Testimony of James L. Caswell,
Idaho Governor’s Office of Species
Before the U.S. Senate Subcommittee
on Fisheries, Water and Wildlife
August 26, 2003
Boise City Council Chambers
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.
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.
habitat designation has become a litigation quagmire and has commandeered the
entire listing program. After six 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 secondly, 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 five-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.
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
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:
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