<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:92383.wais]
S. Hrg. 108-361
BULL TROUT RECOVERY UNDER THE ENDANGERED SPECIES ACT
=======================================================================
FIELD HEARING
before the
SUBCOMMITTEE ON FISHERIES,
WILDLIFE, AND WATER
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON
A REVIEW OF FEDERAL AND STATE EFFORTS TO RECOVER BULL TROUT (SALVELINUS
CONFLUENTUS) UNDER THE ENDANGERED SPECIES ACT
__________
AUGUST 26, 2003--BOISE, ID
__________
Printed for the use of the Committee on Environment and Public Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred eighth congress
first session
JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio HARRY REID, Nevada
MICHAEL D. CRAPO, Idaho BOB GRAHAM, Florida
LINCOLN CHAFEE, Rhode Island JOSEPH I. LIEBERMAN, Connecticut
JOHN CORNYN, Texas BARBARA BOXER, California
LISA MURKOWSKI, Alaska RON WYDEN, Oregon
CRAIG THOMAS, Wyoming THOMAS R. CARPER, Delaware
WAYNE ALLARD, Colorado HILLARY RODHAM CLINTON, New York
Andrew Wheeler, Majority Staff Director
Ken Connolly, Minority Staff Director
------
Subcommittee on Fisheries, Wildlife, and Water
MICHAEL D. CRAPO, Idaho, Chairman
JOHN W. WARNER, Virginia BOB GRAHAM, Florida
LISA MURKOWSKI, Alaska MAX BAUCUS, Montana
CRAIG THOMAS, Wyoming RON WYDEN, Oregon
WAYNE ALLARD, Colorado HILLARY RODHAM CLINTON, New York
(ii)
C O N T E N T S
----------
Page
AUGUST 26, 2003--BOISE, ID
OPENING STATEMENT
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 1
WITNESSES
Allen, David, Director, Pacific Region, U.S. Fish and Wildlife... 3
Prepared statement........................................... 36
Caswell, James L., Director, Office of Species Conservation,
Office of the Governor, Boise, ID.............................. 5
Prepared statement........................................... 38
Gorsuch, Jane, Vice President of Idaho Affairs, Intermountain
Forest Association............................................. 25
Prepared statement........................................... 44
Little, Hon. Brad, Idaho State Senator from District 11, Emmett,
ID............................................................. 21
Prepared statement........................................... 42
Loucks, Bob, Lemhi Rancher, Salmon, ID........................... 23
Prepared statement........................................... 43
Strong, Clive, Assistant Attorney General, Idaho Department of
Natural Resources, Boise, ID................................... 7
Prepared statement........................................... 40
Yates, Scott, Director, Idaho Water Office, Trout Unlimited,
Idaho Falls, ID................................................ 27
Prepared statement........................................... 46
ADDITIONAL MATERIAL
Letters:
Nez Perce Tribe.............................................. 54-56
Salmon, ID, Mayor Stanley Davis.............................. 50
Several Members of Congress.................................. 7
Statements:
Boise Project Board of Control...............................57, 67
Nez Perce Tribe.............................................. 56
Thompson Creek Mining Company................................ 50
(iii)
BULL TROUT RECOVERY UNDER THE ENDANGERED SPECIES ACT
----------
TUESDAY, AUGUST 26, 2003
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Fisheries, Wildlife, and Water,
Boise, Idaho.
The subcommittee met, pursuant to notice, at 1:30 p.m. in
the City Council Chambers, Boise, Idaho, Hon. Michael D. Crapo
[chairman of the subcommittee] presiding.
Present: Senator Crapo.
OPENING STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR FROM
THE STATE OF IDAHO
Senator Crapo. This hearing will come to order. This is an
official hearing of the Fisheries, Wildlife, and Water
Subcommittee of the Environment and Public Works Committee of
the U.S. Senate, and the hearing is on the cooperation with
States on bull trout recovery under the Endangered Species Act.
It is held at the Boise City Council Chambers on August 26,
2003, and it is 1:30 in the afternoon.
I would like to welcome everybody here, and I want to
apologize to you at the outset. This is going to be a 2-hour
hearing and it's going to end right on the dot because I have
to catch an airplane. So I don't know if that's good news or
bad news to you, but what it means is I'm going to ask the
witnesses to try to stick to your 5 minutes, and I'll kind of
if you're going over your 5 minutes wrap the gavel a little bit
like that to remind you to wrap it up, because we want to have
a lot of time for dialog and each panel has about an hour of
time. And, so, your written testimony is already received and
will be very thoroughly reviewed not only by me and my staff
but by the full committee, and we want to get as much time for
give and take in the discussion here.
When we were deciding on the topic of this hearing, to be
honest with you, I had my choice of a number of topics of
hearings that we could have held this on. And the Fisheries,
Wildlife, and Water Subcommittee has jurisdiction over
virtually all aspects of the Endangered Species Act, the Clean
Water Act, Safe Drinking Water Act, as the title of the
committee may suggest, virtually all Federal law dealing with
our fisheries and with our wildlife and water throughout the
Nation, and there--there was no shortage of topics on which we
could hold this hearing. But as I discussed it with my staff
and with other senators, with Senator Craig in particular, the
issue of bull trout was clearly the topic that we felt that
should receive the focus of this hearing. The reason is because
as we approach the question of how we're going to manage the
listing of bull trout under the Endangered Species Act, there's
a lot of concern, both with regard to what the nature of the
listing means, how the Federal Government is going to deal with
the questions that arise under the Endangered Species Act, and
that is--that question is raised in the context of other issues
or other species and other listings in which we have had to
face significant conflict in terms of the implementation of the
Act.
I've long held that people in the State of Idaho love the
State of Idaho, they love the outdoors, they love the
environment, they love fish, wildlife, and flora and fauna, and
the incredible mountains and rivers and deserts and streams,
and the clean air and clean water, and they want to protect it
and preserve it. At the same time, they have a real problem
with the Endangered Species Act, and again, it's not because
they have a problem with protecting the species. That's one of
the reasons most of the people live in Idaho is because they
love the outdoors and the wildlife. The problem is with the way
that the Act is implemented. And we are already seeing concerns
with regard to bull trout that could make this one of the most
significant issues endangered species wise that we face in the
State of Idaho, and as you know, we face some very significant
ones already. So it was felt that it would be very appropriate
for us to hold this hearing at this point early in the stage,
in the process, and try to get a handle on it in terms of
congressional oversight and in terms of working with Federal
Government, with the appropriate agencies, with the State, and
with local officials.
Our purpose here is to ensure sufficient progress toward
achieving bull trout recovery; to explore the Fish and Wildlife
Service's cooperation with the States in recovery programs; to
identify additional opportunities for expanded State roles; to
identify how recovery will be measured and determined, and; to
identify how to return management authority to the States upon
achieving recovery goals.
In my opinion, the way that the bull trout issue is
handled, particularly in the State of Idaho, could be a
tremendous success and could be a terrible failure, depending
on how we address it. And, again, that's one of the reasons
that we are approaching this issue in this way by trying to
make sure that we bring some attention to it from Congress.
I'd like to recognize the fact that the Service has already
returned some management authorities under the Endangered
Species Act to the States, and we'd like to see that trend
continue. For example, under Section 4(d) of the Endangered
Species Act, any take of bull trout consistent with State
fishing regulations is exempted from the prohibitions on the
ESA, but as long as the person fishing releases the bull trout
as soon as it is identified.
Similarly, under Section 6 of the Endangered Species Act,
the State of Idaho can issue scientific collecting permits that
authorize the take of bull trout, maintaining the State's lead
role when managing scientific collecting, and reducing a
significant workload for the Service.
In another area under Section 6 of the ESA, the Service has
delegated take authority back to the State for fish streams
that are installed in Idaho, greatly reducing the amount of
paperwork that the State was otherwise required to complete for
each individual stream.
And so there are already some examples of what we would
like to see, and that is a very high level of cooperation
between the Service and the States as we work on this. And as I
indicated, I believe that one of the objectives of this hearing
and our oversight of the future will be to assure that we do
everything that we can to make sure that we have the kind of
delegation of management authority to the State to the maximum
extent possible that the law allows.
Today's hearing will be two panels. The first panel will be
Dave Allen, the regional director for the Pacific region of the
U.S. Fish and Wildlife; Jim Caswell, the director of the Idaho
Governor's Office of Species Conservation; and Clive Strong,
the Assistant Idaho U.S.--excuse me--the Assistant Idaho
Attorney General for natural resources.
Our second panel will be the Honorable Brad Little, he's a
State Senator from District 11, also a rancher here in Idaho;
Bob Loucks, Lemhi County resident; Jim Riley, who will be
replaced by Jane Gorsuch today--ably replaced, I might add.
Tell Jim that we will miss him, but we know that you will do an
outstanding job, Jane--and Scott Yates, the native fish
coordinator for Trout Unlimited.
And with that, I'm going to proceed to the testimony. And
following the testimony, we'll engage in some dialog with each
panel.
Mr. Allen, would you like to begin?
STATEMENT OF DAVID ALLEN, DIRECTOR, PACIFIC REGION, U.S. FISH
AND WILDLIFE SERVICE
Mr. Allen. Thank you, Mr. Chairman.
For the record, I'm Dave Allen, regional director for the
Pacific region for the U.S. Fish and Wildlife Service. I'm
pleased to appear before you today to testify about the current
status and--of State and Federal cooperation on bull trout
recovery in Idaho, the potential of expanding the cooperation
under existing authorities of the Endangered Species Act, and
achieving bull trout recovery goals, and returning management
authority to the States.
I believe our work on bull trout recovery amply
demonstrates the Service's commitment to working with partners
every step of the way to achieve locally driven solutions to
the problems that have caused bull trout to be listed and
threatened throughout its range in the lower 48 States. When
the Service started to develop--to develop a recovery plan for
bull trout, we established a recovery oversight team consisting
of Fish and Wildlife Service biologists, a representative from
the State Fish and Wildlife Agencies in each of the four
Northwestern States--Idaho, Montana, Oregon, and Washington--
and a representative from the Upper Columbia United Tribes.
The recovery oversight team addressed overall recovery
issues such as identifying a range-wide recovery strategy,
identifying potential recovery units, and providing guidance in
developing the recovery plan. To develop local strategies, we
established a team for each potential recovery unit. Recovery
unit team membership was devised including biologists and
experts from local, State, tribal, and Federal entities, as
well as stakeholders representing timber interests, water
users, agriculture, power producers, power distributors,
landowners, conservation groups, tourism advocates, and local
governments.
From the start, the bull trout recovery planning process is
built upon previous State and local driven efforts, such as the
Idaho bull trout conservation plan and Oregon's plan for
watersheds and salmon.
In November 2002, the Service released its draft recovery
plan for the Klamath River, Columbia River, and St. Mary-Belly
River distinct population segments of bull trout for public
comment. Concurrently, we solicited peer review through the
Sustainable Ecosystem Institute, the Plum Creek Timber Company,
and the Western Division of American Fisheries Scientists. We
plan to release the final recovery plan for these bull trout
population segments in the fall of 2004. We are also developing
a draft recovery plan for Jarbridge River and the coastal Puget
Sound segments of bull trout.
Across the Northwest, we are working with other Federal
agencies, and State and private parties, to recover bull trout.
I'd like to focus on some examples from Idaho:
In the Lemhi area, the Service is working with area
landowners and the State of Idaho to develop a habitat
conservation plan that will conserve aquatic species and their
habitat, while also providing the water uses necessary to the
local agricultural economy. The Service is a partner in the
Lemhi agreement.
Similarly, in the rest of the Upper Salmon River Basin, we
are nearing completion of an enforcement discretion agreement
with the State of Idaho and private parties that will result in
a conservation plan to provide for long-term protection of bull
trout, and provide ESA regulatory certainty to the area
ranchers.
We opened an office in Salmon, Idaho, devoted to working
with local landowners and watershed groups to address
conservation efforts. This was done just recently.
We're working on a safe harbor agreement with four
landowners in the Fall Creak area of the Pahsimeroi River
watershed.
Under this project, we provided $400,000 for sprinkler
installation and other water conservation measures to reconnect
bull trout habitat in a Pahsimeroi River tributary of the main
river.
We provided $440,000 in funding through the Fisheries
Resources and Irrigation Management Act to provide for fish
screens and passage of water diversion structures.
And, we've also funded numerous fencing and revegetation
programs through the Partners for Fish and Wildlife Program.
The Endangered Species Act gives us tools for expanding our
cooperative efforts with State, local, and private parties,
such as habitat conservation plans and safe harbor agreements
under Section 10 of the ESA, grant programs under Section 6 of
the Act that recognize the key role of States in wildlife
conservation, and special rules for threatened species under
Section 4. We intend to use these tools whenever possible.
For example, Section 4(d) of the Endangered Species Act
allows for special regulations for threatened, but not
endangered, species to match the needs of species and people,
as long as these rules provide the effective conservation
results. Using this flexible management feature of the Act,
bull trout, while still listed as a threatened species, can be
legally taken by anglers in some areas as long as it occurs in
a manner that promotes conservation of the species. At the
request of Montana, Idaho, Washington, and Oregon, we are
currently exploring modification of the existing 4(d) rule to
give the States more flexibility in managing bull trout. We
will continue to explore options for protecting recovery of
bull trout that utilize the authorities of our State and tribal
partners.
Mr. Chairman, that concludes my testimony, and I appreciate
the opportunity to be here. I'm pleased to answer any questions
you have. Thank you.
Senator Crapo. Thank you very much.
Mr. Caswell, if you would like, you can move your nameplate
there and see the timer. Mr. Allen did very well without even
having access to seeing it, and I appreciate your doing that.
Please proceed.
STATEMENT OF JAMES L. CASWELL, DIRECTOR, OFFICE OF SPECIES
CONSERVATION, OFFICE OF THE GOVERNOR, BOISE, IDAHO
Mr. Caswell. Good afternoon, Mr. Chairman. Welcome home,
and I thank you for the opportunity to testify.
First, I want to congratulate you, Mr. Chairman, on your
recent hiring of Committee staff. I understand your new
employee brings a wealth of knowledge from his previous job,
and furthermore, I've heard it said that most of what he knows
he got from his previous supervisor, so----
Senator Crapo. Well, he told me that.
Mr. Caswell.--so, you know, Idaho's interest I think will
be well-served in the future, and we really do appreciate the
work you're doing back there.
My name is Jim Caswell, and I am the administrator for the
Governor's Office of Species Conservation. Our office is a part
of the executive office of the Governor, much in the same way
as the President's Council on Environmental Quality is housed
in the executive office of the President. Our job is to develop
State policy for listed, soon-to-be-listed species, and to
engage landowners and others in species conservation.
In the interest of time, Mr. Chairman, I've submitted
extended written comments and I have copies here today, but
will focus my oral testimony on the four principal issues that
I believe are important to bull trout recovery in particular
and to the Endangered Species Act in general.
First, the issue of critical habitat. We believe that the
critical habitat designation process that's currently in limbo
really does need to move forward and it should continue. But
more importantly, the Secretary of the Interior should have
discretion if and when critical habitat is to be designated on
any listed species in the future. Unfortunately, critical
habitat designation has become a litigation quagmire and has
commandeered the entire listing program. We support time and
designation of critical habitat to the recovery process and not
to the listing process.
The second point has to do with DPSs. The distinct
population segment for the Columbia River bull trout must be
broken down into smaller, more biologically based segments, in
order to make recovery achievable. As currently designated, the
DPS encompasses the majority of Idaho and Washington, and large
portions of Oregon and Montana. It is one of the largest DPSs
in the United States. This ruly/unruly designation makes no
biological sense, it stalls recovery efforts, and it wastes
economic resources. In a bizarre way the Service must agree,
because the first step in the recovery planning process was to
take this huge DPS and break it down into recovery units.
Ultimately, the lumping of healthy and struggling populations
in one massive DPS will prevent us from delisting the fish
where it's warranted. And a case in point is Idaho's Little
Basin. Most folks agree with a little bit more work we can be
there; yet, we will be hung up forever because of this huge
DPS.
Third point: The Secretary of Interior must commence the 5-
year status review for bull trout in order for us to make
decisions that are based on new scientific information. As you
know, Governor Kempthorne and the entire delegation wrote to
the Secretary, requesting such action. Mr. Chairman, we thank
you for signing that important letter.
Fourth, and last, we ask Congress to push for and the
Service to allow expanded use of cooperative relationships
under Section 6. The original framers of the Endangered Species
Act recognized the importance of State participation when they
crafted the sixth section of the Act. Those who operate
delegated environmental programs like the Clean Water Act and
the Clean Air Act can attest that there is a greater chance of
environmental compliance when the State is brought into the
partnership between government and a regulated community.
Idaho maintains that the Federal Government should utilize
Section 6 to build relationships, to bring the State's
expertise to bear, and to work collaboratively to accomplish
the aims of ESA. I know you are very familiar with the Upper
Salmon agreement, which can be seen as one example of how Idaho
has worked to develop a cooperative Federal partnership.
Mr. Chairman, thank you for holding the hearing in Idaho
and for allowing me to comment, and I stand for questions.
[A copy of the letter referenced in the statement follows:]
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Senator Crapo. Thank you, Mr. Caswell.
Mr. Strong?
STATEMENT OF CLIVE STRONG, ASSISTANT ATTORNEY GENERAL, IDAHO
DEPARTMENT OF NATURAL RESOURCES, BOISE, IDAHO
Mr. Strong. Mr. Chairman, my name is Clive Strong, I am a
Deputy Attorney General for the State of Idaho, and I assume
the reason I'm on the panel is that oftentimes I'm at the front
of most of the litigation that involves the Endangered Species
Act within the State of Idaho. It's from this perspective that
I'll speak today. I've submitted written testimony upon which I
will rely, but in my oral comments will focus on some specific
comments with regard to the litigation aspect of the issue.
If you look back at the history of the Endangered Species
Act as it's been applied, it's been primarily in the context of
isolated species that did not have the migratory patterns that
we're dealing with with salmon and bull trout. In that context,
the approach to enforcement was a Federal regulatory approach.
There wasn't much room for State involvement or for local
participation. But as the Endangered Species Act has been
applied to migratory species, we've seen a significant
inefficiency in that approach. What we have found, as you look
across the litigation landscape, with the Federal regulatory
approach, is more focus on litigation and less focus on
conservation and species recovery.
Extremely troubling from the State's perspective as we look
at the Klamath and Rio Grande litigations, that millions of
dollars being expended on litigation with no real conservation
measures being put in place for the species. Instead,
transactional costs and process marks the extent of that
approach to resolution of the Endangered Species Act problems.
In contrast, there's opportunity with the bull trout listing to
re-examine the implementation approach for the Endangered
Species Act, and to apply the Endangered Species Act as
contemplated by Congress.
As both the panelists here with me today have noted, the
Endangered Species Act contemplates a greater role than has
been provided to the States in the past. In fact, under Section
2 of the Endangered Species Act, it provides the Secretary
``shall cooperate to the maximum extent practical with the
States,'' and that ``such cooperation shall include
consultation with States concerned before acquiring any land or
water or interest therein for purposes of conserving any
endangered species or threatened species.''
This mandate becomes extremely important in the context of
migratory aquatic species because we have an intersection
between the Endangered Species Act and State water law. If we
were to move forward with addressing bull trout in the current
Federal enforcement approach context, what we would find is a
situation driven by litigation. This litigation would focus
primarily on trying to curtail individual water users, with the
practical result being no new water for fish because under the
prior appropriation doctrine, if water is not being applied to
beneficial use by one water user, it's available to next three
water users. Consequently, we would end up in a series of cases
against a number of different water users.
In contrast, under a cooperative approach such as the Lemhi
River Basin, there's an opportunity for addressing water and
land resource related issues in a way that accommodates local
and State needs, while at the same time providing for the needs
of the listed species.
Just briefly, let me describe for you what has occurred
within the Lemhi Basin. Rather than pursuing the litigation
alternative, the State was able from to convince the National
Marine Fisheries Service to cooperate with the State and local
water users to look at the resource problems within the Lemhi
River Basin. One of the major challenges to the salmon recovery
in that basin has been a dewatering situation occurring in the
Lower Lemhi. We have worked with the water users to devise a
water rental system in which the Legislature has authorized
creation of a instream flow and a water rental program that
allows the rental of water to provide the instream flow. By
doing this, we've been able to preserve the benefits to the
local economy, while at the same time providing the flows
necessary for the migration of both juvenile and adult salmon
within the Lemhi basin.
By bringing the parties to the table, it's fostering an
atmosphere of trust and the opportunity to explore creative
solutions. Through the initial conservation agreements, we've
been able to move now toward development of a long-term
conservation plan that includes the Fish and Wildlife Service
and the NOAA Fisheries, and provides for considering listed
salmon as well as listed bull trout as well. The plan will
provide for the needs of all listed species, while at the same
time protecting the local economy.
What I believe the Lemhi example demonstrates is that while
it's easy to come in and to mandate a solution, it's difficult
to actually implement the solution without local cooperation;
and particularly in the context of bull trout where water and
land management are going to be the key issues that must be
addressed in devising a solution. It's going to be important to
have the stakeholders at the table; and in that regard, the
State is in a unique position to be able to provide leadership,
primarily because we have local managers who have relationships
with local water users and landowners. These relationships can
provide the opportunities for discussions that will be
beneficial to listed species as well as the economy.
Thank you, Senator.
Senator Crapo. Thank you very much. Were you finished? You
can conclude.
Mr. Strong. I will conclude with that, thank you.
Senator Crapo. All right.
Mr. Allen, the first question I have is for you, and it's
just a detail. Do you know what the status is of the Upper
Salmon agreement? And the reason I ask is it's my understanding
from the Governor's office that a final draft has been printed.
Are you aware of where we are on that final agreement?
Mr. Allen. I had a conversation with Jim Caswell yesterday,
and as I understand, it's awaiting some sort of signal back
from the IT staffperson who's been working on it and as well as
the National Fisheries Service. I wasn't able to follow up
yesterday, but I'm assuming that that's imminent. I'm not aware
that there's any housecleaning issues.
Senator Crapo. Mr. Caswell.
Mr. Caswell. Mr. Chairman, I don't know if there's any
outstanding issues either. I've tried to contact folks twice in
the last couple weeks; in fact, I sent another note today, e-
mail, asking--inquiring about the status. And I think tomorrow
I'll see the Fish and Wildlife Service rep, so maybe I'll get a
chance to talk to him face to face.
Senator Crapo. OK. Good. Well, obviously that's something
that from the testimony that each of you provided, as well as
from the information I have, that's a very important
development that we'd like to see become a model for the way
that we handle some of these issues in the future.
I'll come back and start out again with you, Mr. Allen, but
for the whole panel, if I'm discussing something with one of
you and you have a thought or clarification if you would like
to pitch in, please feel free to do so. I'd like this to be a
true discussion.
In the draft recovery plan, it states that the bull trout
are well distributed throughout most of the unit and present in
all core areas, and a number of people have come to me and
asked if the species is that broadly dispersed and present in
all core areas, how does that result in a listing of the
species in the first place? Can you explain a little bit of how
the listing--why the listing decision was made?
Mr. Allen. Well, I wasn't personally involved in this
decision. I was--had been in Alaska the last 11 years; I just
joined this part of the country.
Senator Crapo. That is a bit of an unfair question then.
Mr. Allen. In general terms what I can tell you is
obviously there's the basic four-factor examination that's done
that looks at threats, it looks at management measures that are
underway, it looks at whatever data is available on both
abundance and distribution. I can only assume that the
conclusions that were drawn from all that information and there
are different population segments that were examined separately
to draw those conclusions, and that ultimately when they were
looking at the last population segment, they decided to lump
them into a range-wide threatened status. But those are
generally the criteria that are looked at.
I think it's well-known that in some parts of the country
the bull trout--some parts of its range, the bull trout is
doing fairly well, but they are spotty, and for whatever
reason, they have not met threshold that would have allowed us
to come to a determination of not warranted.
Senator Crapo. Well, that raises another question to me,
and I'm probably not going to ask this in the most effective
way because I don't know the right terminology, but if we have
a very broad range designated for the habitat or in this case
probably the critical habitat--because it's my understanding
that a significant amount of the bull trout range was
designated as critical habitat. Let me just ask: Is that
correct?
Mr. Allen. Well, we haven't concluded the critical habitat.
Senator Crapo. So that designation has not been made?
Mr. Allen. It has not been made yet, no, sir.
Senator Crapo. Maybe the designation hasn't been made, but
there's been discussion or proposal in the draft recovery plan
or something to that effect. Somewhere in my mind is that
there's a broad part, a big part of the range is proposed, at
least, as critical habitat?
Mr. Allen. Yes. A proposal was put out for public review.
That whole process has been, you may be aware, has been
suspended due to lack of funding in the Agency. I work on
critical habitat determinations.
Senator Crapo. Mr. Caswell raised in his testimony.
Mr. Allen. Right. Unless something extraordinary happens in
the next 30 days, we will pick that process up again starting
October 1st, and conclude it----
Senator Crapo. As soon as you run out of money again?
Mr. Allen. Well, hopefully we'll get this one done before
we do.
Senator Crapo. I say that somewhat with tongue in cheek
sarcastically, because I know very well the problem you're
dealing with. In fact, I want to get into that problem a little
bit.
But the question I'm driving at right now is that if we
have a significant part of a very large range proposed as
critical habitat and yet it's also acknowledged that there
are--well, going back to the phrases, that the trout are well
distributed throughout most of the unit and present in all core
areas, the question that comes to my mind is if we have a
listed trout and if we end up with critical habitat designated
over very broad ranges which also include areas where there are
significant amounts of the trout--in other words, the trout is
doing well in some of those areas--what does that mean for the
areas where the trout is doing well? If the trout is doing well
in an area that is designated as critical habitat, do the folks
who live in that area face the same kind of restrictions and
management regimes as would those who live in areas where the
trout is not doing as well?
Mr. Allen. Not necessarily. And one of the benefits, as I
mentioned in my testimony, when a species is listed as
threatened, there are some flexible management opportunities
that are available to us under special rules. You mentioned
yourself the existing rule that's in place that is somewhat
restrictive, but we are responding presently to a very recent
request in the last 3 weeks from the States of Washington,
Oregon, Idaho, and Montana, to see if we can't make that rule
more flexible and actually allow some take by anglers, not just
simply, you know, return them if they happen to take them while
they're fishing for other things. This is possible as long as
we can draft an agreement with the State that will allow for
those in certain circumstances and that there are conservation
benefits. I mean, that's what the law asks us to do when we
apply this particular rule associated with that.
So it's something that we're looking very seriously at,
more flexibility in that rule, possibly opening up some of
those areas in the State of Idaho. Right now there are two
States that are most interested in this--Montana and Idaho--in
areas that we may be able to identify opportunities for more
flexible management regimes that will include the appropriate
conservation measures.
Senator Crapo. Well, thank you. While we're on critical
habitat, let's expand into the full discussion of it, and I'd
like to have the whole panel respond to some of these
questions. But the first question I have is what is the
practical impact of the Service's decision to simply stop
critical habitat work because of their problems in terms of the
budget in Washington and the litigations and stresses that are
placed? I mean, if we just stop dealing with critical habitat
designation, what does that mean in a case like this with the
bull trout?
Mr. Caswell. Mr. Chairman, the short answer is confusion
and uncertainty. A little longer answer is an example that I
have.
I was on a management review here about a month ago, and we
were visiting a timber sale on national forest land, 11 miles
upstream of the Weiser River, which in the proposal is
designated as a migratory area, hasn't seen a documented bull
trout in 30 years. And we were going through a--they were going
through a full-blown consultation on a half a million feet of
harvest, all the roads had been built, full-in fish buffer
strips were applied to all the drainages. There was only one
live stream and it is 11 miles from the Weiser River. And
because this proposal is out there and in limbo, not completed,
the powers that be in terms of the biologists that were
involved in this but in the Forest Service were treating it
like it was already a done deal, No. 1; and, No. 2, you know,
because of that uncertainty just sitting there and not getting
completed and a final decision rendered on whether that is
going to be called migratory or it's not going to be called
migratory, they felt they had to go through this process in
order to protect themselves.
Senator Crapo. So are you saying that we had a situation
sort of like we sometimes see under the Wilderness Act where we
have a wilderness study area, but it's managed as if it were
wilderness? Here we have a proposed designation of critical
habitat that is very broad, and until that proposal is made
final or somehow withdrawn or changed, it is functioning as the
de facto designation, at least in this case.
Mr. Allen. And I'm not disputing that. That may be very
well how other people in the field are doing it. It shouldn't
be the case. It is listed. We would have to do the consultation
anyway, regardless of the critical habitat designation or not.
But the fact that such a draft document is out there
probably does have some influence over how people examine that
particular issue and that location. It is information that has
not been fully vetted yet, but it is out there for people to
use at their discretion, but it certainly isn't something that
we, as an agency, would be advocating that they ought to be
using draft documents to assess their consultation
requirements.
Senator Crapo. So they would have to do the consultation
even if there were no designation of critical habitat.
Mr. Caswell. I disagree with that, Mr. Chairman. I'll tell
you why:
This is not an area that has bull trout presence, and
that's documented, so----
Senator Crapo. I see.
Mr. Caswell.--so the issue of critical habitat designation
is--gets back to if they're present, it's one thing, but if
it's critically designated, then whether the fish is there or
not, you have to protect that habitat, so it does have to go
through consultation.
Senator Crapo. I see. I see your point.
And you would probably agree with that, Mr. Allen?
Mr. Allen. Yeah, obviously if that is, indeed, the case
that this area was determined that there's no presence, then
there may be a no effective determination in terms of the
consultation, right.
Senator Crapo. All right. I think that everybody on the
panel is probably aware that I've proposed legislation in
Washington on this issue to basically change the timing of the
designation of critical habitat to the recovery phase rather
than the listing phase, which is what Mr. Caswell proposed just
now.
Mr. Allen, do you support that?
Mr. Allen. Our agency has consistently supported that view
for quite some time now.
Senator Crapo. In fact, I think that's true under both----
Mr. Allen. Both the previous administration and this one as
well, yes, sir.
Senator Crapo. Mr. Strong, do you have an opinion on that?.
Mr. Strong. I would simply concur. It makes a lot more
sense at that point in time when you have information to make a
designation. When you do the listing decision, you really don't
have the information to make an appropriate designation. What
it leads to is overinclusion.
Senator Crapo. Well, I can tell you that this is one of
those issues in Washington where we seem to have agreement from
both Republican and Democrat administrations, and from many
different quarters, but we still seem to face those who would
like to filibuster such a bill or would threaten stalling it in
some way because they don't want to see the Endangered Species
Act fixed or amended in any way. But we're pushing on that to
see if we can provide at least that piece of a solution for
this part of the problem.
Let me come back. I'm going to change--change gears here
again, entirely. I want to talk about Section 6. My
understanding from all of your testimony, as well as testimony
that we received in other contexts, is that Section 6 is
potentially a very valuable tool that to this point has not
been utilized as fully as it should have been. I'd like to see
what each of your comments, each of your positions, is on that
in general.
And, second, if you could in your response, help list for
me some specific examples. You've already done that but I'd
like you to do it again and maybe fill it out a little more,
some specific examples of how Section 6 can be useful to us in
terms of more effectively managing and delegating
responsibility to the States and providing flexibility to all
interested parties under the Endangered Species Act. I guess if
you want to start, Mr. Allen.
Mr. Allen. Sure. Be happy to.
For years, Section 6 has really not been very--very
actively funded nationally. Very, very small amount of money
had been available and provided to States to participate in a
variety of activities in connection with listed species.
Clearly, the Section 6 provisions of the Act are, as I've
indicated in my testimony, are meant to recognize the key role
that States play in resource management, and we simply, as an
agency, really haven't exploited that to any great degree for
not only reasons of funding, but also I think at least in the
past questions about how far we could take those provisions.
This is a very--this is a very rapidly evolving policy
issue within the Department right now as we speak. There's very
serious considerations being given to see if we can't, through
enhanced funding in Section 6 grants, provide more authorities
to the--to the State management agencies to carry out
management provisions associated with listed species. And I'm--
I'm anticipating myself that, quite frankly, we will be
receiving some new guidance here in the very near future in
this regard.
As for specific examples, you did mention the one here in
Idaho that I guess a couple years ago we provided through a
Section 6 agreement the ability of the State of Idaho to
install fish screens in conjunction with water diversion
projects and provide the State coverage in the process of doing
that.
So clearly, the mechanism is there. It's just a matter of
making sure that there will be adequate funding to expand those
opportunities, and also make sure that we craft those
agreements in such a way that they withstand scrutiny, because
I know you're very much aware, we have a lot of people looking
over our shoulders with regard to any actions that we take that
would, in effect, delegate some of our authorities.
Senator Crapo. Thank you. And before we go on, Mr. Caswell,
when you talked about lack of funding, is that budget
allocation within the Agency or is that funding available by
the Agency providing that funding?
Mr. Allen. Funding requests, Mr. Chairman. It has been
increased in recent years. I don't have the numbers right in
front of me. But clearly once again, in recognition that there
may be additional opportunities out there that we hadn't fully
pursued.
Senator Crapo. OK. Mr. Caswell.
Mr. Caswell. The only thing I could add, Mr. Chairman, is--
and I agreed with what Mr. Allen said, but we think that
there's even a lot broader net that can be cast under the
language in Section 6, and I mean, like a whole program. And
maybe this is a little bit bizarre, but let's take just the
bull trout as an example.
You know, we have healthy, robust populations throughout
the State of Idaho. I mean, not every drainage, not everywhere,
but it is really in good shape, all things considered. And
Governor Batt went way far down the road at trying to pull
together a plan for the State of Idaho prelisting. You know,
there was inventories done, there was watershed groups that
were working. I mean, this thing was really mature, and a lot
of good information was gathered.
Why isn't the State of Idaho, through the Department of
Fish and Game Section 6 program, managing bull trout in the
State, the whole program? Just give it to us. Let us do that.
Senator Crapo. Mr. Allen, do you believe that that's
possible to delegate that broadly under Section 6?
Mr. Allen. I really don't know. I know that the whole issue
of these types of--I mean, Jim's--Mr. Caswell's--proposal is
certainly something that has been discussed in at least in
concept not in specificity, how far can we really go with these
delegations. As I indicated, I know that there is a lot of
interest within this administration to expand that as far as we
can legally. And, personally, I very much support the idea of
engaging the State to the maximum extent that we can under the
law, and I'm certainly willing to entertain those types of
proposals once it's clear exactly what kind of constraints we
may still have to operate under.
Senator Crapo. Before we go to Mr. Strong, keep your mike,
because you indicated that you expect some new guidance to be
coming along. Is that guidance from within the Fish and
Wildlife Service, or are we talking CEQ or----
Mr. Allen. Within the Department.
Senator Crapo. What about the other agencies? Is the
Council on Environmental Quality engaged on this?
Mr. Allen. I don't know that for sure, but I know that this
issue has been at the heart of some of the provisions of the
Snake River Basin adjudication, and clearly there must--I know
that NOAA Fish has been--has been part of those discussions,
and I'm sure Clive Strong probably has as well. But, I think,
yeah, some of these ideas of expanded authorities have at least
generated how we might go about implementing some provisions of
that agreement.
Senator Crapo. Just a quick comment and then we'll go to
you, Mr. Strong.
Yesterday we had a summit--not a hearing but a summit--
right here in this room with regard to grazing, and one of the
things that we talked about was the fact that different
agencies at the Federal level have their own handbooks and
their own guidances and so forth on how they implement the
Endangered Species Act, which creates duplication, at least, if
not worse problems. And it seems to me that on something as
important as delegation under Section 6, that it might be very
helpful if all of the Federal agencies were operating under the
same guidance, and if that guidance was one that was as
expansive as possible. So take that back to whatever channels
you have and route it through, and I'll route it myself.
Mr. Strong, could you please comment?
Mr. Strong. Mr. Chairman, Section 6 has been a largely
unused provision of the Endangered Species Act. To the extent
it has been used in the past, it's been primarily for research
and gathering permits for State Fish and Wildlife Agencies. But
reading the section itself though, it provides for a much
broader program. In fact, it really is equivalent to the Clean
Water Act or RCRA which provides for delegation of enforcement
to States.
Having said that, in my mind, Section 6 provides the only
real opportunity for addressing these types of migratory
species recovery plans. If we are going to be effective in
implementation of these programs, as I noted in my opening
comments, we're going to have to have a basin-wide approach to
achieving recovery, and that takes into account impacts of
decisions on water deliveries and other land use practices.
The State is in a unique position to be able to provide
that opportunity, as I demonstrated, through the stream flow
legislation and water bank created for the Lemhi. Those are
opportunities that would not otherwise be available in the
normal context of an ESA implementation program, but through
Section 6 we can create opportunities through cooperation with
local entities.
Having said that though, the Lemhi model, while it
represents in my mind the only real solution for these kind of
issues, it does ultimately come down to a funding issue. For
example, right now, one of the issues at the forefront of bull
trout recovery is the objective of Fish and Wildlife Service to
address fragmentation of habitat. That essentially requires a
reconnection of tributary streams. Right now in the Lemhi Basin
if we had access to just a million dollars of funding, we could
complete reconnection of a drainage basin; but instead, that
funding is not available. What we see is funding being directed
to litigation that's occurring in other States, the Rio Grande
and Klamath being the prime examples.
There's going to have to be a change in the Federal
priorities in terms of funding and availability of streamline
processes if we are going to be effective in implementation of
the Endangered Species Act. Section 6 provides that
opportunity.
We're already somewhat down the road in that direction,
because for the last 2 years the Idaho Department of Fish and
Game has had a bull trout conservation program approved by the
Fish and Wildlife Service under Section 6 in which we have done
screening and habitat improvement projects. By all accounts,
that program is working effectively. So the framework is
already in place; it's simply a change of the mind-set of the
agencies.
You made note of the need for the agencies to have common
operating centers. That's a very important problem, because in
the past, the only agency that's really been willing to use--at
least in the Northwest--Section 6 extensively is the Fish and
Wildlife Service. NOAA Fisheries has had a policy against use
of Section 6. It's only with the current administration that
there's been a change in philosophy. So I think it's important
that the agencies do come together and develop common criteria
for the use of Section 6.
I think the concerns about delegation are really misguided,
because in large part, Section 6 has its own control
mechanisms. First, we have to have a program that's approved by
the agencies. Second, it provides for annual review of that
program to ensure proper implementation is occurring. And,
three, by doing it on an annual basis, it accommodates adaptive
management, which is so essential in many of these ESA issues
because in many instances, we just don't have enough scientific
certainty to make longer-term plans. We're going to have to do
adaptive management programs as we go along. All of this can be
accommodated through Section 6.
Senator Crapo. Clive, with regard to NOAA Fisheries, are
they--you indicated that they had changed somewhat or to some
extent with the current administration. Are they working today
in an adequate sense, in your opinion, with regard to the, I
guess, expansive designation or delegation of authority under
Section 6?
Mr. Strong. Mr. Chairman, the proof is in the pudding, so
to speak, as we move along. I think there are going to be some
opportunities with the Upper Salmon River plan, and the Lemhi
Basin, where the State is going to want to move down the road
to a Section 6 approach. We'll get an opportunity over the next
few months to find out.
Senator Crapo. Do we have any Section 6 delegations from
NOAA Fisheries?
Mr. Allen. Not at the present time, Mr. Chairman.
Senator Crapo. And we only have the one from Fish and
Wildlife Service?
Mr. Allen. One that I know of.
Senator Crapo. There may be others?
Mr. Strong. Mr. Chairman, we have the overall limited
Section 6 agreement with the Fish and Game Department that a
subset of that is the bull trout----
Senator Crapo. Right.
Mr. Strong.--conservation plan.
Senator Crapo. Again, a question for anybody on the panel:
Is Section 6 limited simply to delegation to the States? And
what I'm asking is can Section 6 be used in a flexible way with
a county or some other entity?
Mr. Allen. My limited knowledge is that it is a provision
primarily for us to engage--engage the States, and I'm not
aware that it can be expanded beyond that. Again, my experience
base is very limited in its application.
Mr. Strong. Mr. Chairman, I think the primary contemplation
was delegation to the State, but there's nothing within Section
6 that precludes a State, through a cooperative program with
local counties and governments, to include them in the State
planning process. It's more of an approach or a mechanism we
use, but delegation does come down through the State.
Senator Crapo. So the--the Upper Salmon agreement is with
the State of Idaho?
Mr. Strong. Mr. Chairman, that's the current direction is
to do it through the State of Idaho but with local cooperation.
Senator Crapo. Are there--let me ask, and I should have
this here, but does anybody have the operative language of
Section 6 in front of them there?
Mr. Allen. I've got----
Senator Crapo. Somebody in the audience?
If you could, just read it.
Mr. Allen. All right.
Senator Crapo. I do have it up here, but go ahead and read
it.
Mr. Allen. OK.
General Carrying out the program authorized by this Act,
the Secretary shall cooperate to the maximum extent practical
with the States. Such cooperation shall include consultation
with the States concerned before acquiring any land or water or
interest therein for the purpose of conserving any endangered
or threatened species.
And then it goes on and talks about management agreements,
cooperative agreements.
Senator Crapo. Right, and then it gets kind of extensive.
Let me just read some of the language here. The first sentence,
it says: Cooperate to the maximum extent practical.
And then Paragraph B, it says: The Secretary may enter into
agreements with any State for the administration and management
of any area established for the conservation of endangered
species or threatened species.
To me, that seems pretty broad, and the same thing with
regard to cooperative agreements. So I think one of the things
that we need to take out of this hearing is the fact that we
need to accelerate, if possible, the utilization of Section 6
by all Federal agencies, and I want to thank the Fish and
Wildlife Service for, from what I understand, being involved in
moving down that road for some time and helping us in that
context.
Did you have something you were going to say, Clive?
Mr. Strong. Mr. Chairman, I was going to draw your
attention to Section 2 of the Endangered Species Act, and it
provides: ``It is further declared to be the policy of the
Congress that Federal agencies shall cooperate with State and
local agencies to resolve water resource issues and
conservation of endangered species.''
It was this language about local agencies that I was
focusing on and I think provides at least an opportunity for
inclusion of them as part of the State program.
Senator Crapo. Yeah, I see no legitimate argument under
Section 6 that the local agencies--how is it stated here--yeah,
the local agencies--couldn't be included under a State plan.
From what I saw of the part of Section 6 that I just read
there, I didn't see any specific authorization beyond the
State. But I also believe Section 2 seems to contemplate full
cooperation with the local agencies, and I'm just curious as to
whether there is these circumstances when it would be
appropriate and possible for cooperation with the county or
with some other local agency to achieve an objective under the
Endangered Species Act. Right now I'm just trying to identify
the waterfront here to see what kind of flexibility we may
have.
Mr. Caswell. Mr. Chairman, I would submit that we have that
in place as well, and I think the Lemhi and the Upper Salmon
watershed----
Senator Crapo. That's what I was thinking about.
Mr. Caswell.--folks that are working together is an example
of that.
I think another example down in Bear Lake, we now have a
group of irrigators and local folks, particularly with our Fish
and Game Department and the Fish and Wildlife Service, that
have come together. They're working on similar issues in Saint
Charles Creek, Fish Haven Creek: How do we get water back in
the stream and still irrigate the crops, get the fish back up
there to spawn. So it's starting to happen in various places
around the State.
Up north in Bonners, which is a similar sort of group of
folks that were formed that brought up some of these issues and
started to work at the local level, and so I think it's on the
cutting edge.
Senator Crapo. Well, good. I've got two more questions of
this panel and one is actually a question for you, Mr. Caswell,
and that is in a broad sense on this issue of Federal
cooperation with and delegation of authority to and working
with the States, and this isn't limited just to the Fish and
Wildlife Service, but do you feel that the various Federal
agencies that you have to work with under the Endangered
Species Act in Idaho are making an adequate effort at being
sufficiently cooperative with the State?
Mr. Caswell. Fish and Wildlife Service, absolutely. We have
good relationships with folks that work in this office, work
diligently together on issues, trying to find some new ground,
plow some new furrows to get some things done in a little
different way, willing to take some risks and think about
things.
The story is not the same with NMFS, however, and it's just
a lot tougher to work with NOAA. And I think that's starting to
change some. I think the attitude is different now, but they
have some policies in place that are just really, really hard
to deal with.
Senator Crapo. Well, you can choose not to answer this
question if you want to, but I'm going to ask it:
In terms of your experience with NOAA Fisheries, is it
because of policy and handbooks and directives that their
employees have to work under, or is it an attitude in the
agency that is not performing with the administration's
policies?
Mr. Caswell. Some of both.
Senator Crapo. OK. Fair answer.
The last question I have is we've talked about Section 6
and I think it carries a tremendous amount of attention to
solving some serious problems in terms of the stresses that we
face under the Endangered Species Act. Could you each just
quickly go through if you are aware of any other--and there are
others like safe harbor agreements and so forth--but other
tools that we may have under the Endangered Species Act to
achieve flexibility both in terms of delegation to the States,
but also just flexibility in management and in our ability to
try to relieve some of the process and administrative burdens
and get to the real activity of species conservation that we
want to achieve under the Act? What are the other areas or
tools that we might try to focus on as we look at these issues?
Mr. Allen. Well, I'll start with for years the Service
tried to exercise discretion on listing critical habitat, but
our experience in recent years has shown that that discretion
has caused us nothing but heartburn in adjudications.
But getting back to, you know, what are some of the
provisions of the Act that, you know, do allow us to work more
effectively with, for example, the States and other interested
parties, I have mentioned them. I think they are important in
that. Some of them are relatively new in concept. They did
emerge out of the last administration of some attempt to make
the Act more user-friendly in the--in the midst of anyone's
ability to change some of the provisions of the Act, and they
are such things as:
Have to have conservation agreements, and working with
private landowners to come up with realistic agreements that
would allow development activities to go forward while assuring
that adequate conservation measures were in place, and provide
those landowners with instant protection.
Safe harbor agreements are particularly interesting to
individuals who voluntarily step forward and indicate on their
private lands if they have an endangered species, their
willingness to voluntarily do things of benefit to the species,
and in exchange for that, of course, some assurances that no
additional requirements will be imposed on them.
I mentioned the (4)(d) rule provisions of the Act. That--
only for threatened species, not for those that are listed as
endangered, but for threatened species, the ability to exercise
some flexible management for the purposes of allowing in the
case of a sport fish the ability for anglers to actually take
some of those as long as an overall program of conservation can
be demonstrated in the midst of while they are listed.
Section 6, of course, we've talked at length about that.
Obviously, you know, the recovery planning process is
intended to fully engage, you know, State management agencies
and interested parties to help participate in the specific
recovery actions, and, again, that opens the door for other
opportunities for cooperation.
But that is, you know--that's just about the landscape that
is currently available to us, and I think that from my
perspective what's happened, in some areas we have done a very
good job of really exploiting those opportunities. In others,
we could do more.
And it is a--it is a bag of tools that also carries with it
the burden that some of it requires some additional resources
to make them most effective; but, clearly, I have been
extraordinarily impressed with what I have seen in the energy
and the willingness on the part of Fish and Wildlife Service
personnel to engage and explore these opportunities across the
landscape; and not just in Idaho, in other parts of the region
that I have responsibility for. Fortunately, in my last 11
years in Alaska, we didn't have to deal too much with
endangered species. We had a few, but this is somewhat new
territory for me, but I'm really quite pleased to see what
progress we have made, and I said the willingness on the part
of Fish and Wildlife Service employees to reach out and work
with local--local communities and local interests. It's just
that like anything else, there is a limit in what we can--what
we can accomplish. Thank you.
HEARING OFFICER: Thank you, Mr. Allen. And by the way, I
want to welcome you here to our region of the world, and I'm
pleased to hear the record from Mr. Caswell that the Fish and
Wildlife Service is good to work with in terms of their
willingness to delegate and work with the State. Thank you.
Mr. Caswell, do you have anything to add to that?
Mr. Caswell. I've got three notions but only one of them
really applies to the Act as it sits today, and that is the
whole issue of science and the adequate science, and it seems
to me that there's a real opportunity to open that door a lot
wider and walk through it with a larger group of people on the
listing side. And I know you probably could probably argue
about this a long time, but, I mean, the idea of State
scientists involved in academics, private people that get
involved in looking at the science, a lot broader cabinet of
people that are looking at the final listing decision, and I
think that's doable within current language in the Act.
The other two things I want to mention--this came up a
little bit yesterday--the counterpart regulations that are out
now for consultation on public land, it just blew my mind when
I finally realized that really all we're talking about are fire
projects. So we went through all of that rulemaking process at
the Federal level, only to cover those projects that are
involved in fire. The other thousand decisions that are made on
a daily basis that could have gone the same way don't, aren't.
So we're still wrapped up in red tape over consultation on
Federal projects.
And the last one is the notion of power of authorities, and
this would need legislation, I believe, but it still seems
like, to me, that a test case could be well put together in the
Lemhi and Upper Salmon where infrastructure exists, tribes are
involved, all the agencies are there, you've got a track
record, it's positive. And so for just recovery of fish, why
don't we turn those people loose and turn off the regulatory
and bureaucratic tap of all the paperwork and let them try this
for a while? I mean, they have still got to go through project
development and all those things that happen, but why do we
have to reconsult, why do we have to do NEPA all over again,
and on every project, every time? Why couldn't we unshackle
those people and monitor that progress, do oversight on that,
do it for a limited period of time, and see if it works and see
what the benefits are compared to the other way?
Senator Crapo. Points, Mr. Strong?
Mr. Strong. Just one tool that hasn't been mentioned, but I
think it's become a fairly important tool in the arsenal
dealing with these ESA issues, and that's prosecutorial
discretion. Oftentimes, these ESA issues come up in kind of a
crisis situation and you need to bring people to the table
fairly quickly, and to go through the normal ESA process, it's
just too time-consuming. And so what worked out is a process
whereby commitments can be made and then agreement reached with
the Services to have prosecutorial discretion and not to move
forward while we move toward the implementation of the longer
term plan.
Senator Crapo. OK. There's a lot more we could go through
but we're a few minutes over already, and so I want to thank
this panel, and sincerely appreciate your willingness to give
the attention to these issues that you do, and we will continue
to work with you on these issues. Thank you very much.
I'd like to call up our second panel at this point, and
again, that panel is Mr. Brad Little, who's a State Senator
from District 11; Mr. Bob Loucks, Lemhi rancher from Salmon,
Idaho; and Ms. Jane Gorsuch, executive director----
What is your title, Jane?
Ms. Gorsuch. Vice president of Idaho affairs.
Senator Crapo.--all right, of the Intermountain Forest
Association; and Scott Yates, native fish coordinator of Trout
Unlimited. We'd like to welcome all of you. We have four people
and three chairs.
All right. I'd like to thank you all for coming as well,
and again remind you to try to stick to your 5 minutes to
speak. And, Senator Little, let's start with you.
STATEMENT OF HON. BRAD LITTLE, AN IDAHO STATE SENATOR FROM
DISTRICT 11, EMMETT, IDAHO, ON BEHALF OF RANCHERS' INTERESTS
Senator Little. Thank you, Mr. Chairman. We're very
thankful that you're having the hearing here in Idaho. We--we
country folk know that there's not very many Members of the
Congress or the Senate that have as good of knowledge of
particularly water as you do, and we are very thankful that you
elected to take this on as a cause, because it has a big impact
on us in Idaho.
Senator Crapo. Thank you.
Senator Little. I represent Gem and Canyon County. Gem
County, of course, has got--used to have a forest base, and
Canyon County definitely has an irrigation base. And I also
ranch in bull trout habitat.
I've had a little experience with the Endangered Species
Act. I had a forest allotment that I kind of sauntered away
from after salmon were introduced, wolves were introduced, and
the cost of regulation got so high that we just kind of gave
up. My goal here today is to not have my neighbors and
constituents suffer the same fate as my family.
There's already significant costs that exist out there. As
alluded to in the earlier panel, they talked about--and I think
you did, Mr. Chairman--about what could come down the road in
these recovery plans. Boise Cascade Corporation, which has
almost a quarter million acres of feed ground in the State of
Idaho, as everyone knows, has shut down their timber operations
in Idaho. The net result of that is a million dollars a year
into perpetuity that will cost the schoolchildren in the State
of Idaho in deferred revenue that exists. Just the threat of
bull trout and the regulations that exist out there has been a
significant cost on timber operations, and farming and ranching
operation.
A bigger cost may be that 200,000 acres and what happens if
Boise elects to dispose of those properties. They have already
disposed of some of them. And I think all the people that are
involved, I think all the original authors of the Endangered
Species Act, had in no way the intent that the production of
timber and fiber and food would move offshore to places where
it's not sustainable, it's not regulated, and that habitat
would be fragmented. I know that's kind of the 30,000-foot view
of the Endangered Species Act, but I think we need to talk
about it. In my district alone, 500 jobs were lost as a result
of that transition of Boise Cascade.
One of the issues that they talked about before in the
earlier panel is that critical habitat designation, and Squaw
Creek in Gem County is one of those areas where we've got some
good habitat up in the upper reaches up on the forest, and then
you come down through these small meadows not unlike the Lemhi
area, and then it goes into Black Canyon Reservoir, and that
tie-in to Black Canyon Reservoir to those upper forest areas is
a real problem. You know, the farmers and ranchers that I
talked to are very concerned about what's going to happen if
they have to put in fish passage facilities, screens. What's
the cost of that. And as one of them said, the Federal
Government is pretty good at chumming us into one of these
programs. Then you have a change of administration and
President Howard Dean appoints Katie McGinty Secretary of
Interior and secretarial discretion doesn't look so good at
that point in time. So I think in your deliberations about
changes to the Endangered Species Act, you want to keep that in
mind.
And, of course, the issue of adequate sustainable funding
is very important. What happens if the funding goes away? That
hasn't been a very good excuse in court for not complying with
certain provisions of the Endangered Species Act, and the
people that I've talked to out in the field are very concerned
about the ramifications of that.
One of the things that's really important to us is that you
have a concrete goal. The real estate that we're sitting on
here today, the dirt that we're sitting on, probably came from
up Boise River at Mores Creek, and in the 1850's, that area was
dredged and redredged and redredged and redredged. Now they are
talking about critical habitat up there where there may have
been a couple bull trout seen. You can imagine that those
landowners, if they'd have thought that critical designation of
bull trout with all the expenses and costs would have come
around, that that transformation of just an absolute desert
wasteland in the upper reaches of Mores Creek never would have
occurred. And it is quite amazing what nature has the
capability to do, but the threat of going from a warm-water
biota and to a cold-water biota and having the bull trout
designation exists in everyone's mind. The rancher that's got
riparian habitat, if that area improves and all of a sudden
he's going to become bull trout susceptible, it's not a very
good incentive for him to do the things that we all agree that
they should do.
Mr. Chairman, we shouldn't fear those consequences of good
management, and I was hoping that somebody in the last panel
was going to throw out the magic pill that was going to take
care of that. I have great faith in you and your capabilities.
There really is a quandary for this warm-water, cold-water
biota problem that exists with bull trout, and it is a
disincentive. We need concrete goalposts that we know that when
we get there, we've reached recovery and we can go on. But my
people in my area are very, very nervous.
I also concur with the last panel about local control. I
was joking with my local Fish and Wildlife Service that I was
going to testify that we wanted to leave all the control at the
Federal level and not have any control here, and that was going
to be my standard response, but my experience has been----
Senator Crapo. You just don't want to pay for it. Right?
Senator Little. Oh, I've been found out, Mr. Chairman.
But, frankly, there's a lot we can do at the local area.
You know, we're going through the TMDL process. One of the
frustrating things is the BURP analysis that DEQ does is
somewhat different than the riparian habitat condition indexes
that the Federal agencies use, and I've asked many times what
the correlation is and I get not very good answers back. And
it's too bad that we have to measure water quality four or five
different ways, and that's part of the frustration that my
constituents have.
Give us achievable goals; give us guarantees of adequate,
sustainable funding; reduce the paperwork; and allow the
experts to get out of the office and out from under the
litigation and paperwork barriers that they have, and get them
out and help some of the people that, for the most part, you
know, like I said, we had wolves and they're thinking what's
the next species, why should we do this, because we know if we
meet that hurdle there will be another species that comes down,
and that's a real frustration to my people.
Thank you, Mr. Chairman.
Senator Crapo. Thank you, Senator.
Mr. Loucks?
STATEMENT OF BOB LOUCKS, LEMHI RANCHER, SALMON, IDAHO
Mr. Loucks. Thank you, Senator, for inviting me to testify.
I'd like to correct something: I'm not a rancher in the Lemhi
Basin. I raised a few horses, but I'm an animal scientist by
training, and I was the County Agent at Salmon for over 30
years, and I've been involved in Endangered Species issues for
many years.
Senator Crapo. All right.
Mr. Loucks. The first thing I'd like to say is we don't
understand why bull trout were listed in the Salmon River
Basin. Going directly to the Federal Fish and Wildlife
documents, they're proposing about 8,900 stream miles for
critical bull trout habitat in Idaho. About 53 percent of that
is in the Salmon River Basin. Now, we'd understand this if we
were short of bull trout, but we're not short of bull trout.
According to the document which they put out, there are two
subpopulations of bull trout within the basin. Neither
population is at risk of stochastic extirpation. Now, I think
in plain English, what that means is that bull trout are not
endangered in the Salmon River Basin.
The second thing that they reported in their document is
the magnitude of threats is considered low in this basin. And,
again, in plain English, I think that means bull trout are not
threatened in the basin.
There are, according to the document, 125 known local
populations in the Salmon River Basin. Now, I want you to
understand that a local population does not mean a population
in a stream. In the Lemhi River, for example, which is part of
the Salmon River Basin, there are six local populations. So I
counted the streams in which bull trout are known to occur, and
there are 31 streams just in the Lemhi Basin in which bull
trout are known to be resident.
So you can play all kinds of number games with this, but I
think every fish biologist who has ever looked at bull trout in
that basin, Federal Fish and Wildlife, Fish and Game, Forest
Service, BLM, all of them would tell you we are not short of
bull trout. And so we don't understand how you can list 14,000
square miles as critical habitat when there is--they're not at
risk and they're not endangered. I'm just lost. I'm befuddled
by how they reach that conclusion.
Second, I was asked to address status of landowner recovery
efforts. I've been part of the Salmon Basin working group and
the Lemhi Basin working group since their inceptions. For the
most part, private landowners have actually led the effort on
fish recovery. The original working group on endangered--they
weren't endangered; they weren't even listed at the time--the
original working group was formed by the Lemhi Soil and Water
Conservation District, the Lemhi Irrigation District, Water
District 74, and the Idaho Department of Fish and Game put
together a working group in 1989 to look at what private
landowners could do to help anadromous fish. OK? They were not
listed, there was nothing going on, but the ranchers, the
private citizens, felt like they could do something good, and
there's been a lot of effort by the State and by the private
landowners put into recovery efforts in that basin, Lemhi Basin
particularly.
One of the problems that you have in dealing with the
Endangered Species Act is--maybe it's kind of a side bar effect
and Senator Little would be very familiar with this--as soon as
a species is listed or proposed for listing, the management
becomes extremely conservative by the Federal agencies, and by
that I mean the Forest Service and BLM, and so they put
restrictions on use of public land that make it uneconomical to
operate, which is exactly what Senator Little alluded to. And
very specifically, if you are so unfortunate as to have a
pasture in your allotment that has bull trout, you will not
graze that after November 15--or, no, September 15th. If you
are so unlucky to have a pasture that has salmon, you will not
graze that after August 15th. So you can get in a situation
where all of a sudden, what was a viable grazing operation
doesn't fit in with the private land at all.
And I should point out that in the--in the Upper Salmon
River Basin, the bulk of the salmon habitat is on private
property. So in the Lemhi--in Lemhi County, for example, only 8
percent of the county is private. Ninety-five percent of the
salmon habitat in the county is on that 8 percent of the
ground. So what we do with that other 92 percent of Federal
habitat has a huge influence on what happens on private ground.
OK, I would like to--have I got 2 seconds or 3 seconds?
Senator Crapo. Sure. We'll give you two.
Mr. Loucks. OK. I think the private landowners and the
organized private groups are almost unanimous: They would
rather develop an Idaho conservation plan under Section 6 and
deal through the State, than to try to deal with all of the
Federal agencies privately.
And the final thing that I have to say is that the Salmon
Basin goals listed in the bull trout recovery plan are so
amorphous, they just have no form to them, and subject to
adaptive management, that it is unlikely that they will ever be
reached. We don't understand how you can take a species that
really isn't endangered and do all of these things, and all of
a sudden, it isn't endangered. Very difficult concept for us to
grasp.
Thank you.
Senator Crapo. Thank you.
Ms. Gorsuch?
STATEMENT OF JANE GORSUCH, VICE PRESIDENT OF IDAHO AFFAIRS,
INTERMOUNTAIN FOREST ASSOCIATION
Ms. Gorsuch. Mr. Chairman, my name is Jane Gorsuch, and I'm
the vice president of Idaho affairs for the Intermountain
Forest Association. And our association is an organization of
wood products manufacturers, forest and land owners, and
related businesses. And what we try do is to work in
collaboration, cooperation with others to develop and implement
solution-oriented policies aimed at securing a stable and
sustainable timber supply for our members. And I want to thank
you and your staff for the opportunity to provide testimony to
the subcommittee today, and to echo Senator Little's
appreciation of your coming here and spending your time and
your efforts with your knowledge base on this issue. It is a
hugely important issue for our State.
I would like to reiterate that our association and many of
our members, all the way down to the ground-pounding foresters,
have been involved in the statewide conservation efforts under
former Governor Phil Batt to work out on-the-ground resolutions
and solutions of conservation measures and the bull trout
conservation planning process. Many thousands of hours of time
have been dedicated by our companies and our individuals in
local communities working on the basin advisory groups, the
watershed advisory groups, and the technical advisory groups,
and the end product of that or the goal for our association
members was to come up with a viable plan where the State could
manage conservation and recovery process, if necessary, for
bull trout. And when the listing was made, there was a deep
sense of disillusionment and sadness that the listing was not
only made, but that all of the work that had been done seemed
to go into a black hole and didn't surface again for some time.
And what happened within our association of members was that
almost a lack of interest in working on on-the-ground working
groups to further that effort because they felt that it was out
of their hands. We were, however, heartened by the creation of
the Office of Species Conservation at the State level, and that
has had our full support for many years, about as many years as
it's been around and even before it has been around, because we
viewed that as an additional opportunity for the State to
control its destiny as far as a listing and prelisting of
threatened and endangered species.
The going by the wayside of the conservation plan shifted
our focus toward more of one of finding ways to protect our
members who own a great deal of forest land in the State of
Idaho. As Senator Little mentioned, one of our member
companies, Boise Corporation, owns about 200,000 acres here in
South Idaho, and my members represent one of the largest forest
land owning groups in the northern part of the State, and they
have been very concerned, particularly for those who have
listed bull trout habitat, as to what measures would then be
necessary to be taken, and it does color their decisions on
what they buy and where they buy and what they dispose of and
how they manage their property.
They also sent us as their staff with the association, to
look for ways to work within the Endangered Species Act to
address the issues of incidental take in the otherwise legal
operations of their properties, as well as looking at things
like safe harbor agreements.
So we set about looking at what is in the Endangered
Species Act that would provide some opportunity. We diligently
did our work and came up with several ideas. With the help of
one of your now-staff members, started looking down the
pathways, looking at habitat conservation plans, and looking at
around the country at how those have been utilized and how they
have been done.
One of our member companies at the time, Plum Creek Timber,
had spent 2 years and over $2 million in the development of
their habitat conservation plan which spanned three States and
multiple species. Most of our folks aren't that large and don't
have those kind of resources, and most of the forest landowners
in Idaho, particularly the nonindustrial products, don't have
anywhere near those resources to commit.
So what we did was to start looking at other ways of
providing an opportunity for those folks who don't have those
large resources to enter into a cooperative agreement with the
State or the Federal Government or both, we would hope, to
provide an opportunity for forest landowners in Idaho to help
the Federal Government reach its goal of recovery of listed
species. And I think it's important to state every time I can
that that is a Federal goal. When a species is listed, the non-
Federal entities do not have the goal of ``recovery,'' their
goal is to avoid take. That is a very different goal. It is a
very different legal goal, and I know that you know this
difference, but many people tend to not understand the
difference.
So one of the ways that we were looking for was a way to
incentivise our landowners or forest landowners into entering
into agreements with the Federal Government or through a State
program that they could seek protections from incidental take
and provide safe harbor assurances or some type of compliance
assurances in an effort to help the Federal Government reach
its recovery goal. Most of our members were doing those things
already. Once the listing was made, however, they backed away
from it because it was a disincentive to continue to improve
habitat and introduce fish.
So we have been working on a more general program to be
administered by the State, because we think that that would
bring more people in, but that would provide these types of
comprehensive assurances. I can't go into it further because
it's under a confidentiality agreement at the present time
ordered by a Court; however, it does do the things that, as we
like to say, make fish and wildlife happy and provide homes for
fish and wildlife. At the same time, it would allow our forest
managers to do the things on their land that are otherwise
lawful, and to help reach the--help the Federal Government
reach its goal of recovery plans--recovering species while of
providing our members to utilize the resources that they have
invested in their forest lands.
Mr. Chairman, I thank you again for the opportunity to come
before you and the committee and subcommittee, and I would
stand for any questions that you may have.
Senator Crapo. Thank you very much, Ms. Gorsuch.
Mr. Yates?
STATEMENT OF SCOTT YATES, DIRECTOR, IDAHO WATER OFFICE, TROUT
UNLIMITED, BOISE, IDAHO
Mr. Yates. Mr. Chairman, my name is Scott Yates. I have
worn a number of hats at Trout Unlimited in the last 6 years. I
am former director of our native trout program West-wide.
Currently, we opened an office in Idaho Falls about a year
and a half ago, and I serve as director of our Idaho water
office, which is a new program for us. And we've got offices in
Montana, Colorado, Utah, and Wyoming to focus on stream flow
issues, with the point being to establish State-based programs
based on State-type issues and State-type approaches. So with
that in mind, I'd like to jump in.
I've submitted a bunch of testimony, but I'd just like to
focus on a couple things in my oral testimony. First, in terms
of the bull trout status, we're a relative newcomer in places
like the Upper Salmon. We're looking forward to working with
folks, and one of our big goals is to actually work with
landowners and some of the groups that are already established
and well established, I might add, in working on these issues.
From Trout Unlimited's standpoint, I want to really
emphasize the importance of protecting the migratory life
history of these bull trout. I think in doing so there are
really two issues in the Upper Salmon River Basin, and one I
want to point out because I think it's a really good example in
the West--in fact, one of the best examples in the West--of
cooperative work between the Federal and State government, and
it's been talked about today already, and that is the fish
screening efforts that have gone on in the Upper Salmon. I
think you will find that example is used as a model in other
States; it certainly is with our other field offices like in
Nevada and California as a really good way to approach that
very important issue, which is folks like Mike Larkin with the
IF&G who have established a ground-based protocol. It doesn't
just identify problems, but works with landowners to identify
solutions to those problems, and I think that's really
important.
The second issue with the migratory fish I think is a
little more difficult one and I think it's a difficult one
West-wide, not just in Idaho, and that is the dewatering issues
that are prevalent in areas like the Upper Salmon. It's not
just the Upper Salmon. I think there are additional places,
like the Bear River system and the Upper Snake system. We have
those issues statewide. In terms of bull trout though, the
Upper Salmon water issues are obviously high, are the high-
profile issue there, and the Little Lost system as well.
What we've done so far in the first few months of this
broad program is try to identify some areas where we can
partner with the agencies and with landowners. I'd like to talk
about two systems in particular, the Pahsimeroi drainage in the
Upper Salmon, and then the Little Lost system.
In the Pahsimeroi, we've got a long-term partnership that
was established earlier this spring with the Bureau of Land
Management, which is part of a bring back the natives program,
funded through the National Fish and Wildlife Foundation. In
the Pahsimeroi, it's a long-term, large-scale watershed
restoration strategy to address some of those dewatering issues
and channel reconnect issues that are really prevalent in
most--in fact, all--of the tributaries that drain out of the
south side of the Lemhi into the Pahsimeroi River drainage. The
first creek we've identified for project emphasis is Falls
Creek, and it was mentioned earlier today as well. I just want
to mention a couple things about Falls Creek.
We're looking forward to the partnership, but in terms of
our role, it's working with the BLM on the actual technical
issues associated with once we do have water back in that
stream, reconnecting Falls Creek down to Big Spring Creek and
eventually into Pahsimeroi River. But just to explain the
complexity of these reconnect issues, there's a number of
agencies that have been working on it a lot. Trout Unlimited
you know, but the Fish and Wildlife Service has been working
with the landowners on funding for the irrigation modernization
of the project. We know the NRCS has been very active in the
engineering and design of that system. We know that Department
of Water Resource is involved in terms of the water rights
analysis of the Falls Creek drainage. And so it's just from the
standpoint of collaboration and communications, these are
really very complex processes with a lot of different people
involved.
Second, from a funding standpoint, obviously these are not
going to be cheap. For Falls Creek we know that Fish and
Wildlife Service has already put forth about $400,000. We know
that our stream channel reconnect will be expensive. We're not
sure what it's going to cost yet, but I do know that I've
already signed on to pay about $70,000 in technical engineering
design for that project. So they are very expensive.
And, finally, in terms of implementation, they're very
complex. Those are stream channels that have not had water for
over a century. So in terms of putting water back in, it's not
automatic that it's going to make it down to where we want it
to go.
And so those are long-term issues that are not just for
Falls Creek but also other streams in the Pahsimeroi and
probably other streams in the Upper Salmon Basin. But we're
looking forward to that type of project. The reason we're
really looking forward to it is these are large-scale
restoration strategies. And I've dealt with the Columbia River
Basin for about 6 years now on various issues and we have
tended to nickel and dime, not as much in the last half a
decade but before that, on various techno fixes, things that
aren't long-term.
In the Pahsimeroi drainage in the Upper Salmon, identifying
flow issues and working with landowners to fix these problems,
will go a long way for both the species and I think long-term
for the rural landowners and communities, and I think that's
important. These are permanent fixes once they are done.
And just to move over to the Little Lost, I really wanted
to touch on the Little Lost because I think it's a unique
opportunity. It was mentioned today already by Mr. Caswell as
an area where we have the opportunity to actually finish what
we need to get done regarding bull trout recovery.
We are currently partnering with the agencies to finish up
the final touches on a irrigation structure inventory and
assessment to identify the final barriers on the main stem of
the Little Lost system, and we've also identified a couple
willing landowners who want to sit down and design some sort of
strategy in terms of irrigation modernization to try and get
water back in a couple of important bull trout spawning
tributaries in that system, and I think by working through
those issues and maybe a couple of key land areas, I think
we're going to be able to recover Lost River bull trout if we
can just get an influx of funding.
And my last point--I know my time is done--is to mention
how I think groups like TU who are taking a field-based
approach to get out and know some of these landowners, know the
issues, we can help I think in terms of raising funds and try
to get these projects done. It's certainly the goal of our
program and part of our long-term approach in the State of
Idaho.
And so in summary, I appreciate the opportunity to come and
talk to you about our approach, and we look forward to working
with folks on bull trout recovery issues.
Senator Crapo. Thank you very much, Mr. Yates.
And I'd like to start out this panel with a question which
relates to the discussion we had of the previous panel on
Section 6, and I think that we probably addressed that pretty
thoroughly back there, but I just want to make sure that I
check with each member of this panel to see if there's any
disagreement with the notion that we should expansively utilize
Section 6 of the Endangered Species Act to get more delegation
of authority to act in this area to the States. Anybody on the
panel disagree with that?
Senator Little. Of course.
Mr. Loucks. I don't disagree with that, Senator, but what I
want to say is from a private landowner's perspective, we can't
write a conservation agreement through the State just dealing
with one species. We've already invested, as private landowners
and as agency representatives, over 4 years in the effort to
write a Lemhi conservation plan that National Marine Fisheries
Service and Federal Fish and Wildlife can sign off on. But if
we have to write that one species at a time, none of us are
ever going to live long enough to give any protection to
landowners.
At the meeting in Salmon, you may remember, I really
believe we can get this done, but I really believe that there's
got to be some administrative push on the agencies to get them
to come together to make this agreement. If every time we reach
part of the agreement it's open for renegotiation, we're never
going to get finished. That's just not the way private people
do business.
Senator Crapo. So are you talking about more of a watershed
agreement that would cover all species?
Mr. Loucks. Cover all fish species.
Senator Crapo. Cover all fish species. OK. Good.
Mr. Yates, I want to first of all thank Trout Unlimited. I
think that they are working very effectively and well with
private landowners and with the State and Federal agencies to
try to help us make progress here, and I want to just first of
all say that I appreciate that.
One of the questions that I have--and this is probably an
unfair question to you, so if you can't answer it I'm not going
to hold you responsible or whatever--but there are a number of
environmental organizations out there. I mean, the number is
very large, and some are more litigious, some are more involved
in working on projects like Trout Unlimited is, and so forth.
But do you think that Trout Unlimited has the ability to
gather support from other interested environmental
organizations and have them work with you on the types of
endeavors that you've described to us today?
Mr. Yates. Well, I think we do. I think our history in this
State--this is really the first--we've got a field presence in
this State for the first time. We've operated in Idaho out of
Portland and other places in the past, but I think we have a
field presence here now in terms of being on the ground.
Senator Crapo. Yes.
Mr. Yates. We have a tradition of working collaboratively.
We have active chapters all through the State. You know, we
have seven or eight chapters, 1,900 members in local areas. And
we've got a history of working with people like the Idaho
Department of Fish and Game on restoration projects. And in
terms of working with the other groups, I think over time, I
think we will have that ability, probably not all groups, but
we're already, in fact, partnered with groups like the Wood
River Land Trust, The Nature Conservancy and other folks, not
only in places like the Big Wood River Basin but the Upper
Snake, and working, you know, also in a ground-based way with
those groups. I think we can do that.
Senator Crapo. Well, I appreciate that, and I realize that
was kind of a little bit of an unfair question to ask you, but
I really think it's important, the work that you're doing, and
to the extent that you are able to work with other groups to
accomplish an even broader alliance in that context, I think
it's very helpful.
One question that I did want to address for a minute or
have the panel address is the one that Bob Loucks raised with
regard to why were the bull trout listed in the first place,
and maybe, Mr. Yates, I ought to come back to you since you're
with Trout Unlimited. I honestly don't know the answer and it's
because I'm not close enough to the science and everything else
to know, but there were some real questions raised because I
think there was an effort to evaluate this twice and there is
this evidence that it's, in many parts of the proposed area of
critical habitat, there are very stable and large populations.
Do you know why the listing was made?
Mr. Yates. Well, I'll tell you, I listened to Mr. Allen
earlier. I feel for the Service's dilemma in the Section 4
listing process with salmonids. It is an extraordinarily
difficult issue in terms of how you break these species down by
species and subspecies.
We know the importance of local populations and the
adaptations of those local populations in very specific areas.
That varies across the board with salmonids. Whether it's, you
know, just looking at cutthroat or bull trout, it's a very
distinct process and, you know, I understand the difficulty in
grouping a species like the bull trout into a broad Columbia
River Basin DPS and I understand why that doesn't make much,
from a common sense standpoint.
At the same time, I look at a place like the Upper Salmon
and I'm not going to dispute Bob who's lived up there for a
long time and knows where a lot of those fish are. But it's
hard for me to understand when you look at places like the
Pahsimeroi and the Lemhi, that are truly disconnected from the
main stem and where there's flow issues both in the main stem
and the tributaries, that you don't just look at those, even
though you might have healthy tributary population, like four
to eight miles of fairly good Federal habitat, that that
population is not at risk. I think there are enough of those
issues in the Upper Salmon that it's a problem.
Now, I fully understand that there are also strongholds for
bull trout in Idaho, very good strongholds in the middle part
of the Salmon River, for instance, in northern part of the
State. Frankly, I was not really prepared to address that. I
was going to focus on on-the-ground issues; and we're going to
continue to do that. We're going to put the listing issue aside
and just work on the ground to fix some of the problems we know
we have.
Senator Crapo. Well, you've been very good to field a
couple of tough questions, and I appreciate that. I appreciate
it very much.
You know, we talked about Section 6 a lot with the last
panel. Another potentially helpful tool which, as some of you
have discussed, is the habitat conservation plan which
authorities in the Endangered Species Act as well, but we have
run into some--as we've tried to expand the availability of
habitat conservation plans, we've run into some opposition from
landowners and other user groups to the concept, and I think
that, to a certain extent, arises out of a lack of trust and
just what it will be used for and how it will be utilized by
the agencies. But I would like to get an input from the three
of you who represent here, in my view, sort of landowner
interests as to what you think of the viability of habitat
conservation plans as a flexibility tool.
Jane?
Ms. Gorsuch. I think, Senator, that's a very good question,
because we've been around that discussion issue now for fully
five or 6 years, and our membership has discussed it and cussed
it up and down, both ways.
I think we've reached a point where everyone in our
organization understands the utility of it, and--but they have
concerns over the process. And if we can go back to the Plum
Creek permit, that cost $2 million, minimal. That's the down
side of the cost. And they basically had to write their own
documents, NEPA documents, and hold hearings. They went through
the whole thing and it took over 2 years to do.
Most private forest landowners don't have those resources
to do it. They don't have the scientists, they don't have the
hydrologists, don't have the fisheries biologists. They don't
even have foresters in some cases, the small privates. So they
don't feel technically qualified, so they have to go outside
and hire a consultant to do them. So there's a huge cost,
there's a time commitment, and even after all of that, they
reach the adaptive management section which seems that the
Federal services must have in there, and they are uncomfortable
with that. And that's what we've dealt with internally with our
discussion with our members and others.
And we've gone to other hearings that have preceded this
one just on HCPs where people have come in from other States
and said, well, we have this horrible experience with an HCP,
and adaptive management seemed to be one of the issues. I think
overall, there is just a feeling among most private landowners
that they're being blackmailed into entering into an HCP. I
think once you get past that issue, then you can look at the
utility of having an agreement of some kind where the landowner
who probably would do these things to enhance habitat and
protect fish, they probably would do that anyway, but if they
can get an assurance that they will not have the Federal
Government come in and sue them for take, then they can have
some sort of a safe harbor agreement that they're not going to
come back in later that, oh, by the way, you forgot this.
Senator Crapo. And that's the adaptive management provision
you're talking about.
Ms. Gorsuch. Part of it can be, but it's more like a safe
harbor agreement where if you do this set of things for this
length of time, we will give you--these are all things that
will enhance the habitat or introduce the fish, reintroduce the
fish--we will protect you, we will help protect you from third-
party lawsuits, because those, unfortunately, do happen.
And so they look at that, and then they look at the
adaptive management. What if 10 years from now under this
agreement some new type of management comes along, I think the
Federal services want to have the opportunity to revisit that.
That's my view of the adaptive measures.
The last issue is funding. It's just cost. It's total
dollars. Who's going to pay for it and how are we going to
implement it? Who's going to pay for these things that we have
to do under this agreement? And that's where Federal funding is
absolutely critical, funding from somewhere else besides the
landowner.
Senator Crapo. Right. Thank you.
Mr. Loucks, Mr. Little, do you want to add anything to that
on HCPs?
Mr. Loucks. I think Ms. Gorsuch is exactly right. There are
approximately 400 private landowners in the Lemhi Basin, at
least that many have water rights, not counting the city of
Salmon, and none of those people have the funding to develop a
habitat conservation plan. We would be dead in the water in the
Lemhi Basin today had it not been for the good efforts of the
State of Idaho.
And I'd particularly like to recognize Clive Strong. Clive
has definitely been a leader in trying to help us work into
some form of legal assurance that we're not going to get
whapped when we're trying to do good things.
There's no protection from third-party lawsuits no matter
what happens. Anyone can sue you under the Endangered Species
Act at any time. But it's been our feeling that at least if the
State government was behind us and we could draft some kind of
conservation plan that the Federal agencies would sign off on,
that at least when you ended up in court, the biologists from
those agencies would stand up before the judge and say these
people are trying to do what's right.
And, frankly, 90 percent of the landowners do want to do
what's right. There's a small percentage you can't deal with,
and so as a private group, you just ignore those. If they do
something that actually results in a takings, then they
probably should be thrapped.
Senator Little. Well, of course, I think--I think James
commented on cost, and of course for the smaller landowners the
expertise is a problem, but it does beg the issue of a concrete
goal, a concrete goal line that hopefully doesn't move. Now,
the adaptive management part of it cuts both ways as far as
moving that goal line.
But I think one of the other things that we've got that's
pending is the implementation of TMDLs. You know, Congress
giveth the Endangered Species Act, Congress giveth the Clean
Water Act, and occasionally they don't meet in the middle all
the time, and one of the reasons that people might be a little
reluctant is that they want to make darn sure that anything in
an HCP minimizes the cost of TMDL compliance rather than
exacerbates that situation.
But--and one of the other problems with a habitat
conservation plan if you've got anadromous fish is you've got
two different agencies that you've got to work with there, plus
the other agencies that exist. But it's mainly cost, but
whenever the benefit of that long-term goal offsets those other
costs, but there's not very many people that are going down
that avenue.
Senator Crapo. All right. Well, you know, by the way, TMDLs
was one of the other topics that was proposed for this hearing.
We, like I said at the outset, we have no shortage of topics
that we could have covered here, and I understand the dynamics
there.
You know, I was looking around to see if
Clive Strong was still here, because in his testimony, he
mentioned something about enforcement discretion as a simpler
alternative to HCPs, and I'm not quite sure--I should have
explored that with him in a little bit more detail.
Bob, do you understand what he was talking about?
Mr. Loucks. Yes, I do, Senator. What we're operating under
in the Lemhi Basin right now is called a letter of
prosecutorial discretion. In the--the Lemhi agreement has been
in process for four--over 4 years now, and each year, we've had
a meeting with the agencies Federal Fish and Wildlife and
National Marine Fisheries Service, and we have explored what
has happened to date and what we propose for the next year. And
what we're trying to do is work out what we propose in the
long-term so that we can get some kind of coverage under the
ESA--takings coverage--that will last for 25 or 30 years. But
what we've been working under is this letter of prosecutorial
discretion, and what that says is that if you do the things
that you say you will do in your plan and that if a take of a
listed species occurs while you're doing otherwise lawful
things within that plan, that the agency will not prosecute
you. That still doesn't protect you from a third-party lawsuit.
Senator Crapo. Right.
Mr. Loucks. But it does say the agency recognizes that
you're trying to reach this habitat recovery goal, and that
this is an incremental thing and doesn't happen over night, and
so if you're doing these things, we're going to suggest to our
law enforcement people that they leave you alone.
Senator Crapo. Under the HCP, do you have protection from
third-party----
Mr. Loucks. You never have protection from third-party
lawsuits.
Senator Crapo. So this letter of prosecutorial discretion
seems like another tool that we ought to investigate very
thoroughly as we try to find flexibility under the Endangered
Species Act.
Let me just ask you--I just looked out the doorway and I
see TV cameras out there, and so that means that I'm going to
have to quit even a little sooner and I apologize for that, but
let me ask you, obviously, I'm looking for tools here. We've
gone through Section 6, habitat conservation plans, we've
talked about safe harbor agreements, letters of prosecutorial
discretion. We've talked about just the efforts of private
parties and interest groups like Trout Unlimited working with
the local folks and putting together projects and working to
try to achieve objectives. I'd like to just have the panel tell
me if there's any other tools out there that you're aware of
that we ought to be exploring, because one of the things we
want to do with this oversight hearing is then try to provide
some momentum on some of these tools through the agencies and
see if we can't get them implemented as we move into this bull
trout issue.
Senator Little. Money.
Senator Crapo. Money. I should have listed money. That
was--for some reason that comes up as an answer to every
question I ask these days, but it's a legitimate answer, and
I'll take that as another tool. I'll write it down on my list
here.
Ms. Gorsuch. Senator, I would second some of the ideas that
came up from the first panel. I think it was Mr. Caswell. And
this is something that we've experienced in our efforts on
several fronts, not just bull trout, but the Federal services
need to have an attitude, I think, of acceptance toward
scientists other than their own and scientific data other than
their own. It needs to be viewed as on the same level as
Federal scientists. The State and private folks have quite good
science in many cases, and to the extent that sort of a sea
change in attitude could be conducted, that that would be
helpful. And I think that's one of the things that I took from
what Mr. Caswell was saying.
And the pilot authorities idea was a good one too. I think
that that one does take legislation, but there's been
legislation on a lot of things. But under pilot authorities--
going way back from the early--the first one I was involved in
was in 1986 on Federal land uses, so there's some good ideas in
there and I think I would second that idea.
Third, funding is always very useful in trying to implement
anything on the ground.
The last thing I would say is we would look at overall
umbrella-type agreements or voluntary enrollment agreements
that cover interested participants once it's in place. A
statewide effort that could serve as a model, maybe as a pilot,
but if it were agreed to by the Federal services for one State
for, say, bull trout, that private entities could enroll under
that. And that's something that has been a vision of ours for
some time and we're working toward that, and I'm not sure that
it's shared by our friends in the Federal services,
particularly given that we have agreements under the Plum Creek
arrangement that they continually want to revisit and go
further.
Senator Crapo. Right.
Ms. Gorsuch. And so our view is if it's good enough for
that, why isn't it good enough for State-wide voluntary type of
agreements. And I think to the extent that that could be
incorporated into your deliberations and that of the committee,
it would be helpful.
Thank you again for the opportunity.
Senator Crapo. Thank you.
Mr. Yates. I think one more tool that we've talked around
is nontraditional partnerships, and in Idaho, I think that is
very important. Maybe, you know, groups like Trout Unlimited
who are able to maybe cover some of the ground. I've worked
with agency folks all over the West and this State has got some
of the best, especially the field biologists I tell you we work
with in the field are fantastic, and they generally have a very
good relationship with landowners, but they can't cover all the
ground. And I think there's a role for groups who can provide
some help in that regard either working directly with the
landowners on funding issues, on project development issues,
and then coordinating that project with the agencies where
folks are comfortable.
Senator Crapo. Well, I appreciate that, you know. And,
again, some of you were here yesterday, but we had a similar
discussion in the context of grazing yesterday and we covered
the waterfront in some senses because we talked about all kinds
of problems with trying to get all the agencies working off the
same page and so forth, and it seems to me that some of these
tools that we were talking about--well, one of the tools that
came up yesterday was to avoid a listing, which we tried to do
with bull trout, but everything from working to try to avoid
the listings to working to give delegation to the State and
prosecutorial discretion and safe harbors and habitat
conservation plans and everything else. These are ways that, it
seems to me, you get more flexibility and more common sense
under the application of the Act. And I can assure you that as
we deliberate over this as a full committee, it's something
that not only the full committee chairman Senator Inhofe and
myself as the subcommittee chairman are very concerned about,
but many of the Senators are. The Endangered Species Act is
beginning to be felt nationwide the way we've felt it here in
the West for a long time.
And so I would encourage you all, not only those on the
panel but those here in the audience, to submit to me if
there's something you didn't get to say today or an idea that
comes up afterwards or an observation, or those of you that
were on the panel if you have a suggestion or an observation, I
would encourage you to submit it to us, because we're very
serious about this oversight. And we do have an administration
at this point that we believe will listen to us and will work
with us, and that's something that we should take advantage of.
In fact, one of the things that I'm going to do is go back
to Jim Connaughton at the Council on Environmental Quality and
tell him that he ought to get one manual for all the agencies,
and, second, that he ought to have a guidance come out to all
the agencies from the White House that tells them how to
expansively use Section 6 and maybe some of these other tools
that we've talked about.
So we are going to work on this at the agency level, but we
are also going to look at efforts to try to change the law in
terms of maybe changing the timing of critical habitat
designation or some of the other things we need to do.
So again, I thank you for your attention to this issue. I
thank those of you who have given your time to come here today.
I know you've got plenty of other things to do with your time.
It's been very helpful to me.
I apologize: Usually what I like to do after a hearing is
visit and make sure I meet everybody who took the time to come
here, but because of my travel schedule, I'm going to have to
hit the gavel and go out there.
And I think that camera is for me. If it's not, I'll be
fine and go right on to the airplane. And if the camera is for
one of you, I will leave it for you.
But, again, I want to thank everybody. I apologize that I
won't have time following the hearing to stop and shake hands
and visit a little bit, but we'll try to do that another time.
And unless there is anything further--oh, I did want to
make one other announcement, I sort of just said it, and that
is that we're going to leave the record open for written
comments, and that applies not only to the witnesses but to
anybody who is here today who would like to submit some written
comments. And I encourage it, because we sincerely--we're
developing an action plan on this and we're going to implement,
so we look for your help.
Without anything further, this hearing is adjourned. Thank
you very much.
[Whereupon, at 3:28 p.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
[Additional statements submitted for the record follow:]
Statement of Dave Allen, Regional Director, U.S. Fish and Wildlife
Service
Mr. Chairman and Members of the Subcommittee, I am Dave Allen,
Regional Director of the Pacific Region of the U.S. Fish and Wildlife
Service (Service) in the Department of the Interior. I am pleased to
appear before you today to testify about the current status of State
and Federal cooperation on bull trout recovery in Idaho; the potential
of expanding that cooperation under existing authorities of the
Endangered Species Act (ESA); and achieving bull trout recovery goals
and returning management authority to the States.
The mission of the Service is working with others to conserve,
protect and enhance fish, wildlife and plants and their habitats for
the continuing benefit of the American people. In carrying out this
mission, the Service takes great interest in working with States,
tribes, private landowners and others. I believe our work on bull trout
recovery amply demonstrates this commitment. The Service is working
with partners every step of the way to achieve locally driven solutions
to the problems that have caused bull trout to be listed as threatened
throughout its range in the lower 48 States.
Let me first provide some background on our recovery planning
efforts, which I believe illustrates our commitment. When the Service
started to develop a recovery plan for bull trout, we established a
Recovery Oversight Team consisting of Fish and Wildlife Service
biologists, a representative from State fish and wildlife agencies in
each of the four northwestern States Idaho, Montana, Oregon and
Washington and a representative from the Upper Columbia United Tribes.
This tribal group includes the Confederated Tribes of the Colville
Reservation, the Coeur d'Alene Tribe, the Kalispel Tribe, the Kootenai
Tribe of Idaho and the Spokane Tribe.
The Recovery Oversight Team addressed overall recovery issues such
as identifying a range-wide recovery strategy, identifying potential
recovery units, and providing guidance in developing the recovery plan.
To develop local strategies, we established a team for each potential
unit, consisting of people with technical expertise in various aspects
of bull trout biology in that specific area. These technical experts
came from State and Federal agencies, tribes, and industry and interest
groups.
From the start, the bull trout recovery planning process has built
upon previous State and locally driven efforts, such as Idaho's Bull
Trout Conservation Plan and Oregon's Plan for Watersheds and Salmon.
Recovery Team membership was diverse, including biologists and experts
in related disciplines from local, State, tribal and Federal entities;
stakeholder groups representing timber interests, water users,
agriculture, power producers and distributors; landowners; conservation
groups; tourism advocates; and local governments.
In November 2002, the Service released its draft recovery plan for
the Klamath River, Columbia River, and St. Mary-Belly River distinct
population segments (DPS) of bull trout. This was followed by a total
of 150 days of public comment. Concurrently, we solicited peer review
through the Sustainable Ecosystems Institute, Plum Creek Timber
Company, and the Western Division of the American Fisheries Society. We
subsequently received peer review comments referred by the Western
Division of the American Fisheries Society and representing the
comments of four independent fishery scientists. We are working with
the recovery team to integrate both public and peer review comments, as
well as additional new information, into the draft plan. We plan to
release the final recovery plan for these bull trout population
segments in the fall of 2004. We are also developing draft recovery
plans for Jarbridge River and Coastal-Puget Sound population segments
of bull trout.
Across the four northwestern States, we are working with other
Federal agencies and State and private parties to recover bull trout.
Let me focus on some examples from Idaho:
<bullet> In the Lemhi area, the Service is working with area
landowners to develop a habitat conservation plan that will conserve
aquatic species and their habitat while also providing for water uses
necessary to the local agricultural economy. The Service is a partner
in the Lemhi agreement.
<bullet> In the Upper Salmon River Basin, we are coordinating with
the State and private parties to develop a cooperative agreement that
will provide for long-term protection of bull trout.
<bullet> Recognizing that we needed staff dedicated wholly to
conservation efforts in the Upper Salmon River Basin, we funded a
position and opened an office in Salmon, Idaho. This office is devoted
to working with local landowners and watershed groups to address
conservation efforts, including the Upper Salmon agreement, the Lemhi
agreement, the Falls Creek Safe Harbor Agreement, the Upper Salmon
Watershed project technical team, the Upper Subbasin Planning technical
team, the Partners for Fish and Wildlife Program, and implementation of
the Fisheries Resource and Irrigation Management Act.
<bullet> We are working on a Safe Harbor agreement with four
landowners in the Falls Creek area of the Pahsimeroi River watershed.
<bullet> We provided $400,000 for sprinkler installation and other
water conservation measures to reconnect bull trout habitat in a
Pahsimeroi River tributary with the main river.
<bullet> To benefit bull trout conservation, we provided $440,000
in funding, through the Fisheries Resource and Irrigation Management
Act, for fish screens and passage at water diversion structures.
<bullet> We have funded numerous fencing and re-vegetation
programs through the Partners for Fish and Wildlife Program.
Additionally, we have worked with public and private parties across
the four States to achieve bull trout conservation agreements that will
benefit the species and our conservation partners. These include the
Plum Creek Native Fish Habitat Conservation Plan (HCP), which covers
1.6 million acres of timberland in Idaho, Montana and Washington, and
the Washington Department of Natural Resources HCP, covering 2 million
acres of timberland in Washington. Those are two of the many examples.
The ESA gives us tools for expanding our cooperative efforts with
State, local and private parties such as Habitat Conservation Plans and
Safe Harbor Agreements under Section 10 of the ESA and grant programs
under Section 6 of the Act. We intend to use these tools whenever
possible.
We expect the recovery of bull trout to be a dynamic process
occurring over time. Our draft recovery objectives are based on the
best available information. For the final plan, we will refine these
objectives based on our current knowledge, including the public
response to the draft recovery plan, and we expect that they may be
further refined in the future as more information becomes available.
The determination of whether a distinct population segment of bull
trout is recovered will rely on an analysis of the overall status of
the species, threats to the species, and the adequacy of existing
regulatory and conservation mechanisms.
It is possible that interim regulatory relief may be provided in
areas where bull trout populations meet their recovery criteria, even
though not all recovery criteria has been met in every unit in the
overall distinct population segment. One potential means to accomplish
this would be through an exemption from take prohibitions for bull
trout, at the appropriate scale, through the special rulemaking process
under Section 4(d) of the Endangered Species Act. In that case, bull
trout would remain listed as threatened in that area, but the
prohibitions against take could be relaxed, and certain kinds of take
authorized through the special rule.
We will continue to explore cooperative options for protecting and
recovering bull trout along with our State and tribal partners.
Mr. Chairman, this concludes my testimony. I appreciate the
opportunity to appear here today, and I would be pleased to answer any
questions you have.
__________
Statement of James L. Caswell, Administrator, Idaho Governor's Office
of Species Conservation
Good afternoon Mr. Chairman, members of the Subcommittee. Welcome
to Boise and thank you for this opportunity to testify. First of all, I
want to congratulate you Mr. Chairman on your recent hiring of
committee staff. I understand your new employee brings a wealth of
knowledge from his previous job, and is certain to take the State of
Idaho's interests to heart.
My name is Jim Caswell. I am Administrator of the Governor's Office
of Species Conservation. The Office is a part of the Executive Office
of the Governor, much in the same way as the President's Council on
Environmental Quality is housed in the Executive Office of the
President. Our job is to develop State policy for listed, and soon-to-
be-listed, species and to engage landowners and others in species
conservation.
I appreciate the opportunity to speak to you today to provide our
thoughts on the direction of bull trout conservation in Idaho and the
Pacific Northwest. Prior to the listing of the species in 1998, Idaho
had developed numerous activities to preserve and restore the fish. The
Idaho Department of Fish and Game had developed a conservation plan for
bull trout, which eventually evolved into then-Governor Phil Batt's
Bull Trout Conservation Plan released in 1996. Since the release of
Governor Batt's Plan and the listing of the species in 1998, there has
been much progress made to benefit the fish. Yet there remain many
obstacles in our way. I would like to discuss a number of them today,
and provide some thoughts on how I believe we can best proceed. In
particular, I would like to focus on two sections of the Act--Section
Four and Section Six which provide us both our current problems and at
the same time offer us possible solutions.
Issues Pertaining to Section 4 of the ESA
As you know, the U.S. Fish and Wildlife Service is in the process
of developing both a recovery plan and critical habitat designations
for bull trout. Idaho has been very involved in the development of both
documents. The process for designating critical habitat is on hold
however, pending further congressional action on funding. While we
continue to debate the merits of critical habitat designation, and it
has been much discussed, this delay has created uncertainty and raised
questions on how to proceed. We ask you to support adequate funding to
finish the process of bull trout critical habitat designation, and to
continue the recovery planning process.
Unfortunately, critical habitat designation has become a litigation
quagmire and has commandeered the entire listing program. After 6 years
of litigation and court orders requiring critical habitat designations,
the Service has been unable to move ahead on critical habitat
designations for 32 species, including bull trout. Simply stated, the
process doesn't work. Critical habitat designation and recovery
planning need to be streamlined. We support current efforts in Congress
to allow the Secretary of Interior to determine, in the first place, if
critical habitat designation is needed in the best interests of the
species. And second, require the recovery planning process and critical
habitat designation, if necessary, to run concurrently.
Another issue Governor Kempthorne has raised is the Service's
designation of the Columbia River Distinct Population Segment, or DPS,
of bull trout. The DPS establishes the boundaries of the recovery area,
and the bull trout DPS has, I believe, one of the largest coverages of
any DPS in the United States. It encompasses the majority of Idaho and
Washington, and large portions of Montana and Oregon. We believe that
on many fronts the biology, the recovery, and the economy--this DPS
makes no sense. In a bizarre way, the Service must agree, because their
first step in the recovery planning process was to take this huge DPS
and break it down into recovery subunits. The current DPS is so large
that it takes in areas with healthy populations which never should have
been listed in the first place. Ultimately this will prevent us from
ever delisting the fish where it is warranted, as in the case in
Idaho's Little Lost River Basin, because populations elsewhere in this
massive DPS will remain weak, as is the case in Oregon's Malheur River
Basin.
The State of Idaho has suggested in formal comments to the Service
to break the Columbia DPS into smaller DPSs. This recommendation is
based on current scientific evidence suggesting there is not a good
genetic or population basis for the designation of the Columbia DPS.
Even the Service's current draft recovery plan notes that genetic
information since the time of listing suggests a need to further
evaluate the DPS. Smaller, more appropriate DPS units would allow for a
more credible approach to the designation of critical habitat, to
recovery, to direct limited resources, and ultimately to delisting.
Next, I have as an attachment to my testimony a copy of a letter to
Interior Secretary Gale Norton dated August 18 from Governor Kempthorne
and the entire Idaho congressional Delegation. Mr. Chairman, we thank
you for signing this important letter. As you know, we are requesting
that the Secretary begin the 5-year status review for bull trout
because there is a great deal of new scientific information on bull
trout throughout its range. Idaho firmly believes that with this new
information, we will find that bull trout are doing well, even
thriving, in large parts of Idaho. This new information will augment
the argument to break up the large Columbia River DPS so that,
ultimately, delisting can be achieved on a biologically reasonable
scale.
Issues Pertaining to Section Six
These issues and others show the need for a full, open, and
collaborative relationship with all entities involved with the ESA,
including bull trout recovery. Idaho needs the ability to fully engage
as an equal partner in the protection of bull trout and all listed
species. The original framers of the Endangered Species Act recognized
the importance of State participation when they crafted the sixth
section of the Act.
Other Federal laws call for a State role the Clean Water Act and
the Clean Air Act immediately come to mind and provide for
``cooperative federalism,'' or components of Federal law that are
appropriate for oversight and implementation by the States. Those of us
who operate delegated Federal environmental programs can attest there
is a greater chance of environmental compliance when the State is
brought into the partnership between government and the regulated
community. An incentive-based approach is key.
This same concept ``cooperative federalism'' must be applied to the
Endangered Species Act. As I mentioned earlier, Section 6 is the
provision in the ESA authorizing the Secretaries of Commerce and
Interior to approve cooperative agreements with the States. Idaho
maintains the Federal Government should utilize Section Six to build
relationships, to bring the State's expertise to bear, and to work
collaboratively to accomplish the aims of the ESA.
I believe that Section 6 of the ESA can be utilized in a similar
fashion as Section 402 of the Clean Water Act, where States have the
opportunity to tailor their programs to meet their needs once they
receive appropriate approval by the Federal agency delegating
authority. For Idaho, this means that those who want to voluntarily
come forward and seek protection under the ESA for their activity may
have to go no further than, say, a State office having appropriate
authority over State conservation programs on State lands or wildlife.
I know you are very familiar with the Upper Salmon Agreement, which can
be seen as one example of how Idaho has worked to develop a cooperative
federalism partnership.
In summary, Mr. Chairman, I would like to reiterate the obstacles
we need to overcome as we develop a workable bull trout recovery plan
and as we protect and restore other species under the ESA:
<bullet> The critical habitat designation process for bull trout
must continue, but the Secretary should have discretion if and when
critical habitat is designated, and it must be tied to the recovery
process and not to the listing process;
<bullet> The Distinct Population Segment for the Columbia River
bull trout must be broken into smaller, more biologically based
segments in order to make recovery achievable;
<bullet> The Secretary of Interior must commence the 5-year status
review for bull trout, in order for us to make decisions based on the
new scientific information since its listing; and
<bullet> Congress must push for, and the Service must allow,
expanded use of cooperative relationships under Section Six.
Mr. Chairman, thank you again for holding this important hearing in
Idaho and for allowing me to comment. I would be happy to answer any
questions the Subcommittee may have.
__________
Statement of Clive J. Strong, Deputy Attorney General, State of Idaho
Mr. Chairman and committee members, thank you for the opportunity
to testify before this Subcommittee regarding Federal cooperation with
States on bull trout recovery under the Endangered Species Act. One
need only skim the U.S. Fish and Wildlife Service's Bull Trout Draft
Recovery Plan to understand the daunting task that lies before the
agency. The recovery plan encompasses most of the Columbia and Klamath
River basins and its implementation will affect the lives of
stakeholders throughout three States. As the plan acknowledges, the
activities contributing to the decline of bull trout vary from
subbasin-to-subbasin and, therefore, recovery measures must be site
specific and tailored to each basin. Given these factors, it is obvious
that any effort by the U.S. Fish and Wildlife Service to implement a
bull trout recovery plan is doomed to failure absent active State and
local involvement in the process. Fortunately, the Endangered Species
Act provides for such State and local involvement. My testimony will
focus on how local, State and Federal cooperation under the Endangered
Species Act in the Lemhi River Basin in Idaho is achieving meaningful,
on-the-ground habitat improvements for anadromous fish and bull trout
and the potential for expanding the Lemhi conservation model to bull
trout recovery through the use of a State of Idaho Section 6
Cooperative Agreement.
The Lemhi River Basin is a remarkable example of community-based
conservation. The Lemhi River Basin is located approximately 775 miles
from the Pacific Ocean and was, at one time, one of the most productive
salmon and steelhead areas in the Columbia River Basin. In early 1909,
however, the mouth of the Lemhi River was dammed and the anadromous
fish runs were almost extirpated. In addition, the development of
irrigated agriculture resulted in the dewatering of many tributaries
and the isolation of bull trout populations. After removal of the dam
in 1957, the anadromous fish runs began to return to the river;
however, agricultural development limited access to some of the
available habitat and bull trout populations remained isolated.
In the 1980's, as the Columbia River Basin anadromous fish runs
began to collapse, and before the cloud of the Endangered Species Act
descended over the Lemhi, farsighted ranchers in the Lemhi Basin became
concerned that they were losing an important part of their heritage and
felt compelled to take action to preserve the Lemhi salmon and
steelhead runs. Recognizing that they could not achieve their objective
alone, they sought the assistance of State and Federal officials to
develop an anadromous fish recovery plan. This effort led to the
creation of the Lemhi Model Watershed Project. A technical committee
consisting of representatives of the Federal agencies, the State and
the Shoshone-Bannock Tribe worked with the local landowners to develop
a watershed project plan for the Lemhi Basin. The plan consisted of an
assessment of fish habitat conditions within the basin and habitat
goals, and prioritized a list of projects to achieve those goals. The
central feature of the plan was development of a local solution
tailored to the fish habitat needs within the Lemhi Basin.
The Lemhi Model Watershed Project was successful in reducing the
number of irrigation diversions through consolidation of diversions and
in improving riparian habitat through fencing and screening of
diversions. The project also implemented a voluntary flush program to
provide water for salmon migration during periods of dewatering in the
lower Lemhi. These activities were possible because Federal and State
agencies worked with the local landowners to craft a local solution
rather than imposing a one-size fits all Federal solution.
The success of the Lemhi Model Watershed Project was threatened in
the summer of 2001 when NOAA Fisheries, which had previously elected
not to participate in the Project, unilaterally initiated enforcement
action against some local landowners for the death of three salmon
caused by dewatering the lower Lemhi River. Local landowners were upset
that the NOAA Fisheries' action ignored the many efforts of the local
community to restore fish habitat. The State stepped in and encouraged
NOAA Fisheries to work with the local community rather than pursue an
enforcement action. The local staff of the Idaho Department of Fish and
Game played a critical role in bridging the gap between the Boise-based
NOAA staff and the local landowners because of the longstanding working
relationship of IDFG with each of the parties. While initially there
was a great deal of distrust, a State-lead mediation process helped the
parties develop an appreciation of their respective interests. As a
result, the parties have successfully implemented three interim
conservation plans that provide a bridge to the development of a long-
term conservation plan for the Lemhi Basin. The parties have recognized
the need to ensure that the plan covers all listed fish species and,
therefore, have expanded the plan to include measures to address bull
trout. The Boise U.S. Fish and Wildlife office has played an active and
constructive role in the discussions.
The hallmark of the Lemhi Conservation planning process has been
the willingness of the Federal agencies to work with the local
community to devise a local solution for resolving the dewatering
problem in the lower Lemhi River. Initially, NOAA Fisheries intended to
sue the few water users who owned the diversion where the three dead
fish were found in 2001. This action would have created a crisis, but
no real resolution, to the dewatering problem. Under the prior
appropriation doctrine, water rights are delivered based upon priority
date. Since the water users who owned the diversion had some of the
earliest priority dates, the effect of cutting off water delivery to
these water users would have been to reduce the amount of flow coming
down to the diversion and would have exacerbated the dewatering
problem. Because junior water users are entitled to divert water not
being used by senior water right holders, less water would have been
delivered to the lower Lemhi. This situation would have led to
additional enforcement actions against other water users and chaos in
the State water delivery system.
Through interest-based negotiations with local landowners and the
State, the parties crafted a market-based solution for providing
instream flows in the lower Lemhi River. The local community agreed to
seek State legislation authorizing the Idaho Water Resource Board to
establish an instream flow water right on the lower Lemhi and creating
a local water bank that provides a mechanism for renting water to
satisfy the instream flow. This approach avoided local conflict,
avoided the disruption of State water law, and is the cornerstone for
development of the long-term conservation agreement.
While the work in the Lemhi is not finished, the State/local
process demonstrates what is possible when Federal agencies are willing
to work with State and local interests instead of assuming a Federal
solution is the best solution. The parties are well on the way to
development of a long-term conservation plan that will provide for the
habitat needs of salmon, steelhead and bull trout recovery basinwide.
The parties are improving the water bank process to ensure adequate
migration flows, improving riparian habitat through additional
screening, diversion consolidations and riparian fencing, and exploring
means of reconnecting key tributaries to provide migration corridors
for bull trout.
The Lemhi approach fits nicely within the congressional policy
directive of the Endangered Species Act ``that Federal agencies shall
cooperate with State and local agencies to resolve water resource
issues in concert with conservation of endangered species.'' 16
U.S.C.A. Sec. 1531(c)(2). Indeed, Section 6 requires the Secretary to
``cooperate to the maximum extent practicable with the States,'' and to
consult with [a State] ``before acquiring any land or water, or
interest therein, for the purpose of conserving any endangered species
or threatened species.'' 16 U.S.C.A. Sec. 1535(a).
Since the U.S. Fish and Wildlife Service has identified habitat
degradation and genetic fragmentation as the primary causes for decline
in bull trout, it is clear that many of the recovery measures will
center on changes to water and land management. As amply demonstrated
in the Klamath River and the Rio Grande River Basins, a federally
mandated solution does not achieve desired conservation goals, but
instead, engenders divisive litigation. In contrast, the Lemhi
Conservation Agreement demonstrates that a State-led recovery effort
results in meaningful solutions that enjoy community support.
Section 6 expressly contemplates State-led efforts for species
conservation through cooperative agreements. Section 6 of the
Endangered Species Act provides that the Secretary ``[i]n carrying out
the program authorized by this chapter, . . . shall cooperate to the
maximum extent practicable with the States.'' 16 U.S.C.A. Sec. 1535(a).
In furtherance of this policy, ``the Secretary is authorized to enter
into a cooperative agreement . . . with any State which establishes and
maintains an adequate and active program for the conservation of
endangered species and threatened species.'' 16 U.S.C.A. 1535(c)(1).
Under a Section 6 Cooperative Agreement, the State, with the
assistance of the local land owners and Federal agencies, could develop
conservation goals and an implementation plan for bull trout as well as
other listed species. On an annual basis, the progress of the State
could be reviewed by the appropriate Secretary and necessary revisions
to the plan could be implemented. This type of basinwide adaptive
management approach provides the only real opportunity for meeting the
objectives of the Endangered Species Act. Too much money is being
wasted on process and litigation without real benefit to the species.
Section 6 provides an opportunity for immediate on-the-ground results,
but will require a Federal commitment to funding and a change in the
top-down enforcement philosophy that too often pervades the thinking of
Federal agencies.
Thank you for the opportunity to address the Subcommittee.
__________
Statement of Brad Little, State Senator District 11
Good afternoon Mr. Chairman, members of the Subcommittee. My
neighbors and constituents appreciate your interest in the impact of
the bull trout listing on rural Idaho.
My name is Brad Little. I represent Gem and Canyon Counties in the
Idaho State Senate. I serve on the Resource and Environment Committee,
which has jurisdiction over Endangered Species Act (ESA) issues. I also
ranch in bull trout habitat. My neighbors and I have suffered the
economic costs of endangered species recovery. Our ranch has taken non-
use on a very good Federal grazing allotment administered by the U.S.
Forest Service that supports salmon, wolves and bull trout. Both the
wolves and salmon were introduced by the Federal Government and after
many years of working to balance the interests between grazing and
listed species, the regulatory costs became more of a burden than the
pasture was worth. Consequently, we no longer graze on this Federal
ground. My goal today is to protect our neighbors from suffering a
similar fate.
The cost to my legislative district is massive. Today, Boise
Cascade, one of the largest landowners in the State is pondering
whether to stay in the timber business or sell their approximately
200,000 acres of prime wildlife and recreational open space due to the
draconian costs of land management with bull trout regulations being
one of the most costly. If Boise Cascade elects to sell their lands to
the highest bidder, these critical open spaces will be lost forever.
Already over 500 jobs have been lost due to the Boise Cascade decision
to consolidate their timber processing outside of Idaho. As a result of
the mill closure the cost of timber on the stump has dropped by 40
percent. This translates into a loss of one-million dollars per year to
the Idaho Public Schools Endowment. I hardly think that the authors of
the Endangered Species Act intended for this to occur.
My neighbors are all outdoor and wildlife advocates. They enjoy
clean water and abundant wildlife. They provide a critical part of the
ecosystem for wildlife. We should not saddle them with a
disproportional amount of the costs for species recovery. I implore
Congress to use the tools that make America great to fix this dilemma.
Our representative democracy and the free-market system are the keys to
resolving problems, to produce incentives for good management, and to
be results-oriented, as is the need for species recovery.
The issue of adequate and sustainable funding for recovery is
paramount. What happens if the funding goes away? Will we be forced by
a Federal judge to cease irrigating and ranching? Are our actions tied
to adequate Federal funding? I ask for your guidance to Idaho on this
critical aspect of recovery.
Let me give you a good example. Some of my property is near Squaw
Creek, an important stream for bull trout in the area. Most of the land
upstream is Federal land, and the lower portions are private with a
number of land use activities. There has been a great deal of
discussion and investigation regarding bull trout recovery on Squaw
Creek. We have some good ideas and many farmers and ranchers are
interested. If some of the proposals were implemented, the irrigators
and ranchers in the upper Gem County area would have enormous costs for
fish screens and more stringent riparian management regulations. A
recent assessment and proposal for needs in the Squaw Creek area
estimate costs as much as $300,000. Are we to bear all of these costs?
Are we punished if we do not follow-through with these projects?
Without an exact goal, current, bull trout are a disincentive to
good management. If a landowner has a riparian area without bull trout
and the possibility that better management will create higher water
quality bringing in bull trout the incentive is not to improve the
riparian habitat. Mr. Chairman, we should not have to fear the
consequences of good management. Why should a land manager make the
improvements in riparian habitat that would be conducive to bull trout
habitat and thus more regulation? To overcome this disincentive, I
recommend establishment of a concrete measurable end goal of so many
bull trout or so many acres of habitat. The disincentive is
significantly reduced if a reasonable goal is established where
proliferation of the species is beneficial versus detrimental.
Allow us to be partners on recovery issues. Allow the State of
Idaho the responsibility to implement recovery programs. I work with
the State on water quality issues, and I am sure it is better than
working with the EPA. The State has responsibility for water quality
issues and they should also have responsibility for ESA recovery
programs.
Mr. Chairman, I want to thank you for giving hope to Idaho that we
can maintain an improving ecosystem and sustainable rural communities,
no simple challenge. I of course would be happy to respond to
questions.
__________
Statement of Bob Loucks, Salmon, Idaho
I am Bob Loucks. I am a Professional Animal Scientist and spent
almost 35 years working with ranchers in Central Idaho. I have been
involved in endangered species programs since 1982. I served on the
Idaho Legislative Wolf Committee, the Irrigators Committee to Enhance
Anadromous Fish Recovery, and the Advisory Committee to the Lemhi,
Pahsimeroi, East Fork Model Watershed Program for 8 years. I have
resided in the Salmon River Basin for over 33 years.
ESA Listing
I don't know much about the rest of the west, but I do know a lot
about the Salmon River Basin, especially the Upper Basin. Based on
personal knowledge, contact with State and Federal fisheries
biologists, and the USFWS critical habitat and recovery plan proposals,
I cannot see how Bull Trout were listed as endangered in the Salmon
River Basin in the first place.
Some 8958 stream miles are proposed for critical bull trout habitat
in Idaho. The Salmon River Basin, with about 17 thousand miles of
streams, has 4777 stream miles proposed (53 percent of the State
total). Now, this would be understandable if we were short of bull
trout in the basin. However, according to USFWS, there are two sub-
populations of bull trout in the basin. ``Neither population is at risk
of 'stochastic extirpation.''' I think in plain English that means bull
trout are not endangered in the Salmon Basin. The ``magnitude of
threats is considered low in this basin.'' Again, in plain English this
means that bull trout are not threatened in this basin. There are 125
known local populations (many in multiple streams) in the basin. I
believe that we should conduct a status review (as called for by the
ESA) and delist bull trout in the Salmon Basin.
Current Status of Landowner Recovery Efforts on ESA-listed Fish
Upper Salmon Basin landowners, particularly Lemhi Basin landowners
have been leaders in cooperative efforts at fish habitat restoration.
Their efforts actually predate the listings of salmon, steelhead, and
bull trout. Cooperation with State and most Federal agencies has been
outstanding. Most of the effort over the past 11 years has been
directed at anadromous species; however, there has also been a notable
effort on bull trout since their listing.
The attitude of most ranchers is that if the habitat enhancement
helps anadromous fish, it also helps all other resident fish.
One of the impediments to more cooperative efforts on private lands
is the hurdle that Federal land management agencies put in place on
grazing allotments once a species is listed. BLM and USFS throw out all
the range science that they ever learned in an attempt to accommodate
NOAA Fisheries (formerly NMFS) and USFWS (neither of which has any
range management expertise). If a rancher is so unlucky as to have an
allotment with both salmon and bull trout, there is no grazing a
pasture with salmon habitat after August 15 or a pasture with bull
trout habitat after September 15. We now have forage management by
calendar, instead of plant phenology. So, a planned grazing system is
destroyed, ranch economics are harmed since the resulting grazing
season doesn't fit the rest of the operation, and range plant health is
not as good as it should be.
In Lemhi County, two-thirds of commercial cattle ranches have
Federal grazing permits. Federal grazing accounts for about one-half
the pasture available or about 30 percent of the total cattle feed
requirement in the county. Even though the Federal Government manages
about 92 percent of the land in the county, probably 95 percent of the
salmon habitat is on the 8 percent that is privately owned. The point
that I am making is that efforts to minimize impacts to ESA listed fish
on Federal lands must be dove-tailed with efforts on private lands.
Otherwise, there will be more harm created on private lands than can
ever be mitigated by actions on Federal lands.
Conservation Plans vs. Habitat Conservation Plans
Private landowners and organized private groups such as the Model
Watershed Advisory Board, Lemhi and Custer Soil & Water Conservation
Districts, Water District 74, and the Lemhi Irrigation District are
almost unanimous that they would rather develop an Idaho Conservation
Plan through the State than have to deal with the myriad of Federal
agencies directly. The State can act as a buffer between the landowners
and the Federal agencies.
A group of Lemhi Basin ranchers has been working with the Idaho
Attorney General, Idaho Dept of Fish and Game, NOAA Fisheries and USFWS
for almost four years to develop a conservation plan that trades high
fish priority actions for ESA coverage. This conservation plan would be
much easier for ranchers to accept if it is a Section 6 plan with the
State in the lead than if it is a Habitat Conservation Plan. We believe
that there is room for accommodation for all parties if NOAA Fisheries
is serious about getting an agreement.
Recovery Goals for Bull Trout
The Salmon Basin goals listed in the USFWS bull trout recovery plan
are so amorphous and subject to ``adaptive management'', that it is
unlikely they will ever be reached. The only two populations listed
``at risk'' are Lake Creek and Opal Lake. Both are dead-end drainages
with no surface connectivity to any river or stream. So, the future
appears to be an endless striving for recovery for fish that never
should have been listed in the first place. Ranchers and private groups
are willing to work to restore stream connectivity on some drainages
where there is a reasonable expectation of success. That seems likely
to be the only logical action that can be taken.
Thank you for inviting comment.
__________
Statement of Jane Gorsuch, Intermountain Forest Association
Mr. Chairman: My name is Jane Gorsuch and I am the Vice President
for Idaho Affairs for the Intermountain Forest Association (IFA). The
IFA is an organization of wood product manufacturers, timberland owners
and related businesses in the northern Rockies. Our Association
develops and implements solution-oriented policies aimed at securing a
stable and sustainable supply of timber on public and private lands.
Thank you for the opportunity to provide oral testimony to the
Subcommittee today. I appreciate the time of the Subcommittee and staff
to hold this field hearing on such an important matter Cooperation With
States on Bull Trout Recovery under the Endangered Species Act.
It is indeed an honor for me to appear before you, the
distinguished Subcommittee Chairman and Senator from Idaho. On behalf
of our members, I hope to provide some ideas to the Subcommittee for
ensuring that sufficient progress is made toward achieving bull trout
recovery; explore the U. S. Fish and Wildlife Service's cooperation
with States in implementing bull trout recovery programs; identify
additional opportunities for expanding the role of States in recovery;
identify how ``recovery'' will be measured and determined; and to
identify how to return management authority to the States upon
achieving recovery goals.
IFA and Idaho's forest industry support programs to benefit fish
and forests. Our members have taken, and continue to take, measures
that not only protect, but also recover fish listed under the
Endangered Species Act (ESA). Many of our members have been active
since the beginning of the State's effort to conserve bull trout and
thus avoid a Federal listing of bull trout in Idaho. We have, since the
first, called for local solutions to these issues and continue to call
for these types of approaches to aid the recovery of listed species.
If the focus is on voluntary, incentive based efforts to accomplish
fisheries benefits, there is much that can be accomplished. Balance is
the key. Finding the activities that most benefit fish and still allow
a wide range of forest management activities is our mission and should
be the goal of the Federal family as well. IFA has advocated this
general approach for management of bull trout prior to its listing.
We supported, and participated in, the Idaho State Bull Trout
Conservation Plan. These efforts were meant to bring benefits to
fisheries and thereby avoid a Federal listing of bull trout.
Unfortunately, the Federal Government did not support these local
planning efforts and listed the fish anyway. This action, after much
State and local effort was made to create and implement a State Bull
Trout Conservation Plan, created much animosity and ill will. Since the
listing, local planning under the State Bull Trout Conservation Plan
lost momentum. This is unfortunate as there were several benefits that
could have been achieved. This is an example of where the Federal
listing stalled progress of recovery rather than promoted it.
After the Federal listing occurred, the focus for listed native
fish planning efforts become more complicated. Local land owners,
previously interested in participating in conservation efforts under a
State of Idaho plan, now expressed a need to receive legal assurances
that they would not be penalized under the ESA for incidentally harming
the very fish they had previously been helping. With the listing, non-
Federal landowners lost the voluntary incentive to take steps to
conserve habitat and protect fish and to assist the Federal Government
with their job of recovering listed fish.
Under the ESA today, the private landowner obligation is to not
``take'' a member of the listed species. This obligation has proven
hard to define and is a counterproductive standard. If the fundamental
objective of this law is to do reasonable things to benefit species in
decline (an objective we support), incentive based programs need to be
established to allow private landowners to embrace programs which go
beyond the avoidance of take, and bring benefits to species which will
aid in their recovery. We are looking for ways to make that work in
Idaho.
With listing of the bull trout, the heavy hand of the ESA descended
upon non-Federal landowners creating a chilling effect on continued
voluntary efforts. We have been pursuing options that bring the non-
Federal landowner back to the table to assist in meeting the Federal
recovery goal while providing them protection.
The focus has shifted to a more general program, administered by
the State, where interested private forest landowners can voluntarily
enroll their lands in conservation and recovery efforts, pledging
adherence to forest practices which will afford even larger benefits to
fish than would otherwise occur, and by doing so would receive legal
compliance assurance under the ESA.
IFA has been in lengthy and comprehensive discussions with both the
State and Federal officials about accomplishing this result.
We think we are close to implementing a program which will bring
these results on the ground.
Discussion of the specific details of this program is not possible
in a public forum at this time because these conversations are being
conducted under a Federal court confidentiality order.
However, they do include the same important elements we have
discussed previously.
1) Special management practices for fish bearing streams, which
ensures that important riparian functions are protected and enhanced;
2) New standards for road construction and stream crossings where
it will impact fish resources and;
3) An important program to correct ``legacy'' problems, identified
through the State's CWE process, and possible cooperative funding
mechanisms to assist non-Federal landowners to accomplish the legacy
problem corrections.
Our vision is that the Federal Government will agree to the basic
standards of this program, and then allow it to be fully administered
by the State as an extension of the State's forest practice act
authorities. Private forest landowners would then voluntarily enroll
their forest lands to accomplish the benefits for fisheries on their
land, and receive ESA compliance assurances, and qualify for
cooperative funding opportunities.
This could set a new model for incentive based, voluntary
participation in endangered species management, which should bring
rapid benefits to the species. It can make State governments and
private landowners partners with the Federal Government in recovering
listed species while allowing State and private forest land owners the
opportunity to continue to utilize their forest resources.
Science shows the biggest benefits to fish come from careful
correction of legacy road issues, stream crossing issues, and stream
barriers problems. We know these practices work and encourage their use
rather than extensive new land use restrictions.
Sec. 6 of the ESA seems to us to be directed at exactly the program
we describe. We believe that this approach may well be the future of
Federal/non-Federal cooperation in the future.
Thank you again for the opportunity to provide input on these
important topics. I stand for any questions you may have.
__________
Statement of Scott Yates, Director, Idaho Water Office, Trout Unlimited
Senator, my name is Scott Yates, and I appear today on behalf of
Trout Unlimited (TU) in testifying about bull trout recovery efforts in
Idaho. By way of introduction, I will talk briefly about some of the
substantial progress that has already been made to restore bull trout,
as well as identifying some of the key remaining obstacles to recovery,
including stream dewatering that fragments habitat. I will then spend
the bulk of my time talking about project-specific work that
illustrates successful, ground-up recovery efforts that involve
cooperation with landowners. I'll conclude with a couple of ideas
regarding how such efforts can be expanded in order to ensure that
recovery efforts are speedy and able to meet the needs of both
landowners and bull trout.
Trout Unlimited is the nation's largest coldwater conservation
organization with a mission to conserve, protect, and restore North
America's trout, salmon, and steelhead fisheries and the watersheds
upon which they depend. Trout Unlimited is a private, non-profit
organization with 127,000 members and 450 chapters nationwide. There
are approximately 1,900 TU members in Idaho with chapters in Boise,
Sandpoint, Twin Falls, Pocatello, Idaho Falls, and in both Sun Valley
and Teton Valley. These local chapters are extremely active and work
with State and Federal resource agencies and private landowners to
accomplish salmonid habitat restoration goals throughout the State.
I am a member of Trout Unlimited's national staff working out of
our Idaho Falls Office, and currently serve as the Director of the TU
Idaho Water Office. We started our Idaho water program in January 2003,
and our efforts are part of a larger TU program with field offices in
Montana, Colorado, Wyoming and Utah that focuses on streamflow
restoration issues in the West. The primary reason for establishing
field offices in each of these States is to ensure that our
organizational approach to streamflow issues correlates with the
diversity associated with water law in the West. In other words, water
law is primarily a function of State law, and each State has very
specific water code provisions intended to deal with the use and
allocation of water within their borders. Our program is designed to
address specific State resource problems based on the inherent local
nature of such problems, and be responsive to local efforts to deal
with the difficult technical, legal, and policy issues associated with
protecting or restoring streamflows.
The TU Idaho Water Office has focused our initial efforts on
identifying ground-based projects where we can work with State and
Federal resource agencies and private landowners to identify and
implement streamflow restoration projects. This includes efforts in
important bull trout recovery areas such as the Upper Salmon River's
Pahsimeroi River Basin and the Little Lost River and its tributaries.
Introduction
While the metaphor is overused, bull trout are like the proverbial
``canary in the coal mine'' when it comes to indicating water quality
and quantity problems. Across the Columbia River Basin and other parts
of the Pacific Northwest, resident bull trout were historically found
in remote headwater streams that were clear and clean. Fish utilized
bigger tributary and river systems for spawning migrations to access
natal streams. Both the small resident and larger migratory or
``fluvial'' fish flourished in central and northern Idaho's rivers and
streams. While many of these populations remain at varying levels of
abundance and health, the larger fluvial fish that migrated regularly
and occupied the lower reaches of tributaries and the mainstem portion
of most rivers have been essentially cutoff at the knees in terms of
accessible habitat.
There are a number of causes for the decline in the migratory life
history form of bull trout. The two primary causes are fish passage
barriers and stream dewatering both of which fragment historical bull
trout habitats. The former cause boils down to the need to address fish
passage and screening issues at both agricultural and hydroelectric
dams and diversions. This is in fact one area where the State of Idaho
has been as successful as any other State in the region and where the
Federal State relationship in terms of ESA recovery planning and
implementation has been successful: screening and providing volitional
and unimpeded upstream and downstream fish passage on small and medium
size irrigation dams and diversion structures in areas where ESA-listed
fish are present.
Fifteen years ago addressing such concerns, in light of the sheer
number of diversions and the huge administrative task associated with
prioritizing and funding conservation activities and the outreach to
private landowners, seemed unachievable. We now know that conservation
efforts are paying dividends and increasing the survival and
recruitment of both adult and juvenile salmon, steelhead, and resident
trout in places like the Upper Salmon River. Collaborators such as the
Idaho Department of Fish & Game and Upper Salmon River Watershed
Project should be commended for their fish screening efforts.
Stream dewatering, however, is the more difficult issue in many
bull trout recovery areas where lack of habitat connectivity is a
primary factor for species decline. Because of unnaturally low flows
there simply isn't enough water in many rivers and streams year-round
to support all bull trout life history stages. The problem is
especially evident in the lower end of important tributaries and the
river mainstem below them. There is no insidious plot to dewater these
streams. In most areas, traditional farming and ranching operations
have done what they've always done: take the amount of water that they
have been authorized to use pursuant to State law in order to meet crop
or cattle production needs. Further, Idaho is not alone in terms of the
need to address dewatering issues. Water use and impacts to traditional
bull trout habitat are similar in areas of Oregon and Washington east
of the Cascade Mountain Range, the Klamath River Basin, and parts of
northwest Montana including the Blackfoot River drainage.
The unfortunate reality and legacy of these traditional water use
operations is that parts of many tributaries with functioning habitat
mostly on either U.S. Forest Service or U.S. Bureau of Land Management
Lands now serve as islands of isolated habitat and aquatic systems have
become disconnected or fragmented. This has grave implications for life
history diversity and does not bode well for bull trout recovery. In
other words, there is no longer the necessary genetic interchange
between bull trout populations that historically occurred; the larger
migratory bull trout no longer have access to important spawning and
rearing grounds, and the genetic integrity, diversity, and legacy of
this important Idaho native fish are at risk.
We cannot recover bull trout without dealing with these important
streamflow issues. However, in TU's opinion, there is much occurring in
Idaho on the ground in places like the Lemhi River, Big Hat Creek, and
other parts of the Upper Salmon River Basin that offers encouragement
regarding the possibility for creative solutions. Further, the Idaho
examples and streamflow restoration activities in other western States
show that many of the solutions are developed at the local level,
create much needed incentives for private landowners, and provide long-
term benefits for both the rural economy and ESA-listed species.
Trout Unlimited is a relatively new stakeholder in places like the
Upper Salmon River Basin. We do not have the history of involvement
that many of the Federal and State agencies and private landowners have
in places like the Lemhi River drainage. But our organization does have
a long history of working with resource agencies and private landowners
to improve salmonid habitat in Idaho. We are working hard to identify
places to restore streamflow, and develop creative solutions that
compliment Federal, State, and landowner efforts. Two of our initial
focus areas are in important bull trout recovery areas, the Pahsimeroi
River and the Little Lost River.
The Pahsimeroi River
Trout Unlimited kicked off a long-term partnership with the BLM in
2003 to work toward large-scale habitat restoration in the Pahsimeroi
River drainage. Virtually all of the Pahsimeroi River tributaries that
drain the southern portion of Lemhi Mountain Range have been
historically captured as they emerged from Federal lands and diverted
via canal to provide irrigation water. One of the primary goals of the
TU/BLM partnership is to design strategies to restore the stream
channel on various Pahsimeroi tributaries so that water is able to make
from the headwater areas on Federal lands all the way to connect to the
mainstem Pahsimeroi River. Obviously, in order to achieve such goals,
streamflow restoration must occur.
As previously mentioned, TU is a newcomer to Upper Salmon River
streamflow restoration efforts. Discussions regarding the restoration
of streamflows in the Pahsimeroi have been ongoing for a number of
years, and various projects have been proposed both to restore mainstem
flows and tributaries like Little Morgan Creek and Falls Creek.
Agencies such as the U.S. Fish & Wildlife Service, National Resource
Conservation Service, Idaho Department of Fish & Game, and Idaho
Department of Water Resources and numerous private landowners have been
involved in these discussions. Each of the proposals would go a long
way toward restoring the Pahsimeroi system for both anadromous salmon
and steelhead and bull trout. The success of each project will depend
on long-term persistence and the eventual buy-in from the landowner and
water user community.
I'd like to talk briefly about one particular Pahsimeroi River
tributary Falls Creek because it is the first area of emphasis for the
TU/BLM partnership and includes a number of project components that
help illustrate the complexity of these large-scale flow restoration
projects from the standpoint of project development, design, funding,
and implementation.
As with other Pahsimeroi River tributaries, water users in the
Falls Creek sub-drainage have diverted most of the streamflow as it
leaves higher elevation Forest Service land and then delivered the
water through ditches to traditional hay and pasture operations. The
goal of the project is to work with private landowners to modernize the
irrigation delivery and water use system to maximize efficiency so that
traditional ranching operations are maintained while at the same time
additional water is freed up to help reconnect Falls Creek to Big Creek
and the mainstem Pahsimeroi River system and provide additional stream
habitat.
Obviously, project development is complex because the project
involves both private and Federal lands. Further, various Federal and
State agencies are involved each with varying jurisdictions and
interests. For instance, the BLM is primarily concerned with restoring
the stream channel and aquatic environment for the portion of Falls
Creek that traverses through its lands. At the same time, the U.S. Fish
& Wildlife Service is responsible for recovering ESA-listed bull trout
on both Federal and private lands in the Falls Creek system. Finally,
the Idaho Department of Water Resources is responsible for the water
rights analysis and ensuring that any type of strategy to conserve
water and restore streamflows comports with the limited amount of
flexibility that the Idaho Water Code provides to protect and restore
streamflows.
In terms of funding, large-scale restoration projects such as Falls
Creek are expensive. The final project will likely include a new
diversion structure, screen and pump, thousands of feet of mainline
pipe, new center pivot sprinklers, and all of the costs associated with
ensuring that once water returns to the system there is a technically
defensible strategy to enable the water at the very least during
strategic migration periods to make it all the way to the Pahsimeroi
River. Funding is being raised from various Federal sources including
the Fish Restoration and Irrigation Mitigation Act (FRIMA), the U.S.
Fish & Wildlife Service Landowner Incentive Fund, and National Fish and
Wildlife Foundation and private sources such as the Idaho Council of
Trout Unlimited necessary to ensure that the funds are ``matched'' as
required by most of the Federal funding programs.
Finally, the technical issues associated with reconnecting
tributaries are difficult. It is important to note that Falls Creek
primarily because of historic water use operations has not had
consistent flows for much of the last century. The current stream
channel below the existing diversions is barely discernible. Therefore,
a substantial amount of funding is required to design and implement a
stream channel restoration strategy. Further, even with such a
strategy, there are considerable uncertainties associated with
restoring flows to a tributary like Falls Creek with a substantial
alluvial fan, and questions remain whether or how often it will
actually reconnect with Big Springs and the mainstem Pahsimeroi River.
Falls Creek serves as a prime example of the unmistakable and complex
nexus between restoring flows and habitat restoration in central Idaho.
In most cases where a stream has been dewatered and disconnected for a
substantial term of years, one cannot occur without the other.
In sum, large-scale restoration projects that have a streamflow
component take an inordinate amount of time to develop and implement,
are extremely expensive, and are technically complex. But, for TU's
money, they are worth it. For much of the past two decades, the
emphasis for fish protection and restoration in the Columbia River
Basin has been on partial fixes and technologically based solutions
such as hatcheries. Large scale flow and habitat restoration efforts
like those embodied in the Falls Creek project are worth the
uncertainty because they involve collaboration at the most local level
and actually deal with the underlying problems and factors for species
decline in a comprehensive and systematic fashion. These projects go
well beyond merely treating the symptoms of species decline in an
unorganized and disconnected way.
Little Lost River
I wanted to talk a little bit about what I think has the
possibility for a great success story and that's bull trout recovery
efforts in the Little Lost River system. The Little Lost River
originates in headwater streams that drain the Lemhi Mountain Range
from the north and the Lost River Mountain Range to the south. Portions
of the Little Lost River Watershed traverse through Lemhi, Custer, and
Butte counties in one of least populated and extremely isolated parts
of central Idaho. The Little Lost River is one of several isolated
streams such as the Big Lost River, Birch Creek, Medicine Lodge Creek,
Beaver Creek, and Camas Creek in the northern part of the Snake River
Basin that have no current overland connection to other streams in the
Snake River Basin. These rivers and streams all individually ``sink''
into the large lava formations in the Upper Snake River Plain and are
collectively referred to as the ``Sinks Drainages'' or ``Lost
Streams.''
Because of the isolated nature of the Little Lost River bull trout
populations, and the fact that these fish persist near the southern
edge of the species' range, it is extraordinarily important from a
biodiversity perspective to ensure long term persistence of bull trout
in the Little Lost River system. Both the Draft Bull Trout Recovery
Plan (DBTRP) and State fish management programs emphasize the
importance of bull trout in the Little Lost River and its tributaries.
Further, the DBTRP highlights the factors for species decline and
current activities limiting recovery in the Little Lost River drainage,
including inadequate streamflows and fish barriers associated with
irrigation diversions located on key tributaries that block bull trout
migration and access to spawning and rearing habitat located on Federal
lands.
The rancher landowners in the Little Lost River drainage have made
great strides in the past decade to accommodate the water quantity and
quality needs of bull trout. Because of these efforts, and a tremendous
group of agency biologists that have worked hard to get substantive
work done on the ground, the Little Lost system is one of the bull
trout recovery units where the light at the end of the long tunnel
associated with ESA recovery is actually quite bright and growing
stronger.
Trout Unlimited is currently partnering with Federal and State
agencies to fulfill one of the primary information needs in the Little
Lost system by completing a comprehensive fish barrier and diversion
assessment. This work will be followed up by outreach to landowners to
fix collaboratively any problems associated with existing diversion and
ensure that such structures are properly screened and adequate fish
passage provided for adult and juvenile fish.
Like the Pahsimeroi River, there are some tributary stream
reconnect issues with which we must also deal. Also like the
Pahsimeroi, there may be some complex State water law issues that need
to be analyzed and creative streamflow transactions and strategies
developed. However, current indications are that the pertinent
landowners are willing to work with other stakeholders to fix those
problems. Further, because the actual distance these streams have been
historically dewatered is shorter than normal, the technical issues
associated with the projects should not be as extreme as the earlier
cited examples in the Pahsimeroi system. Trout Unlimited is committed
to working with all of the stakeholders to ensure that these streamflow
and habitat restoration activities occur.
Finally, while not specifically streamflow related there are land
acquisition opportunities in the Little Lost River system that would
guarantee conservation benefits both along the mainstem and on
important tributaries like Wet Creek. These opportunities involve
willing sellers, with the only question remaining being where the
funding will come from. A timely influx of funding to the Little Lost
system would effectively ensure that the aforementioned fish passage
and screening, tributary stream reconnect and flow restoration, and
land acquisition activities were successful, and a verifiable bull
trout success story accomplished.
Project Funding and Conservation Group Participation
I'm going to issue a battle cry that has been heard early and often
in the Columbia River Basin: We need a lot of money to get these
projects done. Further, the need for money is not limited to asking for
more, but also asking for a specific kind. We've certainly come a long
way in recent years regarding funding opportunities for stream and
habitat restoration projects. Federal funds provided via the Bonneville
Power Administration, the Farm Bill, National Fish & Wildlife
Foundation, or numerous other sources are incredibly helpful in terms
of providing money for project development and completion. At the same
time, direct appropriations to high priority areas where streamflow
restoration is essential to species recovery would go along way toward
completing a multitude of expensive but necessary projects.
I'd also like to put a plug in for an expanded role for
conservation groups such as TU in identifying and completing important
streamflow restoration projects in high priority bull trout recovery
areas. In light of how thinly spread most agencies are in Idaho, and
the fact that many of these project involve collaboration and
substantial time spent on the ground with a multitude of landowners,
there is a real role for groups willing to devote field time to getting
to know the issues and communities in specific bull trout recovery
areas. Further, many such groups have a proven track record when it
comes to raising private funds for specific projects, an increasingly
important factor when assessing the daunting task associated with both
matching Federal funds and raising the additional money necessary to
complete expensive and complex streamflow restoration and stream
reconnect projects.
Conclusion
The State of Idaho, Federal resource agencies, and other
stakeholders have made substantial progress in the past decade to
assess and identify measures necessary to recover bull trout.
Streamflow restoration projects are obviously one of the more difficult
recovery measures in light of both the complexity of most projects and
the historical lightning rod nature of water issues in the West. At the
same time, TU believes that such projects are of the utmost important
to recover the species. Further, we firmly think that such projects can
be accomplished in an even-handed manner that benefits landowners and
the rural communities where most bull trout populations exist.
__________
Office of the Mayor,
City of Salmon, ID, August 25, 2003.
Senator Mike Crapo
304 North Eighth Street
Boise, ID 83702
Subject: Idaho Bull Trout Hearing
Dear Senator Crapo: The purpose of this letter is to provide input into
the Bull Trout Hearing to be held in Boise, Idaho on August 26, 2003.
Due to prior commitments, I am unable to attend the meeting but urge
your strongest consideration of the contents of this letter during your
deliberations.
The City of Salmon possesses the prime water rights for the Jesse,
Chip and Pollard Creek drainages that are geographically located west
of the City of Salmon. Chip and Pollard Creek diversions bring water to
Jesse Creek that in turn flows directly into the City's water treatment
facility. These water rights date back to 1867 and are the main sources
of drinking water for the Salmon Community. Without conferring with
local leaders, the Federal Government designated these drainages as
potential Bull Trout habitation recovery areas. This designation as,
you know, creates countless environmental management requirements that
virtually prevent any man-made interference in the drainages without
considerable cost.
As the prime water right bolder, the City of Salmon is not willing
to accept these areas as Bull Trout habitation recovery areas. As
mentioned, these drainages serve as the main source of drinking water
for a growing community of 3,100 citizens and the City must be able to
implement infrastructure construction projects without a costly and
burdensome process that it cannot follow or afford. In addition, due to
the extent of the City's water appropriations during the summer months,
Jesse Creek is a ``dry'' drainage from four to 5 months, thus making it
unsuitable for fish recovery. Finally, recovery operations would
mandate a water CFS percentage through-flow that the City is not
willing to exchange for its citizens' rights to their public drinking
water system.
In closing, please consider Salmon residents' needs by ensuring
that due diligence is conducted prior to making any decisions on
drainages that affect our community. If you have any questions
pertaining to this letter about the City's water rights or on our water
usage, please feel free to contact me at (208)756-7285 or (208)756-
3214.
Sincerely,
Stanley B. Davis, Mayor
City of Salmon
__________
Statement of Thompson Creek Mining Company
INTRODUCTION
Thompson Creek Mining Company (``Thompson Creek'') hereby submits
this statement to be published in the hearing record of the Senate
Environment and Public Works Subcommittee on Fisheries, Wildlife and
Water concerning Cooperation between U.S. Fish and Wildlife Service and
the States on Bull Trout Recovery Under the Endangered Species Act.
The Thompson Creek Mine
The Thompson Creek Mine is located between Thompson and Squaw
Creeks, both of which are tributaries of the Salmon River, in Custer
County approximately 30 miles southwest of Challis. Since 1983,
molybdenum ores have been mined from an open pit and milled into
molybdenum concentrates for subsequent offsite processing. Thompson
Creek molybdenum is used primarily in the production of alloyed steel,
as a catalyst for production of petroleum products and petrochemicals,
and as an additive to high performance lubricants. The mine and mill
are located almost exclusively on patented land owned by Thompson
Creek. The operation employs approximately 100 people on a full and
part-time basis at compensation levels generally exceeding the Custer
County average.
The Thompson Creek Mine is fully permitted by the Federal and State
governments including, in particular, a permit issued by the
Environmental Protection Agency (``EPA'') under the National Pollutant
Discharge Elimination System (``NPDES'') of the Clean Water Act.
Issuance of the NPDES permit was subject to consultation under Section
7 of the Endangered Species Act (ESA''). The most recent NPDES permit
for the mine was issued on January 27, 2002; however, ESA consultation
was not completed at that time and remains outstanding. Preliminary
indications from the Fish and Wildlife Service (the ``Service'') are
that consultation, when it is completed, will primarily concern
potential impacts of the mining operation on bull trout.
The Bull Trout Listing Process
December 4, 1997. The Oregon Federal District Court ordered the
Service to reconsider several aspects of the 1997 finding concerning
listing of bull trout. The court directed the Service to: consider
whether listing of the bull trout is warranted throughout its range;
whether listing is warranted throughout the coterminous U.S. and, if
the Service determines that listing throughout its range, or throughout
the coterminous U.S. is not warranted, or is warranted but precluded,
whether listing of the Coastal/Puget Sound DPS is warranted. The court
subsequently directed the Service to prepare its response by June 12,
1998.
June 10, 1998. The Service published in the Federal Register a
final rule to list the Klamath River and the Columbia River bull trout
population segments as threatened under the Endangered Species Act and
a proposed rule to list the Jarbridge River, Coastal-Puget Sound and
St. Mary-Belly River populations segments as threatened under the ESA.
Since 1998 a great deal of new scientific evidence has become
available for the bull trout species that was not considered during the
listing process. Some of this data is reflected in the Bull Trout
Recovery Plan and the Critical Habitat Designation, which were
published and made available for public comment in late-2002 and early-
2003. However, the recovery teams acknowledge that many additional
uncertainties exist regarding bull trout population abundance,
distribution and actions needed to protect and conserve the species. In
the Salmon River Recovery Unit alone, 40 watershed biological
assessments were completed by 2001 under Section 7 consultation,
providing a description of baseline habitat and population conditions
for this Recovery Unit and 72 projects were conducted for the Upper
Salmon River Watershed Project since 1993 that benefit bull trout.
The ESA (16 USC Sec. 1531(c)(2)) states that Federal agencies shall
cooperate with State and local agencies to resolve water resource
issues in concert with conservation of endangered species. If States
were allowed to implement recovery measures on a site-specific basis
and tailored to each basin, bull trout populations would improve. For
example, as indicated by Idaho Deputy Attorney General Strong, the
Lemhi Model Watershed Project (a State/local cooperative effort)
demonstrates what is possible when Federal agencies are willing to work
with State and local interests instead of assuming a Federal solution
is the best solution.'' There are numerous other cooperative efforts at
the State/local level cited in the Recovery Plan.
TESTIMONY OF THOMPSON CREEK
1. Thompson Creek supports the prior testimony of the Service to
Congress that the Endangered Species Act is ``broken'' and that
the critical habitat process consumes vast portions of the
Service's resources while providing no correlative benefit
In April 2003, Assistant Secretary of the Interior for Fish and
Wildlife and Parks Craig Manson testified that the many court orders
requiring critical habitat designations are undermining endangered
species conservation by compromising the Service's ability to protect
new species and to work with States, tribes, landowners and others to
recover those already listed under the ESA. Mr. Manson also emphasized
that additional funding alone will not solve the long-term problem
noting that two-thirds of the endangered species listing budget is
being consumed by court orders and settlement agreements requiring
designation of critical habitat for species already on the endangered
species list. In most instances, designation of critical habitat
provides little additional protection for endangered species.
Assistant Secretary Manson's assessment is certainly correct in
Thompson Creek's case. In the Section 7 consultation for Thompson
Creek's NPDES permit, the Service holds all the regulatory authority it
requires to conduct the consultation and propose Reasonable and Prudent
Measures to EPA by virtue of the bull trout's listing as a threatened
species. Designation of critical habitat affords the Service no
additional authority by which it can protect bull trout. Yet, the
designation process for bull trout has consumed huge amounts of the
agency's budget and available staff, as well as the resources of the
regulated community. Even in this instance, the Service has designated
Distinct Population Segments of such a magnitude as to be relatively
useless to the regulatory process and inconsistent with the expressly
stated objective of the ESA that management of threatened and
endangered (``T&E'') species should ultimately lead to delisting.
Congress should recognize that designation of critical habitat
provides virtually no benefit to T&E species that does not presently
exist as a result of the listing process while consuming significant
portions of the Service's budget and staff availability. Allowing the
Service to focus its staff time and other resources on protection of
listed species under its existing authority would provide substantial
benefit to T&E species and the objectives of the ESA. At the minimum,
the Service should be granted express statutory authority to determine
whether designation of critical habitat would meaningfully affect
protection of a listed species and, therefore, whether the expenditure
of agency resources is warranted.
2. The Service should conduct the 5-year review required by the ESA
Section 4 of the ESA, 16 U.S.C. Sec. 1533(c)(2), required that the
Service ``conduct, at least once every 5 years, a review of all species
included (on the list of T&E species]and determine on the basis of such
review whether any such species should: (i) be removed from the list;
(ii) be changed in status from an endangered species to a threatened
species; and (iii) be changed in status from a threatened species to an
endangered species.'' Thompson Creek supports the periodic review
process and agrees with the State of Idaho that ``new [scientific]
information will augment the argument to break up the large Columbia
River DPS [``Distinct Population Segments''] so that, ultimately,
delisting can be achieved on a biologically reasonable scale.
3. Distinct Population Segments should be sized to allow meaningful
analysis and listing decisions
The Columbia River Designated Population Segment is an example of
the macro management style adopted by the Service with respect to bull
trout. Section 3 of the ESA, 16 U.S.C Sec. 1 532(5)(C), specifically
states that, except in exceptional circumstances, the entire geographic
area of a species should not be designated as critical habitat. The
Columbia River DPS is one of the largest coverages in the United
States, crossing many jurisdictional boundaries, diverse environments
and habitats, as well as varied economic interests and industries.
Moreover, the Service concedes that, within this DPS, there exists
numerous thriving isolated populations and healthy fluvial populations
of bull trout. The Service's own evidence thus suggests that the
Columbia River DPS is not indicative of bull trout critical habitat.
The fact that the recovery teams felt it necessary to breakdown the DPS
into 22 Recovery .Units with 141 distinct populations belies the macro
management approach to bull trout recovery and conservation and
devalues the benefit of State-based management activities.
Managing bull trout at the Recovery Unit level would allow for a
more focused effort on populations that are weak and in need of
protection. Thompson Creek agrees with the testimony of James L.
Caswell, Administrator of the Idaho Governor's Office of Species
Conservation that ``smaller, more appropriate DPS units would allow for
a more credible approach to the designation of critical habitat, to
recovery, to direct limited resources, and ultimately to delisting''.
Most of the information provided in the Recovery Plan was based on a
subpopulation designation as the basic unit of analysis; however, this
approach was not carried through to the designation of DPS units or the
recovery planning process. Thompson Creek's comments to the critical
habitat designation, which were submitted to the Service on May 12,
2003, discuss this issue in detail and can be provided upon request.
4. The Service's Recovery Plan should be required to recognize,
incorporate and, where appropriate, defer to the State's
numerous management plans and other programs to protect and
conserve bull trout
States need the ability to fully engage as an equal partner in the
protection of bull trout and all listed species. Chapter 1 of the
Recovery Plan acknowledges that many States have their own bull trout
conservation plans. It further states that, in the eyes of the Recovery
Team, these plans do not meet all the requirements of the ESA. However,
the Recovery Plan and critical habitat designation ignore key elements
of the ESA, particularly related to designation of DPS units and
implementing management techniques that will more realistically protect
the species and lead to delisting. The States included in the critical
habitat designation have been managing bull trout and other native
species for many years. Some of these programs are described below.
<bullet> Idaho 1995--appointed two committees, a policy and
steering committee and a biology committee to prepare the Bull Trout
Conservation Plan; 1996 draft plan available.
<bullet> Montana 2000--bull trout restoration plan adopted.
<bullet> Washington 1999--draft Bull Trout and Dolly Varden
Management Plan; 2000 finalized plan.
<bullet> Oregon--management began in 1989 with final adoption of
the native fish conservation policy in 2002.
Recovery teams must focus their efforts under the ESA in a manner
that will directly benefit the species. The individual Recovery Unit
concept can work if the scope is not so broad as to require infinite
levels of protection at all points of the bull trout range. Indeed,
bull trout can and should be managed as a catch-and-release game fish
in much of its range. In contrast, the Recovery Plan not only fails to
substantively incorporate the specific work of the States, but focuses
on recovery measures applicable to the species as a whole and not to
each Recovery Unit.
The recovery teams specified that each and every area of the bull
trout range was essential or indispensable to the recovery of the
species as a whole, and that the critical habitat was designated for
all suitable habitats. The Service therefore designated thousands of
miles of habitat throughout the Columbia River basin, irrespective of
numerous thriving populations of bull trout, the differences in habitat
and the often unwarranted cost of restoration. Finally, the public and
stakeholders have not had an opportunity to review potential economic
impacts associated with critical habitat designation, nor has the
Service completed an economic analysis. If it retains the habitat
designation process, Congress should mandate that critical
habitat designation include the economic impact analysis at the
time of designation and that designation occur concurrently with
issuance of a Recovery Plan. The Service's current piecemeal approach
to these issues creates an expensive-to-prepare, time-intensive morass
of information. Congress should make every effort to streamline
implementation of the ESA.\1\
---------------------------------------------------------------------------
\1\The Service should never be permitted to proceed as it has in
the case of bull trout where the Recovery Plan preceded the designation
of critical habitat (which did not include an economic impact
analysis).
---------------------------------------------------------------------------
In sum: (1) if the ESA process had been followed the bull trout
listing would not yet have occurred and States would still be managing
bull trout conservation; (2) if bull trout populations were managed in
smaller, more biologically based increments, numerous populations could
and should be delisted immediately; and (3) if the Service gave greater
deference to State programs, conservation goals would be crafted to
suit local conditions, not the one-level approach proposed by the
centralized Federal Recovery Plan. (As a practical matter, the ESA must
also recognize that a State-by-State management of species is
politically necessary. So long as State game and fish agencies are
responsible to State legislators or State commissions for enforcement
of seasons, bag limits, harvest closures, and other management tools,
then State programs should remain the first resort for management of
T&E species.)
5. Neither the Service nor Congress should place great reliance on the
provisions that purportedly give parties regulated under the
ESA additional flexibility or the Service's claim that it can
and will engage In special rulemaking proceedings
The ESA contains provisions related to Habitat Conservation Plans
(``HCP''), 16 U.S.C. Sec. 1539(a)(2), and the Service has issued a
policy for so-called Safe Harbor Agreements. See 64 Fed. Reg. 32,717
(1999). Upon preparation of an approved HCP, the permittee receives not
only an Incidental Take Permit, but also assurances that no additional
mitigation will be required unless there is noncompliance with the
Permit. Under an approved Safe Harbor Agreement, a landowner who
provides habitat improvements is authorized to subsequently take a T&E
species to an agreed upon baseline by actions consistent with the
permit.
Both HCPs and Safe Harbor Agreements are useful tools for parties
regulated under the ESA. They do not provide a panacea, however,
because the protection they provide is not absolute and the magnitude
of effort and cost of preparing either of them is very substantial.
Realistically, HCPs and Safe Harbor Agreements are primarily available
to large-scale projects. They provide some flexibility to smaller
applicants or smaller activities, but should not be viewed as a remedy
for the over-designation of critical habitat.
Finally, the Service's suggestion that it would engage in a special
rulemaking proceeding to seek the benefits of delisting a recovery unit
in the existing Columbia River DPS, but not actual delisting, is
improbable at best. Having proposed a bull trout DPS of this magnitude,
and delisting criteria that simply cannot be met on a DPS-wide basis,
there is no reason to think that the Service would undermine its
approach to management of bull trout in the manner described in its
written testimony. Moreover, in this event, the Service might well be
sued by the same interests that compelled it to prepare habitat
designations in the first place. Clearly, the remedy must be defined by
Congress, not the Service's assertion that it might engage in an
extraordinary rulemaking proceeding.
CONCLUSION
In summary, Thompson Creek believes that the Service possesses all
of the statutory and regulatory authority it requires to effectively
administer the ESA by virtue of listing species as threatened or
endangered. By eliminating critical habitat designation, and thereby
avoiding the inordinate expenditure of time and money incurred by the
Service, State and local government and private parties, the objectives
of the ESA would be better achieved and its impact on regulated parties
would become more manageable. At the minimum, the Secretary should be
empowered to determine if and when designation of critical habitat
should be required. The Service's limited resources would be much
better spent conducting the 5-year reviews required by the ESA, which
could facilitate the statutory goal of delisting species where
appropriate and focusing conservation and protective measures on those
habitat areas most in need of improvement. In particular, Distinct
Population Segments should be sized to have genuine management utility
and to lead to delisting. The Federal Government's commitment of
financial and other resources would also be maximized if it cooperated
more directly with, and in many instances deferred to, existing State
management programs. Finally, the existing regulatory tools set forth
in the ESA and the policies of the Service are helpful, but are not a
substitute for amendments intended to restore the statutory focus to
conservation and protection of threatened and endangered species in the
most significantly affected habitats.
Thompson Creek appreciates the opportunity to submit this testimony
and would be pleased to provide any additional information or
documentation upon request.
__________
Nez Perce Tribe,
Lapwai, ID 83540, September 9, 2003.
Hon. James M. Inhofe, Chairman,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC 20510.
Re: Testimony on Cooperation Between U.S. Fish and Wildlife Service and
the States on Bull Trout Recovery Under the Endangered Species Act
Senator Inhofe: On behalf of the Nez Perce Tribal Executive Committee
(NPTEC), please accept the following testimony for the field hearing
conducted by the Subcommittee on Fisheries, Wildlife, and Water held in
Boise, Idaho on August 26, 2003. The Subcommittee explored different
avenues for cooperating with the States on bull trout recovery. The Nez
Perce Tribe would like to take this opportunity to remind the Committee
that healthy bull trout populations are extremely important to the
Tribe. Any Federal effort to vest management responsibility for
endangered species recovery in the hands of the States must take into
consideration four important principles: (1) the United States' trust
responsibility to federally recognized Indian tribes such as the Nez
Perce; (2) the treaty rights of the Nez Perce Tribe; (3) the Nez Perce
Tribe's co-management authority over its treaty-reserved resources; and
(4) previous and existing Federal recovery efforts for bull trout.
The Tribe urges the Committee to recognize the United States treaty
and trust obligations owed to the Nez Perce Tribe. These duties are
reflected in Secretarial Order #3206, American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act.
The trust responsibility encompasses a unique set of well established
legal principles that the United States cannot delegate to the States.
As the Committee is surely aware, the Nez Perce Tribe has a treaty
right to harvest and manage fish, including the threatened bull trout.
In 1855, the United States negotiated a treaty with the Nez Perce
Tribe, 12 Stat. 957. In this Treaty, the Tribe retained a reservation
as a homeland and reserved other rights necessary for the cultural,
religious, ceremonial, subsistence, and commercial survival of the
Tribe. Article 3 of the 1855 Treaty explicitly reserved to Nez Perce
Tribe certain rights, including the exclusive right to take fish in
streams running through or bordering the Reservation, ``the right to
fish at all usual and accustomed place in common with citizens of the
Territory; and of erecting temporary buildings for curing, together
with the privilege of hunting, gathering roots and berries, and
pasturing their horses and cattle upon open and unclaimed lands.'' Id.
The Nez Perce Tribe originally had exclusive use and occupation of
approximately 13.5 million acres in north-central Idaho, northeastern
Oregon, southeastern Washington, and western Montana. As the Committee
is surely aware, this area is proposed critical habitat for bull trout
and is essential for this species' recovery. Similarly, the Tribe
continues to exercise its treaty-reserved fishing rights within this
area, which includes fisheries management.
The Tribe's co-management status is reflected by the Tribe's
extensive involvement in fisheries management throughout the Columbia
and Snake River Basins. Any recovery effort for endangered species
would be incomplete without the expertise and participation of the Nez
Perce Tribe. The Tribe must play a significant role in endangered
species recovery, a role that properly reflects the Tribe's co-
management status and that is consistent with Secretarial Order #3206.
As manager of its treaty-reserved resources, the Tribe is
recognized for its efforts in restoring healthy, productive ecosystems.
For example, the Tribe's Fisheries Department has a Watershed Division
that is leading the subbasin planning efforts in the Clearwater, Lower
Salmon, Hells Canyon, and Imnaha Subbasins--all of which are important
to bull trout recovery. The Tribe's co-management status is also
reflected in its Level II Agreement with the State of Idaho.
Finally, any new Federal efforts to cooperate with the States on
the recovery of endangered species must take into consideration
previous and existing efforts. The Service already drafted a recovery
plan and has proposed critical habitat for bull trout. Despite the fact
that the Service has limited funding available to complete these plans,
the Tribe encourages the Service to not abandon these efforts or
delegate responsibility to the States. The Nez Perce Tribe strongly
supports the efforts of the Service to designate critical bull trout
habitat and its recovery plan. See attached testimony of the Nez Perce
Tribe Fish and Wildlife Commission.
With respect to bull trout recovery in Idaho, the Tribe has
concerns with the legal and biological adequacy of the previous plan
submitted by the State. See attached letters dated June 3, 1998.
Previously, the Service rejected the State plan as inadequate for bull
trout recovery. Further, the Environmental Protection Agency
promulgated a bull trout water quality standard for temperature because
the various State agencies could not agree on a protective standard.
In short, any locally led recovery effort must include full
participation of the Nez Perce Tribe recognizing the Tribe's treaty-
reserved rights and must include assurances that States will take all
actions necessary to develop a legally and biologically sound recovery
strategy.
Sincerely,
Anthony D. Johnson, Chairman.
______
Nez Perce Tribe,
Tribal Executive Committee,
Lapwai, ID 83540, June 3, 1998.
Ron Lambertson, Acting Director,
U.S. Fish and Wildlife Service,
Portland, Oregon 97232-4181.
Re: Failures of the State of Idaho's ``Bull Trout Conservation Plan''
Dear Mr. Lambertson: Healthy bull trout populations are extremely
important to the Nez Perce Tribe. The Nez Perce Tribe has been closely
monitoring the State of Idaho's attempts to implement its ``Bull Trout
Conservation Plan'' in. the Clearwater Basin. As the attached letter
indicates, the Tribe does not believe this Plan adequately protects and
enhances bull trout.
The Nez Perce Tribe urges the United States Fish and Wildlife
Service to recognize the United State's treaty and trust obligations to
the Nez Perce Tribe, and uphold the Tribe's role as co-manager of this
resource.
The Tribe remains committed to exercising its co-management
authority tc? address the current status of bull trout and to protect
and enhance bull trout populations. Please contact Dave Statler in the
Tribe's Department of Fisheries Resource Management, (208) 476-4717, or
Rick Eichstaedt in the Tribe's Water Resources Department, (208) 843-
7368, if you have any questions.
Sincerely,
Samuel Penney, Chairman.
______
Nez Perce Tribe,
Tribal Executive Committee,
Lapwai, ID 83540, June 3, 1998.
The Honorable Philip E. Batt, Governor,
State of Idaho,
State Capital,
P.O. Box 83720,
Boise, Idaho 83720-0034.
Re: Implementation of the State of Idaho's Bull Trouy on Reservation
plan
Dear Governor Batt: Healthy bull trout populations are extremely
important to the Nez Perce Tribe. The Nez Perce Tribe has been closely
monitoring the State Division of Environmental Quality's implementation
of the State of Idaho's ``Bull Trout Conservation Plan in the
Clearwater Basin . . .'' The Tribe believes this Plan does not
adequately protect and enhance bull trout. The following deficiencies
are of concern to the Tribe.
The Plan fails to recognize the Nez Perce Tribe's treaty reserved
fishing rights and the Federal Government's trust obligation to the Nez
Perce Tribe. Federal law recognizes the Nez Perce Tribe as a co-manager
of fisheries resources. Yet, the Plan relegates the Nez Perce Tribe to
the position of a mere ``stakeholder'' in the process. Any Plan to
protect and restore bull trout must recognize these legal principles
and the Tribe's role as co-manager.
The Plan does not take the swift, unbiased action that is required
to truly protect species. While a consensus-building process often
serves a role in deciding policy, the Plan's process encourages
stakeholders to politicize issues at the expense of the substantive,
long-term protection and enhancement measures that bull trout will
occur.
The Plan has numerous technical deficiencies. Instead of calling
for quick and decisive actions, which protect and enhance bull trout
persistence in their native range, the Plan calls for additional
studies and the collection of additional data. Compliance with the
Clean Water Act and the necessary habitat protection measures that are
needed to protect salmon would also protect bull trout. Such measures
are contained in the Tribe's recovery plan Wy-Kan-Ush-Mi Wa-Kish-Wit.
Immediate, on-the-ground, action is required, especially in areas where
the factors for bull trout decline are obvious. Additional studies to
``verify'' these causes needlessly stall recovery actions that need to
be taken now.
The Nez Perce Tribe remains committed to exercising its co-
management authority to address the current status of bull trout and to
protect and enhance bull trout populations.
Sincerely,
Samuel Penney, Chairman.
__________
Statement of Joe Oatman, Fish and Wildlife Commission, Nez Perce Tribe
Good evening, my name is Joe Oatman. I am a member of the Fish and
Wildlife Commission of the Nez Perce Tribe. I appreciate the
opportunity to share my thoughts with you today regarding protection of
bull trout in the Inland Northwest.
Since time immemorial, Nez Perce people has occupied the area now
know as southeastern Washington, northeastern Oregon, and much of
central Idaho. Nez Perce people have and continue to use these lands to
hunt, fish, gather, and graze their animals. The Treaty signed between
the Nez Perce and the United States in 1855 specifically reserved the
right for Nez Perce people to hunt, fish, gather, and graze animals
both on and off the reservation. Fish, such as salmon, steelhead, and
various species of trout, serve an important role in Nez Perce diet,
culture, and religion. For these reasons, the Nez Perce Tribe has
devoted substantial resources toward the recovery of fish and fish
habitat throughout the Snake River Basin.
The Nez Perce Tribe strongly supports the efforts of the Fish and
Wildlife Service to designate critical bull trout habitat and its
recovery plan. However, the designation of critical habitat is only as
good as it is applied and enforced. Further, this effort is meaningless
without an aggressive recovery effort. The Fish and Wildlife Service
has estimated recovery for Idaho at $7 million over 25 years. Based
upon our experience with salmon and steelhead, I would imagine the
amount will be much, much more.
Bull trout are an ``indicator species.'' This means that healthy
bull trout populations indicate healthy rivers and streams, which will
support other native fish species, such as salmon and steelhead. Bull
trout require clean and cool free-flowing waters. The protection and
restoration
of bull trout habitat also aids the recovery of wild salmon,
steelhead, cutthroat trout and other native species.
Recovery of species such as bull trout means examining a watershed
from a ridge top-to-ridge top perspective and addressing all negative
impacts to the species, including logging practices, mining, grazing,
and other activities. This does not mean ``shutting down the Forest'',
but rather making sure that the actions that do occur are planned in a
way that will complement rather than hinder recovery. Recovery will
entail replacing bad culverts, repairing or obliterating poorly
designed Forest roads, and fencing streams on National Forest lands.
These are projects the Nez Perce Tribe has and will continue to
implement with its partners throughout the Basin.
I would like to remind the Fish and Wildlife Service to make sure
to honor its treaty and trust obligations to the Nez Perce Tribe. The
burden of bull trout recovery must not fall solely on the Tribe and
tribal members through regulation and restriction of tribal fishery
harvest. Secretarial Order 3206 on American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act
clearly outlines the responsibilities of the agency in implementing its
responsibilities when tribes are involved. This includes working with
the Nez Perce Tribe on a government-to-government basis. The Fish and
Wildlife Service must consider the impact of recovery actions on tribal
cultural and religious practices. The Service should, also, continue to
utilize the expertise of the Nez Perce Tribe by having tribal
representation on its Recovery Teams.
Once again, we appreciate the efforts of the Fish and Wildlife
Service in protecting bull trout and bull trout habitat. We hope as
these efforts proceed that the Service will continue to seek dialog
from members of the community, such as you are today, to make sure that
the on-the-ground recovery makes sense and actually works.
__________
Statement of the Boise Project Board of Control on Draft Recovery Plan
for Bull Trout (Salvelinus confluentus)
The U.S. Fish and Wildlife Service (``FWS or Service'') has
published a draft recovery plan for bull trout Salvelinus confluentus,
and has solicited comments on this draft recovery plan. By notice
published in the Federal Register February 15, 2003, the deadline for
comments on the proposed recovery plan is March 29, 2003.
Boise Project Board of Control (``Boise Project'') submits these
comments on the draft recovery plan. The Boise Project will also be
submitting comments on the critical habitat designation on or before
the deadline of May 12, 2003.
As an initial observation and comment, the Boise Project objects to
treating the draft recovery plan separate from the critical habitat
designation. At the very least, the recovery plan should be considered
jointly with the critical habitat designation and not establish a
recovery plan without regard to what ultimately will be designated as
critical habitat. Boise Project further objects to the procedure
utilized by the Service in that the Service has failed to issue any
economic analysis of either the draft recovery plan or the proposed
critical habitat designations; as required by law. Without seeing the
economic effects of the proposed recovery plan and the proposed
critical habitat designation the Service cannot adequately assess the
reasonableness of its proposed plan as required by law and it is more
difficult for outside parties to make an informed comment on whether
certain proposed actions are appropriate or inappropriate under the
Endangered Species Act.
I. INTRODUCTION
A. Interests of the Boise Project Board of Control
The Boise Project Board of Control operates an extensive water
delivery system on behalf of its five member irrigation districts: the
Boise-Kuna Irrigation District, the Nampa & Meridian Irrigation
District, the New York Irrigation District, the Wilder Irrigation
District and the Big Bend Irrigation District.
The Districts operate the delivery and drainage system by a
cooperative joint effort through the Board of Control. The Board of
Control was created in 1926 when the Districts each entered into
contracts with the United States of America. The Board of Control
consists of representatives from each of the five Districts.
The Districts were created for the primary purpose of providing
irrigation water to arid lands within their boundaries. Fulfilling this
obligation, the Districts provide irrigation water for approximately
187,000 acres of farmland.
The Boise-Kuna Irrigation District was created by the Ada County
Commissioners in 1925 for the purpose of developing, operating and
maintaining irrigation facilities in the counties of Ada and Canyon in
the State of Idaho. It has operated and maintained irrigation
facilities since 1926. It contains approximately 49,000 acres.
The Nampa-Meridian Irrigation District is the oldest of the five
irrigation districts. It was created by the Ada County Board of County
Commissioners in 1904 for the purpose of developing, operating and
maintaining irrigation facilities in the counties of Ada and Canyon in
the State of Idaho. This District has operated and maintained
irrigation facilities since 1905. It contains approximately 62,000
acres, of which approximately 40,000 are part of the Boise Project.
The Wilder Irrigation District was created by the Canyon County
Board of County Commissioners in 1925 for the purpose of developing,
operating and maintaining irrigation facilities in the State of Idaho.
The District has operated and maintained irrigation facilities since
1926. It contains approximately 18,000 acres.
The New York Irrigation District was created by the Ada County
Board of County Commissioners in 1926 for the purpose of developing,
operating and maintaining irrigation facilities in the County of Ada in
the State of Idaho. This District has operated and maintained
irrigation facilities since 1926. It contains approximately 18,000
acres.
The second oldest of the five, Big Bend Irrigation District, was
created by the Circuit Court of the State of Oregon for the County of
Malheur in 1918 for the purpose of developing, operating and
maintaining irrigation facilities in the County of Malheur in the State
of Oregon. This District has operated and maintained irrigation
facilities since 1926. It contains 1,716.56 acres.
The Districts are governed by boards of directors elected by the
members of individual districts pursuant to Idaho and Oregon law. To
pay for the costs of delivery and drainage of water, the Districts
assess their members.
B. The Boise River Reservoir System
The Boise River Reservoir System is composed of three Boise River
reservoirs (Anderson Ranch, Arrowrock, and Lucky Peak) and an off
stream reservoir (Lake Lowell and its related facilities, Diversion Dam
and the New York Canal). The Bureau of Reclamation owns and operates
the Anderson, Arrowrock, and Diversion Dam projects and facilities. The
Bureau also owns the New York Canal, Lake Lowell and related
distribution and drainage facilities. The Boise Project Board of
Control operates and maintains these facilities under contracts between
its five-member Districts and the Bureau. The United States Army Corps
of Engineers owns and operates Lucky Peak Dam. The combined active
storage of the five reservoirs is over a million acre feet of water.
See Table.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Active
Reservoir Stream Storage Storage Surface Construction Agency Year of Completion
(acre--feet) (acres) Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Anderson Ranch....................... South Fork Boise River. 493,200 423,200 4,740 Bureau of Reclamation.. 1950
Arrowrock............................ Boise River............ 286,600 286,600 3,100 Bureau................. 1915
Lucky Peak........................... Boise River............ 307,000 278,200 2,810 Corps.................. 1954
Lake Lowell.......................... Boise River (off 190,100 169,000 9,840 Bureau................. 1908
stream).
TOTAL............................ 1,276,900 1,157,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
The Corps and the Bureau utilize and regulate the Anderson Ranch,
Arrowrock, and Lucky Peak storage reservoirs as one multipurpose system
for irrigation, flood control, recreation and minimum, stream flow. In
1954, the Districts all signed agreements with the United States
modifying their contracts with the United States to permit joint
operation of the reservoirs.
Day-to-day regulation of the Boise River Reservoir System requires
coordination between the Corps, the Bureau, the Idaho Department of
Water Resources, and the Boise River Watermaster, a representative of
the State of Idaho elected by water users of the Boise River. The
amount of water released depends upon the time of year, the amount of
natural flow and storage water available, and the purpose of the
release.
The Districts irrigate their lands primarily from water stored in
Lucky Peak, Arrowrock, and Anderson Ranch Reservoirs on the Boise River
and in Lake Lowell off of the Boise River. The United States Bureau of
Reclamation holds the legal title to this water for the Districts.
Pursuant to contracts with the Bureau of Reclamation, the Districts
together have secured the right to approximately 669,000 acre-feet of
space in the reservoirs for irrigation purposes and have equitable
title to these water rights.
The Districts (except New York) own the Lucky Peak Power Plant
Project, which generates hydroelectric power from a 101 MW facility
located at the Corps' dam. The Districts also are licensees for a
proposed hydroelectric project at Arrowrock Dam.
The United States transferred to the Board of Control the care,
operation and maintenance of certain irrigation works constructed by
the United States as part of the Arrowrock Division of the Boise
Project and which serve all the Project lands within the Districts.
These irrigation works include the Diversion Dam, the New York Canal
(formerly the Main Canal), Lake Lowell (formerly the Deer Flat
Reservoir), the Mora Canal, the Deer Flat Highline and the Lowline
Canals, and the Golden Gate Canal. Altogether the Districts operate and
maintain over 670 miles of canals and primary laterals and 178 miles of
drains through the Board of Control.
Diversion of the irrigation water to Project lands begins at the
Boise River Diversion Dam, located on the Boise River approximately
seven miles southeast of Boise, Idaho. Water is diverted at Diversion
Dam into the New York Canal. The New York Canal runs generally west
forty miles to Lake Lowell. Lake Lowell Reservoir was constructed for
irrigation purposes and is operated and maintained by the Districts
through the Board of Control. The New York Canal feeds other canals, as
does Lake Lowell, for the purposes of irrigating lands within the
Districts. The Nampa & Meridian Irrigation District separately owns,
operates and maintains the Ridenbaugh Canal to deliver water to a
portion of its land.
Because the very existence of these irrigation districts and the
Boise Project Board of Control is tied to the Boise River, the
irrigation districts and the Boise Project Board of Control are
intimately concerned with all attempts to regulate and control the
manner in which water is used. The Boise Project Board of Control is
directly concerned with how the Service attempts to administer the
Endangered Species Act, both in a general sense and specifically how
the Service's actions under the Endangered Species Act affects the
water users on the Boise River.
II. LISTING OF THE BULL TROUT AS THREATENED UNDER THE ENDANGERED
SPECIES ACT 63 F. R. 31647.
A. The Service Must Conduct A Formal Status Review Of The Species
The Boise Project notes that this species was formally listed as
threatened on June 10, 1998, nearly 5 years ago. The Endangered Species
Act requires the Service to conduct ``at least once every 5 years, a
review of all species'' 16U.S.C Sec. 1553(c)(2)(a). The Service is
also required on the basis of that review to determine whether or not
the species should be removed from the list. 16 U.S.C. Sec.
1533(c)(2)(b)(i). The Service has failed to conduct this review of the
bull trout listing within the 5-year period required by the ESA. Before
preparing and issuing a recovery plan and critical habitat designation
the Service should have, and was legally required to, determine whether
or not the species should remain on the list in the first place. The
recovery plan as well as the critical habitat designation should await
a status review by the agency on the propriety of listing the species
in the first place and continuing to list the species based on current
information. A large amount of information has been collected on the
range and distribution of the species since the listing efforts 5 years
ago. This information needs to be updated and a new review of the
status of the species must be made before a recovery plan and critical
habitat designation can legally be established.
In the status review, the Service should examine the adequacy of
existing regulatory mechanisms to protect the species more carefully.
The statute requires the Service to review the State programs and
provide written justification for the failure to adopt the State
programs. 16 U.S.C. Sec. 1533(i). The State of Idaho has had a bull
trout plan since 1996. To the knowledge of the Boise Project, the Fish
and Wildlife Service has never provided a written justification for
disagreeing with the State of Idaho's bull trout plan, as required by
law.
B. Existing Regulatory Mechanisms Are Adequate To Protect The Species
The listing decision significantly downplays the adequacy of
existing regulatory mechanisms, which is an important factor in
determining listing in the first place under 16 U.S.C Sec. 1533(a). The
recovery plan notes, that at least in Idaho, most of the land where
bull trout are known to exist and where the recovery plans are proposed
are Federal lands. Those Federal lands are subject to the PACFISH and
INFISH regulations and procedures. In addition, in Idaho, the
Governor's bull trout plan also provides mechanisms for protection of
bull trout.
The recovery plan should discuss what effects the existing
regulatory mechanisms are expected to have on the recovery of the
species. If recovery is expected to be achieved the recovery plan
should simply adopt the existing regulatory mechanisms. If recovery is
not expected, than the plan should specifically identify where the
recovery plan efforts are deficient and recommend specific measures in
specific recovery units to deal with the deficiencies in the existing
plans. Instead, the recovery plan is written as though the existing
regulatory mechanisms do not exist.
The Service's listing decision criticized Idaho's bull trout
conservation plan because it failed to describe specifically how
practices will be modified and failed to describe how both Federal
agencies and private land owners will be ``required'' to institute bull
trout conservation measures. 63 F.R. 31655. The bull trout recovery
plan suffers from the same deficiencies. The plan has generalized
descriptions of what activities or practices are believed to have cause
harm to the species. However, the plan contains no description of how
specific practices ``will be modified.'' The recovery plan also
contains no explanation of how Federal agencies and private landowners
will be ``required'' to institute bull trout conservation measures. In
fact, for the most part, many of the requirements in the recovery plan
are stated in such a generalized fashion that it is impossible to
determine the actual requirements that the plan is seeking to impose.
For example, the plan requires ``modifications'' to dam and reservoir
operations without specifying what are the required modifications. If
the recovery plan is adequate with these general prescriptions, than it
is improper for the agency to declare that the existing regulatory
mechanisms are inadequate for lacking specifics.
III. COMMENTS ON CHAPTER ONE, INTRODUCTION, DRAFT RECOVERY PLAN
The Boise Project will comment on the general introductory chapter
of the recovery plan and on Chapter 18, dealing with the Southwest
Idaho Recovery Unit. By not commenting on the other chapters, the Boise
Project implies no approval of those chapters.
1. Recovery Plan Fails To Account For Resilience Of The Species And
Natural Recovery
The recovery plan does not adequately explain that the species is
naturally recovering from previous attempts to extirpate the species
made by Fish and Game Departments throughout the Northwest, including
Idaho and Montana. These well-known efforts to protect game fish were a
significant cause of the decline of the species. Yet, they are not
adequately recognized in the recovery plan. The recovery plan fails to
account for the rebound and recovery of the species resulting from bans
on bull trout caught in ordinary angling practices. In the past, common
practice was for the bull trout to be considered a ``trash fish'' and
when caught would be discarded rather than returned to the stream.
Educational programs have been underway over the last 5 years and signs
have been posted throughout the basin, advising anglers of the need to
avoid taking the bull trout. The recovery plan does not address the
efficacy of these programs and how these programs have contributed to
date to the recovery of the species.
2. The Recovery Plan Unfairly Links Recovery of The Species As a Whole
To Recovery of The Species In Individual Recovery Units or Core
Areas
The recovery plan contains a number of basins where the species are
known to be in very poor condition, for example the Coeur d'Alene and
Malheur Basins, and establishes a long range recovery plan that could
take as much as fifty years for the species to recover in that basin.
Even then, the recovery plan suggests that species may never adequately
recover in those basins. The recovery plan suggests that recovery will
not be achieved until all units are recovered. The plan also seems to
require meeting the recovery goals in virtually all recovery units,
without regard to the health of the species as a whole. It is possible
for the species to be in excellent condition as a species even though
some areas and some habitat may not support thriving or a ``recovered''
population of bull trout. The plan improperly, illegally, and unfairly
links the continued listing of the species to recovery in many
individual areas rather than based upon the status of the species as a
whole.
3. Recovery Plan Fails To Acknowledge That In Certain Recovery Units
Recovery Has Already Been Achieved
Many of the units, for example in the Boise, Payette, & Salmon, the
population exceeds the 1,000 individuals established as the level of
concern for the population. In many of the units the population is
stable or increasing. Nevertheless, the recovery plan set additional
regulatory requirements for those areas where the species already
exceeds the goals established for recovery and the species is stable or
increasing. The recovery plan does not adequately justify imposing
additional recovery measures in areas that meet or exceed the recovery
goals.
4. The Recovery Plan Improperly Sets Recovery Goals Placed On Carrying
Capacity of Potential Habitat
The recovery plan fish population objectives appear to have been
established based upon looking at particular, as well as potential,
areas of habitat and determining, based on unsubstantiated judgment
calls, how many individuals that particular habitat would potentially
support. The basis for these estimates and habitat carrying capacity is
not explained. The outside world is essentially being asked to
``trust'' these judgment calls without being provided any basis for the
decisions. Are they ``drive-by'' habitat surveys or something else?
Bull trout are known to avoid habitat even in pristine, undisturbed
areas that are thought to be suitable habitat for reasons that are as
yet unexplained. It is inappropriate to establish theoretical carrying
capacity of the system as a basis for ``recovery'' of the species. Not
every section of suitable habitat will be able to maximize production
of bull trout. If the maximum production of bull trout to the carrying
capacity of some theoretical habitat is the goal, then delisting
becomes impossible. Moreover, there is no scientific basis explained in
the recovery plan for establishing a carrying capacity of particular
stream segments, core areas, or recovery units.
5. The Recovery Plan Does Not Establish Objective Measurable Criteria
Recovery plans are required under 16 U.S.C Sec. 1333(f) to have
objective measurable criteria for removing the species from the list.
Many of the criteria that are established throughout the recovery plan
are vague and general and do not meet the statutory requirement for
objective measurable criteria. There is also no yardstick for measuring
the reasonableness of actions proposed. It simply seems to be based
upon ad hoc determinations by various recovery unit team members
without explaining why the chosen action is ``reasonable,'' what
alternatives were considered, and why the alternatives were not
selected.
6. The Recovery Plan Inappropriately Requires Stable and Increasing
Populations Across The Entire DPS
By establishing a ``stable'' and ``increasing'' population goal as
a minimum for recovery of the species, the recovery plan fails to
acknowledge that in particular years and in particular areas that
populations can fluctuate based upon natural conditions. For example,
there will be good years for water and bad years for water; there will
be drought and there will be temperature cycles based upon solar
heating of the streams. None of these natural conditions that could
result in cyclical population of the species are taken into account.
Instead, the recovery plan appears to set a bar and states that if the
species falls below the bar in a particular recovery unit then recovery
of the species as a whole has not been achieved. This simply does not
recognize good science or population ecology. Similarly, the recovery
plan does not account for these natural events that affect water
temperature and instream flow conditions such as snowfall, drought, and
fires.
7. The Recovery Plan Errs By Requiring Recovery in All or Almost All of
The Recovery Units
The recovery plan does not look at the health of the population as
a whole. Instead it inappropriately requires recovery in individual
recovery units without regard to the number of individuals in the
species. For example, there could be literally hundreds of thousands of
bull trout in the Salmon and Clearwater Basins yet, recovery can be
denied under this plan for failure to achieve recovery in the Malheur
and Coeur d'Alene Basins recovery units, where the habitat is much less
suitable for the bull trout.
8. The Recovery Plan Was Put Together Without Adequate Involvement of
Resource User Groups
The Regional Director announced, when the recovery plan was
released, that it was a collaborative effort involving the input of
various interest groups, environmental groups and resource user groups.
The recovery team for the plan as a whole and for Southwest Idaho did
not include any of the water user organizations that are heavily
dependant on the resources of the Boise and Payette Basins. These user
groups have had no opportunity to review that data or be involved with
the discussions that led to the establishment of the recovery units and
the goals. The recovery teams should be reconvened with proper
representation of affected user groups, who were shut out of the
process entirely.
9. The Recovery Plan and The Critical Habitat Designations
Inappropriately Take a Broad Sweep Seeking More Habitat
Protection and Recovery Activities Than Are Necessary
According to comments from representatives of the Service at the
public meetings, the goal of the Service in the recovery plan and in
the critical habitat designation was to require far more action than is
essential for the recovery of the species, expecting that individual
comments would result in reductions of proposed critical habitat and in
individual requirements of the recovery plan. It is inappropriate for
the Service to take such an approach. The Service should exercise its
best professional judgment of what was absolutely ``essential'' for the
recovery of the species, rather then including in the recovery plan a
wish list of what individual recovery team members thought might be
nice to try to accomplish in a particular watershed. The ESA
regulations require the secretary to focus on those principal
biological and physical elements ``within the defined area'' as
appropriate for critical habitat, and by extension recovery plans. 50
CFR Sec. 424.12(b). Yet the recovery plan and critical habitat
designations include all the occupied and much unoccupied habitat
without the specific finding that unoccupied areas are essential for
the recovery of the species, as required by the ESA. The plan makes no
effort to exclude any area where the benefits of exclusion outweigh the
benefits of designation of critical habitat, as required by 15 U.S.C.
Sec. 1533(b)(2).
10. Recovery Plan Overstates The Threat To The Species From Dams and
Understates the Benefit of Reservoirs
The recovery plan mentions, only in passing, the benefits to the
species resulting from the creation of reservoirs in particular basins
such as the Boise River Basin. The reservoirs are acknowledged to be
beneficial, yet the dams are asserted to be detrimental. In some
instances the dams are asserted to be beneficial by protecting the
species from invasive competitive species. The schizophrenia about the
impact of the dams and reservoirs needs to be addressed more directly
rather than condemning all dams as a cause of decline of the species.
11. The Recovery Plan Improperly Establishes Recovery Goals For
Recovery Units Where Bull Trout Have Been ``Functionally
Extirpated''
The Recovery Plan (Chap. 1, p.13), acknowledges that the fish in
the Coeur d'Alene Basin are ``functionally extirpated.'' Yet, the Plan
ties recovery of the entire species to meeting goals that could take
fifty years or longer in the Coeur d'Alene Basin without regard to the
status of the species as a whole or its status in other watersheds. The
Service should reevaluate those areas where the species is
``functionally extirpated'' as areas to be dealt with in the recovery
plan, particularly if those areas are to be the basis for refusing to
delist the species when recovery goals are achieved in other areas.
12. The Recovery Plan Lacks Factual Support For its Claim of Impact
From Small Scale Agriculture
The Recovery Plan (Chap. 1, p.19) asserts that small-scale
agricultural practices have had a greater impact on the species than
large hydro and flood control projects throughout the Snake River and
Columbia Basin. There is no support within the record, at least none
that is contained in the recovery plan, to explain that statement. If
that statement is true, then the recovery plan must explain why there
is such a focus on the operations of hydroelectric, flood control and
irrigation storage projects as opposed to focusing its primary efforts
on irrigation diversion screening and other similar measures.
13. The Recovery Plan Fails To Incorporate Other Section 7
Consultations.
The recovery plan mentions the FCRPS biological opinion, (Chap. 1,
p. 34), but fails to discuss other consultations in the area. For
example, the Service has consulted with the Bureau of Reclamation on
the operation of its Upper Snake River projects and has also consulted
with the Bureau of Reclamation on its Arrowrock Valve Rehabilitation
Project. Undoubtedly, there are many other consultations. None of these
consultations, nor the reasonable and prudent alternatives incorporated
in those consultations, are discussed in the recovery plan. The
recovery plan is unclear as to how its requirements are to be
coordinated with the existing biological opinions.
14. The Recovery Plan Fails To Explain Its Basis For Adopting Recovery
Measures For Existing Viable Populations
The recovery plan establishes a level of less than a thousand
spawning adults where the population in a particular recovery area is
considered to be at risk. (Chap. 1, p. 48). The recovery plan does not
explain adequately why populations of greater than 1000 spawning adults
are considered to be not at risk. There also is no explanation as to
why those populations with sufficient spawning adults need a recovery
plan in addition to the existing regulatory actions currently in place
to protect the species in those areas. No explanation is provided as to
why any recovery plan is necessary for populations that are not
considered to be at risk.
15. The Recovery Plan Inappropriately Dismisses Artificial Propagation
The Recovery Plan (Chap. 1, p. 54) dismisses any possible use of
artificial propagation without considering whether that method might be
appropriate in particular areas where there is sufficient habitat but
lacking sufficient numbers of spawning adults. The agency should
reconsider the use of artificial propagation or transplanting in
particular segments where sufficient habitat exists. The Endangered
Species Act specifically authorizes the use of artificial propagation,
yet this possibility is dismissed as out of hand in the recovery plan.
16. The Recovery Plan Provides Only Vague and General Suggestions
Regarding Dam Operations
The Endangered Species Act requires a recovery plan to have
objective and measurable criteria. When discussing dam operations, the
recovery plan (Chapter 1, p. 63) mentions that change in operations of
dams, in types of passage, and in methods to eliminate entrainment will
have to be considered and incorporated into the plan. However, the
recovery plan does not identify what kinds of changes in operations,
what kinds of passage, and what kinds of methods are necessary to
eliminate entrainment at any of the particular facilities throughout
the recovery area. This vague and generalized requirement makes it
impossible to comment on the requirements of the recovery plan with any
specificity and violates 16 U.S.C. Sec. 1533(f)(1)(b).
17. Undefined Habitat Protection Zones Should Not Be Established And
Should Not Be Used To Prohibit Or Relocate Hydroelectric
Facilities
The Federal Public Lands Property Management Section states that
``habitat protection zones'' will be established. (Appendix 1 to
Chapter 1). The recovery plan does not identify what is meant by
``habitat protection zones.'' The term is undefined in the statute, in
the listing decision, in the recovery plan, and in the critical habitat
designations. If the recovery plan is to implement such a thing as a
``habitat protection zone,'' the recovery plan must identify what it
is, the legal basis for establishing the zones, and define what kind of
protection is intended to be included within the zone. The same section
also indicates that it will require new hydro facilities be placed
outside these undefined habitat protection zones. In some instances, it
also requires relocation of hydro facilities outside habitat protection
zones. There is absolutely nothing in this record, in the recovery
plan, and anything associated with the recovery plan, to form a basis
for requiring new hydro facilities to be placed or relocated outside
any area that is inhabited or potential habitat. Such an effort would
be an enormous burden on all new as well as existing hydro facilities
and may preclude the development of any new hydro facilities in areas
affected by the recovery plan, which is a large portion of the State of
Idaho. This requirement must be eliminated from the recovery plan.
18. Recovery Plan Monitoring Is Not Adequately Tailored To Particular
Threats
The recovery plan as a whole uses broad generic prescriptions for
monitoring items such as water quality, fish, etc. The recovery plan
appears to require these monitoring programs to be instituted on a more
or less across the board basis. Any monitoring required in particular
recovery units should be carefully tailored to the particular threat to
the species. The most cost effective efforts to deal with the potential
risks can then be undertaken. For example, if predation from exotic
species is the main problem in a recovery unit, there should not be
imposed upon the resource agencies extensive water quality or dissolved
oxygen monitoring unless those are specific threats in a specific
recovery unit.
IV. BOISE PROJECT BOARD OF CONTROL COMMENTS ON THE BOISE RIVER SECTION
OF THE SOUTHWEST IDAHO RECOVERY UNIT
In addition to the comments to the recovery plan as a whole, the
Boise Project Board of Control has specific questions and comments
concerning the portions of Chapter 18, The Southwestern Idaho Recovery
Unit, that relate to the Boise River. As noted in the introductory
section, the Boise Project Board of Control obtains its water for
irrigation purposes from the reservoirs on the Boise River,
particularly Anderson Ranch and Arrowrock. The Boise Project Districts
are the largest space holders in those reservoirs and have an enormous
stake in the operation of the reservoirs pursuant to contracts with the
United States Bureau of Reclamation.
1. The Southwest Idaho Recovery Plan Inappropriately Requires Expansion
of The Species Into New Areas
The Southwest Idaho Recovery Plan establishes, as one of the goals,
expansion of the species into new areas currently not occupied.
However, the plan also acknowledges that there is a diminishing risk to
the species and that the population is already stable and increasing.
Under those circumstances, it is not necessary in southwestern Idaho to
artificially force expansion of the species range into new areas.
2. Population in Lucky Peak Is Not Necessary To Achieve Recovery of The
Species
The recovery plan for Southwest Idaho establishes as a goal, and
apparently a mandatory goal, establishment of a new population of bull
trout in Lucky Peak. There is absolutely no showing in this record that
a population of bull trout in Lucky Peak is necessary for recovery of
the species in the Boise River or Southwest Idaho recovery units. Such
a goal is particularly unnecessary for the recovery of the species as a
whole. The goal of establishing a new population in Lucky Peak is in
direct opposition and contrast to the requirements of the Service's
biological opinion and the reasonable and prudent alternatives in that
biological opinion regarding the Arrowrock Valve Rehabilitation
Project. It also directly contradicts the listing decision for the bull
trout. The listing decision for the bull trout in Lucky Peak held that
bull trout entrained from Arrowrock Reservoir into Lucky Peak were lost
to the population. 63 F.R. 31 658. The reason given was that there was
inadequate spawning habitat for the species in Lucky Peak and in the
tributaries into Lucky Peak, particularly Mores Creek. As a result of
this decision, the United States Bureau of Reclamation is required to
expend funds (and charge the irrigation districts) for costs associated
with removal of the bull trout from Lucky Peak back into Arrowrock
where they will have access to spawning grounds and will not be lost to
the local population. Designating as a mandatory goal an establishment
of a new population in Lucky Peak is in direct opposition to the
requirements of the biological opinion, which required removal of the
species from Lucky Peak in the first place.
3. The Recovery Plan Fails To Consider The Valve Replacement Project At
The Arrowrock Dam
The recovery plan for the Southwest Idaho recovery unit contains no
information whatsoever on the impact of the new valves at Arrowrock
Dam. One of the major reasons for selecting the type of valves that
were selected by the Bureau of Reclamation, in consultation with the
Fish and Wildlife Service, was to reduce spill from Arrowrock into
Lucky Peak so that entrainment of the bull trout would be reduced and
eventually prevented. The valves installed were low-level valves, which
are intended to prevent entrainment of the bull trout. The valves were
selected with increased hydraulic capacity so that more water could be
passed through the valves and less water would ever have to be spilled
over the top of the dam, where the bull trout could be entrained. The
U.S. Fish and Wildlife Service was instrumental in selecting that
alternative and requiring activities of the Bureau of Reclamation in
operation of this dam. However, in the recovery plan there is
absolutely no mention made of how the Boise River System will be
operated with the new valves in place once they are completed in the
year 2004. A recovery plan that ignores the requirements of the Fish
and Wildlife Service and the actions of the Bureau of Reclamation in
response to those requirements is defective on its face.
4. Fish Passage Is Not Feasible At Arrowrock Or Anderson Ranch
The recovery plan is inconsistent in its treatment of fish passage
at Anderson Ranch and Arrowrock Dams. These dams are extremely tall,
Anderson Ranch is over 100 feet and Arrowrock is over 300 feet. No
feasible method of fish passage, upstream or downstream, at these dams
is identified. Nevertheless, there is some suggestion in the recovery
plan that fish passage is appropriate at these locations. The recovery
plan should specifically state that fish passage at these two locations
is not feasible and is not part of the recovery requirements for the
Southwest Idaho recovery unit.
5. The Trap and Haul Program At Lucky Peak Is Not A Fish Passage
Program
The recovery plan suggests in several locations that the Bureau of
Reclamation's trap and haul program at Lucky Peak Reservoir is an
example of an appropriate fish passage technique. The trap and haul
program was instituted at the demand of the U.S. Fish and Wildlife
Service to prevent fish passage or to mitigate the passage of fish from
Arrowrock down into Lucky Peak. It was not intended to provide the
``connectivity'' or passage that seems to be the goal of some portions
of the recovery plan. To the contrary, the trap and haul program was
required by the Fish and Wildlife Service so any bull trout that were
entrained from Arrowrock into Lucky Peak would be returned to Arrowrock
so that they would have access to appropriate spawning grounds. There
is no showing in any of the scientific information that the bull trout
in Lucky Peak are anything other than entrained from Arrowrock from
past operations of the Arrowrock Dam.
6. There Is No Known Connection Between The Individuals In Upper Mores
Creek And The Individuals In Lucky Peak
The United States Forest Service and the Fish and Wildlife Service
have identified a possible small, isolated population of bull trout in
Upper Mores Creek. There has been no showing of any connection between
the population in Mores Creek and Lucky Peak. In fact, the habitat in
between Lucky Peak and the Upper Mores Creek section has been so
impacted by mining, road building, and other activities that it is
unlikely to ever serve as adequate habitat for spawning or fish
passage. There is no evidence that the Upper Mores Creek population is
an adfluvial population. There has been no evidence that there is any
connection between the Upper Mores Creek population and the population
of the small number of fish that were entrained from Arrowrock into
Lucky Peak. Under these circumstances, it is inappropriate to establish
as a recovery goal connectivity between the Upper Mores Creek
population and what little, if any, population will exist in Lucky Peak
after the trap and haul program is completed at the conclusion of the
Arrowrock Valve Rehabilitation Project.
7. There Is No Showing That Anderson Ranch and Arrowrock Dams Adversely
Affect Bull Trout Populations
The Southwest Idaho recovery plan suggests (Chap. 18, p. 27) that
Anderson Ranch and Arrowrock Dams adversely affect bull trout. However,
there is no basis for that inference other than the simple conclusion
that dams adversely affect bull trout. There is a stable and increasing
population and diminishing risk to the species above Arrowrock and
above Anderson Ranch. Also, Arrowrock and Anderson Ranch provide an
extensive reservoir system with prey suitable for the bull trout, which
would not exist if not for the Anderson Ranch and Arrowrock Dams.
8. Genetic Exchange Is Not A Reasonable Goal In The Southwest Idaho
Recovery Unit
There is no reasonable possibility of genetic exchange between the
Boise, Payette, and Weiser Rivers given the geographical relationship
of these river systems. Yet, the recovery plan suggests that genetic
exchange is a goal for the entire Southwest Idaho recovery unit. The
recovery plan does not give any indication how there would be genetic
exchange between these three river systems. Moreover, genetic exchange
is not a reasonable goal for the populations segmented by Arrowrock and
Anderson Ranch Dams. There is no feasible method of exchanging
individuals or establishing connectivity between those populations.
Likewise, there is no basis whatsoever of any kind of genetic exchange
between the populations in Upper Mores Creek and any of the other
segments of the Boise River Basin. The genetic exchange component of
the recovery plan should not be a goal in the Southwest Idaho recovery
unit.
9. The Recovery Criteria For The Species In The Southwest Idaho
Recovery Unit Are Met And Additional Measures Required In This
Plan Are Unnecessary.
The bull trout recovery criteria for the Boise River requires ``at
least 10,100 bull trout with 500 in Arrowrock, 5,000 in Anderson Ranch,
and 100 in Lucky Peak.'' As discussed elsewhere in these comments,
there is no basis for establishing a core area in Lucky Peak and it is
inconsistent with the Services prior actions concerning Lucky Peak.
With respect to Arrowrock, the distribution and abundance section of
this chapter (Chap. 18, p. 8) suggests that the number of individual
adult bull trout in the reservoir is in the hundreds. However, in the
Biological Opinion issued by the Fish and Wildlife Service regarding
the Arrowrock Valve Rehabilitation Project in 2001, the Service stated
that ``the best estimates available indicate that there about 5,000-
7,000 bull trout living in the Middle Fork Boise River Basin.'' These
best professional estimates utilized by the Fish and Wildlife Service
in its biological opinion did not find their way into the recovery
plan. The Service also concluded, in 2001, that the bull trout in the
Boise Basin population was on an ``increasing trend.'' (Biological
Opinion p.11). The Biological Opinion further concludes that the size
classes and abundance of bull trout in both populations, Arrowrock and
Anderson Ranch, are thought to be similar. The Biological Opinion
further noted that both populations had headwaters in wilderness areas
that provided protection for the species. With the species already
meeting the recovery goals, and at levels well above the populations
which are thought to be at risk in both Anderson Ranch and Arrowrock,
it is inappropriate for the Service to conclude that any of the
additional measures set forth in the recovery plan are mandatory or
essential for the recovery of the species, as the recovery plan
concludes.
10. The Recovery Plan for Southwest Idaho Inappropriately
Establishes Mandatory Tasks.
According to the Southwest Idaho Recovery Plan at page 76, all
items listed as priority No. 1, are actions that ``must be taken to
prevent extinction, or prevent the species from declining irreversible
in the foreseeable future.'' There is no showing that the existence of
the Southwest Idaho Recovery Unit is essential to prevent extinction of
the species or that any of these measures will have any quantifiable
affect on the species as a whole. There is no connection between the
individual items listed as mandatory actions necessary to prevent
extinction and actual extinction possibilities of the species. They
simply appear to be items that are high on individual wish lists,
without regard to a demonstration that any of those items are
``essential'' to prevention of extinction of the entire species.
11. The Upper Mores Creek Is Not Essential To Recovery Of The Species
As A Whole.
The recovery plan establishes as a mandatory priority task number
1.2.4 evaluating barriers to fish passage in Mores Creek and improving
passage where necessary. There is no showing whatsoever that this small
number of fish, which were only recently even detected, have any
bearing on the recovery of the entire species. While this may be a
laudatory goal, it cannot be a mandatory requirement for recovery of
the species.
12. Conservation Pools In Arrowrock And Anderson Ranch Dams Are Not
Essential For The Conservation Of The Species.
The recovery plan establishes at 1.4.1, a mandatory requirement
that conservation pools be established in these two reservoirs. There
is nothing in this record to establish that conservation pools are
necessary to the survival of the species or that they are necessary to
the survival of the bull trout in the Boise River. The record
establishes that the bull trout populations are actually stable,
increasing and at diminished risk without establishing formal
conservation pools. Moreover, the cost estimate over 5 years for this
project is set at $198,000. There is no evidence in the record as to
how this figure was estimated, why $198,000 is an appropriate cost to
establish conservation pools, or how those funds will be spent. There
is nothing in the record to establish what conservation pools the Fish
and Wildlife Service believes are necessary for the recovery of the
species. This is a vague and immeasurable criterion. There is no
economic analysis of the impact on the water users of increasing
conservation pools and consequently decreasing their own water
supplies.
13. Structural And Operational Modifications Are Not Essential At
Anderson Ranch And Arrowrock Dams For The Recovery Of The
Species.
The recovery plan at 1.4.2 states that operational actions and
facilities necessary to prevent fish passage through the dams in the
Boise River are essential to the recovery of the species. This is also
a mandatory, priority No. 1 requirement. The plan recognizes that there
is no evidence of entrainment at Anderson Ranch. The plan does not
recognize the important changes underway at Arrowrock to prevent
entrainment through the use of the new valves. What operational actions
and what facilities necessary to prevent passage through the dams are
not described. How can recovery be achieved if the operational actions
and facilities necessary to achieve recovery are undefined? The cost of
these measures is established at $290,000 over 5 years. Yet, how those
costs are determined and what those costs relate to are not identified
in the record. In addition, a high priority item is established, as
task number 4.2.1, for prevention of barriers that inhibit movement of
bull trout within the Boise River recovery subunit. Yet, at the same
time, the agencies are required to establish operational actions and
facilities to prevent movement of bull trout through the dams. These
inconsistent requirements, both of which are mandatory, make it
difficult or impossible to meet the recovery goals of the species in
this basin.
14. Lucky Peak Is Not An Appropriate Core Area For The Species.
The goal of the Fish and Wildlife Service for the last number of
years in the Boise River has been to move the populations of bull trout
out of Lucky Peak into Arrowrock. Now, the requirement of the Southwest
Idaho recovery plan , 5.5.2 and 5.5.3, established as a priority two
items; establishment of a population in Lucky Peak and connectivity
between Lucky Peak and Upper Mores Creek. These are, according to the
plan, actions that ``must be taken to prevent a significant decline in
species population, habitat quality, or some other significant negative
effect short of extinction.'' There is no showing in this record that
any population in Lucky Peak is appropriate or essential to prevent any
decline of the species.
__________
Comments of the Boise Project Board of Control on Proposed Critical
Habitat For Bull Trout (Salvelinus confluentus)
U.S. Fish and Wildlife (``FWS'' or ``Service'') has published a
draft critical habitat designation for bull trout, Salvelius
confluentus, and has solicited comments on this proposed critical
habitat designation. By Notice published in the Federal Register,
February 15, 2003, the deadline for comments on the proposed critical
habitat is May 12, 2003. In response, the Boise Project Board of
Control (``Boise Project'') submits these comments on the proposed
critical habitat designation.
The proposed critical habitat designation acknowledges that the
draft recovery plan was the principal basis for identifying proposed
critical habitat for bull trout (Critical Habitat Designation p. 33).
The designation further acknowledges that areas included under the
draft recovery plan may not meet the statutory definition of
``essential to the conservation of bull trout'' and, therefore, the
entire critical habitat designation would be subject to reevaluation
based upon comments on the draft recovery plan. The Boise Project
submitted comments to the Snake River office of the Service on the
draft recovery plan. Because the critical habitat designation is
dependant upon the draft recovery plan as the principal basis of the
designation and because it appears that two separate offices of the
Service are evaluating the recovery plan on one hand, and the Critical
Habitat Designation on the other, the Boise Project attaches and
incorporates by reference herein, the comments it submitted on the
draft recovery plan. Those comments set forth, in detail, the interests
of the Boise Project in the use of water stored in the Federal
reservoirs on the Boise River, Arrowrock and Anderson Ranch, and will
not be reiterated herein.
I. LISTING OF THE BULL TROUT AS THREATENED UNDER THE ENDANGERED SPECIES
ACT, 63 FR. SEC. 31647.
As set forth in the comments submitted by the Boise Project on the
draft recovery plan, the Service has not conducted its 5-year status
review of the species, as required by the Endangered Species Act. 16
U.S.C. Sec. 1553(c)(2)(a). In addition, the initial listing decision
failed to give appropriate weight to the existing regulatory mechanisms
to protect the species. Before deciding to adopt additional measures
such as the critical habitat designation and the recovery plans
currently under consideration by the Service, the 5-year review of the
status of the species should (1) carefully review the new information
available about the abundance of the species, and (2) carefully review
the existing regulatory mechanisms, as those regulatory mechanisms have
been updated in the past 5 years. Until the 5-year status review is
complete, the critical habitat designation cannot properly be
completed, as what is critical to the recovery of the species
necessarily requires an understanding of the current status of the
species.
II. LEGAL REQUIREMENTS FOR DESIGNATION OF CRITICAL HABITAT
The Endangered Species Act (ESA) has two different tests for
designation for critical habitat. One test is for designation of areas
that are occupied by a threatened or endangered species. 16 U.S.C
Sec. 15-32(5)(a)(i). A separate test exists for designation of habitat
that is not occupied by the species at the time of listing. 16 U.S.C
Sec. 1532(5)(a)(2). For an occupied area to be designated as critical
habitat, it must be an area which contains the physical or biological
features essential to the conservation of the species, and be an area
which may require special management considerations or protection.
Areas unoccupied by the species at the time of listing require a
determination that those unoccupied areas are essential for the
conservation of the species.
The term ``essential'' is not defined in the statute. However, the
common meaning of that word is ``indispensable'' or ``necessary.'' See,
American Heritage Dictionary of The English Language. The term
``conservation'' is defined in the ESA to mean, essentially, ``measures
necessary to recover the species to a point where it is no longer in
need of protection under the Endangered Species Act'' or, in shorthand,
recovery.
16 U.S.C.Sec. 1532
Consequently, for an area to be designated as critical habitat, it
must be indispensable to the recovery of the species. In addition, the
statute places a further requirement on the Service before an area can
be designated as critical habitat. The ESA requires that the critical
habitat designation must be based on the best scientific information
available and ``after taking into consideration the economic impact,
and any other relevant impact, of specifying any particular area as
critical habitat.''
16 U.S.C. Sec. 1533(b)(2)
Some environmental advocacy groups have criticized the Service in
the past for failing to limit its consideration to purely biological
factors when proposing critical habitat designations. Indeed, at the
public hearings held in Boise, Idaho, representatives of certain
environmental interest groups stated publicly that the Service was
prohibited from taking into consideration economic and social impacts
under the Endangered Species Act in its critical habitat designation.
That argument is legally wrong and flies in the face of the clear
requirements of the statute. In addition, some FWS employees have
expressed discomfort with being asked to make economic and social
decisions, which they are constrained to make, because they lack the
adequate background and training to make economic and social decisions.
Yet, to comply with the law, that is exactly what must be done. The
Service must include persons qualified in economic and other impact
analysis before it can make any reasonable proposed critical habitat
designation. It does not appear that this necessary component of any
critical habitat designation has been included in this proposal.
In addition, the Service's own regulations recognize that, in
designating critical habitat, a balancing should be undertaken between
the benefits of exclusion against the benefits of inclusion of any
particular area as critical habitat. Once the Service concludes that
the benefits of excluding an area would outweigh the benefits of
including the area in critical habitat, then the Service must exclude
that area, unless the Service finds that excluding the area would
result in extinction of the species. 50 CFR Sec. 424.19.
Finally, no designation of critical habitat for areas that are
currently unoccupied by the species can be made without a specific
finding that those areas are essential to the conservation of the
species. No such findings have been made and, given the wide
distribution of the species, no such findings would be legally or
biologically appropriate.
III. THE CRITICAL HABITAT DESIGNATION IS NOT BASED ON THE DETERMINATION
OF AREAS THAT ARE ESSENTIAL TO THE CONSERVATION OF THE SPECIES.
1. The recovery plan did not attempt to determine which particular
habitat areas were essential for the conservation of the
species.
The critical habitat designation admits that the critical habitat
proposal principally relies upon the recovery teams' recommendations in
the draft recovery plan for each recovery unit as the basis for
designating critical habitat in that particular area. However, the
recovery teams did not focus on determining what was essential or
indispensable to the recovery of the species. Rather, the recovery
teams viewed their charge as identifying measures in their particular
basin or recovery unit which would respond to the generic threats to
the species identified in the listing package, and identifying areas
which were or could be occupied by the species. Thus, for example,
where the listing package identified habitat fragmentation due to dams,
the recovery team in the southwest Idaho unit understood that its
obligation was to identify measures that would deal with a habitat
fragmentation in the southwestern Idaho unit associated with the
existence of dams.
Similar determinations were made with respect to mines and road
building and other potential threats to the species identified in the
listing package. The recovery team did not attempt to identify those
areas that were essential or indispensable to the recovery of the
species. Nor did the recovery team view its charge as proposing only
those recovery measures that were essential to the recovery of the
species as a whole. Each recovery team operated in a vacuum, looking at
measures that would benefit the species in its particular area.
Moreover, in designating particular occupied and unoccupied areas,
the recovery team looked to the potential carrying capacity of the
habitat as a basis for identifying where the species would or could
exist. Again, there was no correlation between those areas identified
by the recovery team as good or suitable habitat and a decision that
those areas were essential or indispensable to the recovery of the
species. Yet the critical habitat designation assumes that all the
areas identified us suitable for the species must be designated as
critical to the recovery of the species.
Consequently, the recommendations of the recovery teams were made
for a completely different purpose, and aimed at different goals, than
the critical habitat designation. This is no criticism of the recovery
team. They have made some useful recommendations for habitat
improvements in their respective recovery units. However, as the
principal basis for determining that areas are critical habitat for the
species, the critical habitat designations cannot properly rely upon
the recommendations of the recovery team for what actions can be
undertaken to improve habitat in general, or areas where the species
currently exists, or areas where the species can be expanded.
IV. THE CRITICAL HABITAT DESIGNATIONS ARE UNLAWFULLY BROAD BY
UNCRITICALLY INCLUDING ALL ISOLATED POPULATIONS AND THE SOUTHWEST IDAHO
ISOLATED POPULATION SHOULD NOT BE INCLUDED AS CRITICAL HABITAT FOR THE
SPECIES
The recovery teams have identified areas where actions can be taken
to enhance habitat conditions for bull trout and areas where bull trout
either now exist or can be induced to exist in a particular recovery
unit. However, the Service has failed to make a determination of which
of the many different areas are essential or indispensable to the
recovery of the species. As an example, the Southwest Idaho Recovery
Unit is completely isolated from the remaining bull trout populations.
Bull trout in the Southwest Idaho Recovery Unit have no ability to
connect to other populations, not simply because of dams and other
obstructions in the river, but because the Lower Boise River does not
meet the basic habitat requirements for bull trout. The water is simply
not cold enough to provide adequate bull trout habitat. No corridor can
be established for the Southwest Idaho population to connect with other
populations. Consequently, the Service has, in the Southwest Idaho
Recovery Unit for the Boise River, identified an isolated population as
essential to the recovery of the species as a whole.
No finding in either the recovery plan or the critical habitat
designation justifies a determination that this population, or any
other of the isolated populations of the species, is essential to
recovery of the species. The proposal contains no finding that the
species would become extinct or that it would or would not fully
recover, whether or not it existed in the Boise River or the Southwest
Idaho Recovery Unit.
There are many thriving populations of bull trout in the Salmon and
Clearwater drainages in Idaho, and in other drainages in Montana and
Washington, with substantially greater connectivity to other
subpopulations. Those core populations ought to be examined and a
determination made whether protection of those core populations would
be adequate to ensure the survival of the species. The peripheral
populations, such as the southwest Idaho population, the Malheur River
population, and the North Fork of the Coeur d'Alene population, must be
examined and a determination must be made as to whether that population
is essential to the recovery of the species. From the information
available, these peripheral populations, including those in the Boise
River, are not essential to the recovery of the species. Therefore,
these isolated and peripheral areas should not be designated as
critical habitat for the species.
V. THE CRITICAL HABITAT DESIGNATION FAILS TO INCLUDE THE REQUIRED
ECONOMIC ANALYSIS OF THE DESIGNATION
Section 4 of the ESA requires the Service to designate critical
habitat only after taking into consideration the economic impact of the
designation of a particular area as critical habitat. 16 U.S.C.
Sec. 1533(b)(2). The proposed designation acknowledges that obligation.
Critical Habitat Designation, p. 320-321. No economic analysis has been
completed and released to the public for comment concerning the
decision to designate any particular area or areas as critical habitat.
Without the required economic analysis, it is difficult or impossible
for the public and affected stakeholders to adequately and effectively
comment upon the economic impact of designating or not designating a
particular area as critical habitat. However, some general observations
can be made concerning the proposals for the Boise River.
The Boise Project includes the major space holders in the Arrowrock
and Anderson Ranch Reservoirs on the Boise River which are managed and
operated by the United States Bureau of Reclamation. To come to a
conclusion about the economic impact of designating these reservoirs as
critical habitat, an understanding must be reached of the direct and
indirect impacts that the designation of those areas as critical
habitat may have. See 15 USC Sec. 1533(b)(8) and 50 CFR Sec. 424.19.
These provisions require a brief description of the activities that may
be affected by the critical habitat designation. Yet, the proposed
critical habitat designation does not describe the potential impacts of
the designation on the operations of the Boise River reservoirs.
The Bureau of Reclamation has chosen to consult with the FWS over
its ongoing operations at these facilities. The Bureau of Reclamation
has also been required to consult on the installation of the Arrowrock
Valve Rehabilitation Project. The Bureau of Reclamation selected a far
more expensive alternative for rehabilitation of these valves than was
originally proposed. One of the reasons for the additional cost
associated with the valves selected by the Bureau was to preclude
entrainment of the bull trout from Arrowrock into Lucky Peak. The
Bureau has not provided cost estimates to the Boise Project concerning
these additional costs associated with the measures to protect the bull
trout, so the Boise Project cannot provide precise costs. However, the
Boise Project does pay a significant portion of the Operation and
Maintenance costs of the Arrowrock and Anderson Ranch facilities on an
annual basis and does pay for these types of modifications to the
structures. The Boise Project irrigation districts, as the primary
space holders behind Anderson Ranch and Arrowrock, also stand to lose
water if the Service concludes that additional water must be retained
in the reservoirs and not delivered to the irrigators. If that is a
possible or intended result of the designation of those reservoirs as
critical habitat, it should be identified. The cost associated with the
proposal to designate these areas as critical habitat, and to provide
additional controls on the operations of the Bureau of Reclamation to
deliver the water belonging to the Boise Project irrigation districts
to those districts, must be taken into consideration. No attempt has
been made in the critical habitat designation to make such a
determination or to consider such costs.
When such a balancing of the associated costs, compared with the
benefits, is ultimately undertaken, the Boise Project is confident that
the reservoirs on the Boise system will not be included as critical
habitat. The draft recovery plan acknowledges that the populations in
the Boise River, above Arrowrock and Anderson Ranch, are in good shape,
even while the reservoirs are currently being operated for the purposes
for which the reservoirs were originally designated, i.e. delivery of
irrigation water. If the population is in good shape with the current
management plan in place, why is it necessary to designate these
reservoirs as critical habitat, impose additional restraints on those
reservoirs, and cause economic dislocation to the irrigators who rely
upon the delivery of that water?
Similar economic analysis must be considered not only for the Boise
River, but for the other areas throughout the entire Columbia River
Basin that have been designated as critical habitat. Until that
economic analysis is complete, and the public has had a chance to
review that economic analysis, no critical habitat designation can
legally be made. See, New Mexico Cattle Growers Association v. U.S.
Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001).
VI. THE CRITICAL HABITAT DESIGNATION IS DEFECTIVE BECAUSE IT FAILS TO
CONSIDER OTHER RELEVANT SOCIAL IMPACTS OF DESIGNATION OF CRITICAL
HABITAT
Not only does Section 4 of the Endangered Species Act require
consideration of economic impacts of designation, the statute also
requires ``consideration of other relevant impact.'' 16 U.S.C.
Sec. 1533(b)(2).
The Service's rules also require the Service to identify the
significant activities that would be affected by designation of
critical habitat and the impact of the designation of critical habitat
on those areas. 50 C.F.R. Sec. 424.19. The critical habitat designation
in general, and in the Southwest Idaho Recovery Unit in particular,
does not identify those activities that may be affected by critical
habitat. Consequently, it makes no determination of the impact of those
activities from the designation of critical habitat. Without these two
important components, the critical habitat designation cannot be
sustained.
The ``other impacts'' analysis should also recognize that Congress
authorized the Arrowrock and Anderson Ranch reservoirs on the Boise
River for irrigation storage. The irrigation districts which make up
the Boise Project and the other space holders in the reservoirs have
repaid the costs of construction of those dams. The Boise Project
irrigation districts own equitable title to the water rights in the
reservoirs. Ickes v. Fox, 325 U.S. (1937). The impact of attempting to
alter those pre-existing legal requirements, and the constraints those
legal rights have on designating critical habitat, must be considered
before a final decision can be made.
In addition, the reservoirs on the Boise River and the Payette
River in the Southwest Idaho Unit are used extensively for recreation.
Designating those Boise River reservoirs, Lucky Peak, Anderson Ranch,
and Arrowrock, as critical habitat as proposed in the designation, may
have an effect on recreational use on those reservoirs including
fishing, boating, camping, and other streamside activities. The
designation does not indicate how those activities will be affected. It
is possible that recreational activities could be affected. For
example, in portions of the Salmon River, rafting is prohibited due to
the presence of spawning activities of certain anadromous fish. The
real impacts to recreational, fishing and other uses of the Boise River
system must be identified and quantified before a decision can be made
to include that particular area as critical habitat. Because that has
not been done, no lawful critical habitat designation can be made.
VII. THE CRITICAL HABIT DESIGNATION HAS FAILED TO WEIGH THE BENEFITS OF
EXCLUSION OF AREAS FROM CRITICAL HABITAT AGAINST THE BENEFITS OF
INCLUSION
In designating critical habitat, the Service is also required to
examine particular areas after economic and other impact analyses have
been completed. Furthermore, the Service is required to determine
whether or not a particular area would best be left out of the critical
habitat designation due to the magnitude of the impacts, compared to
the benefits to the species, of including that particular area as
critical habitat. No attempt has been made in the critical habitat rule
to conduct that analysis by the Service. Until economic and other
required impact analyses have been completed, such a weighing of
benefits of inclusion and exclusion cannot be completed.
However, the Boise Project suggests that the Boise River reservoirs
should be excluded from critical habitat because the benefits of
including those reservoirs would clearly be outweighed by the economic
and other social effects and impacts of designation. For example, no
special management ought to be necessary for the operation of those
reservoirs because the population in the Boise River above Arrowrock
and Anderson Ranch is in good condition. No additional benefit to the
species has been identified by designating the Boise River reservoirs
as critical habitat. On the other hand, there are significant potential
economic and other impacts to the operations of the reservoirs which
could severely limit the benefits of the reservoirs for the purposes
for which they were built; i.e., irrigation in the case of Arrowrock
and Anderson Ranch, flood control as in the example of Lucky Peak, and
other recreational benefits for which the reservoirs have been
secondarily operated by the Bureau over the years. Even without
conducting an extensive economic analysis, it is apparent that no
benefit to the species has been identified by listing the Boise River
reservoirs as critical habitat, so no critical habitat designation is
appropriate for those areas.
VIII. THE CRITICAL HABITAT IS FLAWED BECAUSE IT FAILS TO MAKE A
DETERMINATION WHETHER THE UNOCCUPIED AREAS DESIGNATED ARE ESSENTIAL TO
THE CONSERVATION OF THE SPECIES
Both the ESA and the regulations require the Service to make a
finding that unoccupied habitat that is designated must be critical or
indispensable to the recovery of the species. 16 U.S.C.
Sec. 1532(5)(a)(ii) and 50 C.F.R. Sec. 424.12(e). The statute further
recognizes that critical habitat shall not include the entire
geographic area which can be occupied by the species. 16 U.S.C.
Sec. 1532(5)(C).
In the critical habitat designation, the Service has proposed
including a number of areas that are currently unoccupied. The Service
has made no finding or determination that these areas are essential or
indispensable to the recovery of the species.
For example, in the Southwest Idaho Recovery Unit, the Service
proposes designating Lucky Peak Reservoir and Mores Creek as critical
habitat. The Service has made no determination that including these
areas is critical or essential to the recovery of the species.
The bull trout in Lucky Peak are there as a result of entrainment
from the past operations of Arrowrock Reservoir. See, Biological
Opinion for Arrowrock Valve Rehabilitation Project issued to the Bureau
of Reclamation and Biological Opinion for the Operation of Upper Snake
River Projects issued to the Bureau of Reclamation by FWS. Those
Biological Opinions declared that it was necessary for the Bureau of
Reclamation to trap and haul the bull trout out of Lucky Peak and move
them back into Arrowrock because the bull trout, once they were
entrained below the Arrowrock dam, had no suitable spawning habitat.
Essentially the bull trout in Lucky Peak are stranded individuals and
are not a separate population. Moreover, the Bureau of Reclamation is
operating under a requirement in the biological opinion to remove those
fish from Lucky Peak and move them into Arrowrock Reservoir.
Consequently, Lucky Peak is unoccupied habitat. Additionally, Mores
Creek has been impacted by mining operations in the 1860's and is
simply not a suitable habitat for the species.
To list Lucky Peak and/or Mores Creek, the Service must have made a
finding that those areas are essential to the conservation of the
species. No such determination was made, nor can any such determination
be made. The draft recovery plan recognizes that only a very small and
isolated population could possibly be sustained in Lucky Peak and Mores
Creek, and only with substantial costs associated with habitat
improvement in Mores Creek. Under those circumstances, Lucky Peak
Reservoir should not be listed as critical habitat for the species.
IX. THE CRITICAL HABITAT DESIGNATION IS FLAWED BECAUSE NO SPECIAL
MANAGEMENT PLANS OR PROTECTIONS ARE INCLUDED IN THE DESIGNATION
The Endangered Species Act defines the term ``critical habitat''
carefully. For areas occupied by the species, it is those portions of
the geographic area which have physical or biological features that are
both essential to the conservation of the species and ``which may
require special management considerations or protections.'' 16 U.S.C
Sec. 1532(5)(a)(i). The critical habitat designation has made no
effort to identify which areas in the geographic areas occupied by the
species may have particular physical or biological features that
require special management considerations or protection. Until that
determination is made, the Service can properly make no critical
habitat designation.
As it relates to the Southwest Idaho Recovery Unit, there has been
no showing that the physical or biological features of the Boise River
irrigation storage reservoirs require any special management
considerations. The population is doing well, despite years of efforts
to extirpate the fish as a competitive game fish and/or to cast aside
fish that may have been inadvertently caught by anglers looking for
game fish. Despite these efforts, the population in the Boise is in
reasonably good condition according to the draft recovery plan, and
according to the information about the species that has been collected
by the Bureau of Reclamation. No special management plan for the
operation of the reservoirs has been identified as necessary for the
conservation of the species. Consequently, no critical habitat
designation can properly be made for the Boise River reservoirs,
including Lucky Peak, Anderson Ranch, and Arrowrock.
X. ARROWROCK, ANDERSON RANCH, AND LUCKY PEAK RESERVOIRS SHOULD NOT BE
LISTED AS CRITICAL HABITAT
Even if it were appropriate to include the Southwest Idaho Recovery
Unit in the critical habitat, and even if it were appropriate to
include portions of the Boise River within the critical habitat for the
reasons expressed above, there is no justification for including the
Arrowrock, Anderson Ranch or Lucky Peak reservoirs in the critical
habitat designations for a species which occupies thousands of miles of
habitat throughout the Columbia River basin. The impacts are
potentially severe, the benefits few or nonexistent.
XI. THE DESIGNATION OF CRITICAL HABITAT IN RESERVOIRS CAN NOT BE
EXTENDED TO INCLUDE FULL RESERVOIR POOLS
The proposed critical habitat designation contains a suggestion
that critical habitat includes all habitat in a full reservoir pool.
That suggestion is found at page 50 of the Draft Critical Habitat
Designation, which states ``Critical habitat extends from bankfull
elevation on one side of the stream channel to the bankfull elevation
on the opposite side.'' That section also states that where there is
doubt about the bankfull elevation, then the Corps of Engineers' high
water mark should be used. For reservoirs and lakes the lateral extent
of critical habitat is defined as the perimeter of the lake or
reservoir on standard maps. Standard maps typically utilize the full
pool to show the perimeter of the reservoir. The Boise Project doubts
that the Service intended to require full pools as critical habitat and
at least in the Boise River and Southwest Idaho Recovery Unit, such a
designation would be clearly erroneous. Indeed, the draft Recovery Plan
for the Boise River and the Biological Opinions for the Bureau of
Reclamations activities in the Boise River reservoirs have concluded
that reservoir elevations necessary to protect and enhance the species
are unknown.
The reservoirs in the Boise River and throughout the Southwest
Idaho Recovery Unit are irrigation storage and flood control
reservoirs. If the full pool is defined as critical habitat, then by
definition there is ``harm'' to the species by altering the critical
habitat, i.e. the full pool. To require those reservoirs to be
maintained at full pool would defeat the very purpose of the reservoir.
The definitions of the extent of critical habitat as it applies to
reservoirs must be changed to make it clear that critical habitat does
not mean the full reservoir pool and does not require maintenance of
full reservoir pools to avoid harm to the species and harm to critical
habitat.
XII. THE BOISE PROJECT JOINS IN THE COMMENTS SUBMITTED BY THE IDAHO
WATERS USERS ASSOCIATION
The irrigation districts which make up the Boise Projects are
members of the Idaho Water Users Association. They have reviewed and
join in the comments of the Idaho Water Users Association filed with
the Service on the proposed critical habitat designation.
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