TESTIMONY
AND STATEMENT OF
RICHARD
DIEKER,
PRESIDENT OF
THE YAKIMA BASIN JOINT BOARD
BEFORE THE
UNITED STATES SENATE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
SUBCOMMITTEE ON FISHERIES, WILDLIFE AND WATER
June 25, 2003
ESA SECTION 7 CONSULTATIONS
TABLE OF CONTENTS
Page
Introduction
. 4
A. Specific ESA Section 7 problems
experienced by the Board
.. 5
(1) Consultation
has cost Board, its members and their
waterusers over $1.7
million; YBJB scientific expertise
.. 5
(2) Delays
in resolution of the consultation; Bureau of
Reclamations consultation
chronology.
6
(3) Consultation
requires education.
6
(4) ESA
administrative rules are vague.
.. 7
(5) Impartial
analyst or biased advocate?
.. 7
B. Administrative errors and ESA
misinterpretation.
. 7
C. Improper listing of species; Columbia
River Salmon,
Steelhead Trout and Bull Trout are not
threatened with
extinction.
...
8
D. The United States has no legal authority
to change the use
Or reallocate Yakima Reclamation
Project surface irrigation
Water which is owned by Yakima Reclamation
Project landowner/waterusers; the U.S. is a trustee for the benefit
of Project
irrigator landowner/waterusers..
. 9
E. Conclusion.
.. 9
Appendix A-1:
Yakima River
Basin, Irrigation in the Yakima River Basin
and the Yakima
Reclamation Project.
. 12
(1) Pre-1905
irrigation.
12
(2) Post-1905
irrigation; the Yakima Reclamation Project.
.. 13
Appendix A-2:
Consultation
has cost Board, its members and their waterusers
over $1.7
million.
. 15
(1) Joint
Board Biologist Fees
15
(2) ESA-related
Attorneys Fees and Cost Estimates
. 15
(3) ESA-related
Staff Cost and other Cost Estimates.
16
Appendix A-3:
YBJB
Scientific Expertise.
.. 19
Appendix A-4:
Bureau of Reclamation
Consultation Chronology;
. 21
Appendix A-5:
Consultation
requires education.
. 25
Appendix A-6:
ESA
Administrative rules are vague.
26
(1) Hatchery
fish not counted.
26
(2) Proposed
Bull Trout critical habitat.
26
Appendix B:
Administrative
errors and ESA misinterpretation
.
28
(1) Purpose
of the ESA expanded.
.. 28
(2) Unit
at risk
.. 29
(3) Subdividing
the unit at risk
exclusion of hatchery fish.
.. 30
Appendix C:
Improper
listing of species; Columbia River Salmon,
Steelhead
Trout and Bull Trout are not threatened with extinction
33
Appendix D:
The
United States has no legal authority to change the use
or
reallocate Yakima Reclamation Project surface irrigation
water
which is owned by Yakima Reclamation Project
landowner/waterusers;
the U.S. is a trustee for the benefit
of
Project irrigator landowner/waterusers.
.. 38
Testimony
and statement of
Richard
Dieker,
President
of the Yakima Basin Joint Board
ESA
Section 7 Consultations
Chairman Crapo and members
of the Subcommittee:
I am here testifying today
on behalf of the Yakima Basin Joint Board, an association of major irrigation
districts in the Yakima River Basin, Washington. The Board has been attempting to work with the National Marine
Fisheries Service (now NOAA Fisheries) and the U.S. Fish & Wildlife
Service on Section 7 Endangered Species Act issues for nearly five years.
As a result of the
Services actions, or more accurately lack of actions, the Board has
experienced significant hardship, expense, and delay which has hindered the
legitimate and valuable operation of the Yakima Reclamation Project.
Our experience has led us
to conclude the Section 7 consultation process is seriously flawed because of
the arbitrary, dilatory, and negative administration of the process by NMFS and
USFWS.
Both services have often
even refused to include the Board in many Section 7 consultation discussions,
even though the Board has requested to be treated as, and has been advised that
we are being treated as, an applicant in the Section 7 consultation.
The
Yakima Reclamation Project was begun in 1905, and has been the backbone of the
irrigated economy in the Yakima River Basin since
construction was largely completed in 1917. The Project
includes 6 dams in the Cascade Mountains that
store winter and spring runoff for use in the hot and dry summers. The Project has been
completed and operating since 1917, except for the Kennewick division which was
completed in the 1950s. It has been a very
successful Reclamation project. More information
on the history of irrigation in the Yakima River Basin
is included in Appendix A-1.
Under Section 7 of
the ESA, the Bureau of
Reclamation has consulted with NMFS and USFWS regarding the operation of the project, to the extent
the Bureau has discretion in its operations.
The Bureau also consulted with NMFS and USFWS regarding repair or
reconstruction of one of the Project dams,
Keechelus dam, under the Safety
of Dams Act. That
Keechelus dam consultation is the subject of litigation which
is still on appeal to the U.S. Ninth Circuit Court of Appeals.
The
following issues and relevant information describes the
Boards consultation experience. More
detail about each subject is presented in the Appendicessome
appendices, which are identified with the
same letter as in the titles.
A. Specific ESA
Section 7 problems experienced by the Board
(1) Consultation Has Cost Board, its
Members and their waterusers over $1.7 Million; YBJB scientific expertise:
The Board and its members
have incurred and paid more than $1,000,000 to its fish biologists, more than $239,902.00 to attorneys, and more than $530,000 for dedicated staff
time and other costs responding to the ESA Section 7 consultations on the
operations of the Yakima Reclamation Project, on the Keechelus dam repair
consultation, and for other ESA compliance issues.
Section 7 consultation
costs have been a severe financial burden to YBJB landowner/waterusers whose
irrigated crop income and production have been adversely impacted in the past
five (5) years by drought and depressed prices of major Project asparagus,
fresh fruit (apples, etc.), hops, mint and other irrigated crops.
Attached Appendix A-2
contains more details about YBJBs consultation related costs.
Most of these costs and
expenses were required to provide the best available science to the U.S. Bureau
of Reclamation for its use in the Section 7 consultations on the operations of
the Yakima Reclamation Project and its ESA Section 7 consultation.
The Board has, since 1992,
retained experienced, independent and professionally qualified fish biology
advisors and consultants: (1) who are
familiar with, and knowledgeable about, fish, habitat, state and federal laws
and regulations and other activities and conditions in the Yakima River Basin,
the Western United States, Alaska and Canada, and (2) who have contributed to
the preparation of this testimony and statement. Since the listings of the Bull Trout and Steelhead, the
overwhelming majority of their time has been spent on ESA issues or performing
research that is directly relevant to and has been used in the Section 7
consultation.
Appendix A-3 contains
brief statements describing the qualifications of the Boards fish biologists.
(2) Delays in
Resolution
of the Consultation; Bureau of
Reclamation
consultation chronology:
For nearly five
years, Tthe Board has been actively involved in ESA
Section 7 consultation and has helped the Bureau of Reclamation respond to issues raised by NMFS
and USFWS (the Services) in the Project operations consultationproblems
for nearly five years. The Section 7
consultation on Project operations is still not
complete.
The Boards
Section 7 consultation expenses started in August, 1998 when a Bureau
representative
formally notified the Boards president that the Bureau was required to consult
with NMFS. Previously, the Boards biologists had
reviewed and
commented on the proposed listings of the fish. After the consul-tation started, the Boards
biologists provided input and assistance to the Bureau
while the Bureau was developing its Biological Assessment. The Biological Assessment is the first step
of a formal
Section 7 ESA consultation.
In 1999, The Bureau
presented a draft Biological Assessment to the Services for their review and
comment.
The
Bureau submitted a Final Biological Assessment to the Services in
August, 2000. Under Section 7 and its
implementing regulations, the Services are supposed to conclude the
consultation by issuing a Biological Opinion. Section 7 of the
ESA requires consultations to be completed within 90 days, subject to
extension
only to
150 days unless
the applicant consents to a longer period.
It has been almost three years, over 1000 days, and no
Biological Opinion has been issued.
To the Boards
knowledge, there has still not yet been
no resolution
of the original basic issues such
as the scope
of the consultation, new issues have surfaced, problems,
new problems keep surfacing, and there is no
realistic timeframe for completion. The
Services that would allow the Yakima system to function. The twohave
hired large numbers of staff to deal with new endangered species
listings, largely designated by themselves, to assist with their workload. The effect of agency expansion, however, has only served to allow the Services to attempt
to ir expanded their authority
over Yakima Reclamation Project operational and maintenance issues, and the
extension of consultation far into the future.
Appendix A-4 is a chronology of consultation activities
prepared by the Bureau of Reclamations Yakima Office which shows the Bureaus efforts to
conclude the consultation.
(3) Consultation requires education and
Expense:
The new hires by the
Services have often been inexperienced junior-level biologists who must
negotiate complex and contentious technical issues. The results of their questionable decisions has required the
Board to retain recognized experts in fisheries science to more correctly examine the issues
raised, provide accurate analyses, and educate the new hires in the
science they are supposed to administer.
Appendix A-5 contains more
detail on this subject.
(4) ESA administrative rules are vague:
The classification of
hatchery fish by NMFS under the ESA, and the subsequent judicial review of that
classification, is a good example
of the Services arbitrary interpretation
of the ESA. Judge Hogan found that NMFS
wrongly excluded hatchery fish from the population under consideration for
listing and sent the issue back to NMFS for reconsideration. (See, infra,
p. 31) There are many other examples of
vague administrative rules that wrongly interpret the ESA, including the
appropriate definition of an ESA species, what is meant by evolutionarily
significant, who determines evolutionarily significance, and differences in
interpretation of responsibility by NMFS and USFWS.
Another classic
example of
NMFS arbitrariness is the listing of Steelhead trout as
threatened. It is known beyond
dispute that Steelhead are genetically identical to rainbow trout and in fact
interbreed with rainbow trout. Rainbow
trout are plentiful in the Yakima River, which supports a trophy fishery for
them. Yet, Steelhead were listed as
threatened, and NMFS has refused to delist them.
Appendix A-6 contains more
detail on these issues.
(5) Impartial analyst or biased advocate?
The legal structure of the
ESA is contrary to the precept of keeping scientific data and analysis
independent of the influence of political objectives. The service which is expected in the ESA Section 7 consultation
process to act as a neutral analyst while determining deciding whether
or not to list a species is the same service charged with regulating activities
which might affect the species of concern.
The potential for the service to act in its own self-
interest and expand its
own administrative
power and budget is obvious. Congress
and the Executive Branch should amend the ESA and/or require by regulation an independent review of the species
status to avoid the services conflict of interest when the same service is
responsible for both analysis and advocacy.
B. Administrative
errors and ESA misinterpretation:
During the past decade,
NMFS has greatly expanded the ESA list
of Pacific salmon it considers threatened or endangered. species. The pace and scope of these listings is
indicative of obvious, substantial flaws with the Services interpretation and
administration of the Act. These
expensive, time-consuming listing problems can be traced back to NMFS policies
which redefine the intent and purpose of the Act to: (1) conserve genetic diversity rather than protect actual
species, sub-species, or distinct population segments, (2) redefine the unit at
risk to be an Evolutionary Significant Unit or ESU, a concept introduced to
satisfy the genetic conserva-tion goals only incorrectly assumed by NMFS, and
(3) further subdivide the units at risk.
An example of this last problem is the implementation of policies to
exclude fish of hatchery-origin from listed populations of the same population
segment, regardless of their relationship to naturally spawning fish which was
considered and rejected by Judge Hogan, noted above and infra, p. 25.
More detail on
this subject is contained in Appendix B.
C. Improper
Listing of Species; Columbia River Salmon, Steelhead Trout and Bull Trout are
not threatened with extinction:
Salmon and steelhead in the
Columbia Basin have experienced declines in abundance since the end of the 19th
century[BJI1]. Decreased abundance was, howeverin large part,
a result of overfishing and of an intentional federal government decision
to develop the Columbia River water resources for greater economic
benefit. As a result, only about 20% of
the historical habitat remains available to spring chinook and steelhead.
When the federal government
made the decision to developthose the Columbia Rivers water resources, it
also decided to establish hatcheries to produce salmon and steelhead to
maintain the fisheries, and later to supplement natural spawning
populations. Those efforts were largely
successful, in conjunction with the changing ocean environment. Numbers of chinook salmon and steelhead
returning to the Columbia in the last four years have been higher than any comparable period since the 1930s. Steelhead are not at risk of extinction, yet
there is no serious discussion of delisting, and the power of the Services
power keeps expanding.
Similarly, there is no
evidence that bull trout are at risk of extinction. Bull trout status now in relationship to their historical
abundance in the basin is poorly known, mostly because of a lack of information
on historical abundance. Bull trout
were listed because of this lack of information, without any actual knowledge
or evidence that they were at risk of extinction, or even
declining in numbers. Natural
production continues throughout the system and abundance seems to be increasing
mostly because of a restriction on fishing.
Bull trout have much lower population densities than steelhead and
salmon because, as a predator species, lower abundance is a strategy that
favors survival in headwater reaches and smaller streams. Bull trout are obviously not at risk of
extinction in the Yakima Basin. Their
numbers are stable or increasing.
More
detail
on this subject is available in Appendix C.
D. The
United States has no legal authority to change the use or reallocate Yakima
Reclamation Project surface irrigation water which is owned by Yakima
Reclamation Project landowner/waterusers; the U.S. is a trustee for the
benefit of Project irrigator landowner/ waterusers.
Yakima
Reclamation Project landowners and waterusers have, according to the
United States Supreme Court, a constitutionally
protected, vested Washington State approved and certificated
ownership ofrights to Yakima Reclamation Project surface
water. and water rights
pursuant under federal and Washington State water rights law. The Bureau of Reclamation is
obligated by law and contract to annually deliver to Board members their full
annual entitle-ments. The Washington
State Supreme Court has confirmed that the irrigators Project water rights are
only subject only to a
substantially diminished Treaty fish water rightto protection of
fish for substantially limited because the Yakama Nation filed a claim in the Federal Indian
Claims Commission against the U.S., negotiated a settlement and was, in 1968,
paid $2.1 million by the U.S. as part of the final settlement of three (3) land
claims plus the Nations fishing diminution claim all of which were dismissed
with prejudice. Nonetheless, yet both
NMFS and USFWS have been attempting through their actions to modify or restrict
the use of established irrigator water rights. The
Services continue to attempt to use the consultation process to modify these vested
water rights
despite their own regulations which recognize that consultation is required only for the Bureaus discretionary acts. The Board does not believe the Bureau has
legal discretion
to take any part of these vested irrigation
water rights
and reallocate them for ESA or any other purpose including
fish.
Appendix D provides additional
background on the legal rights of Yakima Reclamation
Project irrigator landowner/waterusers.
E. Chronology
of Yakima ESA Section 7 consultation:
The Yakima
Reclamation Projects ESA Section 7 consultation was initiated in 1999 when a
draft Biological Assessment was presented to the action agencies for review
and comment. The Boards Section 7
consultation expenses started, however, in August, 1998 when proposals for
listings were reviewed and comments were submitted to the agencies. There has been, as of July, 2003, no
apparent conclusion of the Yakima Reclamation Projects Section 7
consultation. No biological opinion has
been issued by either NMFS or USFWS.
E. Conclusion:
The Endangered Species Act is important national legislation. The Board supports
the ESA, but only as it was originally passed by Congress. The Board Yakima Basin Joint Board, a group of public
water suppliers who deliver water supplied by the United States Bureau of
Reclamation Yakima Project in central Washington State, considers
the problems it
has encountered with the ESA, and particularly in the Section 7
Consultation process, to have reached crisis proportions. The serious and disabling problems
created are the result of erroneous administration and administrative interpretation
of the Act by the NMFS and USFWS, and weakness in the Act itself that permit service errors.
problems. Testimony on the
controversial concepts and abuses in administration of the Act has been
identified in this presentation.
Bull
trout and steelhead trout are listed as a threatened species under the
Endangered Species Act throughout the Columbia Basin, including the Yakima
River when in fact neither species is
at risk of extinction. Consequently,
the Board has had to expend considerable time and over one million dollars on
legal and scientific advice to maintain their constitutionally protected water
rights and provide the best available science to the Bureau of
ReclamationUSBR, NMFS, and the USFWS for use in
the Section 7 consultation occurring on the operations of the Yakima
Reclamation Project.
This ESA burden exists
because both bull trout and steelhead were listed by
services that NMFS and USFWS have misinterpreted the ESA to
protect genetic diversity, rather
than subspecies or distinct population segments as defined
by the ESAAct. Pacific salmon, steelhead, and bull trout in
the Columbia Basin are not at risk of extinction,
but the misinterpretation of the ESA Act has
allowed the widespread listings of these species through arbitrary internal
agency policy decisions. These
decisions have been upheld by the courts because of the great deference the
courts show to the services which administer the ESA.
Congress must clarify the ESA to prevent the misinterpretations
that have resulted in the listing of species that are at no risk of extinction.
Congress must remove the Services discretion to list ESUs rather than
subspecies or distinct population segments.
Congress must
take action to correct the flaws in the administration of the ESA that have
resulted in grievous hardships to water users and private land owners, and to prohibit the
very controversial genetic diversity concepts
originating from the services policy memoranda rather than from the Congressional
legislation. It will be
necessary that Congress must precisely
define its goals, objectives and expected actionsbe precisely
redefined to , and leave no uncertainty about the purpose
of the Act and the extent of its authority. Congress
must provide , as well as providing clear
guidelines on agency actions, administration of those actions,
and the consultation process, and put teeth in the provisions, routinely
ignored, that consultations proceed on time.
Congress will, by positive action, remove the
discretion that has caused the Ninth Circuit and other Circuits of the Federal Court of Appeals
to defer to the services misinterpretation of the ESA and the resulting
seizure of power.
G. Yakima River Basin, Irrigation
in the Yakima River Basin
and the Yakima Reclamation Project
The Yakima River Basin
(Basin) in south-central Washington State is the approximate 6,155 square
mile, 4 million acre (an area larger than the State of Connecticut) surface
water drainage of the 214+ mile Yakima River and its tributaries.
The Basin is bordered on
the west by the Cascade Mountains with desert/steppe rangeland on the east,
north and south. The Yakima Rivers
headwaters are on the eastern slopes of the Cascades and flows generally from
northwest to southeast until it empties into the Columbia River between
Kennewick and Richland, Washington.
Annual Basin precipitation
(mostly snow) on the eastern slopes of the Cascades during late fall, winter
and early spring may exceed 120 inches but both snow and rain in the irrigated
farming areas of Benton, Kittitas and Yakima Counties annually average only
between eight (8) and ten (10) inches.
Irrigated
agriculture, the main economic activity in the Yakima River Basin, uses approximately
1,000 square miles of the Basins area.
(1) Pre-1905 Irrigation:
By 1902, there were an estimated 121,000 acres under
irrigation in the Yakima Basin, representing about 25 percent of the present
irrigable development. This acreage was
served by natural flows in the river and tributaries, with none of the present
large storage dams and reservoirs in existence. The natural runoff was inadequate to insure a dependable water
supply for the development even at the turn of the century.
Because
of early over appropriation of available water supply, no additional irrigation
development for many fertile acres in the Valley was feasible unless two things
were accomplished: First, existing
claimants had to agree to restrict their water usage to beneficial use and
equitable distribution, particularly in the low late summer period; and
secondly, water storage was necessary to salvage the early season runoff for
supplying irrigation needs for new land development. [Lentz, Review of the Yakima Project and Other Data,
(1974), pp. 1-2]
(2) Post-1905 Irrigation;
the Yakima Reclamation Project:
The U.S., between 1913 and
1933, developed the Yakima Reclamation Project by constructing six (6)
irrigation water storage reservoirs (Bumping, Clear Creek, Cle Elum, Keechelus,
Kachess and Rimrock) with total active capacity of 1,070,700 acre-feet (a/f),
as well as diversion and conveyance facilities between 1906 and 1958 for the
five (5) major Yakima Reclamation Project divisions (Kennewick, Kittitas, Roza,
Sunnyside and Yakima-Tieton) plus the Wapato Irrigation Project (WIP).
The water storage
reservoirs are operated to conserve winter and spring water (runoff) for
release during the low water summer irrigation season.
The Yakima Reclamation
Projects 465,000 acres of irrigable land annually requires approximately
2,500,000 acre-feet of water to successfully grow marketable crops.
An acre-foot of water is
the amount of water needed to cover an acre of land to a depth of one (1) foot
of water.
Yakima Reclamation Project
landowner/waterusers have repaid, and continue to annually pay, the U.S. for
all Yakima Reclamation Project construction, annual maintenance, operation and
repair of the storage reservoirs allocable to irrigation.
Figure 1. The western portions of the Yakima Basin are
forested mountains of the Cascade Range, while the eastern, low elevation
portions of the Basin are arid agricultural and range land. Over 465,000 acres of agricultural land is
served by the Yakima Reclamation Project.
(1) Joint Board Biologist Fees: $1,060,943.00
Since 1998, the Board has spent $1,060,943.00on biologists. The work done by those biologists since that
time has either been directly related to the Section 7 consultation or has been
research that is relevant to and useful in the Section 7 consultation.
(2) ESA-related
Attorneys Fees and Cost Estimates:
$239,902.00
Joint Board members estimate they have spent at
least the following amounts on attorneys fees and costs on matters directly related
to ESA matters. Because of divisions of
labor among the members attorneys, the Kennewick Irrigation Districts
attorneys and the Yakima Tieton Irrigation Districts attorneys have spent the most time
and effort on ESA matters.
a. Kennewick Irrigation District
1998 $12,170
1999 $18,387
2000 $ 5,312
2001 $ 6,634
2002 $16,159
2003
to date $12,501
$71,163
b. Roza
Irrigation District
Roza Irrigation District estimates that its
share of ESA-related attorney's fees are approximately $50,000.
c. Sunnyside
Division
8/98
to 12/98 $ 2,125
1999 $ 7,750
2000 $ 5,923
2001 $ 9,116
2002 $ 3,825
1/03
to 7/03 $ 5,000
$33,739
d. Yakima Tieton Irrigation District
YTID estimates that its share of ESA-related
attorney's fees are approximately $50,000. This does not reflect all
ESA-related work done for YTID's benefit because YTID's attorneys were
splitting the bill for their Yakima River ESA-related work between YTID and
other clients.
e. Kittitas
Reclamation District
Kittitas Reclamation District estimates its
ESA-related attorneys fees have been $35,000.
TOTAL ATTORNEYS FEES AND COSTS: $239,902.00
(3) ESA-related
Staff Cost and Other Cost Estimates: $534,786.00
a. Kennewick Irrigation District
Kennewicks Secretary/Manager estimates
that he spends a minimum of two days per month on ESA matters. Prorating his annual salary for the period since
June, 1998 results in a staff time loss of: $63,440.
b. Roza Irrigation
District
Roza
estimates
that its Secretary/Manager (now
retired and part time spends approximately 10-15% of his time on ESA related
matters)
c. Sunnyside
Division
SVID estimated
costs related to ESA: $113,652
Average Monthly
meetings w/ some relation to ESA since Jan 1998:
At least 7
meetings per month with multiple staff members concerning YBJB, WSWRA, AFW,
Tri-County, and YRBWEP
d. Yakima Tieton Irrigation District
Did
not provide estimate
e. Kittitas Reclamation District
i. KRD Manager: $29,040
Average Monthly
meetings w/ some relation to ESA since Jan 1998: 5.5 yrs x 12 months x 5
meetings x 4 hrs per meeting x $22 payscale = $29,040
Meetings include
YBJB, KCWP, KRD Board, Manastash Creek, Tucker Creek, Taneum Creek, YRBWEP,
Tri-County, WSWRA, AFW)
ii. KRD
GIS Staff: $12,562
iii. KCWP staff: $5000 per yr over 4 yrs: $20,000
iv. NRCS/KCCD: $7,500 per yr
over 4 yrs: $30,000
v. KCWP/KCCD related
activities: $15,000 per yr over 2 yrs: $30,000
vi. Additional
District related Costs: $236,092
YRBWEP: KRD Comp
plan and addendum: $130,000
Taneum Creek Gage
Stations and related hardware: $50,000
($10,000 per station x 5 stations [Confluence of
Yakima, Bruton Ditch, Taneum Ditch, Taneum Ck above chute, Mann Ditch]
Taneum Creek Gage
Stations / operations and related staff time: 5.5 yrs x ave yr $5266 = $28,962
Taneum fish
passage contract (weir pools at Mann Ditch): $27,130.44
Total: $236,092
TOTAL KRD ESA STAFF TIME
AND OTHER ESA
EXPENDITURES: $357,694
TOTAL BIOLOGISTS,
ATTORNEYS, STAFF AND OTHER COSTS ATTRIBUTABLE TO ESA: $534,786
Appendix
A-3
YBJB Scientific Expertise
(1) Ernest
L. Brannon, Ph.D. is a Professor emeritus at the University of Idaho who
has specialized in salmonid life history, ESA listed salmonid species,
engineered habitat, aquaculture and is a Distinguished Research Professor in
fisheries.
(2) Steven
P. Cramer has been a fisheries consultant to private firms, state and
federal agencies, and Indian tribes since 1987, after serving 13 years with the
Oregon Department of Fish and Wildlife (ODFW), where he directed major research
programs. Mr. Cramer has participated
on the Technical Advisory Team set up by NMFS for the ESA reviews of both Coho
and steelhead on the West Coast. He has worked closely with the key NMFS
biologists responsible for completing the ESA status reviews for anadromous
salmonids. He has been the lead author on six major reports supplied to NMFS
for ESA status reviews of Coho and steelhead populations. Three times, Steve
Cramer has been contracted to guide ESA status reviews for fish populations in
an entire state, including Coho in Oregon, steelhead in Oregon, and steelhead
in California. He was selected by
Bonneville Power Administration to organize and lead a team of Northwest
consultants to prepare a series of 11 reports on recovery issues of threatened
and endangered Snake River salmon.
(3) D. Brent Lister. Mr. Lister is a
fishery biologist with 25 years of experience as a consultant in salmon
enhancement and fish habitat impact analysis, and 15 years experience as
biologist and senior program manager with the Canada Department of Fisheries
and Oceans on both the Pacific and Atlantic coasts. His key expertise is in stream habitat utilization and population
dynamics of salmon and steelhead. Since
1990, Mr. Lister has been retained as a consultant to the Yakima Basin Joint
Board on ESA consultations and status reviews relating to steelhead and bull
trout, and on a variety of issues concerning river flow regime effects on
salmon spawning, and the rearing and seaward migration of juvenile salmonids.
(4) Patrick
A. Monk, consulting fish biologist for the Yakima Basin
Joint Board, an association of major irrigation districts and municipalities in
the Yakima River. Mr. Monks has worked
on a wide variety of fisheries management projects, including Endangered Species Act analysis and
consultation and designing and conducting field studies of fish and their
habitats. Mr. Monk holds a Master of Science degree in
Fishery Resources, University of Idaho (2002), and a Bachelor of Science in
Zoology, University of Wisconsin-Madison (1989).
(5) Thomas
R. Payne, Certified Fisheries Scientist, is Principal Associate of Thomas
R. Payne & Associates, Fisheries Consultants, located in Arcata,
California. He is a specialist in the
application of the Instream Flow Incremental Methodology (IFIM) to determine
the impacts of flow alteration on aquatic ecosystems. In the past fifteen years, he has conducted or reviewed over two
hundred instream flow studies on proposed and existing hydroelectric and
irrigation projects. Projects have been
located in areas ranging from mountain streams in Hawaii to major rivers on the
East Coast, with an emphasis on high gradient streams in the Pacific
Northwest. Work associated with IFIM
and directed by Mr. Payne includes fish population sampling, habitat mapping
and typing, hydraulic measurements, habitat use determinations, computer
simulations, license application preparation, agency negotiations, post-project
analysis, and expert witness testimony.
(6) Kenneth
L. Witty, senior fisheries consultant, started his career in fisheries a district
biologist for the Oregon Department of Fish and Wildlife (ODFW) in 1963. The focus of his work with ODFW was
inventory and management of fish resources and inventory and protection of
their habitats. He administered the
Lower Snake River Fish and Wildlife Compensation Plan in Oregon. Since retiring from ODFW, Mr. Witty has
worked with S.P. Cramer and Associates,
Inc., focusing on the preparation of (1) reports assessing fish populations,
trends and risk assessments, genetics, competition/predation, and
re-introductions, (2) biological assessments for the ESA, 404 permits including
Section 10 authorization to sample listed fish, and gravel fill/removal
permits, (3) habitat surveys, restoration, and carrying capacity estimates, (4)
hatchery siting, design, and brood stock collection, and (5) passage evaluation
at main-stem dams.
Appendix A-4
YFO O&M
consultation timeline
|
6/24/98 |
Request for
species list from FWS to initiate consultation on YFO operations |
|
7/23/98 |
ESA Mtg with
FWS. Discussion covered how to approach compliance. OKd with a BO for
interim period until IOP complete.
FWS approved outlined process for proceeding with BA. Reservoir operations (bull trout access,
fluctuations and productivity, a minimum for Rimrock pool 10,000AF),
activities below the reservoirs (hydro graphs, passage at storage dams, show
all diversions, identify screens and ladders, Clear Cr Ladder), operations
post flip-flop |
|
7/28/98 |
Memo from BR to
FWS concerning relationship of IOP to consultation suggesting a meeting |
|
8/10/98 |
NMFS/BOR
discussed biological issues including, describing the fish protective
facilities, facility maintenance, instream flows. NMFS suggests getting data from YN |
|
12/2/98 |
e-mail from FWS
to BR concerning draft sections of the BA supplied to FWS |
|
12/4/98 |
Mtg with FWS @
Moses Lake. FWS comments on
Reclamation data development and biological assessment outline. Outline included w/ agenda. |
|
9/1/1999 |
Transmit draft
BA to FWS and NMFS and request comments.
Hand delivered to NMFS and made PowerPoint presentation |
|
10/14/1999 |
Memo from FWS to
BR transmitting comments on draft BA |
|
11/30/1999 |
Met with NMFS to
discuss Salmon Creek and spoke with Fransen about comments on the draft YFO
ops BA |
|
12/1/1999 |
Meeting with FWS
to discuss comments on draft BA |
|
5/25/00 |
Met with NMFS to
discuss BR consultations including YFO ops and Keechelus. NMFS raised issue of jeopardy at
Keechelus if passage not included.
No train wrecks |
|
8/7/2000 |
Sent final BA to
FWS and NMFS. Offered to meet and
discuss BA. |
|
9/22/2000 |
Memo from FWS to
BR indicating that BA was adequate to initiate consultation which began on
August 8, 2000 and was to be completed on or before December 20, 2000. |
|
12/20/2000 |
135 day
consultation period ends on YFO Ops |
|
1/19/2001 |
Memo from FWS notifying us and
irrigation districts that FWS was going to use 60 extension provided to
coordinate more with NMFS and BR. |
|
2/19/2001 |
First 60
extension for FWS ends for YFO ops BO |
|
3/12/2001 |
2001 Drought
Operations Mtg. @ BOR. Discussion
included Rimrock Lake, Easton Ladder, flushing flows, etc. |
|
3/27/2001 |
Memo from FWS to
BR requesting 60 day extension to provide for additional coordination with
BR. |
|
3/30/2001 |
FWS/BOR Yakima
Field Office Section 7 Consultation Mtg. @ BOR. Discussion included Legal and Contractual Considerations, 2001
Operations, Brief overview of BA |
|
4/13/2001 |
FWS/NMFS/BOR
Section 7 Consultation Meeting @ Kittitas Reclamation Office. Discussion included FWS/NMFS comments on
Yakima Project Operations BA, and presentation of FWS Recommendations on
Drought Operations. 4/6/01 comments
by USFW on the Yakima Operations Biological Assessment FWS and NMFS commit to
draft BOs in Aug/September time frame. |
|
4/30/2001 |
Letter Received
from USFW to the BOR: Request for Extension on Section 7 Consultation on the
Yakima Project Operations and Maintenance.
Committed to formulate BO by July 18 and transmit draft BO by
September 1, 2001 |
|
5/11/2001 |
Meeting with
NMFS and FWS to discuss BA. Discussed
4/30 letter from FWS to BOR. Handout
prepared by Steven P. Cramer and Ray
Beamesderfer entitled Simulation of Bull Trout Impacts at Rimrock Reservoir
Resulting form Entrainment at Drawdown as well as graphs with fish counts and
size |
|
6,7/2001 |
Two field trips
hosted by IDs to look at irrigation systems |
|
7/18/2001 |
Per 4/307/2001
request, FWS to have formulated BO on YFO ops |
|
9/1/2001 |
Per 4/30/2001
request, FWS to deliver draft BO on YFO ops |
|
9/17/2001 |
Meeting with FWS
to discuss YFO ops and Keechelus consultation. |
|
9/21/2001 |
Meeting with
NMFS and WA State to discuss Keechelus and O&M consultation. NMFS commits to assign staff to work on
both and commits to a White Paper on the O&M consultation |
|
3/15/2002 |
Conference call
with NMFS and FWS. Both agencies commit to White Papers outlining there
assessment of affects of the proposed action on listed species and a
jeopardy/no jeopardy analysis. |
|
6/27/2002 |
Meeting with
NMFS and FWS. NMFS provides an
incomplete internal review draft of their White Paper dated 6/26/2002. FWS indicates their White Paper is still
under development. |
|
7/11/2002 |
Meeting with
NMFS and FWS. NMFS provides completed
internal review draft of their White Paper.
BOR commits to provide comments by 1 Aug. FWS commits to providing their White Paper by mid-August (Aug
16). Agencies lay out tentative
schedule to complete consultation by Oct. 2003. Includes a peer review
process for baseline and project affects analysis. |
|
8/2/2002 |
BR sends
comments to NMFS on draft White Paper |
|
8/19/2002 |
Conference call
to discuss joint agency letter outlining process and schedule for completing
O&M consultation. On advice of
consul letter it is decided to delay sending letter due to Keechelus lawsuit. |
|
11/20/2002 |
Meeting with
NMFS and FWS to discuss baseline and proposed action. FWS provides draft version of White Paper |
|
12/04/2002 |
Meeting with
NMFS and FWS to continue discussion about baseline and proposed action. Comments on FWS White Paper
discussed. FWS agreed to lead peer
review process. Parties agree to
develop affects matrices. |
|
12/09/2002 |
Conference call
with NMFS and FWS to discuss baseline issue relative to the presence of the
dams. Parties eventually agree that dams are in the baseline. |
|
12/19/2002 |
E-mail from FWS
indicating that 8/2000 BA is inadequate for consultation purposes and
indicates that consultation should be put on hold until it is revised. |
|
12/31/2002 |
Phone call to
FWS to discuss 12/19 e-mail. General
agreement that consultation can proceed with a target date for completion of
October 2003 and BR would provide additional information as requested and if
available to further consultation process. |
|
1/06/2003 |
Meeting with FWS
and NMFS. Agree to schedule to
complete consultation in October 2003.
Interim dates for peer review process included. Worked on affects matrix. Discussed dam/baseline issue again. |
|
1/08/2003 |
Met with IDs to
bring them up to speed on meetings with NMFS and FWS since 11/2002. |
|
1/22/2003 |
Meeting with FWS
and NMFS. Peer review process
discussed. Meeting focused on affects
matrix for two example reaches - Cle Elum Reservoir and Granger-Prosser. |
|
1/30/2003 |
Meeting with
FWS, NMFS and IDs. FWS reports on
peer review process being developed.
More discussion about dams/baseline, FWS indicates the issue needs to
be elevated and BR agrees. Work on
matrix - outline data sources and analysis techniques for Cle Elum as an
example for other reaches. |
|
1/31/2003 |
Phone call with
FWS to discuss dams/baseline issue.
Agreed issues needed to be elevated |
|
2/13/2003 |
Meeting with
FWS, NMFS and IDs to discuss Yakima Project maintenance details. FWS reports on peer review process. Parties agree to have matrices available
by March 3. |
|
2/19/2003 |
Phone call to
FWS on dams/baseline issue. FWS
indicated they did not believe now was the time to elevate issue but rather
wait until draft BO was done. |
|
2/20/2003 |
BR memo to FWS
in reply to 12/19/2002 email agreeing to time extension till end of October
2003 to complete consultation |
|
2/28/2003 |
Meeting with FWS
and NMFS to discuss consultation and peer review. FWS proposes very abbreviated peer review process which NMFS
doesnt like and then entire process is dropped. Agree on interim dates to complete consultation affects
analysis by mid-May, BR review by 6/1, release draft BO by 7/15, take
comments and re-release late September with final the end f October. Also agreed to develop joint briefing
paper on dams/baseline issue. |
|
3/7/2003 |
Met with FWS to
develop joint briefing paper on dams/baseline issue |
|
3/19/2003 |
Met with FWS to
review joint briefing paper on dams/baseline issue. Discussed need to elevate issue quickly, FWS was to explore and
get back to BR. |
|
3/26/2003 3/27/2003 |
E-mail exchange
with FWS concerning elevation of dams/baseline issue |
|
4/10/2003 |
Meeting with FWS
to discuss dams/baseline issue. BR
feels dams are in the baseline and FWS believes affects of the presence of
the dams are an affect of the proposed action. |
|
4/11/2003 |
E-mail from FWS
on dams/baseline issue and jeopardy analysis. FWS believes dams and their impacts could be part of the
baseline, proposed action or both and for purposes of jeopardy analysis it
make little difference. |
|
4/23/2003 |
BR transmits
draft effects analysis to FWS and NMFS |
|
5/2/2003 |
Phone call to
FWS to arrange meeting to discuss draft affects analysis and potential
misunderstandings. FWS doesnt
commit. |
|
5/6/2003 |
E-mail to FWS in
response to 4/11 e-mail |
|
5/7/2003 |
Phone call to
FWS to arrange meeting to discuss draft affects analysis and potential
misunderstandings. FWS indicated they
had an internal discussion schedule for 5/9 and would then get back about
arranging a meeting. |
|
5/14/2003 |
Phone call to
FWS to arrange meeting to discuss draft affects analysis and potential
misunderstandings. FWS 5/9 discussion
did not occur so meeting cant be scheduled. |
|
6/18/2003 |
E-mail from FWS
concerning baseline issue. Frames
issue as BRs reluctance to treat future affects of proposed action as effect
of the action. |
Appendix A-5
Consultation Requires Education
NOAA
and the U.S. Fish and Wildlife Service should insure biologists conducting ESA
consultations are fully qualified because of the high stakes involved for both
the species of concern and local and regional economies.
ESA consultations
can result in significant, negative, destructive consequences on
local and regional economies. After NMFS
(now NOAA Fisheries)
listed
Pacific salmonids over most of the West Coast, NMFS was ill-equipped
to handle the large volume of consultations required by the listings. NMFS hired additional staff to cope with the work load,
but in our experience NMFS staff in the field consulting on ESA issues are
often junior-level biologists with limited knowledge of the species and the
factors affecting them.
Consequently, the
decisions of ESA administrative personnel are often contrary to good science
and to common sense, and many entities and
individuals required to consult before obtaining government permits hire
biologists from consulting firms with generally high levels of expertise and
experience to resolve the
problems created by services personnel. Thus, ESA consultations frequently consist
of novices from the services consulting with experts from the scientific arena,
who must first educate the services novices before proceeding with the
consultation process. Services biologists
should be able to understand both technical and policy issues before they are
responsible for complex and contentious ESA consultations, but often are not.
Appendix A-6
ESA
Administrative rules are vague
ESA
rules are often vague, increasing the potential for litigation, and leaving too
much discretion to the individual agency biologists involved directly in ESA
consultations.
(1) Hatchery fish not
counted.
The treatment of
hatchery fish, and the decision from Judge Hogan (Alsea Valley Alliance vs. Evans, infra, p. 31) in September,
2001, is just one example of
arbitrary and vague decisions made by The National Marine
Fisheries Service (NOAA Fisheries). In the Alsea
Valley Alliance case, Judge Hogan held that NMFS had arbitrarily
decided that hatchery fish were not to be included in the status of a
population or species under consideration for listing.
Although hatchery
fish from the same parental source as wild fish cannot be differentiated from
those wild fish, and their progeny will revert to wild fish when spawned in the
wild, NMFS decided that only the wild component of the population should be
included in the numerical status of the population when deciding whether the
species was at risk, and in essence was subdivided the population into
what NMFS thought was suitable and unsuitable members. The only difference between the hatchery and
wild fish are the identifying marks applied in the
hatchery. Genetically, physically, and
reproductively they were the same fish.
(2) Proposed Bull Trout
critical habitat.
Recently, USFWS
proposed critical habitat rules for bull trout. A review of the proposed critical habitat rules revealed the
following weaknesses:
The designation of
the appropriate environmental baseline conditions forms the basis for
evaluating actions which may affect listed species, but the application of the
concept is inconsistent between the action agencies (NOAA/USFWS).
The USFWS may
exclude areas from critical habitat designation if the benefits of excluding areas outweigh the benefits of inclusion. However,
the proposal
does not define benefits, or establish any verifiable criteria for including or
excluding habitat.
Critical habitat
should, to comply with ESA, include only the specific areas within the geographic area
occupied by the species at the time it is listed, and which contain the
physical and biological features essential to conservation of the species. Critical habitat must be limited
geographically to what is essential to conservation of
the species although more extensive habitat may be required to maintain the
species over the long term, critical habitat only
includes the minimum amount of habitat needed to avoid short-term jeopardy or
habitat in need of immediate intervention.
These provisions of the ESA are violated by USFWS proposed bull trout critical habitat. For example, USFWS proposes to include two
(2) streams in the Yakima Basin, Taneum Creek and the Teanaway River, as
critical habitat, even though these streams do not currently support bull
trout. There has been no discussion
with stakeholders (YBJB and others) about whether or not these streams should be included in critical habitat to avoid
short-term jeopardy. No economic impact analysis has been performed on this
designation of critical habitat.
Definitions
of important biological concepts are often lacking when new rules are proposed
under the ESA. For
example, the term population is an important biological concept. The ESA rules are, however, so vague that on
one hand the entire Columbia River basin population of bull trout is considered
a distinct
population segment for the purposes of listing the fish, while
designation of critical habitat and for a finding of one or two redds in a stream reach is
considered a population for the purposes of recovery planning.
Appendix B
Administrive errors and ESA misinterpretation
Serious and
unnecessary negative impacts on Pacific Northwest economy and way-of-life have
resulted from the misapplication of the Endangered Species Act (ESA). These impacts have occurred because of the
policy of the National Marine Fisheries Service (NOAA, formerly National
Marine Fisheries Services or NMFS) as the administering agency of the ESA for
anadromous Pacific salmon.
It is necessary to
recall that the purpose of the Endangered Species Act (ESA) of 1973, including
amendments through 1996, is to provide a means whereby the ecosystems
upon which endangered species and threatened species depend may be conserved,
to provide a program for the conservation of such endangered species and
threatened species, [ESA, Sec 2(b)].
It is also
necessary to recall what the Statute means by the term species. The term includes
any subspecies of fish or wildlife or plants, and any distinct population
segment of any species or vertebrate fish or wildlife which interbreeds when
mature [ESA, Sec
3(16)]. Therefore, conservation is to
include the species at risk and the ecosystems they depend on, and the term
species refers not only to the traditional (taxonomic) species
such as the condor, grizzly bear, or northern spotted owl, but also to any distinct population segment (DPS) of a
species which interbreeds when mature.
(1)
Purpose of the ESA
expanded
The first
unauthorized NOAA decision under the Act was declaring that conserving the genetic
diversity of the species was the major goal of the Act. It was stated by Waples (NOAA Tech. Memo.
194, 1991) that such a framework accomplished the major goal of the Act, which
was
to conserve the genetic diversity of species (taxonomic) and the ecosystems
they inhabit. The genetic
characteristics that were uniquely associated with the population unit would
have to contribute to the overall genetic diversity of the taxonomic
species. Therefore, NOAA decided that, rather than
limiting the ESA to conserving species, subspecies, or DPSs, NOAAs
administration of the Act would be to preserve genetic diversity. Preserving the genetic diversity of a
species, however, requires very different and much broader protections than what is required for conserving species
at risk of extinction. NOAAs decision was flawed
because it created
a purpose for the ESA different from and substantially more burdensome
than, the purpose stipulated by Congress -- to conserve
ecosystems and species at risk.
NOAA established a
unit different than species, subspecies, or distinct population segments around
which to administer the Act. An ESU is not a unit defined
by Congress as deserving protection under the ESA, nor does it fit the definition of a DPS,
for which it was meant to substitute.
Congress intended
that a DPS was an interbreeding unit, and that meaning was clearly
stated by
Congress in the wording of the Statute.
But NOAA clearly states that ESUs are not limited to
interbreeding units. In fact, Utter et al.
(American Fisheries Symposium 17:149-165,1985) confirms the point that ESUs are
not to be considered panmictic (i.e. interbreeding), because NOAA there states the definition
of an ESU by no means implies a single panmictic unit.
The issue is that
NOAA decided to substitute multiple, non-interbreeding populations as a unit at
risk, and therefore entitled to protection in place of the DPS defined by
Congress as the interbreeding population unit. The substitution of ESU for DPS
was a flawed NOAA decision because it created a different category with
different criteria to classify population units than what was stipulated by
Congress.
NOAAs creation of
ESUs as a
category at risk combined with NOAAs purpose to preserve genetic
diversity, allowed NOAA to include, for example, all Chinook salmon in NOAAs classification of
ESUs. Several populations can be lumped
together based on genetic similarity and listed within a single ESU, whether or
not each population warrants such treatment.
Every population of Chinook salmon from the US/Canada border to southern
California is a member of an ESU and nearly a hundred separate populations have
been included in the listings.
These listings are contrary to Congressional instructions, to
use the ability to list sparingly and only when the biological evidence
warranted such action (96th Congress, 1st
Session, 1979 Senate Report 151). NOAA
did not use the ability to list sparingly.
Moreover, even
listings were contrary to the instructions to list only when the
biological evidence warranted such action.
For example, hundreds of thousands of Chinook salmon were returning each
year over that geographical area, and recently near record numbers in the
Columbia River have returned over the last three years, yet several ESUs in the
Columbia Basin are listed at risk of extinction.
However,
regardless of the demonstrated strength of Chinook salmon and steelhead
trout returns
to the Columbia over the last four years, water users are still subjected to
restrictive regulations on the use of water and adjoining land, justified under
the pretense that Chinook and steelhead trout are at risk. NMFS has adopted a no net loss
policy that prevents any new water use out of the entire mainstem Columbia
River. The incongruity of these policies is underscored by
the fact that commercial and sport fisheries are still allowed to harvest
the reputed endangered species, with well over 400,000 Chinook harvested
annually off the coasts of Washington, Oregon, and California.
(3) Subdividing the Unit at Risk exclusion of hatchery
fish.
The
third major flaw in NOAAs policy decisions was its subdivision of the unit at risk. The ESA is to provide the means whereby the
ecosystems upon which endangered
species and threatened species depend may be conserved [ESA 1973, Sec 2(b)].
Under
such mission-oriented legislation all fish within the
identified unit at risk should be included in the census that determines
their status, and in any plan to protect them.
NOAA,
however, made another unauthorized decision which allowed NOAA to
establish categories of the same fish and treat them differently. NOAA decided that hatchery fish were
excluded from the numerical assessment of populations reviewed for listing,
unless they were considered essential to the recovery of those
populations. This unauthorized
policy resulted
in a U.S. District Court ruling against NOAA in Alsea Valley Alliance v. Evans[1].
This third flaw,
therefore, was subdividing the unit at risk.
Myers et al. (NOAA Tech. Memo.
NOAA-NWFSC-35, 1998) stated in the Chinook salmon status review that attention
should focus on natural fish which are defined as the progeny of naturally
spawning fish. This was
reiterated by Waples (NOAA Tech. Memo. NOAA F/NWC-194NOAA, 1991) in the
discussion on what constituted a species, and also where it was indicated that NOAA will
determine the role (if any) of artificial propagation in development of recovery
plans for listed species. The
NOAA policy on artificial propagation under the ESA (Hard et al. NOAA Tech.
Memo. NOAA-NWFSC-2, 1992), again reconfirmed that in the view of NOAA the
primary objective of the ESA is the conservation of species in their natural
ecosystems.
The
wording in the ESA reads to provide the means whereby the ecosystems upon
which endangered species and threatened species depend may be conserved [ESA 1973, Sec 2(b)]. The term conserved is defined in the language of the ESA to include
propagation. In the case of
salmon, propagation means hatchery production. The ESA does not state or imply that we
should discriminate against hatchery fish when making biological assessments or
recovery plans, but rather indicates that hatchery
propagation is a legitimate technology to sustain the species under the
ESA. Hatchery produced salmon came from
wild populations and are part of the legacy of those wild fish. They represent the same discrete and distinguish-able elements of
the wild population, as demonstrated in genetic analyses, including Myers et
al., NOAA Tech. Memo. NOAA-NWFSC-35 (1998).
The final irony is that the progeny of hatchery fish
spawning naturally are considered wild fish by NOAA.
The
ESA does not provide for or
allow NOAA to distinguish
between life history forms of the same species by listing one and
excluding the other. A prime example is
the listing of steelhead trout, and the exclusion of rainbow trout from the listing. Rainbow trout and steelhead trout interchange life
history forms, are indistinguish-able genetically, and represent an ecosystem that has
existed for
thousands of years, yet steelhead trout are listed in four separate ESUs and rainbow trout
are excluded. Part of the problem is
the limited biological perspective of the Services in making the listing
decision, but the fact remains that if rainbow trout were included in the ESUs
there would have been no possible justification to list steelhead trout because rainbow trout are numerous throughout the
Columbia River Basin. The Yakima
River has a renowned trophy rainbow trout fishery which are genetically
indistinguishable from Yakima River steelhead trout, and in fact interbreed
with Yakima River steelhead trout.
The
three problems identified, i.e. (1) preserving genetic diversity, (2) creation
of the ESU classification, and (3) subdividing the unit at risk, have created
unnecessary and costly administrative burdens on the public, the state, and the
federal governments. NOAA Fisheries
arbitrary and erroneous policy decisions have no justification, are clearly
inconsistent with the wording of the Statute, and should be considered a
serious breach of confidence in NOAAs administration of the law.
Improper listing of species:
Columbia River Salmon, Steelhead Trout and Bull
Trout are not threatened with extinction
The National
Marine Fisheries Service (NMFS) made the determination that the Upper Columbia
River Spring Chinook, Lower Columbia River Chinook, and Upper Snake River
Spring/Summer Chinook, Snake River Fall Chinook, Upper Columbia River Steelhead
Trout, Lower
Columbia River Steelhead Trout, and Snake River Basin Steelhead Trout were in danger of
extinction or likely to become endangered in the foreseeable future, and listed
them respectively under the Endangered Species Act (ESA).
Similarly, bull
trout in the Columbia River Basin have also been listed by United States Fish
and Wildlife Service (USFWS), involving Lower, Mid-, and Upper Columbia and
Snake River populations. Contrary to the impressions given by such listings,
Chinook salmon, steelhead trout, and bull trout species are, however, not at risk
of extinction in the Columbia Basin.
This represents a serious incongruity between the rationale for having
listed these species at risk and the actual status of Chinook, steelhead trout
and bull
trout in the Columbia River system.
In essence, this
incongruity is at the foundation of the problems associated with the ESA, and
originates with the administration of the Statute emanating from the policies
developed by NMFS and USFWS, and not from the Act itself.
As described in
Appendix B, the error in listings of Chinook and steelhead
were from policy memoranda and represented major departures from the precepts
of the ESA. Listing of bull trout
followed similar errors of ESA interpretation.
With regard to the
Columbia River Basin, the status of wild salmon, steelhead trout and trout was
very much influenced by federal development programs in the west, with efforts
concentrated largely around the extensive water resources of the Columbia. Of the 673,400 square kilometers of Basin
(Mullan et al. 1992), 191,660 square kilometers were made inaccessible to anadromous
fish species with the construction of Grand Coulee Dam on the mainstem Columbia
River (Fish and Hanavan 1948), and 189,070 square kilometers were blocked by
Hells Canyon Dam on the Snake River, reducing access to only 40% of the
original stream area available to anadromous salmonids (Netboy 1980).
Sixty-four percent
(64%) of the remaining mainstem fish habitat on the Columbia and Snake Rivers
has been changed from flowing stream to reservoir environ-ments (ODFW &
WDFW 2000). Furthermore, extensive
introductions of exotic fish species have been made by USFWS and state
agencies. Bass, crappie, perch,
walleye, shad, carp and brook trout were introduced in the Columbia River and
in many cases exotic species out-number native fish.
The point often
ignored by, or unknown to, anyone attempting to expand production of wild
salmonids in the Columbia River system is that the reductions of populations
experienced by these species and the introductions of exotic fish were
intentional changes which resulted from planned development of the river.
Federal irrigation
and hydroelectric projects greatly enhanced the economic base of agriculture in
Idaho, Oregon, and Washington, and expanded urbanization in otherwise arid land
east of the Cascade Mountains. The cost
of economically developing the Pacific Northwest was loss of fish habitat and
wild fish. Congress established,
however, fish hatcheries as the surrogate for wild Chinook and steelhead
trout in the
Columbia River Basin, and maintained anadromous fish runs through such
measures. Congress assured sustained
salmon and steelhead trout production in the Grand Coulee Maintenance Project,
the Magnuson-Stevens Act, the Mitchell Act, and other compensation programs, as
federal law and they have successfully achieved that objective. Consequently, hatchery fish have been
contributing to, and are thus part of, naturally spawning wild populations for
over 90 years in the Basin.
Therefore, the
suggestion that Chinook salmon and steelhead trout are at risk in the
Columbia is not supported by the data (Brannon 2000, Brannon et al, 2002). As shown in Table 1, Chinook salmon adult
returns passing Bonneville Dam have averaged over 600,000 fish in the last four
years, three times the average returns when these fish were listed in the early
90s. Similarly, in the last three
years, steelhead trout have increased well over twice their previous
average return, with both steelhead trout and Chinook
demonstrating returns greater than experienced since before the 1930s, and wild
fish are well represented among returning populations.
In a like manner,
bull trout are well represented throughout the Columbia River Basin, although they are
reported in low numbers. They are
present in all of the twenty-five separate regions identified in the Columbia
system, which demon-strates that bull trout, as a species, are not at risk
of extinction. The fact remains that until recently bull
trout were given no attention and very little is known about their historical numbers
in any
of these
regions. As a predator species that
routinely undergoes extensive distribution throughout the system, bull trouts
evolutionary strategy would be to avoid concentrating in large numbers,
especially where food resources are limited as is often the case in the upper, more
mountainous reaches of the watersheds. The bull
trouts recently discovered wide ranging distribution within the Columbia River
Basin indicates that bull trout are effectively self-sustaining, and their
relatively low population density is not a matter of a threat of extinction,
but rather the consequence of life history evolution which offers favorable
survival opportunities in the type of habitat bull trout seek.
In each case where
salmon, steelhead trout, or bull trout have been listed, the listing
decision has been largely the result of limited knowledge about the biology of
the species, as well as the tendency for NMFS and USFWS biologists to adopt
general conservation measures rather than limiting themselves to the objective
of the ESA.
Chinook salmon,
steelhead trout, and bull trout are not at risk of extinction so
the general conservation programs for these species are the responsibility of
state agencies, not the ESA or the services.
Table 1. Adult wild and hatchery Chinook and
steelhead trout passage at Bonneville Dam on the Columbia River
over the last three 4 year spawning cycles (total Chinook includes jacks, total
steelhead is wild plus hatchery).
Chinook, Steelhead
Trout
Year Spring Summer Fall Total Wild Total
2002 268,813 127,436 474,554 925,452 143,045 481,203
2001 391,347 76,156 400,410 971,331 149,582 633,464
2000 178,302 30,616 192,815 491,928 76,220 275,273
1999 38,669 26,169 242,143 343,276 55,064 206,448
1998 38,342 21,433 189,085 280,944 35,701 185,094
1997 114,000 27.939 218,734 387,088 33,580 258,385
1996 51,493 16,034 205,358 296,635 17,375 205,213
1995 10,192 15,030 164,197 240,050 --- 202,448
1994 20,169 17,631 170,397 243,450 39,174 161,978
1993 10,820 22,045 126,472 277,657 --- 188,386
1992 88,425 15,063 116,200 256,299 --- 314,973
1991 57,346 18,897 150,190 274,644 --- 274,535
References
Brannon, E., M. Powell, A. Talbot, and T,
Quinn. 2002. Columbia River Chinook
salmon and steelhead population structure.
BPA Report. Project Number 98-004-03.
Brannon, E. L.
2000. Assessment of the ESA Listing of Columbia River
Anadromous Salmonids with Emphasis on Chinook Salmon. Center for Salmonids and Freshwater Species at Risk, Aquaculture
Research Institute, University of Idaho, Moscow, Idaho 83843.
Fish, F.F., and M.G. Hanavan. 1948. A report on the Grand Coulee Fish
Maintenance Project.
Mullan, J.W., K.R. Williams, G. Rhodus, T.W.
Hillman, and J.D. McIntyre. 1992. Production and habitat of salmonids in
mid-Columbia River tributary streams.
Monograph I, U.S. Fish and Wildlife Service, Box 549, Leavenworth, WA
98826.
Meyers, J.M., R.G.
Kope, G.J. Bryant, D. Teel, L.J. Lierheimer, T.C. Wainwright, W. S. Grant, F.W.
Waknitz, K. Neely, S.T. Lindley, and R.S. Waples. 1998. Status review of
Chinook salmon from Washington, Idaho, Oregon, and California. NOAA Technician Memorandum NMFS-NWFSC-35.
U.S. Dept. of Comm/NOAA/NMFS/NWFSC. 443 pp.
Pacific Fishery
Management Council. 2000. Ocean salmon fisheries off Washington,
Oregon and California. Report to
National Oceanic and Atmospheric Administration. NA07FC00026.
The
United States has no legal authority to change the use or reallocate Yakima
Reclamation Project surface irrigation water which is owned by Yakima
Reclamation Project landowner/waterusers; the U.S. is a trustee for the
benefit of Project irrigator landowner/ waterusers
The 1902 Reclamation Act,
Section 8 (43 USC 383) provides:
* * *
§ 383. Vested rights and
State laws unaffected
Nothing
in this Act shall be construed as affecting or intended to affect or to in any
way interfere with the laws of any State or Territory relating to the control,
appropriation, use, or distribution of water used in irrigation, or any vested
right acquired thereunder, and the Secretary of the Interior, in carrying
out the provisions of this Act, shall proceed in conformity with such laws, and
nothing herein shall in any way affect any right of any State or of the
Federal Government or of any landowner, appropriator, or user of water in,
to or from any interstate stream or the waters thereof. (June 17, 1902, ch. 1093, § 8 in part, 32
Stat. 390.) (Emphasis added)
* * *
The Yakima Reclamation
Project water rights are, pursuant to 43 USC 383 above-quoted, as well as
unambiguous federal and Washington State water law, the vested property of the
YBJB landowner/waterusers whose predecessors-in-interest appropriated,
beneficially used Yakima Reclamation Project water on their land and perfected
their Yakima Reclamation Project water rights [See, Lawrence vs. Southard,
192 Wash. 287, 73 P.2d 722 (1937).]
The U.S. Supreme Court in Ickes
vs. Fox, 300 U.S. 82, 95-96 (1937), which involved YBJB
landowner/waterusers in the Sunnyside Division of the Yakima Reclamation
Project, analyzed the 1902 Reclamation Act, federal and Washington State water
law, the Yakima Reclamation Projects surface water rights including ownership
of them, the U.S.s perpetual water delivery contracts with, and obligations
to, YBJB landowner/waterusers, and unambiguously held:
*
* *
. . . . Appropriation was made not for the use of the government, but, under
the Reclamation Act, for the use of landowners; and by the terms of the law and
of the contract already referred to, the water rights became property of the
landowners, wholly distinct from the property right of the government in the
irrigation works. Compare Murphy
vs. Kerr, 296 Fed. 536, 544, 545. The
government was and remained simply a carrier and distributor of the water (Id.),
with the right to receive the sums stipulated in the contracts as reimbursement
for the cost of construction and annual charges for operation and maintenance
of the works. As security therefore, it
was provided that the government should have a lien upon the lands and the
water rights appurtenant thereto a provision which in itself imports that the
water rights belong to another than the lienor, that is to say, to the
landowner.
* * *
. . . . And in those states, generally, including the State of Washington,
it has long been established law that the right to the use of water can be
acquired only by prior appropriation for a beneficial use; and that such right
when thus obtained is a property right, which, when acquired for irrigation,
becomes, by state law and hereby express provision of the Reclamation Act as
well, part and parcel of the land upon which it is applied. (Emphasis added)
* * *
The United States has no
legal authority, discretion, or surface water right approved or certificated by
Washington State to consumptively or non-consumptively re-allocate or use
YBJB landowner/waterusers Yakima Reclamation Project surface irrigation water
for any purpose other than for the irrigation of YBJB landowner/waterusers
land except for the substantially diminished treat fishery water right affirmed
by the Washington State Supreme Court in DOE vs. Yakima Reservation
Irrigation District, et al., 121 Wn.2d 257, 850 P.2d 1306 (1993).
The U.S. is, in addition,
obligated by its perpetual contracts executed with YBJB members for the
benefit of YBJB landowner/waterusers and also, as their trustee,
to annually store and deliver the entire Yakima Reclamation Projects total
water supply available (TWSA) as defined in KRD, et al. vs. SVID, et al.,
U.S. District Court (E.D. Wash. 1945) (less the substantially diminished treaty
fishery water) for each landowner/waterusers annual use and reuse as
irrigation water to the full extent of each YBJB landowner/waterusers Yakima
Reclamation Project water and water right entitlement.
The U.S. Supreme Court in Nevada
vs. United States, 463 U.S. 110,m 122-123, 127-128, 103 S.Ct. 2906, 77
L.Ed.2d 509 (1983), quoting from 43 USC 383, California vs. U.S., 438
U.S. 645, 664 (1978), Fox vs. Ickes,
supra, and Nebraska vs. Wyoming, 325 U.S. 589, 613-614 (1945),
unambiguously concluded and held:
*
* *
In
California vs. United States, 438 U.S. 645 (1978), we described in
greater detail the history and structure of the Reclamation Act of 1902, and
stated:
* * *
The
projects would be built on federal land and the actual construction and
operation of the projects would be in the hands of the Secretary of the
Interior. But the Act clearly
provided that state water law would control in the appropriation and later
distribution of the water. Id. at
664 (emphasis added).
* * *
In
the light of these cases, we conclude that the Government is completely
mistaken if it believes that the water rights confirmed to it by the Orr Ditch
decree in 1944 for use in irrigating lands within the Newlands Reclamation
Project were like so many bushels of wheat, to be bartered, sold or shifted
about as the Government might see fit.
Once these lands were acquired by settlers in the Project, the
Govern-ments ownership of the water rights was at most nominal; the
beneficial interest in the rights confirmed to the Government resided in the
owners of the land within the Project to which these water rights became
appurtenant upon the application of Project water to the land. As in Ickes
vs. Fox and Nebraska vs. Wyoming,
the law of the relevant state and the contracts entered into by the
landowners and the United States make this point very clear. (Footnote omitted)
The
Governments brief is replete with references to a fiduciary obligation to the
Pyramid Lake Paiute Tribe of Indians, as it properly should be. But the Govern-ment seems to wholly ignore
in the same brief the obligations that necessarily devolve upon it from
having mere title to water rights for the Newlands Project, when the beneficial
ownership of these water rights resides elsewhere. (Emphasis added)
* * *
YBJB
member entities, also acting as trustees for the benefit of their landowner/
waterusers, have executed perpetual contracts with the United States,
obligating the U.S. to annually deliver to YBJB member entities their
landowner/ waterusers full, annual Yakima Reclamation Project irrigation water
and water right entitlements.
Four
(4) of the YBJB member entities (Kittitas, Roza, Sunnyside and Yakima-Tieton)
landowner/waterusers annual irrigation water and water right entitlements were
unconditionally confirmed in the 1/31/45 Judgment in KRD, et al. vs. SVID,
et al., U.S. District Court (E.D. Wash. 1945).
Appendix
B
Chronology of
YBJBs Section 7 Consultation
This summary is based on Yakima Basin Joint Board
(YBJB) files held by Brian J. Iller, attorney for Kennewick Irrigation
District, and summarizes various ESA-related activities undertaken by the joint
board during the time that the Section 7 consultation between the Bureau of
Reclamation and the fisheries services on Bull Trout and Middle Columbia River
Steelhead. This is not a complete
description of all ESA-related activities undertaken by the YBJB. Indeed, there are an additional 9 pages of
similar items that predate the initiation of consultation, including much work
done while the listings were being proposed.
No waiver of
attorney-client privilege or work product privilege is to be implied from the
general description of ESA activities containted herein.
Date Activity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[1]
In the Alsea Valley Alliance v. Evans, 161 F.
Supp. 1154 (D. Or. 2001), Judge Michael Hogan of the United States District
Court for the District of Oregon ruled that NOAA was arbitrary and capricious
in its decision to list the Oregon Coast Coho salmon distinct population segment
(DPS) (or Evolutionarily Significant Unit (ESU)) under the ESA. According to Judge Hogan, NOAA cannot list
naturally spawning fish separate and apart from hatchery fish in the same DPS
(or ESU). The central problem with the
NOAA listing decision of August 10, 1998, is that it makes improper
distinctions below that of a DPS, by excluding hatchery populations from
listing protection even though they are determined to be part of the same DPS
as natural Coho populations. 161 F.
Supp at 1162.
[BJI1]Why before? Before the white man? Before the dams? Before what?