TESTIMONY OF

D. ROBERT LOHN, REGIONAL ADMINISTRATOR

NORTHWEST REGION, NATIONAL MARINE FISHERIES SERVICE

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

U.S. DEPARTMENT OF COMMERCE

 

BEFORE THE

SUBCOMMITTEE ON FISHERIES, WILDLIFE AND WATER

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

 

FEDERAL COLUMBIA RIVER POWER SYSTEM BIOLOGICAL OPINION

JUNE 24, 2003

 

Good morning, Mr. Chairman, and honorable members of the Committee.  For the record, my name is Bob Lohn, Regional Administrator of the Northwest Region of the National Marine Fisheries Service (NOAA Fisheries).  I appreciate the invitation to be here today with fellow regional federal colleagues, tribal, and state interests to discuss the important subject of Pacific salmon, and specifically, the status of the federal government's progress in implementing the 2000 Federal Columbia River Power System (FCRPS) Biological Opinion.  

 

In my comments today, I would like to briefly touch upon three issues relevant to our progress in carrying out the 2000 Biological Opinion on the operations of the FCRPS, including the four lower Snake River dams.  Those three issues are:  (1) the implementation status of the 199 action items contained in that Opinion; (2) a brief update on the status of  Columbia River and Snake River salmon, and (3) the status of funding for the Biological Opinion and salmon recovery.

 

Let me provide some context for today's discussion by first describing a few key events leading up to the issuance of the 2000 Biological Opinion and significant events that have occurred in the first two years since it was issued.

 

BACKGROUND OF THE BIOLOGICAL OPINION

 

As you know, over the last 14 years, NOAA Fisheries listed 26 separate populations of salmon and steelhead, termed Evolutionary Significant Units (ESUs), as threatened or endangered under the Endangered Species Act in Idaho, Washington, Oregon, and California.  Of these listings, 12 ESUs occur in the Columbia River basin including 4 in the Snake River.  Snake River sockeye were listed as endangered in 1991, Snake River spring and fall Chinook were listed as threatened in early 1992, and Snake River steelhead were listed in 1997. 

 


Section 7 of the ESA requires federal agencies that propose to take actions that may affect listed salmon and steelhead  to consult with NOAA Fisheries to ensure the proposed action is not likely to jeopardize the continued existence of the fish or adversely modify designated critical habitat.  The section 7 consultation process results in NOAA Fisheries issuing a Biological Opinion detailing how the proposed actions would affect the species, and what prescriptions the agency recommends to address any concerns. 

 

NOAA Fisheries issued its first Biological Opinion for the federal power system on the Columbia and Snake Rivers in 1992.  The 1992 Biological Opinion, and another Opinion in 1993 called for measures to improve salmon survival and increased research and analysis of certain proposed improvements.   The 1993 Biological Opinion was challenged in federal court. By the time the case was heard, NOAA had issued a 1994-98 Opinion following the same general approach, and the court rejected the agency's plan.  NOAA Fisheries responded by preparing an interim Biological Opinion and committing to develop a new Biological Opinion and long-term recovery plan by 1999.  This new 1995 Opinion was also challenged, but the court ultimately decided the case in favor of the Federal plan.  Consultation was reinitiated in 1999 and this led to the current Biological Opinion, issued in December 2000. 

 

Soon after its issuance, the 2000 Biological Opinion was challenged by various interest groups in federal district court. On May 7 of this year, Judge Redden ruled that the Biological Opinion did not take into account the proper “action area” and the Opinion did not adequately consider whether the various conservation measures discussed in the Opinion (reasonable and prudent alternatives (RPAs)) met certain standards that they developed. The Court found that NOAA Fisheries should not evaluate the future effects of actions in developing a reasonable and prudent alternative unless the results from either future federal actions that have already undergone consultation under section 7 of the ESA or future non-federal actions must be determined to be “reasonably certain to occur.”

 

On June 2, 2003, Judge Redden remanded the Biological Opinion to NOAA Fisheries for further action.  The court is considering a motion by the plaintiffs to vacate the Biological Opinion while it is undergoing revision.  According to the briefing schedule, full briefing of this issue was to be completed  June 20.  The court has agreed to allow NOAA Fisheries up to one year to revise the Biological Opinion in accordance with the court’s ruling, with status reports to be filed with the court every 90 days.  In the meantime, the current Opinion continues to be implemented.                               

 

However, the court is now considering a motion by the plaintiffs to vacate the Biological Opinion while it is undergoing revision.  Briefing on the motion was completed June 20 and the court may rule at any time.  A decision by the court to vacate the Biological Opinion could have severe consequences on NOAA Fisheries, on the federal Action Agencies and on the entire Federal Columbia River Power System.  It would remove the incidental take protection that currently shields federal employees from legal liability under the Endangered Species Act.  It would also threaten the continuation of many federal programs designed to help recover imperiled salmon runs such as the demonstrably-successful juvenile transportation effort.  Vacatur would destroy the current operational certainty for the highly complex power system, and replace it with institutionalized uncertainty.  This uncertainty would arise from the continuing threat of judicial intervention to change current operations to meet the demands of the plaintiffs in the litigation -- regardless of the impacts of those changes on the power system or even on the imperiled fish.  The reliability and economic efficiency of the power system would be damaged, with no clear benefit for fish.

 

It is premature to comment on the extent to which the current Biological Opinion may be revised over the next year. Nonetheless, today’s discussion about the implementation status of the 2000 Biological Opinion may be relevant to the revised Opinion upon which we are now working.  

 

 

STATUS OF BIOLOGICAL OPINION ACTION  ITEMS            

 


The 2000 Biological Opinion for the Columbia and Snake River hydro system concluded that jeopardy of listed salmon and steelhead could be avoided if certain conservation measures contained in a  reasonable and prudent alternative were implemented by the Bonneville Power Administration, U.S. Army Corps of Engineers, and U.S. Bureau of Reclamation (known as the Action Agencies) over a ten-year period to 2010.   In total, the Opinion’s RPA contains 199 actions.

 

The RPA defined a rolling annual and five-year planning, implementation and review process. The FCRPS Action Agencies produce annual and five-year implementation plans (IP) that describe progress to date, lay out details of the short- and long-term plans for achieving performance standards, propose adjustments to the RPA Actions, and describe the rationale for those adjustments. NOAA Fisheries is required to review each year’s annual Implementation Plan through the issuance of a “findings letter” to the Action Agencies.

 

In May 2002, the Action Agencies released a report detailing their progress in 2001 for implementing the 199 measures.  As you know, 2001 water levels in the Columbia and Snake River systems were some of the lowest ever, and created great challenges for the Action Agencies to help meet water needs for listed fish as well as for Northwest power, irrigation, and recreational needs.

 

In light of these challenges, I commend the Action Agencies for their extensive efforts to coordinate with other federal agencies, states, tribes, utilities and others during a difficult  year.  As a result of their hard work in 2001, NOAA Fisheries advised the Action Agencies in a July 2002 letter that necessary hydro improvements and offsite mitigation measures in the Biological Opinion were progressing sufficiently in 2001 through their "One Year Plan," such that the Biological Opinion was largely on track.  That letter also emphasized certain areas where future efforts should be focused.

 

On May 14 of this year, NOAA Fisheries issued its second “findings” letter, reviewing the implementation status of each of the 199 RPA actions and whether the Action Agencies appear on track to meet the important 2003 "check-in" requirements set forth in the Biological Opinion (http://www.salmonrecovery.gov/).  I am pleased to report to you that of the 124 actions that require definition, implementation, or completion by or before 2003, 117 are being implemented either as expected or with only minor modifications.  This leaves only seven out of 124 RPA actions (5 percent)--with implementation schedules that have been modified in ways that represent any concern.  Finally, of the 75 Actions for which the Opinion provides no specific implementation schedule, 68 are currently underway or proposed for initiation in 2003.

 

This represents great progress, and I'd like to praise the federal Action Agencies, the states, tribes, local organizations, and citizens of the region for their rapid mobilization and good work.  I am convinced that salmon recovery in this region depends on this kind of widespread collaboration. 

 

Some of the seven RPA actions that are behind schedule are of lesser consequence.  There are, however, two areas of particular concern: development of subbasin assessments and plans for priority subbasins (Action 154) and effectiveness monitoring for offsite mitigation actions (Action 183 and Research, Monitoring, and Evaluation database development identified in Action 198).  Both of these areas are behind the anticipated schedule, and both play an important role in the overall success of the Biological Opinion.

 

Subbasin planning is the means by which the major limiting factors for listed salmon and steelhead are defined, locally-supported plans to address those factors are established, and  the foundation for comprehensive recovery plans laid.  That ambitious process got off to a slow start, but is now rapidly coming up to speed.  The Bonneville Power Administration has provided substantial funding for subbasin planning, and the Northwest Power Planning Council is devoting its energy and expertise to completing this effort.

 

Research, monitoring, and evaluation (RM&E) is the means by which NOAA Fisheries and the Action Agencies evaluate the biological effects of our efforts under the Biological Opinion, determine whether we are achieving the expected results, and modify our efforts to achieve the greatest beneficial effect.  While a significant amount of RM&E is taking place, we do not yet have the analytical infrastructure and tools needed to support this enormous recovery effort. 

 

NOAA Fisheries is committed to working with the Action Agencies to develop and implement the research, monitoring, and evaluation program under the Biological Opinion.  In the President's 2003 Budget request, $12 million was proposed to fund the RM&E needed under this opinion.  Unfortunately, no money was appropriated for this purpose in FY 2003.  The President's FY 2004 budget includes $ 15.1 million for this purpose, and we hope that Congress will honor this important request.  In the meantime, NOAA Fisheries’ Northwest Regional Office and Northwest Fisheries Science Center are working with the Columbia Basin Fish and Wildlife Authority and other regional interests to develop the best RM&E program possible using existing tools and programs, and low-cost innovation.

 

Despite the challenges to meet the Biological Opinion's requirements, I am very encouraged by new technological developments and other research efforts by the Action Agencies to pursue exciting initiatives to aid the passage of juvenile salmon through hydroelectric dams on the river system, such as the U.S. Army Corps' removable spillway weir at Lower Granite Dam.  Early study results indicate this technology could allow more fish to pass faster through the dam while less water is being spilled.

 

Recently, NOAA Fisheries announced the creation of a new Salmon Recovery Division within our Northwest Region to focus on implementation of salmon recovery initiatives within this region and to provide coordinated support to the myriad of existing state, local and tribal salmon recovery activities throughout the Northwest.  For example, in 2002, over 260 federal caucus-sponsored habitat restoration projects were implemented in 25 subbasins, with high priority given to improved water quality and fish passage. In addition, over 2,000 salmon habitat restoration projects and activities in Washington, Oregon, California and Alaska have been funded since 2000 through the Pacific Coastal Salmon Recovery Fund and other state funds. This new office will work with the region to identify the unique limiting factors of salmon in specific watersheds and subbasins, pool existing and future resources, and prioritize recovery activities to address the greatest needs for salmon.  I am confident that the new division will not only increase the effectiveness of our recovery effort, but will also allow the region to address its ESA responsibilities in more efficient and collaborative manner.

 

CURRENT STATUS OF COLUMBIA RIVER BASIN SALMON AND STEELHEAD

 

I'm pleased to report good news about the status of  Pacific salmon in the Northwest, including listed species in the Snake River.  Most Columbia River stocks are enjoying a substantial upswing.  For example, the fall chinook harvest group known as Upper Columbia Brights --- a group that includes both Hanford Reach and Lower Snake River fall chinook, is forecast to enter the Columbia River this year with 280,000 adults.  If the forecast is realized, this year's return will be similar to last year's return, which was the largest return since 1988,  and would be the fourth largest since 1964. 

 

The ESA-listed runs in Idaho are also showing considerable improvement over the last few years.  For example, in 2001, the most recent year for which we have complete results, 17,000 Snake River steelhead returned, versus a five-year average of 9,400 at the time they were listed in August of 1997.  We also saw about 17,000 spring/summer-run chinook, compared to a 10-year average of 9,674 at the time of their listing in April  1992.  And, 2652 fall-run chinook returned, compared to a five-year average of 661 at the time of their listing in April, 1992.  While the trends in Snake River sockeye are not as meaningful, since they are mainly a function of the number of hatchery-reared fish that are released, the 2002 return of 22 fish compares favorably with the five-year average of only 3 at the time of listing.  More importantly, the fact that we are getting any sockeye back at all is a hopeful indicator that the experimental captive brood program may be capable of eventually re-establishing this population.

 

While we will need to have the convincing assurance that these trends will continue before we are ready to declare any of these stocks to be recovered, the recent trends are encouraging.  Undoubtedly, improved ocean conditions are the single greatest contributor to these increases.  But I am firmly convinced that the additional protection and mitigation measures being implemented under this Biological Opinion and the myriad of local, state, and tribal conservation efforts --- particularly those benefitting juvenile salmon --- are playing a vital role.

 

FUNDING OF BIOLOGICAL OPINION ACTIONS

 

In Fiscal Year 2003, the President’s Budget requested a 19 percent increase over Fiscal Year 2002 appropriations for salmon-related federal activities in the Columbia River Basin. The President’s Fiscal Year 2004 discretionary appropriations budget continues the increased support provided in the Fiscal Year 2003 Budget for salmon-related actions in the Columbia River Basin. Our findings letter reports that all of the major action items called for in the Biological Opinion have been funded except for the research, monitoring, and evaluation RPA discussed above.  This includes more than $100 million in funding to the U.S. Army Corps of Engineers for its entire Columbia River Salmon Program over the last two years.  This also includes substantial funding to the Bureau of Reclamation to assist in fish screening projects and to purchase water from willing sellers to increase in-stream flows. As Colonel Knieriemen’s testimony notes, although past funding has been available, the Corps has a Fiscal Year 2003 shortfall in its funding for its Columbia River Fish Mitigation capital improvement items.  There are two additional areas of concern, in addition to the RM&E funding.

 

First, the Biological Opinion contemplates that substantial mitigation activity will be undertaken by federal land management agencies such as the Forest Service and the Bureau of Land Management.  Although these agencies are not action agencies under this Biological Opinion, their continued protection and improvement of salmon habitat on federal lands is an essential contribution to the range of habitat restoration actions needed to recover listed salmon and steelhead stocks in the Columbia River Basin.  Some benefits for listed salmon species will be achieved through Bureau of Land Management and Forest Service actions through the National Fire Plan and Healthy Forests Initiative. Evaluation of those benefits and implementation of targeted salmon habitat restoration projects remain critical to the success of the Biological Opinion.

 

Second, the subbasin planning process is intended to identify the major limiting factors in each of the subbasins, and to propose locally-supported solutions to those limiting factors.  Subbasin plans are a key step in recovery planning.  Just as it is unrealistic to estimate the cost of a new building until the blueprints are in hand, so, too, it is premature to forecast the costs associated with implementing the solutions developed in subbasin planning.  Furthermore, the Bonneville Power Administration is faced with extremely difficult financial circumstances.  Although Bonneville's costs in implementing this Biological Opinion have fallen within the range expected when the current power rates were set three years ago, we recognize that other factors, including heavy losses due to the power crisis of 2001, and the current lower-than-expected power revenues and snowpacks have placed them at risk financially.  We are working closely with them to assure that this Biological Opinion is implemented in a manner that is both biologically effective and financially sustainable.

 

I am encouraged, however, by the generous environmental improvement programs in last year's Farm Security and Rural Investment Act of 2002 that offer an unexpected source of additional funding to protect and improve riparian habitat in agricultural lands.  Since this is some of the most important habitat for salmon and steelhead, we see great potential in working with the Natural Resource Conservation Service to realize these on-the-ground benefits.  We are just beginning to develop the kind of partnerships necessary to achieve these benefits, but the initial indications are encouraging. 

 

Each year, the federal agencies active in the Columbia Basin work together through the Office of Management and Budget and the Council on Environmental Quality on their combined salmon recovery budgets, in order to ensure that we have a coordinated budget.  We will continue to compare the future mitigation needs for ESA-listed salmon and steelhead --- as soon as those additional needs are identified in the subbasin planning process or by other means --- with the funding then available.  Only then will we know the true level of funding needed to fulfill the expectations of this Biological Opinion. 

 

In recent months, a number of parties have asserted that federal agencies lack the financial resources to recover salmon and steelhead in the Columbia Basin, citing needs in the range of $800-900 million per year.  We believe the federal dollars identified in the President's Budget submittals for Fiscal Year 2003 and Fiscal Year 2004 are adequate to do the job.

 

The hundreds of millions of dollars federal taxpayers and regional ratepayers spend each year for salmon recovery make this one of the largest restoration programs in the nation.  It is our intention to use this funding effectively and efficiently to fulfill this Biological Opinion.   The President's budget matches the tasks and assignments at hand, but there are still some areas where Congress has not approved proposed salmon budget items.  We urge your support to fill these gaps.

 

Some additional comments may be appropriate here about the so-called "Salmon Report Card" issued by certain interests groups a few months ago.  I am well aware that the positive outlook in our findings letter and in today's testimony may differ dramatically from the dire assessment presented in the report card released by certain interest groups.

 

The "Salmon Report Card" issued by these interest groups uses as its yardstick the Biological Opinion as they would like it to be--not as it actually is written.  They confuse goal statements with requirements, when the Biological Opinion is quite clear that certain goals such as flow targets cannot be achieved under many conditions.  Second, the authors of the Report Card did not seem to recognize that we are only a little more than two years into a 10-year Biological Opinion.  Not all of the Opinion's measures will be fully implemented in its initial years nor does the Biological Opinion expect them to be.  And finally, the Report Card simply includes incorrect information on what is actually being accomplished.  The findings letter we issued in May tells a very different story.

 

Before I close, Mr. Chairman, because I know there is considerable interest in the status of hatchery fish, I would also like to briefly advise of the status of NOAA Fisheries' review of the 26 salmon and steelhead listings and hatchery listing policy.

 

NOAA'S HATCHERY LISTING POLICY AND STATUS REVIEWS

 

U.S. District Court Judge Hogan's decision in the 2001 case of Alsea Valley Alliance v. Evans led NOAA Fisheries to reevaluate how it treats hatchery fish in its ESA listing determinations.  The Alsea decision rejected NOAA Fisheries' prior policy of excluding hatchery populations from listing decisions even though they were determined to be part of the same ESU as listed naturally-spawned populations.                  

 

NOAA Fisheries is currently developing a new hatchery listing policy that we hope will more clearly articulate how the agency considers hatchery salmon in evaluating the risk of extinction for salmon and steelhead ESUs, in current and future listing determinations under the ESA.  Initially, the revised hatchery listing policy was expected to be completed in late 2002.  However, the agency has been carefully reviewing comments from state and tribal co-managers to ensure the policy is based on the best and most accurate scientific information available.  We hope to have a draft policy completed in the very near future and available for public comment and review within a few months.  We believe that artificial production facilities can make an important contribution to salmon recovery in the Northwest.

                                                                                                                                               

In addition, in 2002, NOAA Fisheries published notices that it would initiate status review updates for 27 ESUs of Pacific salmon and steelhead, including 26 listed ESUs and 1 candidate ESU.   The status reviews were initiated in response to the Alsea Valley Alliance v. Evans decision, as well as separate listing and de-listing petitions for 14 ESUs.  On December 31, 2002 we expanded the status reviews to also reconsider the relationship between steelhead and genetically-indistinguishable resident trout, since our past practice of listing only anadromous fish in our 10 listed steelhead ESUs that also contain such resident trout is susceptible to legal challenge on grounds similar to Alsea. The comprehensive status review updates are anticipated to be completed as soon as possible following the adoption of the hatchery listing policy to provide guidance on the proper consideration of hatchery populations in ESA status reviews and listing determinations.   The review is being conducted in two parts.

 

In part one, an expert team of federal scientists, the Biological Review Team, is reviewing the status of the naturally spawning portion of each ESU. Another group of agency scientists is advising how closely related the hatchery stocks in each ESU are to the naturally spawning portion of the ESU. In part two, NOAA Fisheries will review overall extinction risks to the entire ESU, including hatchery spawned fish. As required by the Endangered Species Act, the final determination of whether an ESU should be listed will be based on the combined results of parts 1 and 2.

 

Recently, the science panel completed its preliminary report for part 1 and has shared it with state, tribal and federal co-managers to ensure that the findings are technically accurate. These preliminary findings show the status of the naturally spawning portion of each ESU and report on the relatedness of associated hatchery populations.  The preliminary findings do not take into account the future effects of ongoing salmon conservation and recovery efforts.  My staff will use this information as part of our determination of which ESUs required continued protection as threatened or endangered species.

                       

After the part 1 and part 2 reviews have been completed, NOAA Fisheries intends to publish its proposed findings on each ESU and the basis for the findings, and will seek public comment on those proposed findings. NOAA Fisheries anticipates completing its review of all 26 salmon and steelhead ESUs, publishing those findings in the Federal Register, and seeking public comment  before the end of 2003.

 

Again, thank you, Mr. Chairman, for inviting me here today, and also for your demonstrated commitment and leadership on Pacific salmon recovery and other environmental issues of concern to Idaho and the Pacific Northwest.  I look forward to working with you to ensure that salmon recovery is successful, cost-effective and yields benefits for generations to come.  Thank you for the chance to appear before you today.  I would be pleased to respond to any questions, either at this hearing or in subsequent submissions for the record.