Columbia River Basin: A Multilayered Collection of Directives and Plans Guides Federal Fish and Wildlife Activities
Released: 2004-06-04T00:00:00

Letter

Background

The Columbia River Basin, the nation’s fourth largest, extends through seven Western states—Oregon, Idaho, Montana, Nevada, Utah, Washington, and Wyoming—and into Canada. (See fig. 1.) Twelve major tributaries, the longest of which is the Snake River, feed the Columbia River. The basin contains over 250 reservoirs and about 150 hydroelectric projects, including 18 dams on the Columbia and Snake Rivers.

The basin is home to many species of fish and wildlife, some of which are listed under the Endangered Species Act (ESA) as threatened or endangered, in part as a result of the extensive hydropower development of the basin rivers. Endangered fish in the basin include certain species of salmon, steelhead, and white sturgeon; bull trout are listed as threatened. Threatened and endangered wildlife in the basin include birds such as the marbled murrelet and northern spotted owl, and other animals such as certain species of caribou, deer, lynx, and rabbit. The basin is also home to 13 Indian tribes, which by treaty, executive order, or other authority, reside on reservation lands within the basin. As shown in table 1, nearly 45,000 members are enrolled in the tribes with reservation lands in the basin. Fish and wildlife are of critical importance to these tribes, as the tribes rely on them for sustenance as well as preservation of their cultural traditions. For example, salmon are part of the spiritual and cultural identity of most of the basin’s tribes, and are frequently used in tribal religious services.

Numerous federal agencies, including the following, conduct activities within the basin that affect fish and wildlife, as well as the Columbia River Basin Indian tribes. Many of these agencies are responsible for managing water resources, the power generated by hydroelectric projects, or land resources, such as forests, grazing lands, and wildlife refuges.

Bonneville Power Administration (Bonneville) provides power transmission services and markets the electricity generated by the 31 Corps and Reclamation dams comprising the Federal Columbia River Power System (FCRPS). In doing so, it must provide treatment to fish and wildlife equitable to the other purposes for which the FCRPS is operated.

U.S. Army Corps of Engineers (Corps) designs, builds, and operates civil works projects to provide electric power, navigation, flood control, and environmental protection.

Bureau of Reclamation (Reclamation) designs, constructs, and operates water projects for multiple purposes, including irrigation, hydropower production, municipal and industrial water supply, flood control, recreation, and fish and wildlife.

U.S. Forest Service (Forest Service) manages national forests and grasslands under the principles of multiple use and sustained yield, and ensures that lands will be available for future generations.

Bureau of Land Management (BLM) administers public lands and subsurface mineral resources, and sustains the health, diversity, and productivity of public lands for the use and enjoyment of future generations.

U.S. Fish and Wildlife Service (FWS) manages wildlife refuges, conserves, protects, and enhances fish, wildlife, and plants, and implements the ESA for terrestrial species, migratory birds, certain marine mammals, and certain fish.

Bureau of Indian Affairs (BIA) encourages and assists American Indians to manage their own affairs under the trust relationship with the federal government. It develops forestlands, leases assets on these lands, directs agricultural programs, protects water and land rights, and undertakes other responsibilities in cooperation with the tribes.

Together, these federal agencies and the 13 basin tribes manage over half of the portion of the Columbia River Basin located within the United States. The Forest Service and BLM manage about 81,000 square miles of forest and grasslands, and 33,000 square miles of rangeland, or about 37 percent and 15 percent of the basin’s U.S. land area, respectively. Reservation land totals about 5 percent. All other agencies combined manage about 3 percent of the U.S. portion of the basin. Figure 2 illustrates the federal and tribal land ownership patterns.

In addition to the water, power, and land resource management agencies, several other federal agencies have regulatory, resource protection, and research responsibilities in the basin.

National Marine Fisheries Service (NMFS) conserves, protects, and manages living marine resources so as to ensure their continuation as functioning components of marine ecosystems, and to afford economic opportunities. NMFS also implements the ESA for marine and anadromous (migratory fish such as salmon and steelhead) species.

Environmental Protection Agency (EPA) protects human health and safeguards the natural environment by protecting the air, water, and land. It administers the Clean Water Act and Clean Air Act.

Natural Resources Conservation Service (NRCS) assists farmers, ranchers, and other landowners in developing and carrying out voluntary efforts to protect the nation’s natural resources.

U.S. Geological Survey (USGS) conducts objective scientific studies and provides information to address problems dealing with natural resources, geologic hazards, and the effects of environmental conditions on human and wildlife health.

Along with their primary water, power, resource, and other management and regulatory responsibilities, these agencies are responsible under various laws, treaties, executive orders, and court decisions for protecting, mitigating, and enhancing fish and wildlife resources in the basin, as well as involving the tribes in the process. One of the main drivers of such activities is the Northwest Power Act, which provided for the establishment of the Northwest Power and Conservation Council. Under the act, the Council develops the Columbia River Basin Fish and Wildlife Program to mitigate the effects of hydroelectric dams on basin fish and wildlife, and Bonneville assists in implementation and is the principal source of funding for the program.

Bonneville recently experienced a substantial deterioration of its financial condition, in part because of drought conditions, rising costs of providing power, and lower than projected revenue from selling surplus power. For example, as we reported in July 2003, its end of year cash reserves fell from $811 million to $188 million from fiscal year 2000 to 2002. Bonneville’s financial difficulties caused concern about its ability to meet its fish and wildlife funding responsibilities under the Northwest Power Act. The Yakama tribe filed two petitions in June 2003, and the Upper Columbia United Tribes filed a petition in December 2003, in the United States Court of Appeals for the Ninth Circuit to review Bonneville’s budgeting, accounting, and contracting processes, and in the case of the Yakama, the Northwest Power and Conservation Council’s recommendations, regarding fish and wildlife funding. As of now, the two Yakama filings and the Upper Columbia United Tribes filing are being discussed in separate settlement negotiations. In accordance with our policy to refrain from addressing matters that are in litigation, we did not address the issues before the court in this report.

A Multilayered Collection of Directives Defines Federal Responsibilities to Fish, Wildlife, and Tribes in the Columbia River Basin

Federal responsibilities for protecting, mitigating, and enhancing fish and wildlife resources in the basin, as well as involving the tribes in the process, are defined by a multilayered collection of laws, treaties, executive orders, and court decisions. Nationwide, basin-specific, and agency mission-specific laws create responsibilities for federal agencies to mitigate the impacts of their activities on fish, wildlife, and their habitat. In addition, various laws, treaties, executive orders, court decisions, and agency policies require agencies to consider the rights of tribes in the basin. Federal responsibilities and activities under these layers of directives have been defined and clarified over the years through numerous court decisions. Appendix II lists laws, treaties, and executive orders identified by federal agencies as guiding their fish and wildlife responsibilities in the basin. Appendix III lists laws, treaties, and executive orders identified by federal agencies as guiding their tribal responsibilities in the basin. Appendix IV lists court decisions that have helped define or clarify agency responsibilities to fish, wildlife, and tribes under these directives. Each appendix includes the citation for every law, treaty, executive order, and court case listed.

Agency Responsibilities Are Defined by Nationwide, Basin-specific, and Mission-specific Fish and Wildlife Directives

Federal agencies are responsible under nationwide, basin-specific, and agency mission-specific laws for mitigating the impacts of their activities that could potentially harm fish, wildlife, and their habitat. At the national level, federal environmental and fish and wildlife protection laws create broad responsibilities for federal agencies in addition to each agency’s mission-specific responsibilities. These laws guide the fish and wildlife activities of federal agencies nationwide, in some cases, under the oversight and enforcement authority of regulatory agencies such as EPA and NMFS. Federal agencies identified the following nationwide laws, among others, as guiding their fish and wildlife activities: Clean Water Act—Authorizes EPA to establish effluent limitations and requires permits for the discharge of pollutants from a point source to navigable waters. EPA approves state and tribal limits for the maximum amount of a pollutant that a water body can receive and still meet water quality standards for specified purposes, including fish and wildlife.

Endangered Species Act—Provides for the conservation and recovery of species of plants and animals that FWS and NMFS determine to be in danger or soon to become in danger of extinction.

National Environmental Policy Act—Requires federal agencies to examine the impacts of proposed major federal actions significantly affecting the environment.

At the basin level, certain federal laws create agency responsibilities that are specific to the fish and wildlife there. These laws guide the fish and wildlife activities of agencies such as Bonneville, the Corps, and Reclamation that are to be conducted in conjunction with their water and power responsibilities within the basin. Federal agencies identified the following basin-specific laws, among others, as guiding their fish and wildlife activities: Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act)—Provides for the formation of the Northwest Power and Conservation Council and directs it to develop a program to protect, mitigate, and enhance the fish and wildlife of the Columbia River Basin. Requires Bonneville’s administrator to use Bonneville’s funding authorities to protect, mitigate, and enhance fish and wildlife affected by the development and operation of the FCRPS and to do so in a manner consistent with the Council’s program while ensuring the Pacific Northwest an adequate, efficient, economical, and reliable power supply.

Fisheries Restoration and Irrigation Mitigation Act of 2000—Directs the Secretary of the Interior to establish a program to implement projects, such as installation of fish screens and fish passage devices, to mitigate impacts on fisheries associated with irrigation systems in Idaho, Montana, Oregon, and Washington.

Mitchell Act—Directs the Secretary of Commerce to carry on activities for the conservation of fishery resources in the Columbia River Basin.

At the mission level, many agencies that operate within the basin have fish and wildlife responsibilities under laws that are unique to their activities. These laws guide the fish and wildlife activities of agencies such as the Forest Service, BLM, FWS, and BIA that are to be conducted in conjunction with their resource management responsibilities. The following laws were among the numerous mission-specific laws that federal agencies identified as guiding their fish and wildlife activities: National Forest Management Act—Mandates multiple uses for lands managed by the Forest Service to include outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness purposes.

Federal Land Policy and Management Act of 1976—Directs the Secretary of the Interior to develop and maintain land use plans using a systematic interdisciplinary approach to achieve the integrated consideration of physical, biological, and economic factors.

National Wildlife Refuge System Administration Act of 1966—Establishes the National Wildlife Refuge System and directs the Secretary of the Interior in the overall management of the refuge system to maintain the biological integrity, diversity, and environmental health of the system, and prepare a comprehensive conservation plan for each refuge.

National Indian Forest Resources Management Act—Directs the Secretary of the Interior to undertake management activities on Indian forest lands with tribal participation.

Treaties and executive orders also establish federal agency responsibilities for fish and wildlife. Federal agencies identified two treaties guiding their fish and wildlife activities in the basin—the Columbia River Treaty, which defines the relationship between the United States and Canada concerning the operation of Columbia River dams and reservoirs, and the Pacific Salmon Treaty, which governs the harvest of certain stocks in the fisheries of Northwest states (including Alaska) and Canada. Federal agencies also identified three executive orders guiding their activities with regard to floodplain management, protection of wetlands, and protection of migratory birds. The most recent of these, Executive Order 13186, January 10, 2001, titled Responsibilities of Federal Agencies To Protect Migratory Birds, directs executive agencies to take certain actions to further implement the Migratory Bird Treaty Act for the conservation of migratory birds and their habitats. Executive Order 11988, May 24, 1977, requires certain actions related to floodplain management, and Executive Order 11990 of the same date requires certain actions related to the protection of wetlands.

Various Laws, Treaties, and Executive Orders Require Agencies to Consider the Rights of Tribes

Laws, treaties, and executive orders create federal responsibilities to Indian tribes and guide federal agency activities that affect the tribes of the Columbia River Basin. Federal laws, including the following, create a responsibility for federal agencies to support tribal self-government, facilitate tribal participation in federal activities, and assist in the management of tribal resources.

Indian Reorganization Act—Enacts measures to protect ownership of Indian lands, restore lands to tribal ownership, and grants rights of self-government to Indians.

Indian Self-Determination and Education Assistance Act—Enacts measures that promote a policy of Indian self-determination by assuring maximum Indian participation in educational and other federal services to Indian communities, generally provided through the Departments of the Interior and Health and Human Services programs for Indians.

Snyder Act—Authorizes appropriations and expenditures through BIA for the benefit; care; and assistance of Indians, such as education, health, and other purposes.

Treaties between the United States and six basin tribes document the agreements reached between the federal government and the tribes in exchange for ceding most of their ancestral lands. Federal agencies have a general trust responsibility to protect tribal rights reserved under these treaties. Typically, each treaty describes the boundaries of the tribal lands ceded, the boundaries of lands reserved for habitation by the tribe, payments to be made to the tribe, and certain rights of the tribe under the treaty, including specific hunting and/or fishing rights, as shown in table 2.

Presidential executive orders were used by the U.S. government to reserve lands for six other Columbia River Basin tribes, as shown in table 3. Similar to treaties, these executive orders describe the lands reserved for habitation by the tribes, but unlike treaties, do not explicitly state each tribe’s right to fish and/or hunt. Nevertheless, the federal government has respected nontreaty rights to hunt and fish on tribal lands.

Three other executive orders, as well as a presidential memorandum, were identified by federal agencies as providing guidance in their intergovernmental relationships with tribes while performing their missions.

Executive Order 12866 (September 30, 1993), Regulatory Planning and Review—Establishes a program to reform and make more efficient the regulatory process, including making the process more accessible and open to the public. Provides that wherever feasible, agencies shall seek views of appropriate state, local, and tribal officials before imposing regulatory requirements that might significantly or uniquely affect them.

Executive Order 12875 (October 26, 1993), Enhancing the Intergovernmental Partnership—Prohibits executive agencies, to the extent feasible, from promulgating any regulation not required by statute that creates a mandate upon a state, local, or tribal government, unless funding for the direct costs is provided or the agency consults with the affected government.

Executive Order 13175 (November 6, 2000), Consultation and Coordination with Indian Tribal Governments—Requires executive agencies to respect Indian tribal self-governance and sovereignty, honor tribal treaty and other rights, and strive to meet the responsibilities that arise from the unique legal relationship between the federal government and tribal governments. Provides that each agency shall have an accountable process to ensure meaningful and timely tribal input in the development of regulatory policies that have tribal implications.

Memorandum for the Heads of Executive Departments and Agencies (April 29, 1994), Government to Government Relations with Native American Tribal Governments—Requires, among other things, that executive agencies operate within a government to government relationship with federally recognized tribal governments; consult to the greatest extent possible with tribal governments before taking actions that affect tribal governments; and assess the impact of federal government plans, projects, programs, and activities on tribal trust resources and ensure that tribal rights and concerns are considered in developing them.

In addition to these executive orders, some federal agencies have internal orders and memorandums to guide their actions with tribes. For example, Secretarial Order 3206, jointly issued by the Secretary of the Interior and the Secretary of Commerce in 1997, clarifies the responsibilities of the departments, their agencies, offices, and bureaus when actions taken under the authority of the ESA affect or may affect Indian lands, tribal trust resources, or the exercise of tribal rights. The order acknowledges the trust responsibility and treaty obligations of the United States toward Indian tribes and tribal members and its government to government relationship in dealing with the tribes. Accordingly, activities of the Departments of Commerce and the Interior under the ESA should harmonize trust responsibilities, tribal sovereignty, and the agency missions, and strive to ensure that Indian tribes do not bear a disproportionate burden for the conservation of listed species. In its 1996 Tribal Policy, Bonneville outlines the foundation for its trust responsibility as a federal agency and provides a framework for a government to government relationship with the 13 federally recognized Columbia River Basin tribes. In addition, FWS cited its Native American Policy of 1994, EPA cited its Tribal Consultation Framework of 2001, and NMFS cited the Department of Commerce’s American Indian and Alaska Native Policy of 1995, as providing agency guidance for meeting responsibilities to the tribes.

Court Decisions Define and Clarify Agency Responsibilities

Federal responsibilities and activities under laws, treaties, and executive orders are continually being defined and clarified through court decisions. These decisions provide guidance regarding the fish and wildlife activities of federal agencies such as Bonneville, the Corps, and NMFS. The following court decisions were among those that federal agencies identified as guiding their fish and wildlife activities in the basin: National Wildlife Federation v. National Marine Fisheries Service—Remanded NMFS’ 2000 biological opinion for ESA-listed salmon and steelhead in the Columbia and Snake Rivers to NMFS to resolve deficiencies identified by the court.

National Wildlife Federation v. United States Army Corps of Engineers—Remanded a decision regarding dam operations in the FCRPS to the Corps to address compliance with its obligations under the Clean Water Act.

Northwest Environmental Defense Center v. Bonneville Power Administration—Interpreted Bonneville’s responsibility to provide “equitable treatment” for fish and wildlife in conducting its power marketing activities under the Northwest Power Act.

Court decisions have also defined and clarified the responsibilities of federal agencies to tribes, regarding both the extent of the federal government’s trust responsibilities to tribes under laws, treaties, and executive orders, and, more specifically, the extent of Columbia River Basin treaty tribes’ fishing rights. Regarding the extent of federal agency trust responsibilities for Indian tribes, case law defines the trust responsibility of the federal government to protect the rights of tribes as established in treaties and other agreements. For example, in Seminole Nation v. United States, the Supreme Court said that the government’s conduct in carrying out its obligations to Indians should be “judged by the most exacting fiduciary standards,” and in Pyramid Lake Paiute Tribe of Indians v. Morton, a federal district court found that the Secretary of the Interior was required to assert his statutory and contractual authority “to the fullest extent possible” to fulfill the government’s trust responsibilities.

Regarding Columbia River Basin tribes, federal agencies identified two court cases that have helped to identify and define treaty rights to fish for four treaty tribes—the Confederated Tribes of the Umatilla Reservation, Oregon; the Confederated Tribes and Bands of the Yakama Reservation, Washington; the Confederated Tribes of the Warm Springs Reservation of Oregon; and the Nez Perce Tribe of Idaho. In 1968, 14 Yakama tribal members filed suit to prevent the State of Oregon from interfering with their off-reservation treaty fishing rights. The court found that the state’s authority to regulate Indian fishing for conservation purposes was limited as treaties reserved to the Columbia River tribes an absolute right to a fair share of the fish produced by the Columbia River system. In the second case, United States v. Washington, a federal district court in Washington found that the Indians were entitled to the opportunity to take up to 50 percent of the harvestable number of fish that can be taken.

Multiple Plans and Programs Guide Federal Fish and Wildlife Activities in the Basin

Federal agency fish and wildlife activities in the basin are guided by numerous plans and programs, but the majority of fish and wildlife benefits are achieved through a few key collaborative plans, driven by the Northwest Power Act and the ESA. Under the Northwest Power Act, the Columbia River Basin Fish and Wildlife Program outlines a collaborative strategy for benefiting fish and wildlife affected by the development and operation of hydroelectric dams in the Columbia River Basin, and under the ESA, agencies are guided by biological opinions developed collaboratively by FWS and NMFS for the recovery of threatened and endangered species, as well as by two other related collaborative plans. Additional laws and specific agency missions drive numerous other collaborative and individual fish and wildlife plans and programs. Appendix V provides descriptions of selected plans and programs identified by federal agencies in the basin.

The Northwest Power Act and the Endangered Species Act Drive Key Collaborative Plans and Programs

The key collaborative fish and wildlife plans and programs in the basin are driven by responsibilities created under the Northwest Power Act and the ESA. Agencies collaborate on both the development, as well as the implementation, of these key plans and programs. The lead agencies and federal and tribal collaborators in the development and implementation of the plans and programs are summarized in figure 3.

Under the Northwest Power Act, the Northwest Power and Conservation Council (Council) has a duty to prepare and adopt the Columbia River Basin Fish and Wildlife Program (Fish and Wildlife Program) to protect, mitigate, and enhance fish and wildlife, including related spawning grounds and habitat, on the Columbia River and its tributaries for impacts of all federal and nonfederal hydroelectric projects in the basin. In preparing the Fish and Wildlife Program, the Council periodically solicits recommendations from federal and state fish and wildlife agencies, Indian tribes, and others concerning the needs of fish and wildlife in the basin. The Council then develops a draft Amendment to the Fish and Wildlife Program that incorporates the recommendations received, and releases the draft for public comment. After reviewing comments received on the draft, and balancing the needs of fish and wildlife with the region’s hydropower needs, the Council issues the Fish and Wildlife Program, which provides guidance and recommendations on mitigating the impacts of hydropower on the region’s fish and wildlife.

To incorporate local planning for the more than 50 subbasins in the Columbia River Basin into the Council’s development of the Fish and Wildlife Program, the Council initiated subbasin planning in 2001. The Council expects to complete the first round of subbasin plans in May 2004, review and take comments on the plans through the fall, and then amend them into the program by January 2005. The plans will then form the basis from which projects will be solicited and selected. Federal agencies, including the Corps, Forest Service, Reclamation, BLM, EPA, FWS, NMFS, NRCS, and USGS, are providing watershed-level information and technical assistance, and some Columbia River Basin tribes are among those taking the lead in coordinating and managing development of specific subbasin plans. A few of the tribes reported that subbasin planning is an important step to including local input in the Fish and Wildlife Program, but expressed concern that challenges to the successful implementation of subbasin plans exist. For example, one tribal representative expressed concern with the consistency of funding and contracting procedures, while another expressed concern at the level of local commitment to subbasin fish and wildlife priorities.

The Northwest Power Act directs Bonneville to fund the protection, mitigation, and enhancement of fish and wildlife in a manner consistent with the act. To meet this requirement, Bonneville takes actions and enters into agreements with other entities to meet the goals and objectives outlined by the Council. Bonneville receives assistance in this process from the Columbia Basin Fish and Wildlife Authority, composed of federal, state, and tribal fish and wildlife officials, which provides recommendations regarding fish and wildlife projects proposed by contractors. The Council’s Independent Scientific Review Panel reviews proposed projects to ensure that they are consistent with the goals of the Fish and Wildlife Program. As shown in the following examples, other federal agencies and tribes also collaborate with Bonneville in implementing the Fish and Wildlife Program, affording Bonneville access to additional knowledge and technical capabilities, as well as access to resources needed for mitigation activities.

FWS and NMFS provide Bonneville with assistance on issues such as fish passage and population monitoring. In addition, Bonneville provides direct funding to FWS for the operation and maintenance of certain hatcheries.

The Corps and Reclamation manage in-river mitigation at hydropower facilities, such as fish screens, with direct funding from Bonneville.

Federal agencies such as the Forest Service and BLM, as well as state, tribal, and private landowners, receive direct funding or contract with Bonneville for habitat mitigation activities.

Tribes contract with Bonneville to provide mitigation activities such as habitat improvement, hatchery management, and habitat acquisition projects both on and off reservation.

Recently, Bonneville revised its Fish and Wildlife Program project budget, accounting, and contracting policies, raising concerns among federal agencies, the Council, and the tribes. For example, in 2002, Bonneville decided that it should not be the primary source of funding for off-site mitigation projects on federal lands, and placed a temporary hold on funding for land purchases and easements for off-site mitigation while it reviewed its financial condition and liquidity position. In addition, Bonneville changed its budgeting and planning methods from obligations to accruals in November 2002. Federal agencies, the Council, and some tribes reported that Bonneville’s processes for project submittal, approval, and contract renewal and management are inconsistent and constantly changing. As such, many project managers at the tribes who serve as contractors to Bonneville reported spending as much time learning and adapting to changing processes as implementing projects on the ground. According to Bonneville, the changes were based in part on the recommendations of a 1997 accounting firm review of program implementation, and were necessary to improve program implementation, keep Fish and Wildlife Program costs on target, and align its fish and wildlife budgeting approach with its other program budgets.

Endangered Species Act-Driven Plans and Programs

Under the ESA, agencies must use their authorities to conserve endangered and threatened species and make sure that their actions do not jeopardize the continued existence of listed species. In the Columbia River Basin, agencies collaborate on several concurrent and sometimes overlapping plans towards this end, including biological opinions, the proposed recovery plans for salmon, and the Basin-wide Salmon Recovery Strategy. While different in their specific focus and scope, all of these plans promote the continued existence of threatened and endangered species in the basin.

As the regulating agencies for endangered and threatened species, FWS and NMFS are the lead agencies on most fish and wildlife plans driven by the ESA. Section 7 of the ESA requires agencies to consult with FWS and NMFS to ensure that actions are not likely to jeopardize listed species. Based on these consultations, FWS and NMFS are required to produce biological opinions that prescribe reasonable and prudent measures/alternatives for proposed federal actions that may adversely affect listed species. Bonneville, the Corps, and Reclamation consult with FWS and NMFS on the impacts that operation of the FCRPS has on endangered and threatened species. In response to these consultations, NMFS develops biological opinions for anadromous species impacted by the FCRPS, while FWS develops biological opinions for resident fish and wildlife impacted by the FCRPS.

NMFS first issued a Biological Opinion for the FCRPS for salmon and steelhead in 1992, and developed subsequent versions, such as a 1998 supplement that added steelhead. The most recent Biological Opinion for the FCRPS for salmon and steelhead was issued in 2000. In 2003, however, a federal court remanded the 2000 Biological Opinion after ruling it deficient, due to reliance on federal mitigation actions that had not undergone section 7 consultations, as well as reliance on off-site nonfederal mitigation activities that were not reasonably certain to occur. A new salmon and steelhead Biological Opinion for the FCRPS is due in June 2004. FWS developed a Biological Opinion for resident fish impacted by the FCRPS, including bull trout and white sturgeon. The first FCRPS Biological Opinion for white sturgeon was developed by FWS in 1995.

To develop the reasonable and prudent measures/alternatives outlined in the FCRPS Biological Opinions, FWS and NMFS rely on technical input from several agencies, as well as information contained in other fish and wildlife plans: Bonneville, the Corps, and Reclamation consult with FWS and NMFS in developing reasonable and prudent measures/alternatives for hydropower operation that can reasonably be implemented; Forest Service and BLM contribute information used to develop the reasonable and prudent measures/alternatives that address off-site habitat; and To the extent possible, NMFS has incorporated information from the Council’s subbasin planning in their development of the Biological Opinions due in June.

Notwithstanding this collaboration, several agencies and groups, such as the Council and tribes, expressed a desire for increased participation in developing the Biological Opinions. These groups indicated that they have important technical information and experience that could help inform the development of the Biological Opinions.

Responsibility for implementing the Biological Opinions lies with the operators and managers of the FCRPS—Bonneville, the Corps, and Reclamation—known as the Action Agencies. In fulfilling this responsibility, the Action Agencies create Biological Opinion Implementation Plans, which provide guidance on how the Biological Opinions should be implemented. The Action Agencies create 1-Year Implementation Plans, which outline annual goals for meeting reasonable and prudent measures/alternatives, as well as 5-Year Implementation Plans, which address longer-term goals for meeting the measures. The development of Implementation Plans typically involves significant input from other agencies. For example, Bonneville and the Council work together to support ESA objectives by integrating the implementation of the Biological Opinions with subbasin planning and the Fish and Wildlife Program’s administrative process. In addition, implementation of the Biological Opinions has evolved as the Action Agencies continue to incorporate new information from ESA recovery planning processes.

Many basin agencies provide input to the Action Agencies on the implementation of hydrosystem operations and configuration under the Biological Opinions through the Regional Forum (Forum). Key members of the Forum include Bonneville, the Corps, and Reclamation, as well as FWS and NMFS, and the states of Oregon, Washington, Idaho, and Montana. The Forum is composed of five committees that make decisions concerning the FCRPS in accordance with the Biological Opinions, facilitating regional communication and coordination towards fulfillment of the Biological Opinions. Forum meetings are open to all entities, and interagency collaboration is an essential element of the Forum. However, some tribal representatives indicated that they would like to have more sovereign representation on the Forum. They feel that the meetings neither provide for a collaborative, balanced exchange of information between federal agencies and the tribes, nor satisfy the requirement for government-to-government consultation with tribes on matters that affect them.

As further required by the ESA, NMFS is currently developing recovery plans for salmon (recovery plans) for various regions within the Columbia River Basin, which outline programs for the recovery of endangered or threatened salmon and steelhead in the basin. Specifically, the recovery plans are designed to organize, coordinate, and prioritize recovery actions for salmon and steelhead, as well as outline objective measurable criteria that will be used to determine when they no longer need the protection of the ESA. In addition, recovery plans communicate the vision for salmon and steelhead recovery to other agencies and the public.

NMFS’ development of the recovery plans has been enhanced by collaboration and information sharing with other agencies and groups, including tribes. NMFS is using the Council’s subbasin planning as a framework for developing the various recovery plans. While NMFS is not required to collaborate with the Council on this effort, working through the subbasin framework affords NMFS access to local watershed information. Although the recovery plans have yet to be completed— the first recovery plan is due in December 2005—NMFS hopes they will be implemented through interagency collaboration using the subbasin plans.

Separate from the recovery plans, the Basin-wide Salmon Recovery Strategy provides an interim conceptual, collaborative plan for the recovery of salmon and steelhead in the basin, until recovery plans are complete. Referred to as the “All-H Paper” because it addresses the four “H’s” of fish management—hatcheries, habitat, harvest, and hydropower—it is a blueprint for collaboration among federal agencies in the basin seeking to restore aquatic habitat and achieve recovery objectives for endangered and threatened salmon and steelhead.

Development of the All-H paper involved input from nine federal agencies, collectively known as the Federal Caucus—Bonneville, the Corps, Forest Service, Reclamation, BIA, BLM, EPA, FWS, and NMFS. Agency participation in the development varied according to agencies’ missions and expertise: Bonneville, the Corps, and Reclamation provided input on recovery activities related to hydropower, and Reclamation provided input on irrigation; Forest Service and BLM provided input on recovery concerns related to FWS and NMFS provided input on the role of annual harvest allocations FWS and NMFS provided extensive input and guidance on the role of hatcheries in recovery; and EPA provided input and recommendations related to habitat and hydropower.

After input from the nine agencies had been collected, and the All-H was completed, agencies memorialized their collaboration through a Memorandum of Agreement that outlined how agencies could cooperate on implementation of the All-H. Overall, interagency collaboration on the development of the All-H was well regarded, and the four “H’s” have contributed to decision making on other plans in the basin. In addition, NMFS has relied on information outlined in the All-H Paper as a framework for developing the forthcoming recovery plans.

Implementation of the measures by the nine federal agencies as outlined in the All-H Paper is voluntary; while agreed to by members of the Federal Caucus, the paper establishes expectations, but does not establish specific obligations for individual agencies. Actual implementation of the recommendations has varied across agencies, and across the different categories of recovery—hatcheries, habitat, harvest, and hydropower. Nonetheless, the comprehensive approach to species management outlined in the All-H Paper has informed and guided agencies’ work on other plans. For example, the Council now uses information contained in the All-H Paper in its development of the Fish and Wildlife Program, and the Action Agencies use the four “H’s” in the Biological Opinion Implementation Plans.

Other Directives and Agency Missions Drive Additional Collaborative and Independent Plans and Programs

Additional fish and wildlife plans and programs are driven by other directives, such as the Clean Water Act and court decisions based on treaty rights, as well as by each agency’s unique mission. Agencies develop and implement these plans and programs through collaborative and independent agency efforts. The lead agencies and federal and tribal collaborators in the development and implementation for selected plans and programs are summarized in figure 4.

The Clean Water Act established the basic structure for regulating discharges of pollutants into the waters of the United States. As the regulating agency for the Clean Water Act, EPA has the authority to implement pollution control programs such as setting wastewater standards for industry. The Clean Water Act also provides for states and tribes to set water quality standards for all contaminants in surface waters. EPA also manages grant programs designed to assist agencies, tribes, and others to comply with this guidance.

In the Columbia River Basin, EPA manages several grant programs that indirectly benefit fish and wildlife by promoting water and environmental quality on tribal lands. EPA manages these programs collaboratively with tribes and other organizations to identify water quality needs in the basin, as well as suitable projects to address these needs. Grant programs in the basin identified by EPA include the following: Clean Water Act General Assistance Grant Program to Tribes—Provides general assistance grants to Indian tribal governments and intertribal consortia to build capacity to administer regulatory and multimedia programs addressing environmental issues on Indian lands.

Clean Water Act Section 319 Grant Program—Provides funding to states and Indian tribes for a wide variety of nonpoint source activities, including technical and financial assistance, education, training, technology transfer, demonstration projects, and monitoring.

Clean Water Act Section 106 Grant Programs—Assists Indian tribes and states in carrying out effective water pollution control programs, including water quality planning and assessments, development of water quality standards, and water quality monitoring.

Implementation of these grant projects is handled by grant recipients, with minimal assistance from EPA beyond the initial discussions concerning project design and funding. According to EPA, the grant programs work well and allow the tribes to fully incorporate their technical knowledge and experience into water quality planning.

Court Decision-Driven Plans and Programs

In addition to federal environmental protection laws, such as the Clean Water Act, tribal treaty rights and clarifying court decisions have also resulted in plans to manage basin fish and wildlife. For example, the 1969 United States v. Oregon and 1974 United States v. Washington court decisions ruled that certain Columbia River Basin tribes have a right to 50 percent of the annual harvestable catch of fish at all usual and accustomed fishing areas. A subsequent court ruling in 1977 ordered FWS, NMFS, state fish and wildlife agencies, and the tribes to develop a collaborative plan for managing the annual harvest of the fisheries affected by United States v. Oregon. In addition, BIA assists the tribes in negotiations with federal agencies and development of the plan. Known as the Five Year Columbia River Fish Management Plan, the plan sets forth harvest allocation terms, as well as efforts to rebuild and enhance fish runs. Since that plan expired in 1982, harvest allocation under United States v. Oregon has been alternately managed by additional multiyear collaborative plans and annual court-ordered negotiations that seek to balance tribal harvest, nontribal harvest, and species protection. According to FWS and NMFS, their input on United States v. Oregon negotiations must balance both their trust responsibilities to tribes, as well as their responsibilities to endangered and threatened species that are affected by the United States v. Oregon decision. At present, United States v. Oregon harvest allocation is decided by annual court-ordered negotiations, although the parties are seeking to develop a new long-term collaborative plan, to be known as the Columbia River Fish Management Agreement. Otherwise, the parties will continue to revisit harvest and fish management decisions for the Columbia River through annual negotiations.

Implementation of measures agreed to in United States v. Oregon negotiations or plans is handled collaboratively by federal, state, and tribal parties. For example, FWS and NMFS are responsible for implementing measures, such as hatchery enhancement, to rebuild depressed fish stocks. State agencies are responsible for publishing and regulating annual harvest levels. The five Columbia River Basin tribes that are parties to United States v. Oregon are responsible for abiding by annual harvest levels. According to NMFS, the implementation of United States v. Oregon negotiations or plans affect fisheries in a number of important areas, including habitat, production, and hatchery management. Furthermore, the decisions reached during the negotiations serve as guidelines for the various decisions made on the Regional Forum committees. For example, agreements concerning harvest levels that are reached with tribes during the United States v. Oregon negotiations serve as the baseline for discussions of harvest management and monitoring at the Regional Forum.

Agency Mission-Driven Plans and Programs

Agency missions also drive fish and wildlife plans in the basin. Specifically, the water and resource management responsibilities of the Corps, Reclamation, Forest Service, BLM, and NRCS require these agencies to create plans that address the fish and wildlife impacts of their activities. Some of these plans are collaborative in their design or implementation, and represent agency efforts to more fully meet their mission with assistance from other agencies. Others are designed and implemented independently by individual agencies, and represent agency efforts to benefit fish and wildlife through mission activities.

The Corps uses Project Management Plans to ensure that their internal agency activities follow appropriate guidelines for protecting fish passage and mitigating barriers to it along the Columbia River. The scope of Project Management Plans varies widely, but each plan includes a fish protection and mitigation component. Development and implementation of Project Management Plans is handled independently by the Corps. Information contained within Project Management Plans informs the Corps’ participation in other plans in the basin, and thus influences the activities of other agencies. For example, the Corps reported that the content of Project Management Plans is frequently used in developing the annual and 5-year Biological Opinion Implementation Plans for the FCRPS.

Reclamation uses Research and Monitoring Programs to independently fund, develop, and implement a wide range of discretionary efforts, including research and monitoring efforts that focus on fish and wildlife. Funding for the Research and Monitoring Programs is distributed annually from Reclamation’s Commissioner’s office, and projects are selected from across a variety of departments. According to Reclamation officials, Research and Monitoring Programs are important tools for incorporating fish and wildlife activities into internal agency policies.

The collaborative efforts of the Forest Service and BLM have yielded the Northwest Forest Plan, an effort to facilitate a collaborative interagency approach to ecosystem management on federal lands located within the range of the threatened northern spotted owl. In addition, the Northwest Forest Plan includes an Aquatic Conservation Strategy designed to promote the recovery of listed endangered and threatened species, as well as nonlisted aquatic species. As land management agencies, Forest Service and BLM take the lead on developing and implementing measures for the long-term health of forests, wildlife, and waterways on their lands. Nonetheless, several other federal agencies provided input on the design of the Northwest Forest Plan through a Memorandum of Understanding signed by the Corps, Forest Service, BIA, BLM, EPA, FWS, NMFS, USGS, and the National Park Service. In addition, federal agencies, as well as state, local, and tribal governments, continually collaborate on the implementation of the Northwest Forest Plan. For example, the Regional Interagency Executive Committee, which is comprised of representatives from the federal agencies, facilitates the prompt and coordinated implementation of the Northwest Forest Plan at the regional level. In addition, the Intergovernmental Advisory Committee, which is comprised of representatives from federal, state, county, and tribal governments, provides a vehicle for input from the states, counties, and tribes, and promotes the integration and coordination of forest management activities among federal and nonfederal entities.

The Forest Service also develops Land and Resource Management Plans, commonly referred to as Forest Plans, to manage each specific National Forest. Forest Plans, developed through the National Environmental Policy Act public comment process, address a variety of forest management concerns but contain objectives and standards/guidelines that specifically address conservation and restoration of fish and wildlife habitat integrated with other resource management needs. According to the Forest Service, Forest Plans were the primary vehicle for integrating fish and wildlife concerns with other management objectives. Forest Plans do not set forth determinations on the type and number of actions to be implemented, but provide sideboards and guidance for the design of site-level actions. Development and implementation of these plans are primarily handled by the Forest Service, although NMFS, FWS, and tribes provide some input. The Forest Service coordinates with BLM on the development of Forest Plans where BLM lands lie adjacent to National Forests. BLM and Forest Service also collaborate on species management, including habitat management and aquatic management strategies. Through consultations with the Forest Service, Columbia River Basin tribes provide input on the design and implementation of Forest Plans, and also participate in cost-share fish and wildlife activities on National Forest System lands. According to one Forest Service official, securing cost-share funding for activities benefiting nonlisted fish is an ongoing challenge because endangered and threatened species fish tend to receive the most attention and funding.

BLM uses District Resource Management Plans to guide agency activities. Resource Management Plans outline general management guidelines for all agency activities, and also contain specific management guidelines for protecting fish and wildlife. Although Resource Management Plans address internal management guidelines for BLM, they are developed through the National Environmental Policy Act public comment process. As such, they receive significant public attention and input, and BLM must incorporate the comments into their development of the plans.

NRCS uses its Environmental Quality Incentive Program to fund projects that indirectly benefit fish and wildlife through environmental improvements to irrigation, erosion, water quality, and agriculture. Operated collaboratively with tribes, NRCS funds these projects on a cost-share basis, providing a minimum of 2.6 percent of the total funds. According to NRCS, tribes are an excellent vehicle for gaining access to lands previously inaccessible to environmental improvements because the tribes are continually purchasing land from private sellers, and because they are willing to partner with NRCS on land rehabilitation.

In conjunction with their agency missions, and in recognition of their trust responsibilities to tribes, federal agencies also have the opportunity to participate in the development and implementation of tribally managed fish and wildlife plans. For example, representatives from the Nez Perce, Umatilla, Warm Springs, and Yakama tribes, as well as staff from the Columbia River Inter-Tribal Fish Commission, compiled the Wy-Kan-Ush-Mi Wa-Kish-Wit, which outlines a framework for restoring anadromous fish stocks in the Columbia River Basin. This tribal plan outlines the cultural context for the tribes’ salmon restoration efforts, as well as technical and institutional recommendations and watershed restoration actions. According to the tribes, however, federal agency collaboration on tribe-led plans is minimal, and there is significant room for increased participation from agencies on tribal fish and wildlife plans.

In addition to opportunities for collaboration on tribal plans, agencies also have opportunities to fulfill agency missions and other responsibilities through collaboration on state-managed plans. For example, one agency reported collaborating with the state of Washington on their “Extinction Is Not an Option” plan, which provides a framework for the recovery of endangered species in the state. Agencies also collaborate with the state of Oregon on the Plan for Salmon and Watersheds. According to some federal agency representatives, collaboration on federal and state fish and wildlife plans is important in ensuring that overall fish and wildlife goals in the basin are met.

Agency Comments and Our Evaluation

We provided copies of our draft report to the Departments of Agriculture, Commerce, Defense, the Interior, as well as Bonneville and EPA. Bonneville and the Departments of Agriculture and Commerce provided official written comments. (See apps. VI through VIII, respectively, for the full text of the comments received from these agencies and our responses.) The comments were generally technical in nature with few comments on the report’s overall findings. We made changes to the report, where appropriate, based on the technical comments provided by the three entities that commented on the report. The Department of Defense and EPA had no comments on the report. The Department of the Interior did not provide comments in time to be included in this report.

Bonneville commented that the draft would benefit from the inclusion of additional information regarding the federal government’s trust responsibilities to the tribes in the Columbia River Basin. Within the scope of our review, we believe the topic is adequately and accurately described in the report. The Department of Agriculture objected to our assertions in figures 3 and 4 that the Forest Service contributes to the development or implementation of certain plans, and that BLM contributes to the development and implementation of Forest Service Land and Resource Management Plans, respectively. The figures are intended to demonstrate the collaborative nature of fish and wildlife plans and programs in the basin. While we recognize that in many cases agencies do not have official roles or responsibilities in specific plans, we believe our figures accurately highlight both formal and informal contributions from agencies and tribes, as described to us by agency officials, tribal representatives, and others.

We are sending copies of this report to the Secretaries of Agriculture, Commerce, Defense, the Interior, and the Administrators of Bonneville and EPA, appropriate congressional committees, and other interested Members of Congress. We will also make copies available to others upon request. In addition, the report will be available at no charge on the GAO Web site at http://www.gao.gov.

If you or your staff have questions about this report, please contact me at (202) 512-3841. Key contributors to this report are listed in appendix IX.

Scope and Methodology

To identify and describe the laws, treaties, executive orders, and court decisions that define the responsibilities of the Bonneville Power Administration (Bonneville) and other federal agencies to perform activities benefiting fish and wildlife in the Columbia River Basin and involve tribes in the process, we reviewed our prior report on salmon and steelhead recovery activities in the Columbia River Basin for 11 agencies with significant responsibility for fish and wildlife in the Pacific Northwest. These agencies were Bonneville; the Forest Service and Natural Resources Conservation Service (NRCS) within the Department of Agriculture; the Bureau of Indian Affairs (BIA), Bureau of Land Management (BLM), Bureau of Reclamation (Reclamation), U.S. Fish and Wildlife Service (FWS), and U.S. Geological Survey (USGS) within the Department of the Interior; the U.S. Army Corps of Engineers (Corps) within the Department of Defense; the National Marine Fisheries Service (NMFS) within the Department of Commerce; and the Environmental Protection Agency (EPA). We reviewed the directives identified by the agencies in the report as defining their responsibilities for salmon and steelhead in the basin, and requested confirmation from each agency on these directives. In addition, we asked each agency to identify any additional directives that define their responsibilities for other fish and wildlife, and to identify any directives applicable to Columbia River Basin tribes that create fish and wildlife responsibilities for agencies. We also requested input from the 13 Columbia River Basin tribes on the directives that define federal responsibilities for fish and wildlife in the basin. Based on the responses provided by agencies and tribes, we compiled a summary of directives that define agency responsibilities for fish and wildlife in the basin. We collected documentation on these directives from the agencies, discussed the directives with agency, tribal, and other representatives for clarification.

To identify and describe the fish and wildlife plans and programs that Bonneville and other federal agencies have developed to guide their fish and wildlife activities, we reviewed our prior report on salmon and steelhead recovery activities in the Columbia River Basin. We then reviewed the plans and programs identified by the agencies in the report as guiding their recovery activities for salmon and steelhead, and requested confirmation from each agency on these plans and programs. In addition, we asked agencies to identify any additional plans and programs used to fulfill agency responsibilities for fish and wildlife in the basin, and we interviewed agency officials to gather additional information on the implementation of fish and wildlife plans and programs. We also interviewed staff and officials of the Northwest Power and Conservation Council and the Columbia Basin Fish and Wildlife Authority, in order to gather information on their roles in assisting federal agencies with the design and implementation of fish and wildlife plans and programs. To gather the tribal perspective on fish and wildlife plans and programs, we met with representatives from 10 of the 13 federally recognized tribes in the basin, as well as representatives from the Columbia River Inter-Tribal Fish Commission, and the Upper Columbia United Tribes. In addition, 10 of the 13 tribes submitted written comments on tribal participation in federal fish and wildlife plans in the basin.

During our information collection, agencies, organizations, and tribes highlighted a number of concerns regarding the implementation of fish and wildlife plans and programs in the basin, which we included in this report. In accordance with our policy to refrain from addressing matters that are in litigation, we did not examine or report on any issues that are before the court.

We performed our work from August 2003 through April 2004, in accordance with generally accepted government auditing standards.

Laws, Treaties, and Executive Orders Guiding Agency Activities Affecting Columbia River Basin Fish and Wildlife

Tables 4, 5, and 6 list the nationwide, basin-specific, and mission-specific laws reported by federal agencies as guiding their actions to protect, mitigate, and enhance fish and wildlife in the Columbia River Basin.

Table 7 lists the treaties that federal agencies reported as guiding their actions to protect, mitigate, and enhance fish and wildlife in the Columbia River Basin.

Table 8 lists the executive orders that federal agencies reported as guiding their actions to protect, mitigate, and enhance fish and wildlife in the Columbia River Basin.

Laws and Executive Orders Guiding Agency Activities Affecting Columbia River Basin Tribes

Table 9 lists the laws that federal agencies reported as guiding their actions with regard to tribes in the Columbia River Basin.

Table 10 lists the executive orders and presidential memorandum that federal agencies reported as guiding their actions with regard to tribes in the Columbia River Basin.

Court Decisions Guiding Agency Activities Affecting Columbia River Basin Fish, Wildlife, and Tribes

Table 11 lists the court decisions that federal agencies reported as guiding their actions to protect, mitigate, and enhance fish and wildlife in the Columbia River Basin.

Table 12 lists the court decisions that federal agencies reported as guiding their actions with regard to tribes in the Columbia River Basin.

Plans and Programs Implemented by Federal Agencies to Manage Columbia River Basin Fish and Wildlife Activities

Table 13 provides descriptions of plans and programs identified by federal agencies, including the directives driving the plans and programs and the lead agencies.

Comments from the Bonneville Power Administration

Comments from the Department of Agriculture

Comments from the Department of Commerce

GAO Contacts and Staff Acknowledgments

GAO Contacts

Acknowledgments

In addition to those named above, Jill Berman, Brad Dobbins, and Rebecca Sandulli made key contributions to this report. Also contributing to the report were Bob Crystal and Cynthia Norris.

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