TESTIMONY OF CLIVE J. STRONG
DEPUTY ATTORNEY GENERAL
STATE OF IDAHO
BEFORE THE SUBCOMMITTEE ON
FISHERIES, WILDLIFE, AND WATER
OF THE UNITED STATES SENATE
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
REGARDING COOPERATION WITH STATES
ON BULL TROUT RECOVERY UNDER THE ESA
August 26, 2003
Boise City Hall, Boise, Idaho
Mr. Chairman and committee members, thank you for the opportunity to testify before this Subcommittee regarding federal cooperation with states on bull trout recovery under the Endangered Species Act. One need only skim the U.S. Fish and Wildlife Service’s Bull Trout Draft Recovery Plan to understand the daunting task that lies before the agency. The recovery plan encompasses most of the Columbia and Klamath River basins and its implementation will affect the lives of stakeholders throughout three states. As the plan acknowledges, the activities contributing to the decline of bull trout vary from subbasin-to-subbasin and, therefore, recovery measures must be site specific and tailored to each basin. Given these factors, it is obvious that any effort by the U.S. Fish and Wildlife Service to implement a bull trout recovery plan is doomed to failure absent active state and local involvement in the process. Fortunately, the Endangered Species Act provides for such state and local involvement. My testimony will focus on how local, state and federal cooperation under the Endangered Species Act in the Lemhi River Basin in Idaho is achieving meaningful, on-the-ground habitat improvements for anadromous fish and bull trout and the potential for expanding the Lemhi conservation model to bull trout recovery through the use of a State of Idaho Section 6 Cooperative Agreement.
The Lemhi River Basin is a remarkable example of community-based conservation. The Lemhi River Basin is located approximately 775 miles from the Pacific Ocean and was, at one time, one of the most productive salmon and steelhead areas in the Columbia River Basin. In early 1909, however, the mouth of the Lemhi River was dammed and the anadromous fish runs were almost extirpated. In addition, the development of irrigated agriculture resulted in the dewatering of many tributries and the isolation of bull trout populations. After removal of the dam in 1957, the anadromous fish runs began to return to the river; however, agricultural development limited access to some of the available habitat and bull trout populations remained isolated.
In the 1980s, as the Columbia River Basin anadromous fish runs began to collapse, and before the cloud of the Endangered Species Act descended over the Lemhi, farsighted ranchers in the Lemhi Basin became concerned that they were losing an important part of their heritage and felt compelled to take action to preserve the Lemhi salmon and steelhead runs. Recognizing that they could not achieve their objective alone, they sought the assistance of state and federal officials to develop an anadromous fish recovery plan. This effort led to the creation of the Lemhi Model Watershed Project. A technical committee consisting of representatives of the federal agencies, the state and the Shoshone-Bannock Tribe worked with the local landowners to develop a watershed project plan for the Lemhi Basin. The plan consisted of an assessment of fish habitat conditions within the basin and habitat goals, and prioritized a list of projects to achieve those goals. The central feature of the plan was development of a local solution tailored to the fish habitat needs within the Lemhi Basin.
The Lemhi Model Watershed Project was successful in reducing the number of irrigation diversions through consolidation of diversions and in improving riparian habitat through fencing and screening of diversions. The project also implemented a voluntary flush program to provide water for salmon migration during periods of dewatering in the lower Lemhi. These activities were possible because federal and state agencies worked with the local landowners to craft a local solution rather than imposing a one-size fits all federal solution.
The success of the Lemhi Model Watershed Project was threatened in the summer of 2001 when NOAA Fisheries, which had previously elected not to participate in the Project, unilaterally initiated enforcement action against some local landowners for the death of three salmon caused by dewatering the lower Lemhi River. Local landowners were upset that the NOAA Fisheries’ action ignored the many efforts of the local community to restore fish habitat. The State stepped in and encouraged NOAA Fisheries to work with the local community rather than pursue an enforcement action. The local staff of the Idaho Department of Fish and Game played a critical role in bridging the gap between the Boise-based NOAA staff and the local landowners because of the longstanding working relationship of IDFG with each of the parties. While initially there was a great deal of distrust, a state-lead mediation process helped the parties develop an appreciation of their respective interests. As a result, the parties have successfully implemented three interim conservation plans that provide a bridge to the development of a long-term conservation plan for the Lemhi Basin. The parties have recognized the need to ensure that the plan covers all listed fish species and, therefore, have expanded the plan to include measures to address bull trout. The Boise U.S. Fish and Wildlife office has played an active and constructive role in the discussions.
The hallmark of the Lemhi Conservation planning process has been the willingness of the federal agencies to work with the local community to devise a local solution for resolving the dewatering problem in the lower Lemhi River. Initially, NOAA Fisheries intended to sue the few water users who owned the diversion where the three dead fish were found in 2001. This action would have created a crisis, but no real resolution, to the dewatering problem. Under the prior appropriation doctrine, water rights are delivered based upon priority date. Since the water users who owned the diversion had some of the earliest priority dates, the effect of cutting off water delivery to these water users would have been to reduce the amount of flow coming down to the diversion and would have exacerbated the dewatering problem. Because junior water users are entitled to divert water not being used by senior water right holders, less water would have been delivered to the lower Lemhi. This situation would have led to additional enforcement actions against other water users and chaos in the state water delivery system.
Through interest-based negotiations with local landowners and the state, the parties crafted a market-based solution for providing instream flows in the lower Lemhi River. The local community agreed to seek State legislation authorizing the Idaho Water Resource Board to establish an instream flow water right on the lower Lemhi and creating a local water bank that provides a mechanism for renting water to satisfy the instream flow. This approach avoided local conflict, avoided the disruption of state water law, and is the cornerstone for development of the long-term conservation agreement.
While the work in the Lemhi is not finished, the state/local process demonstrates what is possible when federal agencies are willing to work with state and local interests instead of assuming a federal solution is the best solution. The parties are well on the way to development of a long-term conservation plan that will provide for the habitat needs of salmon, steelhead and bull trout recovery basinwide. The parties are improving the water bank process to ensure adequate migration flows, improving riparian habitat through additional screening, diversion consolidations and riparian fencing, and exploring means of reconnecting key tributaries to provide migration corridors for bull trout.
The Lemhi approach fits nicely within the congressional policy directive of the Endangered Species Act “that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species.” 16 U.S.C.A. § 1531(c)(2). Indeed, Section 6 requires the Secretary to “cooperate to the maximum extent practicable with the States,” and to consult with [a State] “before acquiring any land or water, or interest therein, for the purpose of conserving any endangered species or threatened species.” 16 U.S.C.A. § 1535(a).
Since the U.S. Fish and Wildlife Service has identified habitat degradation and genetic fragmentation as the primary causes for decline in bull trout, it is clear that many of the recovery measures will center on changes to water and land management. As amply demonstrated in the Klamath River and the Rio Grande River Basins, a federally mandated solution does not achieve desired conservation goals, but instead, engenders divisive litigation. In contrast, the Lemhi Conservation Agreement demonstrates that a state-led recovery effort results in meaningful solutions that enjoy community support.
Section 6 expressly contemplates state-led efforts for species conservation through cooperative agreements. Section 6 of the Endangered Species Act provides that the Secretary “[i]n carrying out the program authorized by this chapter, . . . shall cooperate to the maximum extent practicable with the States.” 16 U.S.C.A. § 1535(a). In furtherance of this policy, “the Secretary is authorized to enter into a cooperative agreement . . . with any State which establishes and maintains an adequate and active program for the conservation of endangered species and threatened species.” 16 U.S.C.A. 1535(c)(1).
Under a Section 6 Cooperative Agreement, the State, with the assistance of the local land owners and federal agencies, could develop conservation goals and an implementation plan for bull trout as well as other listed species. On an annual basis, the progress of the State could be reviewed by the appropriate Secretary and necessary revisions to the plan could be implemented. This type of basinwide adaptive management approach provides the only real opportunity for meeting the objectives of the Endangered Species Act. Too much money is being wasted on process and litigation without real benefit to the species. Section 6 provides an opportunity for immediate on‑the‑ground results, but will require a federal commitment to funding and a change in the top-down enforcement philosophy that too often pervades the thinking of federal agencies.
Thank you for the opportunity to address the Subcommittee.