Well, I have to go back, I am not positive about that.

I remember the million acre-feet of additional water, whether it

was on top of the 427 or not, I do not know. Now that I am thinking about it, I suspect it was not, because I think the study was

done prior to the 427 figure coming up.

Mr. CRAPO. Okay, if you could get us that information.

Mr. SMITH. I think for a million acre-feet, 400,000 acres.

Mr. CRAPO. And you could get us that study?

Mr. SMITH. Yes.

Mr. CRAPO. Would you please do that?

Mr. SMITH. Yes.

Mr. CRAPO. All right, thank you very much. I have no further

questions and this panel is excused.

Okay, our next panel is panel No. 3. All right, panel No. 3 is Mr.

Ken Casavant—excuse me, Doctor——

Mr. CASAVANT. I answer to anything.

Mr. CRAPO. I answer to Mike, so—of the Northwest Power Planning Council; Mr. Charles Ray, Idaho Rivers United; Dr. Steve

Bruce, President of the Idaho Steelhead and Salmon Unlimited and

Mr. Jim Little, who is a grazing permittee. Jim, are you representing the Idaho Cattle Association today?

Mr. LITTLE. Yes.

Mr. CRAPO. And Dr. Rick Williams, Chairman of the Independent

Scientific Advisory Board.

Gentlemen, we welcome you here and we will proceed in that

order.

STATEMENT OF DR. KEN CASAVANT, COUNCIL MEMBER,

NORTHWEST POWER PLANNING COUNCIL

Mr. CASAVANT. Chairman Crapo, members of the Committee, my

name is Ken Casavant. I am one of Washington’s two members on

the Northwest Power Planning Council. I also serve as the Chair

of the Council’s Fish and Wildlife Committee. I am here today

speaking not for the Council, but for the State of Washington.

By trade, I am an agricultural economist and have taught ag

econ at Washington State University for the past 25 years.

When I was asked to come before you to provide my thoughts on

how we might better govern the Columbia River, the economist in

me immediately saw an opportunity to theorize and give you, on

one hand or the other—as you know, we economists love to theorize. However, the novice politician in me took over and suggested

I lay out for you some of the strengths, of which there are few, and

weaknesses, of which there are many, of the current amalgamation

of governing entities and venues. The first part of my presentation
95

will cover this ground. I will then try and give you my thoughts

on what the best single Columbia River governing body would look

like. I then will conclude, depending on time, with a description of

what the Council and its partners are doing in the meantime to ensure that the region gets what it is paying for.

As you know, Mr. Chairman, there are three separate sovereign

governments with jurisdiction over some part of the Columbia

River system—the States, primarily through the Northwest Power

Act; the Indian tribes through their treaties and trust relationships

with the U.S. government; and the Federal Government via the

ESA. The jurisdictional and philosophical conflicts between the

Power Act, the ESA and treaties are indeed the crux of our regional controversies.

Historically, the Federal Government’s presence on the river was

limited to the Army Corps of Engineers, the Bureau of Reclamation

and BPA, all of which either ran dams or sold the power from those

dams. In 1991, NMFS listed the Snake River sockeye as endangered and the political atmosphere in the Columbia Basin probably

was forever changed. As new species continue to be listed, as in the

recent steelhead listing, NMFS’ authority only expands and solidifies. For all intents and purposes, NMFS, through the ESA, runs

the Columbia River.

This is not a very positive outcome for many in our part of the

country. Some believe the ESA does too much for listed fish at the

expense of people, jobs and resident and unlisted fish. Others believe that NMFS is not doing enough to restore healthy fish populations to the basin. The nature of this debate over river management eventually caused NMFS to create what is called the Executive Committee, a group of high level representatives of the Federal, State, tribal governments with a stake in the implementation

of the biological opinion. This is supported by the implementation

team, comprised of high level staffers which have been quite successful in resolving most disputes and disagreements. While not a

cure-all by any means, the Executive Committee process has been

a relatively effective creation in that it has provided a more open

forum for discussion and disagreement among the sovereigns than

had previously existed.

Make no mistake, the ESA and NMFS are firmly in control of

river operations and decisionmaking. As my friend and colleague

from Montana, Stan Grace, told you a couple of weeks ago, NMFS’

decisions this year on hydro operations left Montana asking for relief from summer releases from water from two of its large storage

reservoirs. After consultation with the Executive Committee,

NMFS did not grant that relief and Montana saw fit to exit the Executive Committee for other options, including Federal legislation.

The four lower Columbia River treaty tribes soon followed suit, but

for entirely different reasons. Such is the state of Federal management of the river.

The States’ role over the past decade and a half has been represented primarily by our Power Planning Council, which was directed by the Power Act to prepare a program to protect, mitigate

and enhance fish and wildlife and related spawning grounds and

habitat that have been affected by the construction and operation

of hydroelectric dams in the Columbia River Basin.
96

Our fish and wildlife program does not address solely the recovery of listed species, rather it focuses more broadly on the health

and diversity of fish and wildlife populations. This generates clear

conflicts between the ESA and our responsibilities under the Power

Act. Our program is often trumped by the implementation of operations consistent with NMFS’ biological opinion. We need more authority to implement the fish and wildlife program of the Council.

The Indian tribes’ roles are more difficult to describe. They are

co-managers of fish and wildlife on the State level. They have reserved the treaty rights to fish at usual and accustomed places,

they expected fish to catch. As the runs declined and fewer fish

were caught, the Federal courts have been the most familiar

venues for tribal involvement. While I cannot speak for them, I

have heard tribal leaders express an increased willingness to exercise the rights they reserved in the Treaty of 1855.

To hasten resolution of the governance crisis, the region’s four

Governors recently requested representatives of the three

sovereigns to come together to try and develop a prototype for regional government. I represent the State of Washington on that

and interestingly enough, one of the five options is a broadened

non-ESA focused process, including alternative dispute resolution

that we are looking at.

My personal opinion is that we need a focus, we need an inclusive process, one that puts the State and tribes on equal footing

with the Federal Government. We are attempting to do that now.

I can see I have gone over my time limits, so I will conclude my

oral testimony here. I have submitted copies to the staff. Thank

you.

Mr. CRAPO. We have those copies and we will have time during

questions to get into this concept a little more fully, so thank you.

Mr. Ray.

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

of hearing.]

STATEMENT OF CHARLES RAY, IDAHO RIVERS UNITED

Mr. RAY. Thank you. My name is Charles Ray, I represent the

members and the Board of Directors of Idaho Rivers United, a private, non-profit conservation organization. We are working to restore salmon and steelhead populations, the ecosystems on which

they depend and with that we are also working to restore the

economies, cultures and traditions that depend on healthy, self-sustaining fishable runs. I thank you for this opportunity to be here

today.

The National Marine Fisheries Service has been in charge, in one

way or the other, for salmon and steelhead management on the Columbia River for over 20 years. It has been nearly 6 years since

salmon were listed for ESA protection and it is probably going on

6 days since Idaho steelhead were listed. After all that time, the

fish are nearly gone. If the early predictors prove true, the 1998 return of salmon will be the new lowest in history. It is clear to us

that NMFS has failed in its primary mission to protect and restore

the species and the habitat on which it depends.

The continued decline of these fish runs has caused an immense

disruption of entire riverine ecosystems, it has nearly bankrupted
97

the Pacific Northwest sport and commercial fishing industry, loss

of harvestable runs abrogates treaties with tribes going back to

1855 and it threatens resolution of the current U.S./Canada treaty

dispute.

The Federal Government’s inability or unwillingness to keep the

promises that it made dating back to 1855 of protecting and restoring the fish has further eroded public confidence in the government

and its elected officials. I think there is a big role for Congress to

play. I do not think NMFS has demonstrated the ability, the willingness or the institutional courage to begin climbing out of this

mess we are in right now.

We certainly appreciate this Subcommittee’s interest in the performance of NMFS. We invite continuing oversight, we think there

is a lot of opportunities for Congress to step in. We recommend six

measures that need to take place right now to put us on the road

to restoring these fish, the habitat and the economies that depend

on them. Four of those are detailed in my written comments, I will

go over those briefly, and I will add two more.

NMFS must prioritize the focus of the recovery actions, No. 1. As

we have heard, NMFS looks equally with one cow stepping on a

redd as compared to 99 percent mortality inflicted by the dams.

That cannot go on.

I think it is time for Congress to step in and help NMFS eliminate its juvenile fish barging program. The agency—the fish barging program is an invention of NMFS, they cling desperately to it

and they will not put it down unless they are forced to, despite

overwhelming scientific evidence that it will not bring the fish runs

back, despite the total lack of evidence indicating that barging

could achieve 2 to 6 percent smolt adult ratio that is necessary to

restore the runs.

NMFS must preserve the integrity of the 1999 decision that we

are approaching, particularly NMFS must state clearly, if it is able

to, exactly what it means by the improved transportation alternative. What is it, what will it yield, what promise does it have of

success.

No. 4, Congress must clarify the authorization of Federal dams

to allow modification of structure and operation needed to improve

salmon and steelhead survival. The Corps continually hides behind

this wall that they have created of lack of authorization to do anything other than the status quo. I do not believe that, it has not

been tested in court, but I think Congress could remove this obstacle real easily just by clarifying the Corps’ authorization. I think

that might also, as a byproduct, instill a little more institutional

courage in NMFS to buck the Corps.

No. 5, I think it is time right now for the salmon managers, the

fishery managers, of the NMFS, the Power Planning Council and

the tribes, to reconcile the three recovery plans that we have on the

table right now. After those three plans are reconciled into one scientifically credible plan that promises restoration of these fish,

then I think it is time to overhaul the governance system that we

have right now. The TMT–ITEC process is clearly a failure, it is

clearly unworkable and on the basis of a reconciled recovery plan,

I think we can put together the three sovereigns, the States, the

tribes and the Federal Government, in equal co-management roles
98

to implement, as soon as possible and as expeditiously as possible,

the single recovery plan that will restore these fish.

Thank you.

Mr. CRAPO. Thank you. That was your No. 6, right, the three

sovereigns in equal roles?

Mr. RAY. Yes, that is No. 6.

Mr. CRAPO. All right.

Mr. RAY. No. 5 is to reconcile the plans.

Mr. CRAPO. Right, thank you. Mr. Bruce.

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

hearing.]

STATEMENT DR. STEVEN M. BRUCE, PRESIDENT, IDAHO

STEELHEAD AND SALMON UNLIMITED

Dr. BRUCE. Representative Crapo, I would first like to thank you

for holding this Subcommittee meeting here in Boise and allowing

me to testify on this important issue.

My name is Steve Bruce, I am a practicing dentist in Boise and

I am currently representing Idaho Salmon and Steelhead Unlimited. I am currently serving as President of this organization.

ISSU is a non-profit educational, scientific and charitable organization formed in 1985 in an effort to unite all concerned citizens

in the State of Idaho into one cohesive group for the purpose of restoring, protecting and preserving Idaho raised salmon and

steelhead.

This past Tuesday, the National Marine Fisheries Service announced that Snake River steelhead, as well as several other west

coast steelhead stocks, were being listed as threatened under the

Endangered Species Act. This has occurred in spite of the fact that

NMFS listed Snake River salmon 6 years ago and has been ultimately responsible for their recovery since that time. The frustrating part of this whole scenario is that Snake River salmon and

steelhead migrate, spawn and rear in the same rivers and streams

and anything that is done to benefit Idaho salmon will almost always benefit Idaho steelhead as well.

While it is true that Idaho enjoyed a good return of hatchery

salmon this year, it is still a fact that our wild runs are in very

bad shape. The predictions for the runs the next several years are

dismal, to say the least. The wild runs of steelhead are also in very

critical condition. All of this is occurring while we have a NMFS

administered recovery plan in place which is supposedly going to

recover our salmon runs.

If a management team working for a major corporation had a

track record similar to this, I have no doubt they would be replaced. We feel that it is time that NMFS be replaced.

We feel that under the current system, the best recommendations from State and tribal scientists are often ignored. A good example of this was a regional plan developed this spring by the

States of Idaho, Oregon and Washington as well as the tribes. This

plan called for leaving more smolts in the river to migrate to the

ocean rather than be collected and trucked or barged down the

river. With the abundant water we had this spring, it was felt by

the scientists that leaving more fish in the river to migrate naturally would result in better returns as adults. Unfortunately,
99

NMFS paid little attention to this plan and went about business

as usual—that is, collecting and barging the majority of juvenile

fish.

We certainly need to get away from the current system where it

seems that many different entities are making decisions which

sometimes are contrary to each other. With NMFS, BPA, the Army

Corps of Engineers, the Northwest Power Planning Council, the

States, the U.S. Forest Service and others, all coming up with different plans, it is no wonder we have generated literally thousands

of studies, reports, et cetera while our fish continue to slide closer

to extinction.

We feel that it is time that the regional experts be given the responsibility of recovering Columbia River salmon and steelhead.

These experts that work for the fisheries departments of the States

of Idaho, Oregon and Washington and the tribes are the best qualified for the job. These salmon managers should be responsible for

all recovery efforts once the salmon enter fresh water.

It would seem logical that NMFS would retain responsibility for

recovery efforts in management of salmon stocks while in the

ocean. It would also seem logical that a representative from the

U.S. Fish and Wildlife Service would be part of this freshwater

team. They would be able to coordinate Federal and State efforts

and since they are responsible for other listed species such as bull

trout, white sturgeon, grizzly bears, et cetera, it would seem that

they would be the obvious choice.

The issue of the salmon cost cap is another topic that we feel

needs to be discussed. We appreciate the fact that only so much

money is available for salmon recovery, but we feel that the public

should get an honest explanation of this cost cap. Much of the reported $450 million cost for salmon and steelhead recovery is in

foregone revenue. That is, dollars that were not received because

water was allowed to pass over spillways rather than through turbines.

Obviously the past 2 years of higher than normal flows have resulted in this figure for this foregone revenue being much lower

than in drought years. Why has the public not heard about this?

Are these dollars that were not used toward the cost cap available

in low water years? When is the government also going to let the

public know what the value of foregone revenue is for irrigation

withdrawals, navigation locks operation, et cetera? Why is it that

foregone revenue is charged only to fish and not to other water

users?

In recent years, many millions of dollars have been spent and are

proposed to be spent on the fish barging system. We feel this is a

mistake and will continue the gold plating of this system, thus giving prejudice to the transportation scenario versus in-river migration when the scheduled decision is ultimately made in 1999.

Barging proponents have recently been stating that the barging

is more successful than in-river migration based on early PIT-tag

studies. Unfortunately, the smolt to adult return ratio of one-half

of 1 percent for barged fish is far below the 2 percent ratio that

the independent scientific group says is necessary to halt their decline and is not even close to the 4 to 6 percent ratio needed to restore them.
100

Unfortunately the National Marine Fisheries Service’s claim that

fish barging works is based on asking the wrong question. NMFS

asked if barging and trucking worked better than leaving fish in

a river made lethal by dams and slack water reservoirs. The right

question is will barging and trucking salmon and steelhead ever restore fish populations as required by law and treaty and as demanded by the citizens of the Northwest. Our choice cannot be between a failed barging strategy and a lethal river, neither of which

will restore the fish. The decisionmakers should be asking what

fish need, under what conditions do they thrive and how can we

expand those conditions.

In conclusion, I would like to thank you once again for this opportunity to speak with you today and I trust that you will make

the right decisions to protect this unique resource, which has been

such a special part of our Idaho heritage for many generations.

Thank you.

Mr. CRAPO. Thank you, Mr. Bruce. Mr. Little.

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

hearing.]

STATEMENT OF JIM LITTLE, GRAZING PERMITTEE, IDAHO

CATTLE ASSOCIATION

Mr. LITTLE. Thank you. Good morning, Congressman Crapo, my

name is Jim Little and I am a third-generation rancher from Emmett, Idaho. I am a grazing permittee that has a forest permit to

graze livestock during the summer months on Bear Valley Creek

on the upper end of the middle fork of the Salmon River in the

Boise National Forest. This area is prime spawning ground for the

spring chinook salmon that is currently listed as endangered by the

National Marine Fisheries Service. I also serve as Idaho’s obligatory member on the Pacific Fisheries Management Council and I

am a past chairman of the Private Property Rights and Environmental Management Committee of the National Cattlemen’s Beef

Association.

I am here today to comment on the process of dealing with the

Endangered Species Act as it pertains to salmon and the National

Marine Fisheries Service.

The middle fork of the Salmon River has long been noted as

prime spawning and rearing habitat for the wild spring chinook. It

takes on additional significance because there have been no hatchery fish put into that gene pool that would dilute their significance.

In the 1980’s, the Forest Service put a lot of significance on the importance of enhancing and restoring stream and stream bank

health and through that heightening of our awareness, we jointly

developed a grazing system that would allow us to maintain an

economically viable cattle operation. The spring chinook was officially listed in the early 1990’s and from that time forward, our

grazing in that allotment has become much less certain.

The Boise National Forest, through a commitment by then Supervisor Steve Mealey, set up an elaborate and extremely expensive monitoring system that was supposed to let them as well as

us know if we were on the right track toward improving the habitat necessary for the fish to have a better hatching and rearing

survival than current documentation showed. NMFS, as the agency
101

in charge of anadromous species, became a serious impediment to

the certainty that we need when making management decisions.

They would delay until the very last minute giving the Forest Service an answer as to whether their planned grazing strategy had the

blessing of the regulators in charge.

In 1996, the Elk Creek Grazing Association was denied the right

to graze because Boise National Forest and NMFS could not agree

on an acceptable grazing strategy. This was done through a lawsuit

filed by several environmental groups on behalf of NMFS. This

would be our worst nightmare, at the last minute being denied a

place to graze our breeding herd during a severe down market and

virtually no other options available.

In our cattle operation, as in nearly all in the west, we have a

year-around plan. This plan includes summer grass that rests the

winter range so that it regains vigor and has the necessary rest to

sustain itself during the months of livestock use. Without that rest,

the winter range becomes stressed and the pasture quality declines, as well as the wildlife habitat that goes with that land

mass.

Currently, the grazing permittees in the Bear Valley Basin, the

National Marine Fisheries Service, the Boise Forest and the National Riparian Review Team are involved in a process to determine whether we can continue to graze in Bear Valley. On a 3-day

tour this past week, the above representatives as well as a staff

member from the Pacific Rivers Council and a staff person from

U.S. Senator Dirk Kempthorne’s office attended and we learned

that nearly all of the stream banks in question were on an improving trend, which tells me that the grazing strategy that we and the

Boise Forest put together and we as grazing permittees agreed to

is proper. The descriptive term that is used, however, is functioning

at risk, and that is not enough to satisfy the NMFS people. So the

national team will be back next month to see if there is a way to

give us a certainty that we either can or cannot return to Bear Valley in the future.

One suggestion by the NMFS representative was to put in 16-

miles of fence in an allotment that is mainly used in the Frank

Church Wilderness. This would preclude use of any mechanical

equipment in that fence construction, which would make the proposed project totally cost-prohibitive and it is doubtful that this

type of outlay would satisfy the regulators enough that they would

give the grazer any longer term assurances and that he would be

left alone.

One other wildcard is the reintroduction of wolves by the U.S.

Fish and Wildlife Service that could potentially harass the livestock and run them through any fence that might stand in their

way.

Congressman, we have purchased these grazing permits to allow

us to graze our livestock. While the U.S. Forest Service does not

recognize permit value, let me assure you that the Internal Revenue Service does, and so we are left in a very uncomfortable position wondering if we will lose these assets. We have always spent

money every year doing maintenance and improvements to continue to enhance the value of our allotments, but in this period of

uncertainty, we are not interested in spending a dime over the bare
102

bones minimum to get by. As an example, our log cabin needs

maintenance, but if we are not given any more assurance than we

currently have, I do not want to put money down a rat hole. If the

agencies involved do not come to terms, I can only envision walking

away from all the improvements and investment that we have put

in and maintained and even though the cabin is on Valley County

tax rolls, it is on U.S. Forest Service property and will have no

value.

I seriously believe that the involvement of Senator Kempthorne’s

office has done more to get this process moving than anything else

that has happened. In the past year, NMFS has given the impression that they were arrogant and would give the Forest Service an

answer whenever they were good and ready and not before. This

kind of lack of caring by the managing agency is one of the reasons

that Senator Kempthorne is working on the reauthorizing of the

Endangered Species Act to make the process function better.

In conclusion, we as permittees on the Boise Forest feel that

progress is finally happening toward clarifying where we stand in

regards to our future as grazers in critical habitat. Our problems

are in some fashion repeated all over the northwest and we deserve

reasonable certainty that we will be able to continue making a living off the land while doing our part to restore the anadromous fish

runs in the northwest.

Thank you.

Mr. CRAPO. Thank you, Mr. Little. Mr. Williams.

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

hearing.]

STATEMENT OF DR. RICHARD N. WILLIAMS, CHAIRMAN,

INDEPENDENT SCIENTIFIC ADVISORY BOARD

Dr. WILLIAMS. Congressman Crapo, members of the Subcommittee, it is a pleasure to see you this morning and to be able

to speak with you.

My name is Dr. Rick Williams, my academic and research background lies in ecology and genetics of salmon and trout species native to western North America. I serve as Chair of the ISAB, the

Independent Scientific Advisory Board, and the ISRP, the Independent Scientific Review Panel, and speak to you today in that capacity.

I am going to talk today briefly about the role of science in salmon recovery, an existing scientific consensus about how to move forward on salmon recovery and finally on the need for a single regional recovery plan.

The Northwest Power Planning Council and the National Marine

Fisheries Service created the ISAB in 1996 to provide scientific advice on salmon recovery issues to the Pacific Northwest. The ISRP

was formed in early 1997 as a result of a Congressional amendment to the Northwest Power Act. The ISRP assists the Power

Council in peer review of its fish and wildlife program and of specific projects.

The 14 members of the two science groups are all senior scientists from the United States and Canada with wide expertise in

fisheries, ecology, statistics and economics. We differ from other
103

groups of scientists in the basin due to our independent nature, our

non-representational status and a consensus mode of operation.

The Northwest Power Planning Council and the National Marine

Fisheries Service are committed to using the best available scientific information to guide program development for salmon recovery. Both groups have worked closely with us toward that end. Recent reviews of the Council’s fish and wildlife program, be they

ISAB and ISRP, which are attached to this testimony, appear to be

influencing the program’s future direction. Interactions between

NMFS and the ISAB have also been positive to this point and indicate that our reviews are influencing their program emphasis and

direction as well.

The positive interactions are in contrast to reactions from some

agency and tribal constituents who have offered sharp criticisms of

our reports, even to the point of calling for a complete rejection of

the reports and dismissal of the ISAB or ISRP. Although the region

has uniformly advocated using peer review and the best available

science to guide program development and implementation, to do

so is clearly a difficult task with hard choices that may affect many

traditional fisheries management actions and programs.

To a great degree, salmon recovery actions within the region

have been forestalled by a continuing intractable debate that centers unnecessarily on scientific uncertainty or a perception of disagreement among scientists. The focus of the debate needs to shift

to implementation of recovery actions in areas where scientific consensus exists and to the design of specific research projects that resolve issues where disagreement or uncertainty exist.

Recent reviews of the salmon problem by the ISAB, a National

Research Council panel and others identify substantial areas of scientific consensus where the region could move forward on effective

restoration actions.

The Northwest Power Act of 1981 and the Endangered Species

Act form the basis for regional salmon recovery efforts. The Northwest Power Act suggests a broad perspective calling for the river

to be treated as a system and addresses broad-scale problems resulting from hydro-electric development. In contrast, the ESA focuses more narrowly on restoration of specific populations listed

under the Act, although it includes all factors affecting these populations, not just hydropower development. Consequently, the restoration programs of the Council and NMFS are not well-coordinated. Additionally, the emergency nature of actions under the

ESA has resulted in near abandonment of the broader regional restoration objectives of the Council’s program. However, the perspective of the two laws and goals of the two administering organizations are not incompatible and indeed, should be complementary.

Measurable progress toward regional salmon recovery is unlikely

with the existence of several recovery plans which compete for limited funds. The region needs a single salmon recovery plan that encompasses the differing needs of the Power Act, the ESA, as well

as treaty obligations to the tribes. A single plan must additionally

have the support of all constituents in the basin in order to have

the political support necessary for it to persist and to provide a

likelihood of success. The plan must also be based on the best

available science. Too often political pressure and compromise has
104

led to implementation of less viable alternatives that not surprisingly fail to achieve the desired objectives.

A recovery plan based on the best available science, backed by

the support of all regional constituents, and implemented with rigorous monitoring and evaluation, would be a powerful force for

salmon recovery. The architecture for such a recovery program is

in place. Scientific and technical groups such as the ISAB, the

ISRP and PATH have already identified and can continue to identify the best scientific information and analyses to aid and guide

salmon recovery efforts.

The role of the Northwest Power Planning Council in guiding implementation of salmon recovery measures has recently been expanded through the Congressional amendment to the Power Act.

Ongoing ESA listings argue that NMFS’ role in implementing actions to recover weak stocks will continue to increase. Therefore, it

seems paramount that a forum be identified whereby the recovery

goals of the Council’s fish and wildlife program, NMFS’ ESA driven

actions and tribal obligations can become complementary parts of

a single unified salmon recovery program.

The biggest challenge facing the region is not the biological uncertainties associated with salmon recovery efforts, but is whether

the region is willing to face the fact that we can no longer have our

cake and eat it too. Restoration of fish and wildlife in the Columbia

River Basin will require difficult decisions and will test whether

the region’s policymakers, elected officials and management institutions can find the political will and strength necessary to endorse

and implement a scientifically sound salmon recovery program.

Thank you for the opportunity to speak today.

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

hearing.]

Mr. CRAPO. Thank you, Mr. Williams, and I thank all of the

members of the panel for their testimony.

As I did before, I want to go through with each of you just a couple of specific questions and then have a discussion with the panel

on some of the issues that have been presented.

Dr. Casavant, you indicated, as have some of the others, that for

all practical purposes, NMFS runs the Columbia River. Am I correct about that?

Mr. CASAVANT. The direct components and the hydro operations,

that is correct.

Mr. CRAPO. And is that essentially because NMFS basically has

the ability to control the biological opinion and the other operating

agencies, for one reason or another, comply?

Mr. CASAVANT. That is correct, under the existing statutes.

Mr. CRAPO. Mr. Williams just indicated that there is not necessarily a conflict between the Northwest Power Planning Act and

the Endangered Species Act, but that we need to move—and I do

not want to put words in Mr. Williams’ mouth, but we need to

move toward a system in which those acts are more effectively operated together.

I take your testimony to say that you do not believe that the

Northwest Power Planning Council has sufficient authority in

terms of the management decisions that need to be made with re-
105

gard to fish and wildlife and hydropower management, is that correct?

Mr. CASAVANT. That is correct, and in two ways, Congressman.

Mr. CRAPO. Would you please elaborate?

Mr. CASAVANT. The first is that the relationship of the Power

Council to the operating agencies has always been one of almost

advisory capacity where the operating agencies, the BPA, are to

take into account our program. But we have always had the responsibility but not specific authority to call forth the full implementation of our fish and wildlife program.

Secondly, relative to NMFS, we are looking at the entire Columbia and Snake River basin, we want to restore, rebuild, protect,

mitigate, enhance throughout that region. At times, the activities

concerned with saving the listed stocks may create conflicts with

resident fish up river or in other areas, or non-listed anadromous

fish.

Mr. CRAPO. You just said at times that conflict occurs. Does that

happen regularly?

Mr. CASAVANT. The potential always exists. Periodically, whether

it is impacts of hydro operations on Lake Roosevelt Reservoir in my

State or in the two storage dams in Montana, we think we do see

impacts on resident fish, whether through entrainment or nutrient

retention times.

Mr. CRAPO. Okay, and Mr. Ray, if you could take the microphone

for a minute.

Mr. RAY. Yes.

Mr. CRAPO. You also indicated—and I just wanted to make sure

I understood this correctly—you also indicated that you believed essentially for 20 years or so in one way or another, but especially

since the Endangered Species listing that National Marine Fisheries Service has effectively controlled the management of the

river; is that correct?

Mr. RAY. I do not believe they have been very effective in managing the river at all. If so, we would not be here today.

Mr. CRAPO. But that they have, for all practical purposes, controlled the management of the river.

Mr. RAY. I believe in reality, the river is still controlled by the

Bonneville Power Administration and the Corps of Engineers.

Mr. CRAPO. And how do you square that with your comments as

well as those of Dr. Casavant with regard to the influence that

NMFS has over the management and control of the river?

Mr. RAY. I believe NMFS has some influence. NMFS makes suggestions. I think the bottom line, when it comes right down to it,

the Corps does what it wants to and NMFS is seldom able to buck

what the Corps wants to do. That is why I believe that Congress

could exert a great deal of influence by clarifying the authorization

of these dams on the lower Snake and Columbia Rivers to make

the Corps a little more amenable to changes that are necessary to

restore these fish. And it needs to be done quickly too.

Mr. CRAPO. All right. And you gave six recommendations in your

testimony.

Mr. RAY. Yes.

Mr. CRAPO. In your recommendation No. 2, you indicated that

NMFS must eliminate its juvenile fish barging program and return
106

the fish to a significantly less lethal river and you stated that there

was very little evidence in support of NMFS’ current emphasis on

barging. It is my understanding—and again, NMFS is going to be

able to testify later today about this—but it is my understanding

that NMFS’ contention is that given the current status of information we have, that the barged salmon return more effectively than

the salmon which were not barged, do you have a comment on

that?

Mr. RAY. I believe NMFS can probably trot out some numbers to

that effect and whether or not they are scientifically valid—probably Dr. Williams would be a better judge of that.

Mr. CRAPO. I am going to ask him too.

Mr. RAY. But I have never seen NMFS or anybody else come

forth with any kind of—not a single shred of evidence that indicates that barging can achieve a 2 to 6 percent smolt to adult ratio

that the Idaho Department of Fish and Game and I believe the

PATH members concur is necessary to restore these fish runs.

Mr. CRAPO. Do we have data—were you finished?

Mr. RAY. Pardon me?

Mr. CRAPO. Were you finished?

Mr. RAY. Yes, I am.

Mr. CRAPO. Do we have data on—or significant data—and by the

way, I am going to come back to you with these questions, Mr. Williams, so remind me to ask them to you if I forget. But do we have

data on the effective returns of fish who are allowed to go through

basically the spill program that the State of Idaho was proposing

to be studied more effectively in the last proposal? Here is the

question I am getting at. The National Marine Fisheries Service indicates that the current data they have show that the barged fish

return more effectively. What I understood you to just say and

what I understand Dr. Bruce to be saying also is that we do not

have data on a river that is more normative and I understand that,

but do we have—there has been a debate over whether to spill fish

or whether to barge fish. Do we have data on the spill issue? Do

you see what I am asking?

Mr. RAY. Yes, I do see what you are asking. If my recollection

is correct, Harza Engineering put forth some preliminary work on

that and it had to do with fish that—juvenile fish, PIT-tag juvenile

fish that were not detected anywhere down the system, which presumably means they were spilled going down the river, compared

to those same fish coming back as adults. If my recollection is correct, Harza concluded that those fish come back fairly successfully.

The numbers I do not remember.

Mr. CRAPO. All right. Before I forget these questions, Dr. Williams, let me move to you for just a moment, and we will come

back to you, Mr. Ray.

Dr. WILLIAMS. I could just follow up on what Charlie is talking

about.

Mr. CRAPO. Why do you not just follow up on that line of questioning.

Dr. WILLIAMS. I think several things are being confused here.

The first item is that yes, NMFS does have data that appear to be

scientifically valid that now show, based on this year’s returning

class of fish, using the current PIT-tag technology, about a two-to-
107

one benefit ratio of transported to in-river passage. So the simple

answer is yes, it looks like the transported fish have a higher survival. But that is not to say—and I think that is the point that

Charlie was trying to get at—that that level is sufficient to lead to

restoration. It still does not get us to the 2 to 6 percent return,

adult return rate that is necessary for restoration. And many people in the region tend to confuse those two points.

The second thing is the discussion about spill and the Harza data

do indicate, and our own analysis that the ISG did in Return to the

River, was that spill is in fact the most benign method of passage

for juveniles around a hydro project—over it, I guess it would actually be. But a fish left to move down the river in-river will not necessarily go around each dam by spill. They can also possibly go

through the turbines, through the bypass systems and there are,

in many instances, dam-specific higher mortalities associated with

those alternate routes of passage.

So to simplistically talk about fish that are better off in-river

versus the dams confounds the different routes of passage that inriver fish can have through the projects, some of which are benign

and many of which are not. We have had a very hard time as a

region gathering data on those routes of passage until the advent

of the PIT-tag technology, which you and I had a chance to see at

Lower Granite, and that information, particularly as we move forward in installing additional PIT-tag detectors throughout the system, we should gain considerably more insight into mortalities associated with various routes of passage.

Mr. CRAPO. Well, here is the question that I am trying to get

straight in my mind, because I have these conversations with different points—people with different points of view on what is the

best route of passage. And as you know, in the Idaho plan or Idaho

policy, there was significant consensus that we should do more

spilling. NMFS did not agree with that, and if I understand their

position correctly, it is because of this two to one ratio that they

have showing that barging—barged fish return better. The question I have is is the two-to-one ratio, barging versus spilled fish?

You are saying no. Could you explain that?

Dr. WILLIAMS. No. Again, it gets back to, it is the comparison of

those transported versus those that have gone in-river. And as I

just commented, in-river could be spill, turbine passage, bypass

system passage, and both turbine and bypass passage in many instances are particularly tough on smolts.

Mr. CRAPO. Did I hear you say that it is your opinion that the

most benign form of passage of a facility is spill?

Dr. WILLIAMS. Yes. However——

Mr. CRAPO. However, you cannot make sure that all fish are

spilled at all dams?

Dr. WILLIAMS. Yes, that is part of it and then the other thing is

that in high to higher water years, as several of the last years have

been, gas saturation starts to buildup as spill builds up. So there

is clearly a fine point, probably in the mid-range of flows, where

spill is the optimum route of passage. At low water years, bypass

around the facilities is difficult for the smolts, period. There is not

enough water to spill and so the fish are faced with either turbine

bypass, going through the bypass systems or the barge transpor-
108

tation system. At very high water, we get gas saturation levels at

some facilities that will reach 140 to 145 percent. There is great

argument in the region right now about what level smolts can

withstand but there is general agreement that anything over 125

and certainly levels up toward 140 are lethal.

Mr. CRAPO. So tell me if I can correctly restate what I am learning here. In your opinion, if we could assure that all fish were

spilled at all dams, that would be preferable to barging the fish.

Dr. WILLIAMS. Assuming it was within the——

Mr. CRAPO. And assuming the gas levels—were within the right

saturated gas levels.

Dr. WILLIAMS. Right. And indeed the new work on surface collectors is built on that premise, that we need to find a mechanical

means of increasing the ability of smolts to find the spill bypass

route.

Mr. CRAPO. Do you believe we should continue the effort on the

surface collector research?

Dr. WILLIAMS. At this point, yes, but neither I or any of our

group have seen any of this year’s data. Reading the summary

statements from Mr. Stelle’s testimony, it appears that the results

from the first 2 years were not very promising, but it is based on

a sound biological premise and at least the preliminary data that

I saw this spring during a site visit, were very encouraging. So that

needs to be followed with very rigorous monitoring and evaluation

of whether those systems are worth what they are costing us in

terms of time and money.

Mr. CRAPO. All right. Now I do not know whether you are in a

position where it is proper for you to take a position or whether

you have already done this, but I will ask you and you can tell me

whether you feel that it is beyond your prerogative at this point,

but have you taken a position on the Idaho policy that the State

of Idaho worked out with Governor Batt?

Dr. WILLIAMS. No, we have not.

Mr. CRAPO. Are there any studies that try to resolve this flow

survival relationship that are currently underway?

Dr. WILLIAMS. No, although there has been a great deal of discussion, of course, about the need for that and we have had discussions with both Council members, Council staff and NMFS staff

about the need for it. It has been intimated that the ISAB would

be asked to try and help reach resolution on the flow issues. We

have some new analyses we have been doing ourselves while we

are trying to finalize publication of Return to the River. But we

have not had a formal request to try and resolve that issue and no

one else, to my mind—PATH probably has done a great deal of

work on that issue as well, but it has not been definitively looked

at.

Mr. CRAPO. And is there any effort to develop data regarding

managing hatchery stocks versus the wild fish?

Dr. WILLIAMS. Actually there have been a number of efforts, including some of our own work, to try and address those, but there

has yet to be a good comprehensive review and evaluation of hatcheries and their impacts on wild stocks. Such a review would help

define how—what we might expect to gain from hatcheries, how

viable supplementation is, whether it is viable at a large scale, as
109

envisioned by some people, and should provide considerable guidance for future use of hatcheries. It is my understanding that language calling for that kind of a review is in Congressional appropriations language at this moment.

Mr. CRAPO. Well, that gets to one of my questions. With regard

to both the question of the flow survival relationship and then the

hatchery versus wild fish studies, why are we not doing those studies?

Dr. WILLIAMS. Well, from a very literal point of view representing the groups that I chair, we have not been asked to. But

that probably begs the larger question. I think we are on the verge

of doing both of those. I think the hatchery one, actually there is

enough interest in the region, particularly with the really profound

failure of the draft programmatic EIS earlier this year to address

those issues, I suspect that the region will call for a comprehensive

review of artificial production, whether Congress mandates it or

not.

Mr. CRAPO. Well, who needs to ask for those studies to be undertaken?

Dr. WILLIAMS. Again, it depends on what level. Certainly the language, the Congressional appropriations language I have seen so

far, if passed, would be more than adequate to get that hatchery

review, the artificial production review rolling. As far as the way

our independent science groups work, formal requests for reviews

or participation come to us from either the Council or NMFS, and

either one of those authorities could ask us to undertake or supervise or broker a review of those subject areas.

Mr. CRAPO. And then would they provide the funding for it if

they requested the study?

Dr. WILLIAMS. Yes, it comes out of the larger salmon cap and

some of the money that funds our group anyway.

Mr. CRAPO. All right. You want to hand the microphone back to

Mr. Ray? I interrupted, did you want to add anything further to

what we were discussing, Mr. Ray?

Mr. RAY. Just a bit, still on that subject. I do not think NMFS

is willing to put down barging on its own. And I think as long as

barging is the treatment of choice down there on the river, needed

change is not going to happen. So in order to facilitate change and

to get us away from the status quo, I think it is quite appropriate

and quite timely for Congress to put an end to barging, either

through legislation or through the budget process, because I do not

think any of the Federal agencies are going to do it on their own.

Mr. CRAPO. And I wanted to go to your No. 3 request, which

was—one of the subparts of that, if I read it correctly, was that you

do not believe there has been adequate disclosure of the specific details of the improved transportation alternatives.

Mr. RAY. Not at all—not at all. Nobody has ever told me what

comprises improved transportation, what smolt to adult ratios can

be expected with improved transportation and what evidence exists

today to indicate that improved transportation might achieve those

SARs. It is a big unknown. We know a lot about breaching dams,

we know all the horror stories that can be generated. We do not

know anything about improved transportation.
110

Mr. CRAPO. And I understand your statement here to be that

there are several alternatives that NMFS is looking at, and that

alternative, you do not have the information to know what it is

they are evaluating.

Mr. RAY. No, and I have not been able to get that information,

even at the hearing that occurred a couple of months ago in Lewiston, COL Griffin went into great details about the breach option

and then he made a very cursory mention of the improved transportation option and I guess the third option is the status quo, just

to continue to let these fish dwindle to extinction. That is the only

three options I have seen on the table. And nobody has ever been

able to tell me or show me specifically exactly what they mean by

improved transportation. How much more Idaho water does it take,

what results will it achieve and what evidence indicates that those

results are achievable.

Mr. CRAPO. Is it your opinion that the transportation approach,

the barging approach, will require more Idaho water than other alternatives—than the other alternatives?

Mr. RAY. Oh, absolutely. And I think that has been demonstrated

quite well in the past few years. You know, if it is truly better to

take the fish out of the lethal river and to remove them from this

environment that is definitely killing them, then why do we need

the 427,000 acre-feet in the first place? Is it simply to get them

through lower Granite Reservoir? I do not think so. Why do we

have flow targets that NMFS makes a minimal effort to achieve on

some days in some seasons? Why do we even have flow targets if

NMFS’ policy, which they demonstrated quite readily, their policy

is to barge every single fish they can catch. If we are taking them

out of the river, why do we need to put more water in the river?

Mr. CRAPO. I want to go into your No. 5 and No. 6 issues, but

I want to do that in terms of the broad discussion we have.

Mr. RAY. Okay.

Mr. CRAPO. So I would like to go to Mr. Bruce right now.

Mr. Bruce, you and your organization supported the Idaho policy,

is that correct?

Dr. BRUCE. Yes, we did.

Mr. CRAPO. In your testimony, you indicated that you thought a

more accurate explanation of the cost cap should be made available

to the public in terms of what foregone revenue it really is and I

understand you to be also saying that you felt that that concept is

applicable to more than simply fish. Correct?

Dr. BRUCE. What I am saying is I have had, over the years, I

have had a lot of people comment to me and say gosh, $450 million

is a lot of money to spend on salmon and we are not getting very

good results. And I agree it is a lot of money. But I think people

need to understand that it is not $450 million in hard dollars actually and they need to know what the foregone revenue is. In the

last couple of years there has been very little discussion about it,

but I do not think that that foregone revenue amounted to nearly

$450 million or whatever the amount was before. I think the public

needs to know that. That is my concern.

Mr. CRAPO. Do you believe that the concept of foregone revenue

as applied to power is a proper concept in terms of evaluating or

making management decisions on the river? And I want to give you
111

a little more explanation of what I am saying. You could use foregone revenue in terms of—you said yourself, you could use foregone

revenue in terms of fish, which is being done, or you could use it

in terms of irrigation or transportation or I suppose you could use

it in terms of power, if that water were being taken away from

some other use that could generate revenue. Is the decision to utilize it for power purposes a proper utilization of that concept?

Dr. BRUCE. Well I guess I think that if we are going to talk about

foregone revenue, we should apply it to—we are using it for fish

and power purposes, but we also should talk about water that goes

out for irrigation, for drinking water, that goes through the navigation locks, et cetera. It seems that right now, the only user in the

river that is charged is the fish, yet there is a lot of other water

that goes out for other purposes that does not get charged.

Mr. CRAPO. Have you seen any studies or are you aware of any

group that has done a study to evaluate those other uses of that

concept?

Dr. BRUCE. I cannot say that I have, no.

Mr. CRAPO. Are you aware of any efforts to try to make barging

salmon more successful? This gets back a little bit to the discussion

Mr. Ray and I were having about not knowing the details of what

is the improved barging alternative.

Dr. BRUCE. I also do not know what their improved barging alternative is. I have heard about it, I have heard it talked about.

I assume that the surface collectors, newer, better barges, but I am

of the same opinion, that after 20 years of barging these fish, we

have not been successful and I do not think we are going to restore

this fish by barging these fish, no matter how improved it is at this

point in time.

Mr. CRAPO. Now I have been a big supporter of the surface collector. Do you support the surface collector research?

Dr. BRUCE. I guess I could perhaps support the research, but at

this point in time, from what I understand, as Dr. Williams said,

it does not seem like they have been terribly successful and I have

a concern that no matter what you do with surface collectors or

whatever, once you collect and handle these fish, particularly the

salmon smolts, I do not know that we fully understand what this

handling does as far as stress and so forth. Just that handling

alone and collecting them, running through tubes and so forth, how

does that affect their chances for survival? I do not know that we

understand.

Mr. CRAPO. The reason I have supported surface collection is because it seems to me that—and I just want you to comment on this

with me—it seems to me that it is a technology which, if successful

would enable us to move in any direction in terms of where the fish

would need to be guided in the river. That could include using it

for spill, could be—I assume it could be used for barging, which it

is now being used for or some other alternatives if something else

came up. The question I have is, it is my understanding that Idaho

Steelhead and Salmon Unlimited—and I do not want to speak for

the group, so you need to clarify this for me if it is not the organization’s position, but it is their concern that the surface collection

devices have been being researched and developed only for the pur-
112

poses of facilitating barging, and that that is a strong concern

about the continued research and utilization of those facilities.

Dr. BRUCE. That is a concern, we are concerned that if they continue to put millions of dollars into surface collectors and new

barges and so forth that that will prejudice that 1999 decision. But

I guess that I am concerned that even if we have effective surface

collectors and we are able to decide if we want to put those fish

in a barge or if we want to spill them, in low water years, I am

still concerned that we are not going to have enough flow through

those slack water reservoirs, even though we have spilled those

fish, for them to have good survival rates, without having to try to

take so much Idaho water, which we do not agree with, and I do

not think there is enough Idaho water to achieve that flow and that

velocity that is necessary.

Mr. CRAPO. So you are saying the surface collector would not

really work anyway in those circumstances?

Dr. BRUCE. I do not personally think that in those low water

years, it would be very effective in that circumstance.

Mr. CRAPO. Dr. Williams, could you respond to that as well? On

the surface collector; first of all, is the surface collector a good idea

for facilitating effective spill?

Dr. WILLIAMS. It could be and it has looked promising. I would

not, I guess, be overly concerned about the lack of really positive

results the first couple of years. I am concerned about it, I do not

want to make light of it, but it seems that with every new technology we step into, there is a much steeper learning curve than

we typically anticipate and it takes a lot more fine-tuning, a lot

more time, a lot more dollars to fine tune it, and our visit to Wells

Dam really highlighted that for me. It is now the icon that the rest

of the basin holds up for benignly spilling smolts and achieving,

what is it, 90 percent passage of smolts with 3 percent of the water

coming in? But it took them 20 years to fine tune it to get it to

that point. And I would agree with Charlie that we do not have 20

years right now to do that. So I guess it is a cautious endorsement

but it is an endorsement that needs to be followed up by rigorous

evaluation and if a year or two from now no promise is being observed, we will be right at that 1999 decision point.

Mr. CRAPO. Dr. Casavant, do you have an opinion on the surface

collector issue? Do you want to add anything?

Mr. CASAVANT. I would just like to add that Wells is the prototype, Wells project, works very well there. It has been tried at the

Rocky Reach Dam and the Wanapan Dam for the last 2 years with

varying results. Both of those projects had enough positive results

that the PODs decided to continue on with the effort. Along with

Rick, I am a little concerned with not very positive response first

couple of years, but I also believe that it took us a longer time to

learn about other technologies, it will take us time to test and reshape this.

Mr. CRAPO. All right, thank you. Why do you not hand it down

to Mr. Little. I do not mean to leave you totally out of this discussion, Jim.

Mr. LITTLE. I have been busy passing this microphone back and

forth.

[Laughter.]
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Mr. CRAPO. I just want to clarify and make very obvious, there

is no question in your mind that the Idaho Cattle Association

strongly supports salmon and steelhead recovery.

Mr. LITTLE. Oh, yes, that is correct.

Mr. CRAPO. And can your livestock operations coexist with a

properly implemented anadromous fish restoration project?

Mr. LITTLE. I hope so. This team that is reviewing what we are

doing now, I think will probably come up with something, and at

least three of the people that are participating in it are in the room

now and it is a pretty in-depth process and I think it can be. I

think with the improving trend, I think the Forest Service has

done a lot of work and we have—and the monitoring costs, you

know, they are really exorbitant it seems, but it is the only way

we are going to know. And I think that they are showing that we

are coexisting. I am real concerned about the take provisions, that

we got zero take tolerance. As I said in my testimony, the feds have

decided to have an experimental population of wolves and we have

got three of them hanging around our cow camp and we have not

had any documented losses, but we are sure exasperated by it and

if they get to pursuing this cattle, about any structures we put up

to try to keep the cattle away to have a zero take, will not mean

much.

Mr. CRAPO. It sounded to me from your written as well as your

oral testimony that a significant part of the concern that you raised

dealt with process as much as substance of whatever the recovery

plan might be. Am I correct about that?

Mr. LITTLE. Yes, and again, it seemed like for so many years that

we needed an answer, because as I said in the testimony, we have

a year-round operation and if we find out we cannot go at the last

minute, we are in a desperate situation because in a State that is

70 percent owned by either the Federal or the State government,

there is not a lot of alternative economic ways of managing livestock other than through summer grazing. And so we have been

hung out lots of times until the middle of June and while we get

assurances from the District ranger, he is a small part of this

thing. There is an awful lot going on that he does not have a clue

about. So we just have to wait until the Fisheries Service makes

a decision and that is what we thought was the process it turned

out, it was not. The USFS would submit the next year’s plan in December and we would not get answers, and we thought there was

some sort of response time, but we found out that under existing

law that was not the case, and it sure left us hung out and we are

still terribly uncertain as to whether we can go from one year to

the next. And fence maintenance, we just do the minimum. We just

do not want to put money into this thing and then be just starved

out of it, and that is our concern.

Mr. CRAPO. Well the concerns you raise are very consistent and

similar to concerns that I get from a number of those in the cattle

and wool growing industries who talk with me through the Second

Congressional District, and the concerns generally are—I want you

to tell me if I am right about this and to comment on it further—

the concerns are that in working with the managing agency,

whether it be the Forest Service or the Bureau of Land Management, that they generally have been able to work things out with
114

whatever the requirements were, but that then they were not able

to get finality until approval from the National Marine Fisheries

Service, and that that approval in some cases never came or came

after very long delays and no time lines that anyone was bound by

or made aware of or required to follow. And it just seemed as

though when the answer came, the answer came and that was

what you were going to get.

Is that what you are trying to—did I correctly restate the experience you have had?

Mr. LITTLE. Yes, you did. And that has been our frustration because in my brief tenure on the Pacific Fisheries Council, I realized

that NMFS has a full plate of issues to deal with on the ocean side

of the issue, and this is a new area for them moving this far inriver, to suddenly be the managing agency and I think in their defense, that has been part of the problem. But how they have handled it has been, as far as I am concerned, less than exemplary.

And that has been my great frustration with the way this process

has gone.

Mr. CRAPO. So when we talk about the process for making decisions on the broader scale of how you decide how to govern the

river, a specific part of that is that we need to, right down on the

ground, so to speak, where we are making decisions about permit

operations and so forth, we need to have some time line requirements, we need to have some finality and some fairness to the

process.

Mr. LITTLE. That is what I feel. You know, from a historical

standpoint, the country that I graze in was used and abused for a

lot of years and way before the advent of the Forest Service, and

then as we got to looking at the process, we were concerned about

the uplands, and so we put our emphasis on trying to design a

grazing system to make the watershed healthier and not realizing

the importance of the riparian areas. And that has been the learning curve for everybody in the agency, the society of range management and everybody else. And so, there is times we feel like we are

being put upon for maybe the unknown sins of our forefathers and

we are trying to do the right thing and, you know, this is something that we really work toward, but we sometimes get a bum rap.

Mr. CRAPO. All right, thank you. I have a couple more questions

for Dr. Williams and then I want to get to the general discussion.

Dr. Williams, there are some questions I want to ask you, I think

you have already answered it to some extent in our previous discussion, but is there sufficient scientific consensus for us to move

ahead and do as Mr. Ray and many others have suggested, and

that is consolidate all the different competing recovery plans and

move ahead?

Dr. WILLIAMS. I believe so. There are two clear recovery plans.

One is the Fish and Wildlife Program of the Council, the other is

the Biological Opinion, the suite of documents that NMFS oversees,

which is the forthcoming Snake River recovery plan, the Biological

Opinion, so forth. And then there is also the tribal plan and then

a number of other more specialized, smaller scale plans. They have

strong themes in common and these emerge from some of the other

reviews and other symposiums on the salmon problem. Everyone

recognizes the problems with habitat and the hydropower system.
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There are areas of strong contention and disagreement and uncertainty and certainly our discussion this morning highlights one of

them and that is transportation. Another one is the need for flow

augmentation and flow survival relationships. Another critical uncertainty is the role of artificial production, and indeed that is

probably the area that the tribal plan differs the most from the

other plans.

So we can move forward on areas that we know there is agreement on problems, and what—a lot of what Mr. Little just talked

about reflects our increasing understanding of habitat problems, riparian problems, the needs for fish, those areas. We can design research to tackle the other issues.

It is not going to be a simple task at all to create a single unified

plan that all the constituents buy into, but it is my strong belief

along with all of my group that the region cannot move forward on

salmon recovery without a single plan that everyone can get behind.

Mr. CRAPO. You indicate in your testimony that—well you talked

about both the ISAB and the ISRP. I understand the genesis of

both of those science groups. Is their membership significantly the

same?

Dr. WILLIAMS. Eight of the ISAB members currently serve on the

ISRP.

Mr. CRAPO. And how many members are there on the ISRP?

Dr. WILLIAMS. There are actually 11 members in each group, so

there is a total of 14 people involved, 8 shared members.

Mr. CRAPO. So there is significant overlap.

Dr. WILLIAMS. Yes.

Mr. CRAPO. Do they have essentially different functions?

Dr. WILLIAMS. The charges of the groups differ. The ISAB is

largely a review and technical body that provides assistance usually on requests from topics by either NMFS or the Power Council.

The ISRP actually does not interact with NMFS at all, it is a creature of the Council—not a creature of the Council, but an advisory

body to the Council formed by the recent amendment to the Power

Act, with a much more specific charge than the ISAB, and its

charge is to review the fish and wildlife program and its related

projects.

Mr. CRAPO. Okay, and getting to the areas of consensus that you

identified in your testimony, your first point was that salmon decline comes from many causes and there is no silver bullet. Many

people say that given the fact that there are many possible causes,

there is one source of the decline that is much larger than any

other source, namely the dams. Is that correct?

Dr. WILLIAMS. I believe so, particularly for Snake Basin stocks.

However, there is an emerging opinion and a heated debate about

the role of ocean productivity in that as well, and that is a legitimate debate. But to ascribe the salmon’s problem completely to the

dams or completely to ocean productivity is an over simplification

of it.

Mr. CRAPO. And you have probably heard of the 4 H’s—harvest,

habitat, hydropower, and what am I forgetting?

Dr. WILLIAMS. Of course. Hatcheries.
116

Mr. CRAPO. Are those 4 H’s still a pretty good general approach

to what the issues are in salmon recovery?

Dr. WILLIAMS. They actually are. I know our group—they have

become such icons in the way we view the river that they have almost become trite in some ways and yet our group struggled to actually find a different approach to the salmon problem and that is

a pretty good approach. It captures a lot of the problems. The one

really strong point I would like to make though, as we talked earlier today about comprehensive review of artificial production and

subsequent reform of our use of hatcheries. That will be a fairly

pointless exercise if we do not do harvest reform at the same time,

because the harvest management drives the hatchery program in

the basin.

Mr. CRAPO. I am working on trying to get a hearing on that issue

specifically, but we will do that in another hearing probably, hopefully.

For both Dr. Casavant and you, Dr. Williams, it seems to me

that so much of what National Marine Fisheries Service seems to

be focused on and doing in its proposals assumes the current configuration of the dams. And I guess the question I have is do you

think our region in developing a salmon proposal should assume

the current configuration of the dams?

Dr. WILLIAMS. I do not believe that, nor do the other members

on the ISAB. In fact, when you boil it all down, if we are going to

maintain the status quo, particularly in the lower Snake, which is

what a lot of this discussion is focused on, transportation probably—the National Research Council panel that reviewed the salmon problem probably said it best. They said that basically in the

status quo, transportation is probably the best option fish have to

get down the river alive. However, the transportation system alone

will not bring about salmon recovery. So the bottom line of that is

if we are not willing to change the river in a fairly major way, we

probably are going to lose the salmon in Idaho.

Mr. CRAPO. And before I go to you, Dr. Casavant, let me followup. Your second point in the consensus that you believe that

science has now given us says that the replacement of salmon or

salmon habitat by artificial means such as artificial propagation

and supplementation has in many cases not lived up to its expectations. In spite of individual and minor successes the current approach to salmon recovery has failed to reverse or even halt the decline of salmon.

I assume that what you are saying there is that—what you just

said, that the current focus on transportation, without other

changes in the configuration of the river, of the dams and the management of the river, will not result in salmon recovery.

Dr. WILLIAMS. That is correct.

Mr. CRAPO. Will it cause the extinction or will it ultimately result in extinction?

Dr. WILLIAMS. Don Chapman probably put it best, he said it is

going to slow extinction.

Mr. CRAPO. It will slow extinction down but not make extinction—but not stop extinction.

Dr. WILLIAMS. That is correct.
117

Mr. CRAPO. Thank you. Could you hand the microphone to Dr.

Casavant. Doctor, the same question, if you would, please.

Mr. CASAVANT. First, I assume that Will Stelle will talk about it,

but I am not so sure that NMFS has assumed the configuration of

the dams will not change.

Mr. CRAPO. That is a fair comment and I am sure he will correct

me on that.

Mr. CASAVANT. The 1999 decision will be in front of us and they

are in the range of possibilities. I personally do not think we had

better assume that no changes will occur to the dams, whether it

be breaching or lowering of some of the pools behind those dams.

If we eliminate all those off the table scientifically and as management folks, we have greatly narrowed the possibility or the options

that are available to us.

Mr. CRAPO. Now let us clarify here, this does not necessarily

mean bypassing the dams.

Mr. CASAVANT. You mean as in breaching?

Mr. CRAPO. Breaching, yeah.

Mr. CASAVANT. No. Let us see, that is an option that is out there

obviously, but the configuration of the dams that people really are

talking about is either lowering or drawing them down either on

the Snake and/or John Day pool on the lower Columbia.

Mr. CRAPO. All right. Back to you, Mr. Williams, I am sorry to

keep—yes, go ahead.

Mr. CASAVANT. If I might while I have this great microphone

here, on the hatcheries and production, the Council is currently

and will be finalizing probably at our next Council meeting a task

force, a regional task force to look at hatcheries and production and

its relation to the wild stocks. The Fish and Wildlife Committee

has been working on this for 4 or 5 months. Now it has been

spurred on by the report of the ISRP that says a regional assessment, not just of those that are under the BPA dollar mandate, but

all of the hatcheries in the region should be undertaken. Then the

potential appropriations language further pushes in that area, so

we will in the next months, let us say, be scoping and developing

a task force on hatcheries and wild stock interaction.

Mr. CRAPO. All right, thank you and I appreciate that. One last

question to Dr. Williams and then we will go to this broader discussion. Doctor, your last paragraph states that the biggest challenge

facing the region is not the biological uncertainties associated with

salmon recovery efforts, but whether the region is willing to face

the fact that we cannot have our cake and eat it too. What do you

mean by—describe what you mean by having our cake and eating

it too.

Dr. WILLIAMS. Basically the status quo. You asked Charlie an interesting question earlier today. You asked if he felt NMFS had

been running the river for the previous 20 years. And what I think

he said was no, but probably in the last 6 since the listings. What

has been running the river for the last 20 years is largely economic

industrial status quo in the basin and the fish have generally

taken the hit and that is really why we are all here today and why

we are in the situation we are with all the increased listings. So

that is essentially what I meant by that statement, is that we are

going to have to change—if we sincerely want fish back and we
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commit to having a salmon recovery program that is based and

driven by the best available science, we clearly cannot keep using

the river the way we have been.

Mr. CRAPO. All right, and that gets me to the discussion that I

would like to pursue, right back to Mr. Ray’s proposal but that does

not mean anybody else cannot have input or a proposal or suggestion, but Mr. Ray, you suggested that before—if I understood your

point 5 and point 6 correctly, it was that yes, Congress should figure out a process of decisionmaking, but before it does that, we

should have our current salmon managers reconcile the three plans

into one. Am I correct about——

Mr. RAY. Yes, that is correct. And I want to clarify something.

I do not think—well, to go back to point 5, I think I agree that it

is essential that we have one unified plan, that is a scientifically

derived plan, not a politically derived plan, but a scientifically derived plan. What these fish need, what has to happen to keep the

promises, to restore the runs. Then in order not to decide whether

or not we are going to implement the plan, but to decide how we

are going to implement the plan, we need the three sovereigns, in

my opinion—the States, the Federal Government and the tribes—

each with an equal seat at the table, to figure out not whether to

implement the plan as the prior Council spent the last 17 years deciding whether to do something, not how to do it but whether to

do it. NMFS does the same thing. After we have the plan on the

table, we do not decide whether to do it, we know we are going to

do it, we decide how best to do it in the most expeditious manner.

Mr. CRAPO. And do you believe it is possible to reconcile the

three plans into one plan, given the current decisionmaking process

under which we are operating?

Mr. RAY. No, I do not. I do not think the current decisionmaking

process is going to reconcile anything.

Mr. CRAPO. Anybody else want to comment on that, or what I

would like to do is throw it open right now on the issue of what

should Congress do, if anything, to identify a path forward, and I

am assuming we are talking about a decisionmaking process here.

Mr. RAY. Since I have got this microphone in my hand, I want

to step back to something that does have a bearing on this question

that is on the table right now.

I think NMFS does have a pretty good idea what they are going

to do in 1999. I think they are foreclosing alternatives really quickly and in order for you and for Congress to find out really what

NMFS intends to do in 1999, I think you need to follow the dead

fish and follow the money. The biological opinion that we have on

the table right now, which is the trial run for the NMFS recovery

plan, allows 24 to 86 percent of juvenile sockeye to be killed at the

dams, 24 to 86 percent of juvenile spring and summer chinook and

62 to 99 percent of fall chinook. It allows the Corps—NMFS says

it is okay, Corps, for you to kill all these fish, and even if you do

kill all these fish, it does not jeopardize the species. That is the

trail of dead fish you should look at.

The second thing you should look at is the trail of money. The

Corps’ 5 year spending plan devotes nearly $500 million to measures almost solely capital expense measures that are intended to
119

almost solely complement the transportation program only. And

NMFS has given its blessing to this Corps spending plan.

So to me, it is fairly obvious where NMFS is heading.

Mr. CRAPO. Hence your recommendation about Congressional action in that area.

Mr. RAY. Absolutely. Thank you.

Mr. CRAPO. Dr. Casavant, did you want to——

Mr. CASAVANT. Well, I suggested in my testimony, both the written and the oral, that what we are after is indeed a mutually

agreed upon plan in the region. Then that plan is implemented by

the authorities under their existing statute of rights and obligations. But within that, and here is where Charlie and I might split

the sheets a little bit, in the process, the economic, social and commercial folks have to be brought into the process, whether it is by

the State governments through their State representatives or

through an open public policy discussion such as the power counsel

has. I am the only remaining person who voted for the 1994 fish

and wildlife program. That was DOA and it was DOA not because

anybody proved scientifically it was bad or it did not do enough,

it was that the political support was not there in the region. We

have got to build—it would become even messier, but if we can

build like we are trying to do right now, a three sovereign effort

to get a plan and in that development of the plan, we have public

process, I think then we will have something that will stand, either

support from the legislature, legislative action, or the region itself

stand behind it.

Mr. CRAPO. Let me explore that a minute, and I welcome anybody to jump in here, just stick your hand out and claim the microphone if you would like to say something. But it seems to me that

the issue you have just raised is a very critical one, we do need to

have the three sovereigns involved. And their testimony in the earlier panel indicated that the practical problems with trying to give

decisionmaking authority to a group that did not involve

sovereigns. And I think there really is a practical problem to reach

that. In fact, I have run into that practical problem when I have

tried to just hold meetings and invite every interest group that

thinks they should be at the meeting, and sure as shooting, I do

not invite somebody that thinks they should have been there, and

I hear about it. So I know—you know, we sit down and have meetings about how to be sure we invite everybody to the meeting. So

I understand how that works.

On the other hand, I also believe that you will not, whether it

is three sovereigns or one sovereign or whatever, you will not get

a plan that can be effectively implemented until you have public

support for the plan, and collaborative decisionmaking is something

that I strongly support in terms of getting the involved interests

and groups to have a meaningful participatory role in the decisionmaking process.

In a sense, those two are competing concerns. I am not convinced

that there is not a way to reconcile them, but I would certainly welcome comments on that issue. Dr. Williams has claimed the microphone for first shot here.

Dr. WILLIAMS. I think that you have just identified what is the

kernel of this whole issue, which is how does the region craft a sin-
120

gle unified plan that has the political support of all the necessary

constituents and primarily the three Federal, State and tribal

sovereigns, because without that kind of political support behind a

plan, it is predestined to failure.

But the second caveat on that is how do you craft the plan, which

is that plan with that support, which is also based on the best

science, because biologically if it is not based on the best science,

it is also likely predestined to failure. That is the fine line that is

going to have to be walked.

Mr. CRAPO. Yeah, you have got to add science to the——

Dr. WILLIAMS. And too often the science gets laid out and then

compromised through the political process, so this is going to have

to hold up both the science and the political support as equal icons,

as the plan is developed. It will be very, very difficult.

Mr. CRAPO. That is a good observation. Anybody else want to

jump in?

Mr. RAY. I agree with Dr. Williams, but I think the sequence of

doing these things is important and it is essential to have a scientifically credible plan that lives up to the promises to restore the

fish and then come up with a process, again, not whether to implement it but how to implement it. And that is—I do not have much

confidence in the consensus idea because I do not think you are

ever going to reach consensus on taking the hard steps and making

the tough decisions. And if a process is set up to rely on consensus,

I think it is doomed from the start to failure.

Mr. CRAPO. I was actually very pleased to see that Idaho did generate the consensus, but that was one State. Other States did ultimately end up supporting that to some extent and I have wondered

whether we would be able to reach consensus, but I also believe

that even when you do not reach consensus, the fact that the public

is very involved enables people to feel that at least their procedural

rights were honored and that they were given a meaningful—and

I emphasize that word—meaningful opportunity to participate in

having their point of view seriously considered. So I understand

what you are saying and I am not sure that you are wrong or right,

but there is a lot of important consideration that must be given to

the public involvement in the decisionmaking process if Congress

moves forward to evaluate that.

I do not know the right path yet, that is why I am asking these

questions. I do not have a predetermined outcome in my mind. Mr.

Bruce.

Dr. BRUCE. Yes, I think that we have heard the science, I think

we know the science is there. I think at this point it is a societal

issue and I wish I knew how to get to that decision and how to get

there quickly, and obviously it is going to take some consensus. I

think it needs to be done on a regional basis, but I guess more than

anything, I am concerned that over the years this has—you know,

we have spent so much time, we do not have that much time any

more. Whatever we do, I think we need to do it rather quickly. I

think a lot of our stocks right now are very close to extinction in

the next couple of years, whether it be Pistol Creek of Sulphur

Creek, there will not be any salmon up there any more and we do

not have a lot of time to go through years and years of process. We

need to figure out soon what we are going to do.
121

Mr. CRAPO. Dr. Casavant.

Mr. CASAVANT. At the present time, the Governors are—they consider the Council as their representatives and they have put their

governance—the Council is their governance structure. But they

are also supporting a three sovereign effort that is underway concurrently right now, in that we are meeting to identify options on

governance, options on fish and wildlife activities. The five options

under discussion range from enhanced role of the Power Council,

and that is frankly in three of the options, to an enhanced role for

National Marine Fisheries Service to one that simply takes and

creates a new body. In the next—again, in the next month or so,

that subcommittee will be coming together and trying to end up on

one recommendation. So I am hopeful, whether it is the task force

or this, that in the next month or so, we will have some information to help you in your deliberations.

Mr. CRAPO. Is that information available currently, is there a report or document?

Mr. CASAVANT. We have a rough draft of the five options, I could

make that certainly available, Congressman.

Mr. CRAPO. I would certainly appreciate looking at that. You

know, the previous panel—a couple of members of the previous

panel discussed the idea of having a board of directors with a CEO

type approach where the sovereigns, the States, the tribal entities

and the Federal Government would create a, I guess, managing entity, whether it be one person or a person backed up by a board.

Any comment on that idea? I mean, the reason I am asking this

is because I strongly believe the buck has got to stop somewhere

and as a Member of Congress, I want to know who. And right now,

I do not. In fact, this panel has given me different answers to that

question.

Mr. CASAVANT. I think this panel is aware of it, and what I am

certainly aware of is that the existing system is not offering the solution we are after, but a lot of us are conscientiously and honestly

trying to find a resolution. I am a little worried about the CEO.

Some might call them the benevolent dictator or some day he

might not be. Depending on the goals of what you are trying to

achieve, and really that goal structure underlies the problem of the

three entities that are trying to restore salmon.

Mr. CRAPO. Good point. Any other comment on that?

[No response.]

Mr. CRAPO. All right, that is all the questions that I have. I appreciate this panel and your time and attention to this issue.

We are going to take a 5-minute break here, I need to take a

break, and then we will call up our next panel. Is Mr. Curtis here?

[No response.]

[Recess.]

Mr. CRAPO. Let me check again, did Mr. Herb Curtis ever show

up?

[No response.]

Mr. CRAPO. Okay, well let me get my papers organized here and

we will continue. All right, we will go ahead with this panel and

we have here with us Mr. Doug DeHart, Mr. Ed Bowles, Mr. Ted

Strong and Mr. Will Stelle. We appreciate all of you being here

with us today and we will proceed in that order. Mr. DeHart.
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STATEMENT OF DOUGLAS A. DEHART, CHIEF OF FISHERIES,

OREGON DEPARTMENT OF FISH AND WILDLIFE

Mr. DEHART. Good afternoon, Congressman. For the record, I am

Dr. Douglas DeHart, Assistant Director and Chief of Fisheries of

the Oregon Department of Fish and Wildlife.

Mr. CRAPO. Where is the microphone, we ought to get that over

there so that the people in the back can hear.

Mr. DEHART. I wish to thank you for the opportunity to speak

with you today about Oregon’s interactions with the National Marine Fisheries Service concerning restoration of Columbia River

salmon populations. As you requested, I will highlight what Oregon

believes are outstanding issues that if resolved would significantly

improve coordination among key stakeholders in salmon restoration decisions in the region.

Let me preface my comments with a general observation. Much

attention has been focused on the forum and the process needed to

resolve current problems. This energy may be misplaced. Although

there are problems with process, the more significant issues involve

the substance of the issues that we need to make. The bottom line

is that the region, whether through joint decisionmaking or

through the National Marine Fisheries Service, the U.S. Army

Corps of Engineers or the Bureau of Reclamation, must make informed decisions based on the best available technical and scientific analysis. Existing processes have fostered discussions, information exchange and consensus building. With some changes,

those processes are also capable of establishing the type of accountability for decisions needed to move salmon restoration efforts forward.

Our concerns relate to three main areas. First, how Federal decisionmakers can be held more accountable for the decisions they

make that affect salmon. Next, how the information used to make

decisions can be improved. And finally, how the region can better

articulate and reach agreement on what we are trying to accomplish.

Federal decisions affecting salmon restoration need to be made

in an open process that fosters deliberate discussions among managers of the resources affected by those decisions. Salmon restoration efforts need to meet the requirements of recovery for the Endangered Species Act, but they also need to meet the mitigation responsibilities of the Federal Government for the loss of fish due to

hydro development. These decisions must be supported by detailed

explanations of why they are the right thing to do.

In our opinion, the Federal Government, through NMFS leadership, has improved accountability for the decisions that they make.

However, the Federal Government must better explain what information influenced their decisions and how that information was

weighted and used to make decisions. Likewise, the Federal Government must explain what alternatives it considered and equally

important why at times it has rejected alternatives put forward by

State and tribal resource managers.

The Federal Government can improve the credibility of its decisions, we believe, by supporting them with regionally accepted

technical and scientific analysis.
123

We commend the National Marine Fisheries Service for the role

it has played in establishing a regional analytical forum called

PATH, a Plan for Analysis—yes—a Plan for Analysis and Testing

of Hypotheses. Almost caught me on an acronym. This forum involves scientists from the Pacific Northwest and from throughout

the region and is charged with describing and testing the various

hypotheses put forth concerning salmon restoration. It is a scientifically rigorous process that includes independent peer review of

analyses by outside experts and it has played a significant role in

evaluating the scientific merit of competing hypotheses and setting

the stage for well-informed decisions about the long-term course of

action. We urge NMFS and the other Federal agencies to stay the

course in their commitment to supporting and using that process

to support decisions.

In concluding my statement to you today, I turn to the most important issue dogging efforts to restore salmon; namely, the lack of

agreement on what we are trying to accomplish regarding that restoration and how we go about achieving those objectives. This effort

would be greatly facilitated by a deliberate effort by the Federal

Government to clearly interpret ambiguous measures in the biological opinion on the operation of the Columbia River Federal

power system. This ambiguity has significantly hampered some decisionmaking and encouraged debate and delay in many instances.

There are three issues that seem to underlie this:

The first of these is that there is no common regional understanding of what the ultimate goal is regarding survival and

recovery standards.

The second is that there is no common regional understanding of the specifics of the measures in the biological opinion to avoid jeopardy. This leads to varying interpretations

among Federal managers and these differences have been the

source of considerable disagreement over how the opinion is to

be implemented for listed stocks.

Finally, there is no common regional understanding of how

actions to recover listed salmon relate to and complement actions to protect and restore non-listed salmon and other listed

fish and wildlife in the region. The recent listings of steelhead

in Oregon, Washington and Idaho and in particular the listing

in eastern Washington of steelhead, only focuses more attention on this need to integrate and balance the protection of

each of these species.

In conclusion, Congressman, we do not believe the National Marine Fisheries Service is the problem. The complex and high-stakes

decisions facing a region on the verge of losing a precious heritage

present a significant challenge to all of us. The focus should not be

on assigning blame or spending valuable time and resources on

constructing new processes in which we may better argue and debate the issues at hand.

We must move ahead with informed decisions that describe what

we seek as the ultimate outcome for salmon and what risks we are

willing to take that that outcome is a reality.

Thank you, Congressman.

Mr. CRAPO. Thank you, Mr. DeHart. Mr. Bowles.
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[The prepared statement of Mr. DeHart may be found at end of

hearing.]

STATEMENT OF EDWARD C. BOWLES, ANADROMOUS FISH

MANAGER, STATE OF IDAHO DEPARTMENT OF FISH AND

GAME

Mr. BOWLES. Congressman Crapo, my name is Ed Bowles, I am

the Anadromous Fish Manager for the State of Idaho Department

of Fish and Game. Thank you for the opportunity to discuss Snake

River salmon and steelhead recovery efforts. Your interest and initiative reflect highly on your commitment to solving this decadesold tragedy.

We have heard much today on NMFS’ process for handling salmon recovery, ways the process might be improved and who should

be in charge. These are important questions, but do not get at the

root cause of our continued collective inability to solve the salmon

dilemma. This inability stems from a focus on process and justifying the status quo, rather than on leadership and commitment to

finding solutions and securing societal acceptance of these solutions. We do not need a solution to the process debacle, we need

a solution to the salmon and steelhead decline. As long as we are

more concerned about process than we are about solutions, it does

not matter who is in charge or who is involved, we will likely fail.

The Snake River salmon and steelhead dilemma is akin to a ball

and chain on the ankle of northwest prosperity. Multi-million dollar fisheries have been lost from local and regional economies. A

centerpiece of our northwest cultural, recreational and ecological

heritage is crumbling. A third of a billion dollars is spent annually

in our attempt to save these fish, with little, if any, success to show

for the effort.

Agency, industry and public resources are severely strained participating in the process. Irrigation and recreation from upper

basin storage reservoirs are threatened. The status quo is not

cheap or benign.

So far, the salmon recovery process has focused on how to make

the ball and chain more comfortable and less obvious, instead of

finding solutions to remove the ball and chain. The primary motivation has been to preserve the status quo rather than finding a

lasting solution that meets the biological needs of the fish and find

ways to keep vital economies whole. Without this leadership and

collective vision, repackaging the recovery process will do little to

save the salmon.

Snake River salmon and steelhead recovery pivots on the 1999

decision point. This is the process that should be our primary focus

and concern. As a result of litigation, NMFS committed to a decision path to finalize a long-term recovery strategy by 1999. The

first step to ensure the 1999 decision points toward recovery is to

stop debating whether the fish should be in the river or in barges.

This controversy is one of the primary reasons the NMFS recovery

process has little to show for its effort. Available science indicates

that sustainable recovery requires an in-river solution and that the

solution must recreate normative conditions.

I refer you to my written testimony which covers the scientific

debate in more detail. The sooner the region can come to terms
125

with this biological reality, the sooner we can focus our collective

efforts on helping society find ways to truly meet the needs of the

fish while maintaining northwest economies, cultures and prosperity. This is where we need to focus our efforts if we are to help

society and decisionmakers prepare for the 1999 decision; not continuing to try to rationalize recovery through transportation and

flow augmentation.

Perhaps the biggest threat to successful recovery and NMFS’

ability to lead us there is NMFS’ prejudice toward transportation

and flow augmentation as a preferred recovery path. This prejudice

is both regrettable and unacceptable. It is regrettable because this

unprecedented opportunity to work collectively toward meaningful

recovery may soon be lost. It is unacceptable because there is no

scientific peer support or an empirical or theoretical basis for concluding that wild Snake River salmon and steelhead are likely to

recover if we follow the non-normative path of full transportation

and flow augmentation. NMFS’ bias toward transportation and

flow augmentation seriously detracts from their ability to provide

leadership toward in-river solutions and focus the recovery process

on finding ways to keep vital affected economies whole.

The 1999 decision point is just around the corner. We cannot afford to let recovery slip away by continuing to debate the science.

This is not a biological issue, it is a social and economic issue. The

recovery process should focus on providing the best possible economic information so that society and decisionmakers can determine how best to keep vital economies whole as these biological solutions are implemented.

How to meet the biological needs of the fish is not the important

question. We know what the fish need. The important questions

are: In meeting the biological requirements of the fish, can we provide an economical and effective way to get commodities to market?

Can we maintain an economical energy source? Can we reduce the

threat to irrigation water? Can we reduce loss of recreation opportunities in up-river storage reservoirs? Can we reduce or eliminate

the ongoing financial burden of the salmon recovery process industry? Can we help ease burdens and uncertainties associated with

energy deregulation? These are the sort of questions that the 1999

decision point really pivots on. If they go unanswered, society will

not be in a position to make informed decisions for or against salmon recovery and will likely default to the continuation of expensive

and ineffective status quo operations.

I am not convinced that the current process or leadership is

headed in this direction or committed to an honest and open debate

of these issues.

Thanks once again for including me in this important discussion.

I hope my comments have been constructive.

Mr. CRAPO. Thank you, Mr. Bowles. Mr. Strong.

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

hearing.]

STATEMENT OF TED STRONG, EXECUTIVE DIRECTOR,

COLUMBIA RIVER INTER–TRIBAL FISH COMMISSION

Mr. STRONG. Thank you very much, Congressman Crapo. On behalf of the Columbia River Inter-Tribal Fish Commission and our
126

member tribes—the Yakima, Umatilla, Warm Springs and Nez

Perce, I appreciate the opportunity and the tribes extend their

gratification to you for the leadership you have demonstrated in

this issue and appreciate the efforts to resolve some of these issues.

The tribes want to express, first of all, Congressman Crapo, that

there are deep philosophical differences that divide Indian and

white interpretation of what should be done, how things should be

done. At the beginning of time, before there was any kind of electronic media or any other races of people, there were in our legendary times the fish and birds and other creatures that had voice

and had dominion over everything. And in making way for the arrival of the humans, the salmon gave themselves to the humans

that were here at that time and in turn we gave ourselves to the

salmon for their life-giving properties and the religion and the sovereignty that they provided to us. In that sense, Congressman

Crapo, the salmon and Indian people belong to each other.

It was never meant to be presided over by any makeshift process

or committee or structure. The human laws that have followed

have been disastrous toward the natural environment. Human

laws made by Congress and enacted in Federal courts have destroyed Indian spiritualism and culture and for that there is no

compensation that can ever take the place of what was destroyed.

And yet we are here today thinking that these industries and these

human made laws are paying for the way of salmon. It is the other

way around, Congressman Crapo.

The memorandum of agreement that was signed said it was helping salmon. The MOA was clearly a limitation that excluded the

most viable salmon restoration alternatives because the Bonneville

Power Administration and other Federal agencies needed to maintain their financial viability. The salmon are still subsidizing the

corporate industries along the Columbia River and they are not appreciated for that. Instead, they are in many ways insulted by saying that it is the economy, it is the region’s jobs that are important

first and foremost. But that is the arrogance of human life today

in America.

Even the Endangered Species Act, which was supposed to protect

the species is designed today so that all of our discussion is centered around money, economy and other capitalistic purposes. The

Endangered Species Act passed by Congress does nothing to protect

the specie, and it seems only some of the environmentalists, recently some of the cattle ranchers, loggers, those who work with

nature and the Indian people fight, even in courts, to protect the

salmon.

The National Marine Fisheries Service has come out here to preside over the most deadliest of rivers where salmon can live. They

have a losing job, they are not going to win that fight. And instead

of declaring that this deadliest of all killers of salmon is a jeopardy,

the National Marine Fisheries Service has maintained that they

are allowed to operate and it is best to take the fish out of that

deadly river. That is not being truthful toward the Endangered

Species Act, it is not being respectful toward the salmon, it is not

living up to the agreements made by the United States of America

and sovereign Indian nations.
127

We deplore these actions, we think that the United States and

the States in the northwest should say what they mean and mean

what they say, get on with salmon restoration in a very meaningful

fashion. We have done nothing but tinker around the edges of this

deadly hydro system and yet, since 1964, tribal and non-tribal peoples have had a moratorium on commercial fishing on summer chinook, to let them rebuild. A surplus of 2,000 returned to the south

fork of the Clearwater, they will be destined for killing unless the

tribes sue over them.

Since 1977 the tribes and non-tribal fishers have had a moratorium on commercially fishing spring chinook. The State of Oregon

passed a contrived wild fish policy recently. Those surplus 144

spring chinook to the Imnaha will be killed unless the tribes sue

over them, and we intend to sue in order to protect these salmon.

These spring chinook at Imnaha will be in a trash pile somewhere,

they will not be allowed to spawn and they will not be allowed to

procreate as the natural law has intended.

So the tribes are here to say that we believe that a lot better can

be done and whatever it takes, whether it is in court or anywhere

else, the tribes are here to advocate for the salmon.

Thank you.

Mr. CRAPO. Thank you, Mr. Strong. Mr. Stelle.

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

hearing.]

STATEMENT OF WILLIAM STELLE, REGIONAL ADMINISTRATOR, NATIONAL MARINE FISHERIES SERVICE, DEPARTMENT OF COMMERCE

Mr. STELLE. Thank you, Mr. Chairman. I will submit my written

testimony for the record and touch on a number of major points in

my oral remarks.

Let me offer a couple of general observations, then speak to the

issue of hydro power, the 1997 Idaho Steelhead Plan and my decision on it and then the bigger picture.

As a general observation, first of all, let me emphasize that at

NOAA Fisheries, we are dedicated to the restoration of salmon and

steelhead stocks in the Columbia Basin and to the restoration of

the aquatic health of this basin. There are enormously deep differences of views on what the problems are and how to remedy

them, particularly as it relates to the hydro system, and as the testimony before this Subcommittee demonstrates. Finger pointing

among the various participants dominates the public discourse and

that is a shame.

NOAA Fisheries is dedicated to using the best scientific information available when making its decisions on implementing the Endangered Species program here in the basin. Science-based decisionmaking is perhaps the single most important principle we

have. Given the deep divisions that exist and the stakes involved,

we must stick to the science. If we do not, we will be rudderless,

adrift without direction, and lost.

Salmon and steelhead recovery must be comprehensive if it is to

be successful. Recovery must include efforts to protect and improve

the habitat, fix the dams, modernize the hatcheries and ensure
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that we do not harvest too many fish. A single focus will not solve

the problem.

Further, do not expect miracles. It has taken generations to drive

these stocks down and it will take time to restore them. It will not

happen overnight and we must be prepared to stay the course if

we are to succeed. Statements complaining that the Endangered

Species Act has been invoked for 3 or 4 years and the salmon are

still not back ignores this most basic biological fact. The region can

do this, but it will take time, and we must stay the course.

On hydro power, improving survivals in the hydro power system

is essential to long-term recovery, and we are dedicated to doing so

based upon the best science we can muster as a region.

Secondly, there remain, obviously, deep divisions within the region on how to fix the dams, ranging from leaving them alone to

taking out at least five of them. We have developed a strategy

which was contained in the 1995 biological opinion for the hydro

power system for resolving this dilemma which has three facets. A

set of interim operations, given the current configuration of the

dams, to improve survivals, continuing research on where precisely

we are losing the fish through very robust evaluations of mortalities associated with each of the four Snake dams, and a thorough

evaluation of the different options for fixing the system and the biological and economic impacts of each option.

We firmly believe that this course is the correct course. We are

gratified that the States of Washington, Oregon, Idaho, Montana

and Alaska have all called for the full implementation of this path

in the recent American Rivers litigation challenging the biological

opinion. We are furthermore pleased that a recent Federal court

decision upheld that pathway. Given the degree of differences on

that subject, this is considerable progress indeed.

Further, we are committed to working directly with the State

and tribal governments as we implement the year-to-year interim

operations and as we develop the range of alternatives for the longterm fix. We furthermore are committed to working with State and

tribal governments for the selection of that preferred remedy for

the system in 1999.

We believe that any remedy will be worthwhile only if successfully implemented. Successful implementation will require broad

agreement among the governments in the Pacific Northwest that it

is the right remedy.

Let me turn to the bigger picture, my time has almost expired.

Mr. CRAPO. You have taken such a hit in these hearings, you can

have a little extra time.

Mr. STELLE. Well, if I may, Mr. Chairman, let me just describe

a couple of points on the recent decision on the 1997 transportation

scenario. First, the State of Idaho, let me point out and emphasize,

has been a solid participant in the day-to-day hard work of implementing changes to the hydro power system, along with the States

of Oregon and Washington, reflecting I believe the States’ commitment to a regional approach. We appreciate that, we applaud that

and we encourage the State to continue at all levels.

In 1996, NMFS and the other salmon managers worked successfully with the State of Idaho under the State’s leadership on ad-
129

justments in reservoir operations to accommodate some interests

pertaining to Dworshak.

In 1997, Idaho proposed its steelhead plan which called for leaving two-thirds of the juvenile steelhead in the river rather than

transporting them down around the eight downstream dams. After

considerable review and discussion among the salmon managers at

various levels, I decided that we could only accommodate the Idaho

plan up to a certain point reflecting the, quote, spread-the-risk

strategy which we adopted last year in consultation with the salmon managers and reflecting a similar strategy called for in the

Northwest Power Planning Council’s fish and wildlife program. I

made this judgment based upon my best professional judgment

that placing more fish in this river would only subject them to a

higher rate of mortality, an outcome that is not consistent with our

obligations under the Endangered Species Act. The above decision

reflects, in my judgment, the best scientific information available.

It is consistent with the findings and recommendations of the

Snake River Recovery Team, the National Academy of Sciences and

the recent report of the Independent Scientific Advisory Board. It

is a situation where, unfortunately, the best science is not always

the most popular. We must stick with the science.

On the bigger picture, progress on protecting and restoring habitat, modernizing hatchery practices and properly managing fishing

must and will proceed. Progress in each area is essential for longterm success. The governments of the region should and must work

hard to develop a set of options for fixing the Federal hydro power

system. That process is underway and it deserves to proceed. The

governments must also work very hard to examine if broad agreement is possible on a remedy, because it will be the best for the

fish and for the region.

There is in fact a large confluence of agreement on many, many

aspects of a salmon recovery program and I would surmise that in

looking at our draft recovery program for salmon in the Snake, that

there is probably an 80 percent plus overlap with the fish and wildlife program of the Northwest Power Planning Council. Most of the

basics are agreed to. We must not get distracted by those issues

that require further resolution.

To an interest which I understand you are particularly interested

in. In the upper Snake, the Bureau of Reclamation and NMFS have

reached an agreement in the 1995 biological opinion that resulted

in the contribution of an annual additional 427,000 acre-feet of

water from the upper Snake through 1999, acquired on a willing

buyer-willing seller basis. The Bureau, with the support of the

State of Idaho, has been successful in meeting these commitments

and we encourage that progress to continue.

In light of pending litigation on the matter, we have also agreed

to undertake a consultation on the activities of the Bureau of Reclamation and are currently progressing with that consultation.

The resolution of the issues on the lower Snake and John Day

and the Federal dams may also have a direct bearing on the longterm role of flow augmentation from Montana reservoirs and the

upper Snake basin. It is therefore our preference to work with the

parties to develop a larger conservation agreement that might encompass issues associated with the operation of the Reclamation
130

projects in the upper Snake and the Hells Canyon complex as the

governments address the question of what to do about the Federal

dams in the lower river so that through this larger agreement certainty and stability is provided to the basin and we succeed in our

long-term efforts at salmon recoveries.

We have broached these options informally with a number of the

parties and will continue to explore them in the coming months.

In conclusion, let me state simply that the issues associated with

salmon recovery are extraordinarily complicated and controversial,

Mr. Chairman. The divisions within the region on certain aspects

of the recovery effort run deep and the emotions run high. In this

most difficult setting, going to the issue of leadership, our role and

responsibility, in my view, is to articulate a clear pathway for fixing the hydro power system, as clear as we believe is possible, to

base that pathway on the best science available, to provide an open

collaborative process with the other governments in the region to

implement it, and to stick with it.

Given the winds of controversy that buffet this subject almost

daily, consistency and a commitment to a clearly articulated pathway based on good science is absolutely vital.

Thank you and I look forward to what I anticipate to be a few

questions.

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

hearing.]

Mr. CRAPO. Thank you, Mr. Stelle.

Let me start out with you, Mr. DeHart, we will pass the microphone back your way.

As I read and listened to your testimony, tell me if I correctly

understood it. It seems to me that with regard to the issue of what

process for decisionmaking we need to follow, that you are basically

saying that the current system we have, with maybe some refinement, is a good system and that the—and I construe that system

to mean that there is basically a Federal decisionmaker with collaboration with the other governmental entities, but that the final

decision is made by the Federal sovereign. Do you understand it

that way and have I correctly characterized your approach to the

issue?

Mr. DEHART. Congressman, my view is that this issue does not

primarily turn on process and that you will not solve it through

process. I do not believe that the process to date has served us

well, it has led to conflict and stalemate, but the right parties are

generally at the table, they are sharing information. What we lack

are the ways to drive those decisions to a conclusion with clearly

understood justification that will make those widely acceptable and

then move into implementation. I do not think you will solve that

problem just by a different process structure. We need to work on

the substance of how we make decisions and how we resolve disputes.

Mr. CRAPO. How would we work on that, how would we achieve

that last step that is necessary?

Mr. DEHART. Concerning disputes, Congressman?

Mr. CRAPO. Yes.

Mr. DEHART. We have suggested, and indeed are working with

the Federal Government, as one outcome of the American Rivers
131

lawsuit, a dispute resolution process that we hope will get around

what has been something of a stalemate to now, where each agency

retreats behind its own statutory responsibilities and the limits on

those. And that is showing some progress, though it will require

that the Federal Government I think stretch out somewhat further

than it has before in its decisionmaking.

Mr. CRAPO. Some differences of opinion have come up today in

terms of who really has the decisionmaking authority in the region.

Some have said NMFS effectively controls the decisionmaking because nobody really, for one reason or another, dares violate it or

go contrary to the biological opinion. Others have said that there

are agencies who are very willing to do that, the Corps of Engineers being one.

Do you believe that there is effectively a Federal decisionmaker?

Mr. DEHART. No, Congressman, not in the sense that you mean

it. Certainly the biological opinion is now driving river actions in

a way that they were not controlled before toward fish protection,

but as I mentioned in my testimony, because of some of the uncertainties in how those measures are implemented and what they

really mean, that has created a great deal of gray area and we

have seen Federal river operators freely take advantage of that and

that is what has led to many of the disputes that have characterized river operations in the last several years.

Mr. CRAPO. Okay. Why do we not move to Mr. Bowles for just

a minute.

Mr. Bowles, you indicated that you think the root cause of the

problem basically is that we are focused too much on—I do not

want to say this wrong, I have it written down in my own words

here—the process and basically pursuing the status quo; is that

correct?

Mr. BOWLES. Yes, basically the default operation is to try to figure out how to do something for the fish without significantly altering the status quo. And I feel that is flawed and somewhat dishonest to the public, because this is not a cheap or benign status

quo. And if we cannot recover the fish with any semblance of the

status quo, let us be honest with the public, put what is biologically

required for the fish on the table and put our efforts not into figuring out just how much to tweak the status quo, but put our efforts into figuring out what is socially acceptable and how do we

keep society whole on these various interests. And that is where we

are really falling short. The process is one of debating the science

and figuring out interim activities during this pre-1999 period. All

our effort is put into figuring out how to plod along tweaking the

status quo, and very little, other than the PATH group, is really

focused on getting society prepared for the 1999 decision.

Mr. CRAPO. One of the comments that I think both you and Mr.

Stelle have made is that science needs to be critically evaluated.

You have a disagreement on science, I think it is pretty obvious.

One of the questions that I have is—I am going to be asking you

this later on, Mr. Stelle also—we have had a lot of testimony here

today and a lot of discussion over the years about how important

it is to make sure that our recovery plans include good science. In

fact, I used to say that all the time—I still do. But I have found
132

out over the years that everybody believes in good science, and everybody has their science.

Now Mr. Williams, if he is still here, is a part of a team that is

hopefully going to resolve that for us, but are we not now at a point

where we are competing with different interpretations of what the

science says we ought to do?

Mr. BOWLES. Actually I do not feel we are. The main roadblock

in science consensus right now is pretty much limited to one group

and that is NMFS’ own science group. The consensus on most of

everything else is that the dams are the problem and that transportation or an out-of-river type solution is not going to work, from

all of the sovereigns involved, those that have statutory authorities

for the management of the fish. The scientists associated with

NMFS, none of the other groups are adamantly holding up a defense that transportation does work, believe that it does work, it

does mitigate for the hydro system and that the reason that we are

in decline is because of the killer ocean. PATH is resolving that debate and it will resolve that, and we are, I guess, somewhat content

to let the PATH process do its job and I am very confident in its

results. But what is regrettable is that the focus on debating

NMFS’ views has left us short on being able to prepare society for

the 1999 decision. All our efforts are on debating the science—and

this is really a social and economic question. Instead of debating

the science, let us figure out how to do it socially and economically

and keep these entities whole.

Mr. CRAPO. Thank you. Let me ask you to give the microphone

to Mr. Stelle for just a moment here.

I want to give you a chance to give your response to the same

question, but if I understand your testimony correctly, Mr. Stelle,

you took your position against the Idaho policy based on your conclusion that the clear weight of the scientific information did not

support what Mr. Bowles says—I think he would be saying—that

he thinks the clear weight of the scientific information did support.

Do you want to clarify that, Mr. Bowles and then we will get to

Mr. Stelle.

Mr. BOWLES. We need to be careful, Congressman, that we do not

confuse long-term recovery with interim measures to do what is

best for the fish. And the 1997 transportation debate focused on

what was best for the fish, given the configuration of the dams and

the flow that we had from mother nature in 1997. Okay? What I

am speaking to, what my comments focused on was more of the

long range vision of how do we get truly to recovery. And as we

have heard from Dr. Williams and others, you are unlikely to get

there through a transportation approach.

Mr. CRAPO. So you are not saying that NMFS’ decision not to accept the Idaho policy was a part of or an indication of NMFS’ intention?

Mr. BOWLES. No, I am saying it is an indication of their prejudice, but what I did not want you to get confused is that the inriver versus transport issue on a year-to-year basis before we get

to 1999 is tied in to the long term, directly. There is an indirect

link to the long term and it does show where our heart is, but that

issue was more specific to what is best for the fish given this year’s
133

situation, and we do differ quite radically on our interpretation of

what was best for the fish.

Mr. CRAPO. On the short term.

Mr. BOWLES. On the short term, yes.

Mr. CRAPO. Okay. Mr. Stelle, do you want to respond or has he

clarified that or not?

Mr. STELLE. Yeah, I would like to respond. First of all, Ed is correct that it is very important to distinguish what is best for downstream migrating juveniles through the eight dams as we currently

have them configured—basically what do we do right now—from

whether or not, for instance, transporting fish around the dams can

provide for long-term recovery. Those are two completely separate

issues. The issue this year, was given the current configuration of

the dams and, Congressman, you stated it quite precisely and you

were correct in your formulation, given the current configuration of

the dams, what is the weight of the scientific evidence? Does it—

is the weight of the scientific evidence that it is safer for fish to

put them in this river, or not? And I think it borders on the unequivocal that it is safer to keep the fish—to collect and transport

the fish around these eight dams than leave them in the river, and

I have not seen any specific information that would argue to the

contrary.

I would also cite to you the fact that the National Academy of

Sciences looked at this very closely, and although people will attack

the National Academy of Sciences’ report because of all of the

hysteria on this particular topic, they were not born yesterday and

they are very sophisticated scientists and they agreed.

Mr. CRAPO. So if I understand the two of you, there is a strong

difference of opinion on what the science says for short term.

Mr. STELLE. To be honest with you, Congressman, I listened very

closely to Ed’s presentations before the Executive Committee on

this subject and Idaho at that time was not arguing—the biological

argument was not that more fish will survive, it is that as a general matter, in-river survivals are better in better flow—in years of

better water. We do not dispute that.

Our view though, and again, I have to emphasize that in my

view and I think Rick Williams corroborated that this morning,

that given the current configuration of this river, this river kills

fish.

Mr. CRAPO. But did you not just say that you accepted the argument that in a high flow year, transportation was not the—how did

you say that?

Mr. STELLE. The data that we have indicates that when flows are

better, in-river survivals are better. That is a very different question than whether or not, nevertheless, given both routes of migration, are fish likely to die more in-river through the dams and the

pools or die through being collected and transported. And again, on

that question, I believe some pretty robust empirical information

tells us that putting fish in the river will kill fish.

Mr. CRAPO. Is that information not based on low flow years?

Mr. STELLE. No, it is a range of years. There are about 22 or 24

transportation studies over the last 15 years, the most recent ones

being by far the most robust, and they cover a range of conditions.
134

Mr. CRAPO. Do you agree—I will stick with Mr. Stelle for a few

minutes because he has got me thinking about some things.

Mr. STELLE. Congressman, could I make one point?

Mr. CRAPO. Sure.

Mr. STELLE. It is, I think, to reinforce what Ed’s perspective is

or one of Ed’s points. A judgment about what kind of survival benefits you can bilk out of the system as it is current configured, and

whether or not you can bilk more survival benefits from collecting

and transporting them around the dams or leaving them in the

river is one thing, and it gives us some guidance on what we

should do today and tomorrow and the next day, because we have

the system as we inherited it.

That is a completely separate issue from whether or not the survival benefits you are able to secure from either route of migration

is going to be enough to support long-term sustainable rebuilding

of these runs. That is the key issue.

This minor issue of how many fish you put in a barge in 1997

is just that, it is a sideshow. The big issue is given the current configuration, what are reasonable expectations of what kind of survival benefits we can get through transportation, through in-river

migration, through improvements in the surface collectors, et

cetera, et cetera. That is the bigger issue.

Mr. CRAPO. Would you agree then with the comment that was

made by one of the earlier witnesses who I believe attributed it to

Dr. Chapman, but since he is not here we will not hold him to that.

But the comment that said that essentially sticking with the current configuration of the dams will only delay extinction.

Mr. STELLE. I think my view on that is that that precise issue

is probably the most important issue that the PATH process needs

to resolve. And what the rate of survivals are that will be necessary to avoid extinction and support recovery is the essence of

the scientific debate that is going to occur now. My own view is

that, given what I understand today, at best we will continue to

bump along the bottom of the recovery barrel.

Mr. CRAPO. All right, and——

Mr. STELLE. But again, that issue is really central to the analytical work now being done by the group that Doug DeHart described, the PATH analytical group.

Mr. CRAPO. Okay. Do you want to hand the microphone back and

we are going to come back to that, but let me finish with Mr.

Bowles first.

When you indicated then, Mr. Bowles, that you felt that NMFS’

approach is basically perpetuating a failed solution, explain that a

little more to me, what is it exactly that you were saying?

Mr. BOWLES. Well, it actually starts from a fundamental difference in a founding premise, I guess if you will, as a salmon manager. Mr. Stelle stated that they have a very strong empirical data

base that the fish do better in the barges. I disagree with that, the

only official scientific peer review of transportation disagrees with

that assessment.

Mr. CRAPO. Which one is that?

Mr. BOWLES. This is the Mundy report, the only ones that officially took on transportation. And where I am getting at is for

high-flow situations—his statement was that under all conditions,
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fish do better in the barges. The issue that Idaho brought to the

table was that under the bounty that nature provided in 1997,

where is the compelling evidence that tells us to take these fish out

of the river and put them in the barge? There is none. The data

set on high flow years similar to what we had, similar to the 1982

through 1984 situation where we had good adult returns and high

flows, there is no transport benefit information.

Given that, we would like to err on the side of keeping the fish

in the river under that uncertainty, or at least—we did not want

to put all the fish in the river, we just wanted what we considered

a more equitable balance.

Mr. CRAPO. Let me interrupt a minute. Mr. DeHart, do you agree

with that, with Idaho’s approach on that issue?

Mr. DEHART. Oregon and Idaho have not always seen exactly

eye-to-eye on in-year decisions and we did have some disagreements this spring on elements of the Idaho plan, to be fair. But on

the issue that we are talking about here, I think we see this very

much the same, and frankly when I look at the data set that is

available to us right now and when I look at survival of those fish,

which is the important issue, what I see is that survival of not only

in-river fish goes down in low-flow years, but survival of barged

fish also goes down in low-flow versus high-flow years, a very important point. And that is today, if you think barges are going to

solve the problem of low flows in the Columbia and Snake River,

you are wrong, and there is plenty of information there right now

to show that.

Likewise when you look at the issue of how much of an increase

in survival it would take to bring about recovery, and here the

PATH analysis has helped us a lot already, the answer is almost

a 10-times increase, and the actual experience over 20-plus years

of trying to improve survival of barged fish has actually been, if

anything, somewhat of a downward trend in survival, certainly not

any significant increase through years in altering the methods of

handling and moving fish.

So I think there is enough information on the table now, and I

think Idaho and Oregon are in agreement there, that you could

draw a final conclusion on where that technique fits in the strategy. I think that is the main thing that is wrong with barging at

this point and how it fits in the debate, not the question of how

we can use it in 1997 and whether that is the best part of the mix,

but do we continue to push it forward and spend time, energy and

political capital on it, or do we set it aside and say no, that is not

the path to recovery and now let us figure out which viable paths

are out there and start building a consensus and a case for one of

them.

Mr. CRAPO. Keep the microphone for a minute, Mr. DeHart. I am

going to ask you and Mr. Bowles and Mr. Strong the same question

I asked Mr. Stelle, and that is do you believe that if we maintain

the current configuration of the dam; in other words, maintain the

status quo with the configuration of the dams, that that will simply—I have got to get this said right—simply delay—any other options we might undertake, whether it be barging or spill or whatever, will simply delay extinction?
136

Mr. DEHART. If our objective is the objective of the Endangered

Species Act, to restore naturally spawning runs of fish to upriver

areas that can sustain themselves, I do not believe you can get

there without major changes in the system of dams and reservoirs

in the Columbia and Snake River.

Mr. CRAPO. But you are not ready to say that if we do not do

something, we will see extinction?

Mr. DEHART. Oh, I am ready to say that, yes. I mean extinction

in the sense of losing natural populations. We can maintain the genetics of some of these fish through captive brood programs,

through supplementation, through some other means, but we will

lose natural, self-sustaining populations.

Mr. CRAPO. Okay, Mr. Bowles.

Mr. BOWLES. I agree. I think the science is pretty unequivocal on

the risk and that is the reason for the threatened status and the

fact that it should have gone to endangered for spring-summer chinook but it was just an administrative oversight. So that aspect

speaks for itself of where these fish are. I do not think they are

going to go extinct tomorrow or the next day. I think they will continue to drain the resources and the talent and creativity of the

Northwest, that is the ball and chain analogy, for the next probably

two-three decades. And the lower the numbers get, the more expensive it is going to be, like we are seeing with sockeye.

Mr. CRAPO. Thank you. Mr. Strong, do you remember the question? The question is if we do not do something with the dam configurations, the current configuration of the dams, will we simply

delay extinction.

Mr. STRONG. Science has been attendant since the dams were

built and every generation of scientist that came along bragged

about the ability to make life better and improve upon things. And

we have seen nothing but destruction. These dams have already

killed many, many stocks of salmon in the Columbia Basin. I do

not know how much more evidence it takes before we believe what

is happening before our eyes, and it is only because we want to

make ourselves feel good somehow, that we have such a guilty conscience that we believe that if we put some more science out there,

that we are going to make ourselves feel good enough that we are

actually doing something, when we are just appeasing our political

conscience and we are not doing anything for salmon.

These dams and everything else that are associated with this development are driving all of these salmon into extinction. Of everything that has been killed, we have a very small percentage of

those salmon left and we are playing with them. And we are going

to lose them and unless somebody steps up to the plate and says

that enough is enough, we may as well bid all of these salmon and

other species that are associated with them in this river system

goodbye.

Mr. CRAPO. So I took the answer from the three of you, in one

context or another, to be that we have got to do something about

the configuration of the dams in order to restore the species. What?

Why do we not go back across. And when I say that, I am not asking you to—I suspect that some of you may know exactly what you

want to do, but I am not asking you to say exactly, and I am going

to give you, Mr. Stelle, an opportunity to answer the same question
137

a little later. But options, you know, when we say the current dam

configuration is not acceptable, then what are the options we have

to look at? Mr. Strong?

Mr. STRONG. When it was first of all stated that perhaps harvest

was the problem, I mentioned the moratorium on summer and

spring chinook in 1964 and 1977, you heard testimony that when

the Federal Government felt that a cow was perhaps capable of

killing one salmon, they were forbidden, somebody is supposed to

train the cow not to step on these redds or train that cow not to

kill a salmon. But all of the science that engineers have brought

to these dams, they should be smart enough to know what to do

about it. They will not accept what is right because it costs them

money. That is what is driving this.

Barging was brought in to help alleviate the problems and shield

us from embarrassment because these dams are killing the salmon.

What is better than barging in terms of configuration is breaching

these dams, let the water flow around the dams, decommission

them, they are not needed for electric development here in the

Snake River. They are there for another specified purpose, many

of them are not even needed for flood control. The Idaho Statesman

recently commented about the cost of decommissioning versus the

benefits from decommissioning. But somewhere, if the authorities

do not rest clearly with the people in the region, and the people in

the region are relying upon political leadership, that political leadership is going to have to step forward.

I do not know how much more volume we can turn up our voices

before Congress and the Corps and others say I think we have

heard enough, I think we have seen enough, history has told us

how we should reconfigure. I think that the choices are not that

difficult to make out there.

Mr. CRAPO. Thank you. Mr. Bowles, what options do we have?

Mr. BOWLES. Well, as I have said many times before, I view this

as somewhat of a biological no-brainer. Just 30 short years ago, we

had 120,000 wild salmon and steelhead coming into Idaho. That is

not that long ago, that was with four dams in place, and viable

fisheries, viable, healthy, sustainable runs.

So there is no doubt that the fish are going to do much better,

in my opinion and what PATH is coming to, and have a high probability for recovery under a natural river condition in the lower

Snake. But this is not a biological issue, that is not what this is

pivoting on, that is what it has been cloaked behind but it is really

not the essence of this. It is a social and economic one.

So for me to say what we need to do biologically, to me that is

very easy. Let us start with something like that, let us get together

with the social groups, the local communities and let us aggressively pursue ways of keeping these sectors whole. I think the solutions are there and I think if we put our effort into that instead

of debating the science, we will find a solution nearby.

But that is the place to start. If there are areas that are unacceptable, backup to less of what the fish require until we get to

something that is socially acceptable. But let us first give it a fair

chance to do the right thing for the fish and find a way to balance

this with societal needs. But you cannot do it without societal acceptance. For the Federal Government to come in and try to lever-
138

age something like that would be extremely flawed, it has got to

come from social problem-solving, you know, community-based

problem solving.

Mr. CRAPO. All right. Mr. DeHart.

Mr. DEHART. I would agree with Ed that I do not think the real

issue here is science. It is fairly easy to lay out a suite of different

alternatives that clearly would have biological benefits, and you

have heard several of those just now. There is no way around the

fact that returning stretches of the river to its pre-hydro power condition as a free-flowing river, however you did that, would be biologically beneficial to fish. It is clear because we are facing a cumulative mortality problem that if there were fewer dams on the river,

that would be biologically advantageous. It is clear if the projects,

dams and reservoirs were smaller, they would have less impact on

fish than they do now.

The only scientific question there is how far do you have to go

in doing that to bring about the recovery objective that you have.

So I think Ed is right in pointing to the fact that science will only

take you part way here and then it is a political and economic and

social decision.

But also just a comment at the risk of being accused of practicing

engineering without a license I guess, the hydroelectric system of

this region is aging and wearing out at this point. Even if you

wanted to maintain the status quo, that will require huge new investments in those projects. So fortunately for us, we have the opportunity to ask the question how do we want to make that investment. If it is not in the status quo, well then in what alternative.

And that is an important point because it means that some of these

alternatives really are not as expensive as they sound at first

blush, because you have to subtract off what you would have spent

anyway.

So that is a perspective I think that is worth considering.

Mr. CRAPO. What timeframe are the facilities, you say they are

wearing out. Is there a timeframe you are talking about?

Mr. DEHART. Well, we are looking right now at the replacement

of the turbine units at the original powerhouse at Bonneville Dam.

We have had frequent failures of turbine units at Ice Harbor Dam

and at John Day Dam. Those are projects that approximately 30

years old at this point, the last two. The first one is more like 50

years old. Wells Dam just replaced all of its turbines, so this is a

problem that the Corps of Engineers is dealing with and planning

for and budgeting right now, in how they replace and rebuild these

facilities. So it is a fairly short-term issue.

Mr. CRAPO. All right, thank you. Back to you, Mr. Bowles.

On page three, I believe it is, of your testimony——

Mr. BOWLES. Oral or written?

Mr. CRAPO. Your written testimony. You indicated that even the

proponents of the bad ocean argument have found no evidence for

different distribution patterns of closely related stocks. Although

the ocean environment is a powerful regulator of salmon abundance, this sort of extremely selective phenomenon has no plausible

basis in fact. I think you were referring to the fact that chinook

runs in the lower Columbia River in some areas have to negotiate

fewer dams than others, and they are doing better. Is that right?
139

Mr. BOWLES. That is correct. This is based on the PATH analysis

and their conclusions document.

Mr. CRAPO. The reason I raise that with you is because I have

had people tell me that that is not the case. In other words, that

the explanation must be in the ocean because fish that have to negotiate a lot of dams are not doing any better than fish that do not

have to negotiate any dams or very few dams. Are you saying that

the science now is suggesting otherwise or that that is not a correct

analysis?

Mr. BOWLES. Yes, the PATH group, which I reiterate is a group

of scientists from, you know, agencies, tribes, Federal and State as

well as universities and some consultants, it has very rigorous peer

review, independent peer review outside of this northwest group,

and their conclusions document is very clear that the decline and

continued suppression of upper basin stocks is because of the dams,

and has not been mitigated through the transportation system,

that it is still at a far lower productivity level or survival level,

than down river stocks.

Now ocean productivity and characteristics are extremely important in regulating population abundances—no doubt about it. But

to say that the ocean has affected all stocks and they are all going

down is not at all correct. You look at the data set and it shows

very clearly that the upper river stocks are in significantly more

trouble than the down river stocks, throughout the time series.

And basically if I could just expand on this a little bit, what it

translates into is, in order for NMFS’—and this is NMFS’ scientists

that are primarily proposing that the hydro system has been mitigated through the transport system—in order for that to hold scientific ground, the hypothesis can basically be stated this way: that

upper basin stocks, both upper Columbia and Snake, go to a spot

in the ocean that is far less productive than other stocks and that

only the upper basin stocks go there, and that they only go there

during years of drought and poor ocean conditions. The hypothesis—and that actually is now the one NMFS scientists are proposing, PATH has taken that on. Regrettably, we actually have to

scientifically debate that one. I think we need to get beyond that

myself. But PATH is looking at it.

Mr. CRAPO. All right. Mr. DeHart, did you want to make a comment there?

Mr. DEHART. Congressman, just one quick fact to add to that

that I think helps with the argument that Ed just made, and that

is compare fall run chinook salmon on coastal waters of Oregon

and Washington to the fall chinook of the Snake River, you have

got a fairly close comparison there in terms of life history type.

What is going on with those coastal stocks at the same time? Sure,

they go up and down with ocean conditions. Right today, on the Oregon coast, we have got populations that are just as big as they

were in 1900 where of course the Snake River fall chinook populations have fallen to a couple of percent of what they were at the

turn of the century. And that certainly cannot be explained by

ocean conditions.

Mr. CRAPO. All right. Why do you not pass that down to Mr.

Stelle, and I want to go through a series of questions with you, Mr.

Stelle.
140

As I have listened to the statement today, it still seems to me

that there is a strong disagreement on the short-term part of this

with regard to the 1997 decision. It still seems to me there is a

strong disagreement between you and Mr. Bowles and probably

Mr. DeHart as well, on what the science says. Would you take that

from this discussion, or have I misunderstood it?

Mr. STELLE. Mr. Chairman, I would not say it is a strong disagreement, it is not a deep disagreement. Doug or Ed, correct me

if I am wrong. I think again, this is a—this is not a major issue

one way or the other. I mean if Ed wants to say that the State of

Idaho is absolutely convinced that the weight of scientific opinion

is that more fish survived in the river in 1997, I have not heard

that from the State of Idaho. So no, I do not think it is a strong

point of disagreement. Ed, do you want to disagree?

Mr. CRAPO. I saw a little body language there, Ed.

Mr. BOWLES. It is kind of switched again from the long term.

Mr. STELLE. Absolutely. Well, I was just asking a short term

question.

Mr. BOWLES. It makes it a little—I mean, I can speak to the

short term, if you would like.

Mr. CRAPO. Why do I not have Ed speak to the short term and

then I will be thinking on the same wave length and then I can

come back to you.

Mr. STELLE. I think my view on the short term issue was very

ably described by Rick Williams of the ISAB.

Mr. CRAPO. Okay.

Mr. BOWLES. And I agree with Mr. Stelle that I think it is more

productive to look at how this fits into the long term, and so I

agree with him that this is a minor issue itself, but it does hint

at some perspectives that I think are causing us to lose taking advantage of the opportunities we have to solve this problem. They

show the propensity of NMFS to hold onto transportation as the

way, the default way of operating, and that does affect the long

range decision and it affects the way we deal with that.

But just on the short thing, what I was getting at earlier was

that our starting premises are different. Our default, even on the

short-term, should be to keep the fish in the river or at least have

a viable spread-the-risk migration policy unless there is evidence to

take them out of the river. And I think NMFS may disagree and

Will can speak to this on his own, but their default is to take the

fish out of the river unless there is evidence to keep them in. There

is no data set that says transportation is better than in-river under

high flow conditions—there is none. NMFS’ own consultant that

they hired to do an evaluation recommended putting far fewer fish

in barges than the State of Idaho did under the conditions we had

in 1997. Their own consultant they hired to develop what they

called a transportation rule curve said that under high flow conditions, much more fish should be left in the river. The State of Idaho

recommended putting more fish in the barges than NMFS’ own

consultant said. And so to characterize this as a closed book on the

in-river versus transport on this interim period, I think is

misspoken. But that still does not address the long-term recovery

issue because neither the current in-river or trnasportation can

save the fish. Let us not get bogged down too much, Congressman,
141

in the short term. How does it affect the way NMFS is dealing with

the 1999 decision process. That is the key question.

Mr. CRAPO. So he says, Mr. Stelle, that there is a bias there and

the 1997 decision was an indication of that bias.

Mr. STELLE. Actually, let us look again, my first preference, Mr.

Chairman, was not to get hung up on the 1997 decision because I

do not think it is material to the long term remedy. Having said

that, the decision in fact was to adopt a spread-the-risk approach,

largely in deference to the continuing debate within the region,

which means that our instructions to the operators was to manage

the system so as to end up transporting around—manage it toward

the transportation of 50 percent. Now Ed cites an equal shot, that

gets pretty equal to me.

Mr. CRAPO. But that is not what was done, is it?

Mr. STELLE. Yes, the system is being operated I think to transport between 50 and 55 percent of the spring/summer chinook, is

that correct?

Mr. CRAPO. Go ahead, Ed.

Mr. BOWLES. We are going to get into this, I guess.

Mr. CRAPO. Yeah, I do want to get into this.

Mr. STELLE. My guidance to the operating agencies was just as

I said and I can provide you a written copy of that guidance.

Mr. CRAPO. Okay.

Mr. STELLE. And frankly, I do not know how the spill regimes

are working, whether we are not we are getting those—53 percent

or 57 percent, I am not that familiar.

Mr. CRAPO. And this is salmon.

Mr. STELLE. Yes.

Mr. BOWLES. And these are the spring migrants, the season is

over, we are doing summer migrants right now, the fall chinook.

Mr. STELLE. What were the percentages?

Mr. BOWLES. It depends, and this gets to a pivotal point on this,

whether or not you are looking at listed fish or all the fish, and

for all the fish, it was just above 50 percent. For the listed fish,

it was upwards of 56 to 60 percent.

Now maybe this will be productive if we look at it in the context

of how the process works, trying to keep that in mind, because I

have already debated this at length, you know, with NMFS and

their staff.

Mr. CRAPO. Yeah, but I have not heard the debate.

Mr. BOWLES. But I am sure you do not want to revisit that.

I think what is instructive here is how the process worked and

Mr. Stelle is correct, the State of Idaho did come in and within the

process with the recommendations worked very hard to develop a

consensus and I feel we were quite successful with that consensus

among the salmon managers. And this was overruled at the Executive Committee meeting, and even that in and of itself, I think the

State of Idaho accepted and was grateful for and recognized Mr.

Stelle’s authority in doing that, and accepted that decision. Mr.

Stelle characterized that right, it was to ensure that no fewer than

50 percent of the fish were in the barges.

But he also made a statement which was consistent with their

statutory responsibilities, that this was for listed fish. And this led

to another place where the process broke down. So I feel Idaho, in
142

very good faith, gave it our best shot; NMFS did do a good job of

meeting us halfway and working with us on that. They overrode a

consensus of basically 11 of the 12 salmon managers. So then we

went forward and we figured out how to do it within the 50 percent.

During that period, it became evident that listed fish versus unlisted fish transport at different rates and so we developed a transport operation that met the 50 percent criteria for listed fish. To

make a long story short, things were changed by the operating

agencies from what we had agreed to.

Mr. CRAPO. Are you talking about the Corps of Engineers?

Mr. BOWLES. The Corps of Engineers and the TMT, while Idaho

was absent. They changed the operations to ensure that all fish

stayed above 50 percent, and not just the listed fish. And so, we

came in and tried to change that back through the process, through

the TMT process. We put in a system operation request, and actually got consensus again from all of the salmon management agencies—entities except NMFS to again implement this thing, to correct what had been done wrong. That was again overruled by

NMFS on what should have been a pretty minor issue, particularly

listening to Mr. Stelle now.

And what this comes down to is in the process of joint decisionmaking, obviously you have to have somebody who is going to make

the final decisions if you cannot reach consensus, that is fine. But

I think that entity must choose their battles carefully and to override two efforts that developed total consensus other than that authority group, to override that on these two different situations, for

an issue that Mr. Stelle says is relatively minor, is somewhat disturbing in the process aspect of this.

Mr. CRAPO. Well, let me tell you—and I would like you to give

the microphone back to Mr. Stelle and he can certainly respond to

this. The reason this is—it might sound like I am just endlessly

going into something that the witnesses here say is a minor part

of the issue. The reason it is a big issue to me is because if there

is a bias in the direction of what is suggested, that can have massive implications on the people who live in the State of Idaho, if

that bias is carried through into the long-term decision.

As you probably know, Mr. Stelle, from comments that I have

made in the past, I have a concern that that bias is there. The

question I have is—well, I guess I will just ask it to you directly.

Is there a bias in the National Marine Fisheries Service in favor

of transportation over other solutions?

Mr. STELLE. No. And let me describe the reason why I say that

and also let me describe—I think that raises a good point about

why did you feel compelled to override an apparent consensus or

lack of objection on a particular matter. It is a good question and

it deserves a clear answer.

In my view, the issue on—the transportation issue as it is proposed now in 1997 boils down to an issue of the role of science in

decisionmaking here. And in my view, as I stated——

Mr. CRAPO. In the short term.

Mr. STELLE. Absolutely. And in my view, the most important dynamic of the issue as it was presented in 1997 was the issue of the

role of the best available scientific information in making sub-
143

stantive decisions. I was very much aware that lots of people did

not agree with this and frankly it was not a comfortable position

for myself to be in. And I do not particularly like being in those

positions.

But I feel very strongly that if we are going to have success in

all of the facets of this effort, we must stick to what we believe to

be the best evidence available on what is the right course. In my

view, there is not a lot of equivocation on what the right course is

in 1997.

Mr. CRAPO. Well, one of the reasons the concern is raised to folks

like myself—and I would like you to comment on this—Mr. Bowles

indicates that 12 of the other salmon managers agreed or had consensus, and I realize it might not have been 100 percent agreement, as Mr. DeHart has indicated that there were some differences on some aspects of the approach to salmon recovery, but

12 of the managers had consensus and NMFS says no, we are not

going to go that direction.

Mr. STELLE. Let me describe in a little more detail exactly what

the nature of that agreement was, as I understand it, and Ed and

Doug, please correct me if I am wrong.

In fact, this issue was debated first, as it should be, at the technical management team level and a different set of options was

evaluated and then in the absence of an agreement at that level

on the transportation regimes and the operation of the spill and

collector projects, it was elevated to the implementation team

which are what I consider the senior program managers and I believe at the implementation team discussion there were several options being evaluated and as reported to me, there was an agreement between the States of Oregon, Washington, Idaho, NMFS and

I do not know whether or not the operators were involved in this,

in a spread-the-risk option and this was actually the State of Idaho

moving some from their proposed position in order to reach an

agreement. The lower river salmon tribes objected to that option,

which was alternative six, I believe. And on the basis of that objection, the issue was elevated to the Executive Committee.

When it was so elevated to the Executive Committee, the State

of Idaho reiterated its preference for and its insistence on the Idaho

plan, two-thirds in the river as opposed to spread-the-risk, and the

other States to my knowledge did not object, expressed a preference

for the spread-the-risk option, but chose not to object. And the tribal participants supported the Idaho proposal. So that was in fact

the nature of the agreement, as I understand it.

It is a little simplistic to simply say everybody agreed that the

Idaho plan was the right way to go. That is not quite accurate.

Mr. CRAPO. Is it fair to say nobody opposed it?

Mr. STELLE. Yes, that is exactly—at the Executive Committee

level, there was an absence of objection to it, but for the objection

of the National Marine Fisheries Service.

Mr. CRAPO. Okay.

Mr. STELLE. And again, Mr. Chairman, I am just trying to be

very precise here.

Mr. CRAPO. No, I understand that. And you are telling me that

NMFS’ ultimate decision to ignore, or not to accept——

Mr. STELLE. I did not ignore it.
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Mr. CRAPO. I realize you did not ignore it. Not to accept the

Idaho proposal or Idaho policy.

Mr. STELLE. In whole.

Mr. CRAPO. In whole.

Mr. STELLE. Yes.

Mr. CRAPO. Does not show any bias whatsoever on the part of

the National Marine Fisheries as to the ultimate outcome of its decision for the long-term recovery plan.

Mr. STELLE. Absolutely. And on to the issue of bias, there are—

in my view, we are absolutely open to making sure that our

science, as well as everybody else’s science is properly peer reviewed and subject to an open scientific evaluation process. It was

we who decided the need to convene an independent science advisory board specifically to ensure that—and it was we who decided

to bring in the National Academy of Sciences to help us construct

that board, specifically because of the food fight that occurs here

constantly in the region as to whose science is the right science.

And it was my judgment that because of a lack of credibility of

anyone, that convening an independent science advisory board with

the assistance of the National Academy of Sciences was essential

and that we were absolutely prepared to open all of our books to

it whenever and wherever it so chooses.

Mr. CRAPO. And I agree with you on that. In fact, you and I had

a telephone conversation about that when it was first happening,

and I think that that was a correct decision.

Does NMFS in fact intend to transport all the smolt it can during the 1998 smolt migration?

Mr. STELLE. I will leave that issue to the process which we have

in place, which is in late winter/early spring looking at the flow

projections, decreases in flow projections. The technical management team will develop a set of options which will then be either

reviewed by the implementation team. I do not want to prejudge

that issue right now.

Mr. CRAPO. But that proposal has been put forward, is that correct?

Mr. STELLE. I am sorry?

Mr. CRAPO. Has that proposal to transport all fish in 1998, or as

many as possible——

Mr. STELLE. A couple of my staff people have said based on the

preliminary returns from the PIC-tag transportation studies this

year, and this is the first year of the returns, those preliminary returns indicate basically a two-to-one survival benefit from transported fish. She said that if that holds up in evaluation, why would

we put more fish in the river. That was purely a staff observation.

My own view on that, which will be controlling, is that we will

work that issue through the technical management team and the

implementation team in the development of the 1998 scenario.

Mr. CRAPO. But what you are telling me is at least the proposal

to abandon this spread-the-risk policy has been raised.

Mr. STELLE. At the staff level, in hall talk, yes.

Mr. CRAPO. Does NMFS assume the current configuration of

dams in its approach to the 1999 decision?

Mr. STELLE. It is a good question, and let me go to that and what

I believe is important in that 1999 decision.
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We do not assume anything there. We assume that by 1999 we

will have been able to develop the necessary biological and economic information associated with each of the five or six principal

options in order to make a better informed selection of what the

long-term remedy is. We can sit here at this table today and speculate, but because of the significance of the issue for the Pacific

Northwest, it is my view that our obligation to ourselves is to pursue a very steady, open evaluation of the performance, the likely

performance of each of these options so that we can then answer

the question to ourselves, do we think we know what we are doing.

Because when we get to the selection of a preferred alternative, it

will be essential to be able to demonstrate to you and to all the

other participants that yes, we believe that our projections of the

outcomes of this particular alternative are reliable. And the issue

of reliable projections is essential.

Secondly, the issue of the economic costs and benefits of each of

the particular options, going to Ed’s point, and what the degree of

economic impact may be on different sectors and what the opportunities might be to mitigate those impacts so as to be able to accept

them as a region is also an absolutely essential facet of this effort

over the next several years.

Mr. CRAPO. Okay. I am sure you have heard the argument, the

gold plating argument.

Mr. STELLE. Yes, I would like to speak to that.

Mr. CRAPO. Good. The Corps of Engineers is—well, let me just

ask you, do you agree that the Corps’ capital budget plan seems to

predispose the region toward a particular recovery plan that requires flow augmentation as a continued recovery——

Mr. STELLE. No, I do not agree.

Mr. CRAPO. [continuing] outcome. Okay, tell me why.

Mr. STELLE. The issue, as I understand it, Mr. Chairman, is that

in particular there were three or four sets of capital projects, dam

improvement projects, in the 1998 Corps’ capital program that

were the subject and have been the subject of continuing debate.

The salmon managers in the system configuration team, which is

the team of people that try to set priorities for that Corps capital

budget, reviewed these four projects and they involved the continued work on the collector project at the lower Snake, extended

length screens at John Day, improvements to the juvenile and

adult bypass facilities at Bonneville and I believe one other. Doug,

do you remember what the other was?

Mr. DEHART. Ice Harbor.

Mr. STELLE. Ice Harbor, Okay. There was what I perceived to be

a fairly strong agreement between the Federal and State participants in the SCT and implementation team that those four projects

should proceed and that they did not constitute gold-plating or

prejudicing the 1999 decision, because—there are separate reasons

for each, but for the lower Granite project it was basically that the

question of the ability to develop surface collection to better collect

and bypass or spill juveniles is an essential option.

Mr. CRAPO. May I interrupt right there? Is there any effort underway right now to accelerate the research on the surface collector

design?
146

Mr. STELLE. I do not know the answer to that, I think that the

Corps was pursuing some additional reconfiguration of the prototype this year and testing it out with some curtains. I do not know

whether or not—I think they are going full bore on it frankly.

Mr. CRAPO. All right, go ahead.

Mr. STELLE. In essence, the salmon managers, the Federal and

State salmon managers decided that these projects should go forward for various and sundry reasons, be it research or simply because we need the improvements in survival that they hold out,

and that particularly in the case of John Day, obviously the question of whether or not John Day should be reconfigured is one of

the major questions we have to get to. I think the salmon managers’ judgment was that yes, even though we put those extended

length screens in at John Day—in fact, for 5 days this coming year,

the survival benefits of that, even if we end up deciding to take out

John Day, will be worth it because implementing a drawdown decision, an extended drawdown decision at John Day may take us 10

to 12 years, and that therefore, the incremental benefits of those

extended length screens are worth it and in their view did not prejudice that decision.

For Bonneville, the issue was juvenile bypass at what Ted Strong

and the Columbia River Inter-Tribal Fish Commission has rightly

termed is a lousy bypass system and has been lousy for years. And

I think again the Federal and State salmon managers decided that

those bypass improvements were fairly reliable and would result in

some fairly significant survival benefits.

I have to say that the salmon tribes, represented by Mr. Strong

here, do not agree with the Bonneville decision and I believe do not

agree maybe with John Day. And we are looking at that very hard.

My own personal view is that I want to sit down and look at the

issue of the John Day extended length screens for 1999 and beyond, because maybe we should not be further pursuing any more

investments there.

Mr. CRAPO. So you are prepared to give me your assurance today

that the current expenditures are not intended to or designed to

push the decision in one direction or another.

Mr. STELLE. Absolutely.

Mr. CRAPO. The 1995 biological opinion provides that the water

in the upper Snake River basin will only be acquired from willing

buyers and willing sellers and in compliance with State law. You

have probably heard me express concern about that remaining the

case in any new decision that is made in 1999 or whenever it is

made. Do you have any plans to approach obtaining water in any

other way?

Mr. STELLE. No.

Mr. CRAPO. If the water is not able to be obtained through a willing buyer-willing seller and is required by whatever recovery plan

that you may approve or whatever biological opinion or whatever

decision is made in 1999, how will you obtain it?

Mr. STELLE. My view on that, Congressman, is that the subject

of operations of the upper Snake reservoirs and the Hells Canyon

complex and the relicensing of that complex should properly be

open to negotiations between the Bureau—and this is the long

term——
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Mr. CRAPO. Right.

Mr. STELLE. [continuing] between the Bureau, the Idaho Power

Company, the States, the tribes and ourselves and that that in my

view is very directly related to the issue of the lower Snake Federal

projects. Hence in my view, our objective should be to try to reach

a more comprehensive agreement that involves both decisions

about those lower Snake dams and some long-term understandings

and commitments about flows or flow augmentation from the upper

Snake.

Mr. CRAPO. And those commitments again would come, if I understand it correctly, if the water is obtained only from willing

buyer-willing seller arrangements, those commitments would have

to come from individual water users.

Mr. STELLE. Yes, and I believe the implementation of those commitments would require the continued support of the State of

Idaho.

Mr. CRAPO. Do you have any opinion or knowledge of any legal

opinions that would indicate that the managing agencies, whether

it be the Bureau of Reclamation or otherwise, could obtain that

water other than through a willing buyer-willing seller arrangement?

Mr. STELLE. I heard the testimony this morning and the exchange this morning, and Mr. Chairman, that is not my area of expertise, so I really——

Mr. CRAPO. So beyond that, you have nothing to add?

Mr. STELLE. No.

Mr. CRAPO. You heard us refer to the consultation this morning

between the Bureau and NMFS.

Mr. STELLE. Yes.

Mr. CRAPO. Do you have any plans on increasing the 427,000

acre-foot amount that is now requested or provided as a part of this

new consultation?

Mr. STELLE. Can I give you a precise legal response to that?

Mr. CRAPO. Sure.

Mr. STELLE. And let me describe to you why I am giving you a

precise legal response. We have received a 60-day notice on that

issue, we may well be in litigation on that issue and I do not want

anything I say here to prejudice our ability to defend what we do

in that litigation, and therefore, I am being careful.

If your question is do we have any current intention of requiring

more water beyond that which we called for in the 1995 biological

opinion, the answer is no. If your question is do we intend to look

at all of the current available information and examine all of the

issues in accordance with a normal and lawful consultation process,

we do intend to do that. But at this point in time, we have no intention, based upon what we know and we believe we have considered all the relevant information in the 1995 biological opinion.

Mr. CRAPO. Who has filed the notice of intent to sue?

Mr. STELLE. Oh, I do not know.

Mr. CRAPO. Is there only one?

Mr. STELLE. Anybody here know that? Legal Defense Fund

or——

Mr. CRAPO. There are several here that know, but we will find

that out.
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Mr. STELLE. American Rivers. There are so many, Mr. Chairman.

Mr. CRAPO. Has—let us get it all, it is the American Rivers

group, are there any others that are a part of that?

Mr. STELLE. Again, I am not sure who signed that 60-day notice.

Mr. CRAPO. Mr. Ford, do you have an answer to that question?

Mr. FORD. The lawyers have told me the Defense Fund and

Northwest Environmental Defense Center, the plaintiffs are American Rivers, Sierra Club, National Resource Defense Counsel, Oregon Natural Resources Counsel, Federation of Fly Fishermen,

Northwest Sportfishing Industry Association, Pacific Coast Federation of Fishermen Associations.

Mr. STELLE. To name a few.

Mr. FORD. Trout Unlimited may also be in there.

Mr. CRAPO. Okay, good, thank you.

What is meant by the statements in your May 19, 1997 letter to

FERC regarding the water diversion activities in the upper Snake

River basin and progress on securing additional water? You are familiar with the paragraph that I am referring to, the second paragraph on page 2?

Mr. STELLE. I do not have it before me.

Mr. CRAPO. I have got a marked up copy here and there is also

a copy in the record from our previous hearing, but basically in

your letter to FERC—I think I have got it here, yes—it states, ‘‘The

effectiveness of the FCRPS project operation seeking to achieve BO

in-river flow objectives is dependent upon water diversion activities

in the middle and upper Snake River basin and upon the operation

of the Hells Canyon project situated in between.’’ I will skip a sentence or two and then it says, ‘‘Specifically, the BO adopted the

Council’s requirement for immediate provision of 427,000 acre-feet

and progress on securing additional water from the middle and

upper Snake River and specific drafting levels from Brownlee Reservoir of the Hells Canyon complex in May, July, August and September.’’

The question that I have is the question in this consultation that

is raised by that language of what ‘‘progress on securing additional

water’’ refers to.

Mr. STELLE. That is one of the numerous points that we intentionally incorporated in the 1995 biological opinion to try to draw

that opinion as close as possible to the fish and wildlife program

of the Northwest Power Planning Council. In our view—the Council program called for an additional one million acre-feet out of the

upper Snake.

Mr. CRAPO. That is right.

Mr. STELLE. We did not believe that that was feasible and that

it would be inappropriate to request the Bureau to provide that.

We therefore, in working with the Bureau, decided that the—that

a firm commitment for the 427,000 acre-feet was feasible and

implementable, but that we would continue to examine the possibility of additional water over and above that, in reflection of the

Power Council’s call for one million acre-feet.

Mr. CRAPO. Then what that tells me is that the Power Planning

Council’s call for an additional one million acre-feet is very much

in play.
149

Mr. STELLE. In my view, the agreement that we have now with

the Bureau of Reclamation for the providing of 427,000 acre-feet is

the agreement that we will continue to look to with the Corps—

with the Bureau and will be the subject of further discussions in

the consultation. I do not know of any specific further measures for

additional water from the upper Snake, if that is what your question is.

Mr. CRAPO. At least in occasional discussion and consultation

with FERC and the issue of seeking an additional one million acrefeet, or at least looking at the issue of seeking an additional one

million acre-feet in that consultation.

Mr. STELLE. Again, to parallel and be consistent with the——

The REPORTER. Will you use the microphone, please? I cannot

hear you.

Mr. STELLE. Oh, I am sorry.

So the issue is—and, Mr. Chairman, I am not even sure that the

Federal Energy Regulatory Commission has decided to initiate consultation.

Mr. CRAPO. I understand that.

What is the current progress on meeting the 1999 deadline for

making a decision on the long-term mechanism for salmon recovery?

Mr. STELLE. I would say it is good. In fact, at our last meeting

with the State and tribal senior members of the process, we, in

fact, had presentations by the mediator for the PATH process on

their progress and on the—by the Corps of Engineers on their economic and engineering evaluations. We looked at the schedules. We

even looked at the question of whether or not schedules should be

accelerated or could be accelerated and what we might or might not

sacrifice by accelerating decision schedules. We distributed a discussion paper on the relevant schedules and timeframes and issues

and I would be happy to provide that to you, Mr. Chairman.

Mr. CRAPO. If you would, I would appreciate it.

Mr. STELLE. But my general impression is, I think the economic

and biological work is pretty much on track.

Mr. CRAPO. I think that discussion paper refers to more water,

too.

Mr. STELLE. Yes. Yes, in fact, one of the issues that the PATH

process is examining is the role of flow augmentation in the longterm remedy.

Mr. CRAPO. In that context, what implication will either of the

two long-term decisions have for water in southern Idaho? And

when I say that, I am referring to basically the enhanced transportation and surface collector approach or the drawdown dam breaching approach. In other words, if the decision moves in one direction

or the other in the 1999 decision that is going to be made, what

implications do each of those options have, in your opinion, with regard to the need for additional water from southern Idaho? And I

am referring not just to the upper Snake but clear across southern

Idaho.

Mr. STELLE. Again, based on what I know now, my view is that

there is a correlation between flow augmentation or additional flow

augmentation in southern Idaho or the upper Snake and drawdown

options on the lower Snake at the Federal projects. If the region
150

decides to implement a drawdown strategy, then, I think, that will

likely result in reduced demands for flow augmentation from the

upper Snake. Exactly how much and what the equation is, Mr.

Chairman, I do not know and I do not frankly think we have developed that information through the PATH process, but there is a relationship there.

Mr. CRAPO. Is it possible that the need for flow augmentation

could be eliminated entirely under some options?

Mr. STELLE. We would have to talk about what you mean by flow

augmentation. Fish need a river and fish will be returning in summer and fall. So there will need to be flows in the summer and fall

time in the lower Snake. Now does that require flow augmentation,

or does the natural hydrograph provide for it? That is some of the

details we have to take a look at.

Mr. CRAPO. In the event that there were a requirement of more

flow augmentation from southern Idaho, particularly in dry years,

some have suggested additional storage such as Galloway for those

purposes. Is NMFS evaluating that and is that a feasible option?

Mr. STELLE. I do not have information on that topic, Mr. Chairman. I do not know.

Mr. CRAPO. Okay. Were you here this morning when we had the

discussion with Mr. Campbell about the two million acre-feet of

water?

Mr. STELLE. Yes.

Mr. CRAPO. Do you have a comment on that?

Mr. STELLE. I believe the discussion pertained to the recently

completed study by the Bureau of Reclamation.

Mr. CRAPO. Yes.

Mr. STELLE. The—that study was intended by both NMFS and

the Bureau to be an evaluation of the cumulative effects of all different water resource activities on in-stream close in the Snake and

Columbia system. It was called for, and part of the 1995 biological

opinion. The study was released—finished and released by the Bureau, I believe, in the spring of this year. Exactly when, I am not

sure. And in essence, what that seeks to display is the—is the relative role of different types of water resource management activities on in-stream flows, including, but not limited to, power production, flood control and irrigation.

Mr. CRAPO. And so you do not interpret that study to mean anything other than——

Mr. STELLE. Accumulative effects study.

Mr. CRAPO. [continuing] accumulative effects study? All right.

In his testimony, Mr. Ray asked—or said that he is not aware

of—and I am not aware of—what the improved transportation alternative really is. Are you in a position to give us details on what

that alternative is?

Mr. STELLE. Yes. They are fairly commonsensical. The most significant of which I think is the—is substantial improvements in the

ability to collect juveniles in their downstream migration through

this question of surface collectors. If we—if transportation is the

chosen long-term remedy, then it must be predicated on the assumption that we are going to be able to collect enough juveniles

in order to support rebuilding. Right now, the collection efficiencies

at the different projects is quite variable. The most important im-
151

provement in the transportation system is the ability to—is the collection abilities, and that—and the most important focus there is

whether or not we can develop surface collectors that work. There

are other more modest improvements, improvements in the bypass

systems, improvements with the other collection facilities like

screens, improvements in barge—in the conditions in the barges

themselves, reduced crowding, improvements in release strategies

of fish in the downstream areas, et cetera, et cetera.

Mr. CRAPO. All right, thank you. I am going to change gears over

to the conservation agreements.

Mr. STELLE. Yes.

Mr. CRAPO. Do you see positive potential for NMFS to use the

conservation agreements that were discussed earlier in terms of

dealing with private parties and others?

Mr. STELLE. Yes.

Mr. CRAPO. What have you done or what do you plan to do in

support of these agreements as a tool for fish recovery?

Mr. STELLE. I plan to work very hard to try to get more staff to

help us negotiate that. That is actually a serious issue. What we

have done thus far principally in Oregon, Washington and California, Congressman, is initiate a fairly aggressive program to negotiate long-term conservation agreements with applicants who

come in the door. They tend to be 40 to 100-year agreements with

the large industrial landowners, mostly timberland owners. And

the basic deal, if you will, associated with those agreements—which

I strongly support—is that if they promise to manage their landscape in a way that provides a high likelihood that the aquatic

habitat on that landscape will be healthy over time and will support salmon and steelhead, we, in turn, promise not to come back

and take another bite of the apple. They are multi-species, all species. They tend to cover both aquatics and terrestrials and they

represent very large scale, very sophisticated agreements. We have

been—we have been quite successful with a number of them thus

far, and I think that they—the landowners themselves are willing

to change their land management practices for the long term with

some significant investments associated with it in return for the

stability it proves them, that, in essence, they are home free from

an Endangered Species Act or Clean Water perspective. They are

a very important tool in the toolbox.

Mr. CRAPO. And you fully intend to use them?

Mr. STELLE. Yes.

Mr. CRAPO. I want to go back to your answer with regard to the

water from the upper Snake. I recognize that you are facing a notice of intent to sue. I assume you can tell me what is in that notice. Is that not a public document, the notice of intent to sue?

Mr. STELLE. Oh absolutely. I can give you a copy.

Mr. CRAPO. I would like to see that.

Mr. STELLE. Okay.

Mr. CRAPO. I assume that the reason you cannot discuss water

issues is because the notice of intent to sue seeks further water,

or says that there may be a claim for further water from southern

Idaho, is that correct?

Mr. STELLE. I think that sounds like a safe assumption. To be

honest with you, I cannot recall the exact claim. I believe the heart
152

of the claim is a procedural claim that you did not consult and you

have to. Whether or not the relief sought is something more than

a formal consultation under section 7 is the question. My guess is

probably they are looking for more than just process.

Mr. CRAPO. And you will provide a copy of that notice?

Mr. STELLE. Yes.

Mr. CRAPO. And I do not—I think I asked this, but you were in

the middle of answering something else. Is that the only notice that

you are currently operating under or dealing with right now?

Mr. STELLE. No. I can answer with great confidence that we—

we get a sort of sprinkling of 60-day notices on a monthly basis

from various and sundry parties. Do you mean in the context of the

upper Snake?

Mr. CRAPO. Well no, I meant the first, but let us go to that. In

the context of the upper Snake, are there others that you are

aware of?

Mr. STELLE. Not to my knowledge.

Mr. CRAPO. Can you tell me—and I realize you may not have this

on the tip of your tongue. But can you tell me which groups may

have—individuals or groups may have filed notices of intent to sue

with regard to the 1995 biological opinion? Is that going to be a

long list?

Mr. STELLE. No. Doug, you might be able to help here, or Ted.

I believe the principal plaintiffs for challenging the hydro

opinion——

Mr. CRAPO. Yes.

Mr. STELLE. [continuing] were the—I believe three of your member tribes, or was it four?

Mr. STRONG. We were just amicus.

Mr. STELLE. I am sorry. Then it was—I assume American Rivers

was the plaintiff, the principal plaintiff. I assume some of the

Idaho environmental groups may have been part of the coalition of

plaintiffs. I believe they were represented by the Sierra Club Legal

Defense Fund. As Ted indicated, his member tribes joined that litigation as amicus, and I believe the State of Oregon joined as a

party plaintiff, and the State of Washington joined as an amicus,

and the States of Idaho and Montana joined as party defendants.

Mr. CRAPO. And that is all in one notice?

Mr. STELLE. That was all in one litigation.

Mr. CRAPO. In one litigation. Are there any notices that have not

resulted in litigation?

Mr. STELLE. Oh, yeah.

Mr. CRAPO. That is a long list, or is it?

Mr. STELLE. A 60-day notice can be a tactical move, Congressman, as you probably well know, to stimulate further discussions

on a particular matter. So I do not necessarily assume that 60-day

notices automatically translate into actively prosecuted litigation.

Mr. CRAPO. But you are treating the——

Mr. STELLE. Yes.

Mr. CRAPO. [continuing] American Rivers one as a potential—the

recent one——

Mr. STELLE. Yes.

Mr. CRAPO. [continuing] as a potential for very real litigation?

Mr. STELLE. Yes.
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Mr. CRAPO. Hold on just 1 minute.

[Pause.]

Mr. CRAPO. All right, I just want to go into one more area with

you, Mr. Stelle, and then I do want to have a brief discussion with

the panel about process. As you have heard from some of my other

questions, I am sure, and from some of the testimony at the first

hearing and in this hearing, a lot of objections come to me from individual participants in various endeavors, whether it be mining or

timber or grazing or other uses that have been impacted by salmon

management—often habitat management decisions. And one of the

constant complaints is they can deal with the overall managing

agency, but then when the layer of management that NMFS adds

to it is overlayed, that it is a very unworkable and frustrating circumstance. I do not really have a question, although you are welcome to respond if you would like to. I just want to tell you that

that is a constant concern that is raised to us, often enough that

I feel it necessary to bring it to your attention here that in one way

or another, we have got to get past that. We have got to get to the

point where the managing agencies and officials are working together and in a timely fashion with NMFS. I am not going to necessarily say it is NMFS’ fault, but you are the one at the table

today. I have the opportunity to talk to other managing agencies

as well. To just encourage you to look at that issue and make sure

that your people in the field are providing the kind of timely and

prompt public service that they ought to be providing to those who

are dealing with our managing agencies. If you would like to comment to that, you are welcome to.

Mr. STELLE. Let me offer just a couple of brief comments. First

of all, I—there have been—I think there are probably some of the—

some of the frustration is warranted, and at times things have not

gone as quickly as everybody would hope. I think that there is—

there has been some room for improvement with the interagency

process and that, in fact, we are seeing some real improvements occurring. So I am optimistic that things are in fact getting better on

the ground.

I would also note that we have—I have made a big effort to try

to expand our Boise office so that just the bloody issue of workload

and bottlenecks tries to get resolved better. We have made some

pretty good progress there.

Finally, I would like to say that after the—on the issue of the

grazing permits, I listened to Jim’s testimony this morning, Jim

Little——

Mr. CRAPO. Yes.

Mr. STELLE. [continuing] and he participated in the review team

that we had on the ground a couple of weeks ago to look at the

issues of cattle management on Federal lands and what kind of

strategies might be implementable and what kind of monitoring requirements might be required. What I would like to do is to give

you a commitment that when the report from the National Riparian Team comes back with what their recommendations are on how

to implement a strategy, that I will call Jim and I will meet with

him to talk to him about developing a larger multi-year framework

for grazing management in a way that gives him better predictability. I think that is entirely possible. I think we are closing the
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bounds between the different points of view and I will give you my

commitment that I will meet with him to look to explore that.

Mr. CRAPO. Thank you. That is the kind of thing that I think

really does help, because even though we all recognize that the

issues are complex and the agency is very heavily over worked, we

still have people on the ground who’s livelihoods are seriously impacted by these things.

Mr. STELLE. Yeah.

Mr. CRAPO. Let us go now to a discussion with the whole panel

on the question that we have talked with each panel about, and

that is what kind of a process do we need to move forward. We

have the sovereigns in one capacity or another represented here,

and that has been different than the other panels because they

have had an opportunity to talk about you. But I would like to get

your perspectives on this. I tend to come at it—I will tell you out

front—up front that I tend to come at it from a perspective of

thinking that we need a decisionmaking model in which there is a

final place where the buck stops. Although NMFS may be the closest thing we have got to that, I do not think that we have got that

even now with NMFS. There are those who say, okay, then we

ought to have a Federal agency doing that. There are those who

say, no, we ought to create a regional entity that has equal participation from the tribes and the States and the Federal agencies.

There is a suggestion, as you heard this morning, to have maybe

those sovereigns create a single managing person or a board of directors with a CEO for management. I am sure that a number of

other options could be discussed. I would like to know what your

thoughts are.

First of all, do we need to have a different system than we now

have? If your answer to that is no, then I would just like to know

why, and if your answer to that is yes, I would like to know what

you have as suggestions.

Mr. DeHart, do you want to start?

Mr. DEHART. Certainly, Congressman. Maybe the best way for

me to answer this, rather than just sort of speculate myself on

some of these options, is to offer you an example of an approach

that I think is working well in Oregon at this point, and that is

the process that we have gone through as a State and have worked

with National Marine Fishery Service on in developing recovery

strategies for coho salmon. And that was, I think it is fair to characterize, very much a bottom up rather than top down effort. An

effort that involved a commitment by State agencies, by the Governor of Oregon, by the Oregon State legislature in partnership

with local governments, with local landowners to bring together

measures to meet scientific objectives, biological objectives that we

developed working with the National Marine Fishery Service and

others. The end result was really not, I do not think, fundamentally a different process in the sense of the Federal side of it, but

it was different in the sense that when it came together, the pieces

came with buyoff. So that plan, as it stands right now, has State

and local money behind it, as well as Federal money behind it. Of

course, it was only adopted earlier this summer, but many of the

measures are already happening and moving forward quickly. Now

in fairness, that did not solve the issue of Federal management re-
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sponsibilities for Federal lands and Federal water projects versus

non-Federal ones. It operated on the assumption—and it is working

there—that the Federal agencies define their measures and then

they implement those to the same set of agreed to standards and

the State implements ones involving State and privately owned

lands. I think that model is worth a real close look. It is a bit of

a brave new world in how you implement the Endangered Species

Act and also in how you get ahead of the Endangered Species Act

and deal with weak stocks before you have to talk about kicking

in federally driven, ESA driven management. So I certainly offer

that one as food for thought here.

Mr. CRAPO. All right, thank you.

Mr. Bowles.

Mr. BOWLES. Congressman, that is a big question you asked and

one I have a lot of opinions about. As I mentioned in my testimony,

you know, I really do not feel that how ever we package the process

that we are going to get there unless we have a fundamental shift

in what is motivating the participants at the table. And that motivation has to be meeting the biological requirements of the fish in

a way that is acceptable to society. I feel that it is a very simple

mission, but we, as a group, get far too bogged down in the process

of salmon recovery. The concern, legitimate as it is, on litigation,

on the bureaucracies that we all are part of causes us to lose sight

of that mission. I do not feel that our tendency as a group to try

to first and foremost see if we can somehow make it fit without

causing any real changes is going to get us there.

The other, you know, thing that I brought up is that from the

standpoint of having one person in charge, I think you are right in

that we do need some place for the buck to stop. But that leadership is going to require somebody that has solely focused on that

mission and without any scientific, economic or social biases within

that. And I do not feel NMFS is there on that, mainly because of

what I perceive as their bias toward sticking with the transportation program. I think if we can get beyond that and focus on the

social and economic issues of how to make in-river survival work,

we could be much more successful in this.

Mr. CRAPO. Okay. Mr. Strong.

Mr. STRONG. I believe we are already on this road to a new process and structure and it came about because the tribes withdrew

from the adaptive management forum for the reason which is to

overcome the bias that Will says was not there. You know, we felt

there was extreme bias on the part of National Marine Fishery

Service in leaning on its own science and utilizing only its own scientists’ advice. That first came to public attention when we went

through the MOA process to which allocated the $435 million. That

was predicated almost exclusively on the biological opinion which

the tribes objected to, which many environmentalists objected to,

and which in part was the American Rivers versus NMFS lawsuit.

When the adaptive management process began and all of these

tiered committees were put together, NMFS chaired those, and despite any protestations from the tribal scientists, many of those decisions were made at a very low level. We objected strenuously to

having technicians and scientists making policy. After several

months of frustration—maybe a year went by, we finally—after
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fully consulting with the chair for the Council of Environmental

Quality, we withdrew from that process, asking that a new process

be developed in which three sovereigns would respect each others

authorities and bring a greater kind of communication toward resolving what we thought were these biases. And when the decision

about barging went forward, to us, that was the ultimate in terms

of bias. And when the decision was supposed to be made in the future about breaching the dams, and the goldplating went ahead as

a decision anyway, the Army Corps of Engineers and the Bureau

of Reclamation said we are obligated to do that because it is in the

biological opinion. Their hands were tied by the National Marine

Fishery Service. That is a bias because it excludes the decisions

and the science from the tribes and other environmentalists. So it

is biased.

I think to the credit of the National Marine Fishery Service and

others, we are now putting together a new framework that allows

us to have these very authoritative decisionmaking processes put

into place. I think—I am hopeful anyway that a new kind of optimism will grow from decisionmaking being made from the policymakers on down. The tribes were quite frustrated having policy decisions made at a very low level. So I think we ultimately hope that

improved communication will result in better decisionmaking and

maybe take the edge off what we felt was a bias toward only the

National Marine Fishery Service science.

Mr. CRAPO. Okay, thank you. Mr. Stelle.

Mr. STELLE. Yes, Mr. Chairman, let me first draw a couple of distinctions in your question, because I think they are useful. They

are not perfect, but they are useful. There is, first of all, the suite

of activities which occur on a day-to-day basis in implementing the

biological opinion in preparation for the larger discussion in 1999

in running the river, in deciding what the Corps should spend their

money on, et cetera, et cetera, et cetera. And in our view, I consider

that as sort of interim governance issues. And then there is the

larger question of how is this region going to decide what that longterm pathway should be in 1999. And they are qualitatively different subjects in some respects.

On the first, I sincerely believe that—call it what you will, and

I do not care what we call it—you need in essence the implementation team made up of the senior program managers of the relevant

State, tribal and Federal agencies overseeing day-to-day implementation activities. You just need that. Now we could go behind closed

doors and say this is just a Federal system, but that makes absolutely no sense. And we have that implementation team structure

in place and I think it works fairly well, and hundreds and hundreds of issues get worked out there. And they oversee some technical committees which are essential technical committees.

So I see in some respects the interim decisionmaking apparatus

is there. It is an implementation apparatus and we do not need to

worry too much about that in some respects. There are incremental

improvements we can make and should be making in it and are

making with everyone.

The real larger governance issue is the big—is how to make the

long-term decision. In my view, first and foremost—and I think I

represent the Administration on this. We believe that the long-
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term—the selection of a long-term remedy must absolutely involve

the active and formal participation of the governments of the Pacific Northwest. The State governments and the tribal governments

must come together with the Federal agencies in developing a longterm solution. If it does not happen, it will not get implemented.

The question for us on governance, I think, is what kind of mechanism can we agree to to ensure that those options that we are developing are the right options, that the information is the correct

information, and that the—and that we then negotiate and come

to an agreement on the right pathway. On that, I think Ted is correct that largely because of the effort of the Governors and the

tribes with Federal participation, we are actively discussing how

we can develop that kind of deliberative process. Maybe using the

offices of the counsel representing the States, with active tribal and

Federal participation, maybe doing it some other way. At the end

of the day, we will end up having three sovereigns around some

table somewhere in a deliberative process. We need to come to a

more complete understanding of how that will work so that when

we get 299, we are prepared to do business.

Mr. CRAPO. Mr. Stelle, in that context, it seems to me that what

you have just described, we already have or have the potential to

have put into place if that collaborative process between the

sovereigns assumes that the Federal sovereign will ultimately

make the final call, which is what happens now, am I correct? In

other words, we can bring the State and tribal governments into

collaboration or consultation or whatever we want to call it, but

under the current system, basically you have to make a decision,

NMFS has to make a decision, and then the other operating Federal operating agencies have to decide whether they are going to

comply with that decision or not, is that correct?

Mr. STELLE. That is the current—that is the current system, yes.

Mr. CRAPO. So the question I would have in the context of what

you have just suggested is, do you think that is adequate? In other

words, the States and the tribes—and I would ask this to all of

you. That the States and the tribes are involved but they are not

actual decisionmakers, or should we move to a system in which the

States and the tribes are the decisionmakers, if we can create one.

I do not even know if we can do that. But do you see what the

question is?

Mr. STELLE. Yes, I do, and it is a fair—it is a good question. I

again think there are really very qualitatively different things at

play here. On the one hand, the current system we have now is the

implementation of day-to-day activities pursuant to our various responsibilities and statutory obligations, and we all try not to get

sued too much. On the other hand, this larger decision, again in

my view, is a macro—is a macro choice by the Pacific Northwest.

I fully expect that the implementation of that choice will be by legislation, will require legislation and will require some degree of

consensus among the governments and the political leadership here

in the Pacific Northwest. And in my view, that ultimately—the

coming together of that political consensus, as I think Ed was saying, is going to be the essential ingredient for long-term salmon

success. It is not going to be simply NMFS and the Corps of Engi-
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neers going off and making a section 7 decision under the Endangered Species Act, no, sir.

Mr. CRAPO. All right. Mr. Strong, do you want to add anything

to that?

Mr. STRONG. First of all, I want to make sure that in this area

of bias—because Mr. Stelle is good at some of this stuff, he is a

good bureaucrat at this point. That just because things are interim,

as he terms it, it does not mean that the tribes, States and others

should not be included. Barging, budgeting, spills, flows, production, they are interim. They are decisions being made today, but

they impact the long-term availability of salmon in the future. We

are not going to have that door closed on us by NMFS saying that

these are interim measures and we will make the decision and you

guys just go along with it. That is not going to happen.

Secondly, I think that with regard to these processes and the decisions that are being made, I do think that while we have gone

through this adaptive management process, that it is going to be

very important that each of the respective governments be able to

make decisions at these forums. That has been one of our problems. We do not necessarily need a CEO. We need people coming

to that table who can make the decisions at that time instead of

saying well, we have got to give this to our scientists, we have got

to give this to our attorneys and the statisticians and everybody

else to make a decision for us. There is no need for any of that kind

of leadership if that is what we are going to do in a new process.

We need people who can come there, make those decisions, make

them binding and get on with the show.

Mr. CRAPO. All right. Mr. Bowles.

Mr. BOWLES. I would like to just reiterate what Mr. Stelle

brought up. This really is going to be a societal decision, and I

think where the process really needs to start focusing on is embracing society into the discussion and the debate. Hopefully not so

much in the debate of these conflicting ways of protecting our interests, or anything else, but actually in finding solutions on how

to keep their interest whole. That cannot be done with the current

process. We put, and it would be a fair question to ask us involved

in the process, how much time relatively have we spent dealing

with the science, dealing with the day-to-day implementation of

things versus how much time have we spent figuring out how best

to get society prepared for the decision they have to make? I think

you would be a little disappointed in the answer.

I think Mr. DeHart has a good model for us perhaps on the

coastal coho restoration plan, in that they basically came in with

some ideas of what they need to accomplish it. It was not a big debate on the biology. I mean, it was there but it was not the focus.

And they came in and said okay, this is what is biologically needed.

Now let us figure out how to do it. That generated a lot of grassroots support. They had the threat of a listing, so that helped motivate people. But basically what you had was people figuring out

how to keep themselves whole and still get the job done. Whether

or not it works or not, the verdict is still out. But, at least, I think

it was a good model and a way to begin that.

Mr. CRAPO. All right. Mr. DeHart.
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Mr. DEHART. Well the only thing I could add is—at this point is

to agree with the characterization that Will made a process, and

that is, there is only so many ways to rearrange the same pieces

in any case and they are largely on the table. So from my perspective, why do not those pieces always function now? I said this before, but it is worth reiterating. There is a couple of things that are

missing, I think. One of them are clear biologically based goals and

objectives that the process is supposed to meet. I would suggest

that that has really been the failure of the Northwest Power Planning Council to the degree that process has failed to date. It has

not been able to take on and resolve that fundamental issue. Instead, it has built an array of measures, but never the fundamental

objectives for what they are trying to accomplish and what the

measures need to meet.

And then second—and I mentioned this earlier, too—a dispute

resolution process. Because clearly, just as you have mentioned

several times, this is not going to work if it is just simply regional

sovereigns and Federal Government disagree, regional sovereigns

lose. I mean, the process has to be able to deal with what happens

if there are good faith disagreements between regional and Federal

parties. If you can make those two pieces work, I think largely the

process piece will run all right.

Mr. CRAPO. All right. I appreciate your thoughts and input and

the time you have taken to come here and testify. I have no further

questions, so I am going to adjourn the Subcommittee hearing. For

those who want to give a 1-minute speech, we will still do that. As

I said earlier, it will not be a part of the record, but the record will

remain open for written submission of comments for 30 days. This

Committee is hereby adjourned.

[Whereupon, at 2:46 p.m., the Subcommittee was adjourned.]

[Additional material submitted for the record follows.]
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