Testimony of James L. Caswell, Administrator

Idaho Governor’s Office of Species Conservation

Before the U.S. Senate Subcommittee on Fisheries, Water and Wildlife

August 26, 2003

Boise City Council Chambers

Boise, Idaho

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 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.

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:

• 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;
• 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;
• The Secretary of Interior must commence the five-year status review for bull trout, in order for us to make decisions based on the new scientific information since its listing; and
• 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.