U.S. Senate Committee on Environment & Public Works
U.S. Senate Committee on Environment & Public Works
Hearing Statements
Date:   06/25/2003
 
Richard Dieker
President
Yakima Basin Joint Board

Consulting process required by Section 7 of the Endangered Species Act.

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 Board's 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 YBJB's 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 Board's 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 Board's Section 7 consultation expenses started in August, 1998 when a Bureau representative formally notified the Board's president that the Bureau was required to consult with NMFS. Previously, the Board's biologists had reviewed and commented on the proposed listings of the fish. After the consul-tation started, the Board's 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 Board's 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 Reclamation's Yakima Office which shows the Bureau's 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 it's 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. 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 River's 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 irrigator's 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 Nation's 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 Bureau's 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 Project's ESA Section 7 consultation was initiated in 1999 when a draft "Biological Assessment" was presented to the action agencies for review and comment. The Board's 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 Project's 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.

Appendix A-1

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 River's 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 Basin's 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 Project's 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.

Appendix A-2

Consultation has cost the Board, its members and their waterusers over $1.7 million

(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 District's 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

.Kennewick Irrigation District

Kennewick's 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. Monk's 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

Bureau of Reclamation Consultation Chronology

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. OK'd 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 BO's 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 ID's 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 ID's 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 ID's. 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 ID's 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 doesn't 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 doesn't 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 can't be scheduled.

6/18/2003 E-mail from FWS concerning baseline issue. Frames issue as BR's 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.

NOAA has redefined the "purpose" of the ESA, the unit at risk, and what constitutes members of the unit, all of which are contrary to the wording of the Act.

(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, NOAA's 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. NOAA's 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.

(2) Unit at Risk

A second, but related, unauthorized NOAA decision was to overlook the statutory definition of the unit at risk, i.e. "species," "subspecies," and "DPS," and to adopt the framework that stated a population or a group of populations would be considered distinct under the Act "if it represents an Evolutionary Significant Unit (ESU) of the biological species" (NOAA Tech. Memo. NOAA F/NWC-194NOAA, Waples 1991).

NOAA then concluded that to qualify as an ESU the population or group of populations must be (a) reproductively isolated from other conspecific population units, and (b) represent an important component in the evolutionary legacy of the species. NOAA concluded that isolation need not be absolute, but sufficient to allow evolutionary differences to accrue that would define the unit as genetically distinct. These were subjective criteria and open to the interpretation of the administering action agency.

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.

NOAA's creation of ESUs as a category at risk combined with NOAA's purpose to preserve genetic diversity, allowed NOAA to include, for example, all Chinook salmon in NOAA's 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 NOAA's 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.

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 NOAA's administration of the law.

Appendix C

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 trout's 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 trout's 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.

Appendix D A

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 Project's 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 Project's 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/wateruser's annual use and reuse as irrigation water to the full extent of each YBJB landowner/wateruser's 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-ment's '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 Government's 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 YBJB's 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

8/21/98 Walter Fite, of U. S. Dept. of the Interior, 2-page letter to Chuck Garner (then YBJB president) regarding Federal agencies required to consult with NMFS when actions proposed to undertake may affect species listed under the Act.

8/25/98 Iller letter to Garner regarding ESA/Indian Tribes

8/27/98 YBJB Meeting Agenda Monk updates board on the Draft Biological Assessment

8/28/98 YBJB meeting with discussion of interim operating plan interaction with Endangered Species Act and review of August 21, 1998, letter from Fite (BOR Area Manager) to YBJB enclosing memo regarding ESA compliance

9/12/98 Memorandum to Yakima River Basin Coalition Federal Claims Coalition (Idaho) from W. J. McNeil regarding Columbia Basin Fish & Wildlife Authority Anadromous Fish Managers meeting on September 9, 1998, referencing: "Furthermore, it appears to me that NMFS decisions on fish protection will be accorded considerable protection by the Federal courts under ESA." "The next 8 to 12 months could be critical for assigning more water to anadromous fish under ESA. If PATH results in functional models upon which water management decisions are based, non-fishery "stake holders" could find it very difficult to defend their economic interests in a legal environment that gives precedence to ESA listed stocks.

10/13/98 Draft synopsis of Columbia Fish & Wildlife Authority December 3-4, 1998, "Columbia/Snake River Mainstream Water Temperature Workshop Integrated Ecosystem Management of the Columbia River Basin

10/21/98 Fax Memo to Charles Flower from Steve Cramer referencing at page 3: "ESA Status Reviews and Recovery Planning."

10/22/98 YBJB/DC 1998 Fall Consultants Meeting Agenda Agenda item on ESA Listings--Steelhead

10/22/98 Yakima Basin Joint Board Yakima Basin Defense Coalition 1998 Fall Consultant's Meeting Draft Agenda referencing at Item 4 "ESA Listings Steelhead; review current data; Listing implications for water management including smolt migration, adult migration and juvenile rearing/spawning (flip-flop), Analyses required and Mid Columbia ESU - litigation to contact.

10/26/98 Flower fax to Garner suggesting he invite Esget to attend YBJB/DC meeting to discuss ESA strategy

10/28/98 Yakima-Columbia River Water Transfer into the KID Canal Planning Aid Memorandum discussing ESA

10/30/98 Defense Coalition Minutes discussing at page 2, Item 5, the group's understanding of Esget's ESA/YRBWEP strategy.

11/02/98

This date is in question. Letter to Charles Flower from Steven Cramer transmitting attached 11/17/98 memo/summary of alternative ESA approaches being considered by a group of Flower's irrigation clients on the Stanislaus River, California, prepared by Atty Tim O'Lauglin.

11/09/98 Iller sends out University of Washington study regarding inverse production regimes of Alaskan West Coast Pacific salmon relevant to ESA listings of steelhead

11/10/98 E-mail to Kevin Wolf from Dennis Mcewan regarding Steelhead on the Stanislaus including Wolf's opinion that all naturally-produced steelhead are listed and under the full protection of the ESA, regardless of their origin as discussed an e-mail attachments dated 7/27/98 regarding Central Valley hatchery steelhead and the ESA

11/12/98 Washington Section AWRA Fall Conference Program Outline referencing ESA topics to be discussed.

11/30/98 JB Meeting Minutes Flower introduces Cramer to group; discussion on Draft BA; whether to battle NMFS on the listing if NMFS is intent on listing the species (steelhead); that Umpqua cutthroat removed from listing after a lawsuit was filed in Oregon which data showed the fish were relatively health and Oregon was on the side of those challenging the listing which is rare as NMFS will list despite any comments submitted; discussion on whether to attempt to challenge inclusion of Yakima steelhead in the mid-Columbia ESU; Cramer hands out document "Responding to Listings of Fish on the pacific Coast Under the Endangered Species Act leading to a discussion of possible strategies

12/09/98 Memorandum to Pat Monk from Brent Lister discussing Bull Trout Workshop in Nelson, B.C. with attached workshop program which discusses habitat conservation plans under the Endangered Species Act and Plum Creek Timber Company's Native Fish Plan at page 20.

12/09/98 U. S. District Court, N. D. California, 21-page decision in Coho Salmon Center, Inc., et al. vs Pacific Lumber Co. (for everyone's review).

12/16/98 Joint Board Minutes Discussion between Esget, Sullens and Cramer of ESA issues and how irrigators could cooperate with BOR to address ESA issues

12/18/98 Joint Board Meeting Minutes discussing ESA issues and how irrigators could cooperate with BOR to address ESA issues; Sullen discussed other basic ESA issues.

12/18/98 Meeting Agenda discussing issues of mutual interest arising out of proposed Steelhead listing and cooperation in responding to proposed listing, including options for negotiating ESA process.

12/18/98 Meeting Agenda Items include urgent issues NMFS has identified with regard to Yakima River Steelhead and opportunities for cooperation between irrigators and BOR on ESA issues

1/00/99 5-page Draft Biological Assessment Outline, Yakima Project O/M

1/11/99 Kittitas County Conservation District's letter to Governor's Salmon Recovery Office Discusses displeasure with $10M appropriated by Congress to Washington for salmon and steelhead recovery efforts and specifically the $800,000 to the Mid-Columbia ESA.

1/22/99 Monk fax to Steve Cramer regarding ESA Listings in Yakima Basin Reports on meeting with Kate Puckett, USBR fish biologist, regarding work on bull trout BA

1/25/99 Monk Monthly Activity Report Reports on status of working with Steve Cramer to help organize activities of fisheries biologists with regard to the ESA listing occurring in the Yakima Basin

1/29/99 YBDC Minutes Monk reports on status of Biological Assessment being prepared by the Bureau. Reports he is attempting to arrange a telephone conference with Steve Cramer and the biological consultants to review our ESA strategy. Discussion regarding sending letter signed by Chuck Garner to Fish & Wildlife Service with regard to the bull trout and to NMFS with regard to steelhead requesting status as an "applicant."

2/05/99 Iller memo to JB/DC/Biologists regarding phone conference with biologists February 5, 1999 re: ESA Consultation Issues Discussion centered on developing strategy to assist in BOR's BA for bull trout and steelhead

2/11/99 NMFS letter to Tom Payne closing Permit 1180 issued under authority of Section 10 of ESA authorizing takes of ESA-listed, central California and southern Oregon/northern California coast coho salmon, and southern California coast steelhead associated with scientific research in California.

2/12/99 Monk fax to YBJB/DC/Biologists Provides letter from YIN to BPA regarding negotiations to do away with two hydroelectric plants in the Yakima River

2/19/99 S. P. Cramer & Associates letter to Attorney Flower Believes Districts' interests best served by gaining ESA coverage through USBR's Section 7 permit; that Kaumheimer told Districts move unwise because it places USBR in position of enforcing water quality in irrigation water returns, and offers easier solutions to Kaumheimer's concerns.

2/26/99 d.b. lister & associates memo to Bill McNeil regarding his review of data set for Yakima spring chinook, fall chinook and steelhead trend and productivity analysis

3/05/99 YBDC Minutes Discusses Joint Board and/or the District being treated as an application with the Bureau for the purpose of the ESA listing of bull trout and steelhead. Monk reports he's been developing a description of the systems operations and return flows for inclusion in the BA for bull trout; that issues are complex and description of impact of return flows on fishery will be difficult to describe.

3/08/99 Iller 2-page memo to YBJB Explains why he's recommending that the Joint Board seek treatment as an applicant in the Bureau of Reclamation's Section 7 ESA Consultation with NMFS regarding steelhead.

3/08/99 Monk memo to YBJB regarding meeting with biologists regarding discussion of return flows to satisfy the ESA issues

3/09/99 Monk e-mail to many Monk prepares 4-page report on his progress on return flow write up for ESA assessment.

3/09/99 Monk Monthly Activity Report Reports on status of draft language for the bull trout and steelhead BA.

3/10-11/99 YBJB/DC 1999 Spring Consultants' Meeting Agenda Agenda item - ESA Listings

3/12/99 Task list for Joint Board biologists; Iller to notify Bureau's Kaumheimer that Joint Board wants to be treated as applicants in the ESA consultation

3/15/99 Flower letter to Brannon, Lister, Payne, Cramer & McNeil regarding McMichael's 39-page report, "Lower Yakima River Predatory Fish Monitoring: Progress Report 1998" About Lower Yakima River salmon smolt predation

3/19/99 Revised 16-page "Analysis of Flow and Habitat Relations in the Lower Yakima River, Washington, Associated With Proposed Water Exchange" report by Jack A. Stanford and John T. Kimball in collaboration with Cody L. Benkelman

3/29/99 Monk Monthly Activity Report Reports on questions raised about monitoring fish use of return flow drains in the lower Yakima River; that collection of fish for research purposes requires a State permit because wild fish are considered State resources wherever found. Fish sampling is considered a "take" under ESA because even the most careful handling will likely result in some mortality, so some fairly burdensome Federal regulations are involved now that steelhead are part of the picture. Will have to develop written study plans and submit data collected to permitting agency. Due to concerns expressed by SVID won't do work at this time.

3/30/99 State of Washington, Dept. of Fish & Wildlife letter to Tri-County Water Resource Agency regarding Salmonid Life History and Suggested Ranking for Salmon Enhancement Projects; Mid-Columbia Salmon recovery, Yakima and Klickitat River Basins, Tributaries to Columbia River, WRIA's - 30, 37, 37, 39 Attempts to shed light on current impasse regarding allocation of salmon restoration funds based on their "contribution to salmon recovery and offers comments on life histories of steelhead and salmon in Yakima Basin.

4/15/99 Monk e-mail to many Develops text regarding drafting of the return flow description and effects section

4/19/99 Steve Cramer's e-mail to Brent Lister and Pat Monk regarding rerun flows Discusses draft write-up

4/27/99 Monk e-mail to many regarding effects of return flows/draft BA Providing most recent version of the draft of the biological effects of return flows written by him an Brent Listed to be included in BA of the Yakima project.

4/28/99 Monk Monthly Activity Report Reports he worked with Brent Lister to develop biological effects of return flows and distributed via e-mail; to be included in the Bureau of Reclamation's Draft Biological Assessment of Yakima Project O/M. Discusses his involvement in the ESA on behalf of the irrigation districts and outlines issues he wants the Board to consider.

4/30/99 YBDC Minutes Discussion on return flows for draft BA reviewed. Trull reports State's response under ESA would include all elements from all segments. If State plan approved, could keep NMFS out. If districts act in accordance with the BO, then they will be insulated from citizen lawsuits. Can get same protection in the 4.d process. Trull thinks we need to be involved in State's plan for appearances allowing us to respond to potential inconsistencies in the two proposals. Iller doesn't think State would get blanket approval for statewide 4.d plan which is why we're under Sec. 7. May ask State to include BA in its Biological Assessment under 4.d.

5/00/99 BPA's 6-page "Yakima-Klickitat Fisheries Project Supplement Analysis (DOE/EIS-0169-SA-01)

5/00/99 41-page "Yakima-Klickitat Fisheries Project - U. S. Fish and Wildlife Service Bull Trout Biological Opinion" by USFWS

5/04/99 S. P. Cramer & Associates' invoices for April 1999 services and reports he is continued with several iterations of review and comment on the ESA write-up for return flows and is beginning his review of the BA prepared by USBR.

5/05/99 Monk e-mail to many regarding ESA Section 7 Reports on the issues arising out of meeting with USAR to discuss information and materials the Joint Board wants included in draft A of Yakima Project O/M.

5/10/99 Flower fax to D/C Attorneys, Managers attaching 4-page ESA/Indian Treaty Rights Analysis

5/21/99 Northwest Power Planning Council's Draft 48-page "Artificial Production Review--Report and Recommendations of the Northwest Power Planning Council" report on hatcheries

5/24/99 S. P. Cramer & Associates letter to Tom Cowan regarding choice of ESA Consultation Process. Expressing views on USAR recommendation for the Joint Board to file separately for an HCP rather than jointly with USAR for a Section 7 permit.

5/24/99 YBJB letter to Kaumheimer enclosing comments and materials for inclusion in 16-page Draft Biological Assessment of Yakima Project O&M

5/24/99 Attorney Flower's fax to all D/C Biologists, Managers and Attorneys forwarding copy of S. P. Cramer & Associates' 8-page "Analysis of Pit Tag Detections to Estimate Survival and Migration Rate for Yakima River Chinook Smolts

5/25/99 Monk Monthly Activity Report Reports he assisted Steve Cramer on preparing additional comments on Draft BA. Comments will be available to Dave Kaumheimer.

5/26/99 Patrick Monk's fax letter to Steve Cramer Reports Tim Cummings (USFWS - Vancouver, WA) heading up bull trout recovery unit for Mid-Columbia basin, including Yakima River; appears this group will be responsible for developing a recovery plan for bull trout.

6/00/99 2-page 1999 River and Dam Related Appropriations - Gorton's Top Priorities Report with attached 8-page news release from Gorton regarding no slush fund for dam removal

6/01/99 Iller draft letter to Esget regarding his comments on proposed scope of the BA Bureau is preparing for listed Steelhead and Bull Trout in Yakima Basin

6/04/99 Monk e-mail to many regarding Yakima Consultation Under impression resident rainbow trout not part of steelhead ESU

6/05/99 Flowers fax to Iller regarding ESA-Esget claims

6/11/99 DOE letter to People Interested in the Yakima Fisheries Project BPA, YIN, and WDFW proposing to collect broodstock, incubate eggs, and rear fry in hatcheries, acclimate and release smolts, and study natural production, ecological interactions, long-term fitness, and culturing/genetics of spring and fall chinook and coho salmon Yakima River Basin. Collection in the Klickitat River basin of salmonid life history and physical habitat data.

6/22/99 Monk draft agenda for YBJB 1999 Summer Consultant's Meeting

6/22/99 Monk fax to Cramer regarding ESA Listings in Yakima Basin with 5-page Jan, 1999 Draft Biological Assessment Outline, Yakima Project O/M

6/23/99 Monk Monthly Activity Report Reports on status of work with Steve Cramer and the USAR to develop draft BA of Yakima Project O/M

6/25/99 Columbia Basin Bulletin Article on fish negotiators focus on fall season

6/27/99 Flowers fax to Iller regarding additional work on ESA issue

6/29-30/99 YBJB Biologists Task List

7/00/99 (Undated) Chuck Garner's draft letter to Gorton' Staff re: Joint/Board/Yakima Basin Providing ideas or proposals helpful in ongoing salmon and steelhead efforts in Yakima Basin and Columbia River Basin

7/00/99 Sin-Wit-Ki article regarding Tribes/state agree on hatcheries

7/02/99 Tasks - Joint Board Biologists

7/06/99 S. P. Cramer & Associates invoices for June 1999 work and reports on their June 1999 work. Reporting he flew to Yakima on June 11 for meeting with Dave Kaumheimer to discuss involvement of the Joint Board in the ESA BA being written by USAR. Kaumheimer agrees that consultants for the Joint Board would have to wait until late July to offer suggested text for the BA and will delay submitting formal draft BA to NMFS until materials to be supplied by Joint Board have been incorporated. Attended field review and staff meeting on fish issues in Yakima June 28-30. Prepared summaries PIT tag detections for Yakima chinook. Had discussions with Flower and Monk on approaches to BA

7/07/99 William Stelle, Jr., of U. S. Dept. of Commerce, letter to Cathy Karp, of Bureau of Reclamation Attaching 16-page NMFS biological opnion on the Fish Community Research study Below Three Reclamation Dams in the Yakima River, Washington. NMFS determined that the proposed activity is not likely to jeopardize the continued existence of middle Columbia River steelhead or result in the adverse modification of their proposed designated critical habitat.

7/12/99 Flowers letter to Nancy Weintrub, BPA, adding individuals to mailing list

7/14/99 Monk e-mail to many regarding maintenance for Chandler screens

7/16/99 Monk fax to many regarding coho passage timing at Prosser

7/26/99 Monk fax to many with 7-page draft proposal "An Evaluation of the Columbia River Pump Exchange Project Using the Stream Network Temperature Model to be submitted to USAR

7/30/99 YBJB Meeting Monk reports on the status of the Draft BA. John Gilreath initiated a discussion on the material forwarded from Ernie Brannon concerning the Puget Sound. Discussion followed on full supplementation programs and wild fish. Oregon State has a publication on the Yakima Hatchery and the risks to wild fish. The Board should obtain copies of these documents and any related Biological Opinions.

8/04/99 S. P. Cramer & Associates letter to Patricia Bailey invoices his work for fisheries consulting services, and reports his efforts have focused on revising the ESA Biological Assessment written by USBA, that he has coordinated regularly with Pat Monk and Brent Lister on their review of the draft BA, had Ken Witty, of his office, review and comment on draft BA, and Ken O'Neil, assembled GIS, flow and temperature data for use in the BA and that Ted Williams analyzed PIT tag data

8/06/99 YBJB letter TO Kellie Carlson,, State Field Director, Senator Slade Gorton, providing ideas or proposals helpful in the ongoing salmon and steelhead efforts in the Yakima River Basin, as well as throughout the Columbia River Basin

8/16/99 Attorney Flower's fax to All D/C Biologists, Managers and Attorneys attaching draft 1978-99 "Improvements" contributing to the continuing recovery of fish. Section II - Irrigation Facilities and Operations in the Yakima River Basin have been significantly modified by aggressive federal and irrigation district programs and projects since 1972, resulting in improved conditions contributing to the continuing recovery of anadromous fish and bull trout.

8/17-18/99 Bureau of Reclamation Fish Entrainment Conference at Grand Coulee Purpose states reclamation has management responsibility of many dams which were never designed to be fish friendly. Due to modern day concerns for maintaining reservoir fish populations and because of listings of fish under the ESA, Reclamation is challenged with studying the entrainment impacts and implementing measures to reduce fish loss from its impoundments.

8/20/99 Monk prepared 11-page report on Yakima Project Biological Assessment for Endangered Species Act Consultation

8/26/99 Monk Monthly Activity Report Reported his work on the description of irrigation district operations for the biological assessment, reviewed the other consultant contributions to the report, and developed additional text, including with the report as "Effects of the Yakima Project..." and Table X. Advised he, Steve Cramer, and Rick Deiker are planning on accompanying Reclamation to Olympia for September meeting to present draft BA to NMFS.

8/26/99 S. P. Cramer & Associates letter to Attorney Flower reporting on assignment to assemble scientific literature on effects of pesticides on salmonids

8/27/99 S. P. Cramer & Associates' letter to Attorney Flower describing effort in investing in GIS analysis of Yakima Basin for use in the ESA BA of bull trout and steelhead in the Yakima Basin

8/30/99 Flower fax to Iller attaching Ernie Brannon's comments about Bill McNeil's report on Yakima chinook productivity, exposing view that if anyone wants to dispute conclusion that the Yakima chinook are doing as good or better than other populations, in spite of irrigation

8/31/99 Attorney Lawrence Martin letter to Cowan, Flower, Iller & Gilreath forward article "Critical Habitat Plan Could Increase Producer Burdens" - U. S. FWD announces plan to change the process for designating endangered species habitat

8/31/99 NWFSC 14-page Draft Document "Cumulative Risk Initiative and Recovery Planning Science"

9/04/99 S. P. Cramer & Associates letter to Patricia Bailey at Sunnyside Valley Irrigation district Reported on his August 1999 work: completed revisions to ESA Biological Assessment (BA), written by USBA; accompanied USAR with Rick Dieker and Pat Monk on September 1 to present the BA to NMFS in Olympia. States many problems with the existing stream and elevation data that had to be corrected in order to treat the basin as a whole. Data displays and analysis will be valuable during continuing ESA consultation and for future fisheries issues.

9/13/99 Confederated Tribes and Bands of the Yakima Indian Nation letter to Tom Fitzsimmons terminating its involvement in Tri-County Water Resource Agency. Mentioning they worked in cooperation with all levels of government and private citizens long before salmon became a popular issue and before fear of the ESA caused some long-time opponents of salmon in the basin to begin giving lip service for salmon restoration. That if they wish to use Watershed Planning and salmon restoration projects as a way to shield themselves from accountability under ESA or CWA while salmon runs dwindle to nothing, then they're not interested and will not assist them.

9/15/99 Legislative Consultation Briefing Package - "History" section: NMFS announces Yakima Basin fish species being considered for listing under the ESA

9/16/99 Monk memo to YBJB/DC Biologists Monk reports that at the SOAC meeting, Jeff Thomas (USFWS) told him his overriding concern is with steelhead, due to the listing. Thomas feels it is his responsibility to consider the ESA; reports on his preferences. Thomas has invited Steve Fransen (NMFS) to the SOAC meeting and alerted NMFS to issue of adult steelhead being trapped in canal.

9/16/99 d.b. lister & associates letter to Pat Bailey with suggested topic for 10/21-22 biologists meeting include Steelhead --Bull trout ESA issues

9/23/99 Monk, 1 of 4 signators, letter to Rick Parker at the U. S. Bureau of Reclamation Reports that when the Chandler Canal is shut down, hundreds of fall chinook, some coho spawners, and a few migrating adult steelhead are found trapped in the canal between the flow control gate and the fish screens. Discusses canal shutdown in the past and the Bureau's proposal to remedy the potential problem of dewatering but SOAC believes it will result in mortality for entrained adult fall chinook and possibly some adult steelhead SOAC submits its recommendations.

9/23/99 Cramer e-mail to Flower reporting on progress of assignments; sent stock specific harvest rates to Bill McNeil; has ESA deadlines and field studies to wrap up; put off harvest rate issue until November

9/24/99 YBJB Minutes Monk reported on meeting in Olympia with NMFS to discuss draft biological assessment. NMFS, comparing to Methow, says Yakima Basin has a "threatened" species versus "endangered, which makes action less urgent.

10/00/99 Meeting of YBJB biologists with discussion of ESA-related issues

10/04/99 Monk e-mail to many regarding update on ESA

10/06/99 YBJB/DC 1999 Fall Consultant's Meeting Draft Agenda Agenda item is ESA Listings

10/07/99 S. P. Cramer & Associates letter to Patricia Bailey invoices September 1999 work and reports on presenting to NMFS the ESA BA written by UBSR

10/13/99 Michele DeHart and Henry Franzoni's, of Fish Passage Center, 21-page memorandum to Brian Allee regarding regional database technology - the future

10/13/99 BJI 47-page memo to YBJB regarding implications of and probable litigation regarding Initiative 695 Discussing numerous irrigation district charges that could be affected by the Initiative

10/14/99 USFWS 8-page memo to BOR, Yakima, regarding Draft BA for Yakima Irrigation Project Operations

10/20/99 BOR letter to Check Garner regarding Draft Biological Assessment Comments (8 pages)

10/21-22/99 YBJB Biologists Meeting Minutes 18 pages on review and report on current activities

10/28/99 Monk Monthly Activity Report Discussion on USFWS's comments on draft BA of 10/14/99

10/29/99 YBJB Meeting Minutes Monk reports on status of the comment period of the BA

11/04/99 Dept. of Fish & Wildlife letter to Kaumheimer commenting on Draft BA

11/12/99 Review of two newspaper articles "Groups Oppose Voluntary Plan to Save Water" and "Methow Valley fish plan irritates irrigators Farm and environmental groups criticizing plan for saving Methow Valley Fish; draft agreement involving county and state and federal agencies calls for a voluntary program of increasing Methow Valley stream flows in order to comply with federal ESA; that for the first time irrigators required to have permission from NMFS to use 6 ditches running thru Okanogan National Forest because 3 fish specifies that live or spawn in tributaries of the Methow have been listed as threatened or endangered under the ESA

11/12/99 Newspaper article circulated for review

11/24/99 Monk e-mail to many regarding Moses Lake meeting and reporting on meeting with Richard Smith, USFWS

11/24/99 Monk Monthly Activity Meeting Reporting on ESA activities and upcoming meeting with USFWS to discuss their comments on the BA

12/00/99 Draft publication of the Federal Caucus titled "Conservation of Columbia Basin Fish - Building a Conceptual Recovery Plan (116 pages)

12/03/99 Cramer e-mail to many regarding bull trout consultation at Moses Lake Reporting on outcome of consultation in Moses Lake with USFWS and USBR on bull trout

12/08/99 Tom Myrum e-mail to many regarding GPID/Savage Rapids Dam, including 3-page article "Irrigation board approves demands in damn removal."

12/17/99 YBJB letter to Kaumheimer regarding YN & WDFW meeting to receive comments on draft BA of Yakima Projections and that he is entitled to attend meetings and wants to know of same in the future

12/17/99 YBJB Meeting Agenda Agenda item - ESA

12/20/99 Iller e-mail to many regarding right to be involved in meetings with tribe/WDFW

12/21/99 Monk e-mail to many regarding BA for ESA Consultation

12/22/99 Pat Bailey e-mail to Iller regarding tribe ESA BA consultations

12/22/99 Iller 4-page letter to JB/DC attaching draft letter to Kamheimer regarding the JB's representation at meetings with YN/WDFW

12/27/99 Flower letter to many enclosing two papers from the 12/17/99 "Government Takings" attended by him and Larry Martin - Eric S. Laschever's 15-page paper, "Property Rights and the Endangered Species Act" presented at the December 16, 1999, Law Seminars International, and Robin L. Rivett's 28-page paper "Why There Are So Few Takings Cases Under the Endangered Species Act - Or - Some Major Obstacles to Takings Liabilities"

12/27/99 Monk e-mail to Iller regarding right to be involved in meetings with tribe/WDFW with attached 3-page statute supporting same

12/28/99 4-page draft of YBJB letter to Kaumheimer regarding ESA Sec. 7 Consultations

12/30/99 NMFS's Notice of West Coast Pacific Salmon Proposed 4(d) Rules Public Hearings: Dates and Locations (including attachments, 78 pages)

1/00/00 Draft report prepared by Patrick A. Monk entitled "Results of Fish Surveys in the Roza-Sunnyside Board of Joint Control Irrigation Drain Network," 27 pgs.

1/00/00 Draft report "Results of Fish Surveys in the Roza-Sunnyside Board of Joint Control Irrigation Drain Network" 27-page document developed to review fish habitat and irrigation drains

1/04/00 Monk e-mail to many regarding NMFS's proposed rules for steelhead

1/05/00 S. P. Cramer & Associates letter to Patricia Bailey invoices December 1999 work and reports all work was related to ESA consultations; went to Moses lake for December 1 meeting with USAR and USFWS on bull trout consultation , which meeting revealed some topics needing strengthening in BA

1/07/00 Monk to-mail to many regarding meting with USAR to discuss WDFW/YN comments on and changes to BA of Yakima Project Operations, including 11-page draft of Biological Assessment Plan of Action (Draft to Final) of 1-13-00

1/17/00 YBJB letter to Kaumheimer regarding ESA Section 7 Consultations

1/18/00 Fax transmission from Charles Flower to all D/C attorneys, biologists and managers with Brent Lister's comments on draft fisheries section of Yakima IOP report.

1/24/00 S. P. Cramer & Associates letter to Patricia Bailey invoices January 2000 work and reports all work was related to ESA consultations; that there was phone conference on January 14 with USAR to determine how we should respond to comments received from WDFW and the Yakima Indian Nation; and status of work assignments

1/26/00 Flower fax to Iller with Summary of Irrigation District Contributions to Biological Assessment

1/26/00 Monk Monthly Activity Report Summarizes irrigation district contributions to BA

01/27-28/00 The Seventh Annual Regional Conference on the Endangered Species Act chaired by Melanie J. Rowland and Jeffrey B. Van Duzer

01/28/00 YBJB Meeting Agenda Agenda item - ESA

2/10/00 BOR letter to Garner regarding ESA Sec. 7 Consultations

2/17/00 Monk memo to Cramer regarding ESA Consultation and enclosing report detailing Yakima River fisheries studies titled "The Center of the Storm: Water and the ESA in the Methow Valley (27 pages)

3/01/00 March 2000 Joint Board Biologists Task List

3/03/00 Washington State DOE's 69-page draft "Teanaway River Basin Temperature Pilot Technical Assessment

3/08/00 S. B. Cramer & Associates letter to Patricia Bailey invoices work for February 2000 and reports on work on the ESA consultations and analysis of PIT tag data.

3/13/00 Flowers fax to Iller and Monk attaching 3/13/00 letter to Port Director regarding consulting services by Lister

3/15/00 Draft FWS 4-page Proposal "Keechelus Lake Habitat Assessment"

3/21/00 Monk sends to YBJB and Defense Coalition BOR's draft BA language for review (7 pages)

3/21/00 Charts regarding Catchment Area Above Bull Trout - Spawning Sites (11 pages)

3/22/00 E-mail to multiple parties including maps showing steelhead distribution as of 2000

3/22/00 E-mail from Kevin Lautz to Ted Clausing, Richard Visser, Charlie McKinney, Troy Suing, Scott Manley, Anna Lael, Mike Tobin, David Nunn, Cathy Reed, Gary Beeman, Richard Bain and Scott Nicolai, Brian Carrico, Phil Mees, Patrick Monk, Onni Perala, Scott Hoefer, Steve Croci, Dave Kaumheimer, John Merz and Dennis Carlson regarding Limiting Habitat Factors Analysis: Steelhead Distribution with attached maps and tables depicting distribution of steelhead in the Yakima River watershed.

3/27/00 d.b. lister & associates letter to YBDC invoicing February 22-March 26, 2000 work, and outlining work performed

3/28/00 Monk Activity Report Monk did more work reviewing and suggesting changes to the draft BA

3/30/00 YBJB/DC Spring 2000 Consultant's Meeting Agenda Agenda item on ESA Listings regarding steelhead and bull trout

3/31/00 YBJB Minutes Monk reports on upcoming meeting with USBA to discuss BA; and discusses timetable for finalizing irrigation effects section into BA; Cramer reports on steelhead and bull trout distribution in the basin; Lister reports about the small steelhead population that is due to constraints on the spawners as a result of the size of the resident populations and the small stream size at those high elevations.

3/31/00 Joint Board Biologists Meeting Minutes Discussed PIT tag analysis, ESA listing, bull trout, and and steelhead issues

4/00/00 Sin-Wit-Ki article "Tribal fishers make own nets to protect ESA steelhead"

4/03/00 Monk e-mail to many regarding meeting on BA with USAR

4/05/00 Monk fax memo to Cramer, Lister & Puckett regarding bull trout, steelhead interactions and providing data (4 pages) he consolidated from the Salmonid Stock Inventory reports for bull trout (1997) and steelhead (1992) in the Wenatchee and Entiat river basins

4/05/00 Fax memo comparing steelhead and bull trout distribution in the Yakima Valley (3 pages)

4/07/00 S. P. Cramer & Associates to Patricia Bailey invoices March 2000 work, reporting this month's major share of work was devoted to completing analysis and narrative to be included in the BA; and reported on Kerry O'Neal's completion of assembly of PIT tag detections for Yakima fish at each dam

4/13/00 Monk e-mail to Kevin commenting on maps he sent Advising bull trout and chinook salmon do not occupy similar spawning and early rearing habitats, and advising his cutoff is too high a gradient in marking upper extent of any anadromous fish distribution, and requesting he revise maps accordingly

4/14/00 S. P. Cramer & Associates memo to Iller regarding tracking of pesticide vs fish issues in response to his task of recruiting a toxicologist to keep the JB informed on findings from studies of agricultural chemical effects on salmonids, and attaching proposal he received from Parametrix to have Dr. Rick Cardwell serve as advisor to JB

4/22/00 Christine L. Stallard e-mail to Iller forwarding 2-page paper "For Balanced Solutions #28 - Northwest Citizens Make Comments on Federal Caucus All-H Paper

4/26/00 Monk Monthly Activity Report Reporting on update on spring chinook salmon counts, strategy to describe KRD facilities which may impact tributary streams and attaching a 3-page draft of description developed for the BA to describe KRD facilities which may impact tributary streams developed with help from Jack Carpenter; that consulting is not just on existence of reservoir dams but also on current operations of dams and their relationships to steelhead/bull trout.

4/28/00 YRBC/Executive Session Agenda Agenda item on Monk's Report on Keechelus Lake Habitat Assessment Monk provides his response to drains within the RSBOJC and WDFW, reporting he wants to develop proposal that would have some BOJC funding to help us comply with some ESA requirements as he's almost certain NMFS will ask us to do some monitoring of steelhead use of the drains with recommendations on what to do about it.

4/28/00 Tom Payne Memo to Yakima River Basin Coalition reporting on progress for January-April 2000 on Yakima River Fisheries Studies Reviewed and commented on spring chinook, bull trout, and steelhead BA drafts

5/03/00 S P. Cramer & Associates letter to Patricia Bailey invoicing work for April 2000 and reporting on status of assignments

5/9/00 10-page "An Approach to the Diagnosis and Treatment of Depleted Pacific Salmon Populations in Pacific Northwest Watersheds" article by James Lichatowich, Lars Mobrand, Larry Lestelle, and Tom Vogel Proposes an approach to restoration planning that focuses on Pacific salmon while retaining a broader ecosystem context

5/12/00 E-mail to Joint Board members regarding ESA budget issues for Steve Cramer & Associates

5/12/00 Monk e-mail to Chuck Garner, Pat Bailey, and Rick Dieker regarding budget Cramer believes he has maxed out his budget allocatedfor ESA issues; is developing a proposal to study bull trout in th Cle Elum watershed; questions if can we fund development of proposal

5/15/00 Cramer e-mail to many regarding contract summary Discussed amount billed fto Yakima for work on ESA BA

5/16/00 E-mail from Patrick Monk to Kathryn Puckett at BOR regarding draft Biological Assessment (BA)

5/26/00 YBJB Meeting Agenda Agenda item - ESA draft BA of Yakima project

6/02/00 Carpenter e-mail to many regarding Capital Press article on Kate V. at the KCWP Reporting on Kate Vandemoer's outlook with Kittitas water users group; that she doesn't want another Methow Valley situation; killing farming to save salmon is not an acceptable solution.

7/27/00 Redding e-mail to many regarding Federal Agencies Propose Comprehensive Salmon Strategy

8/01/00 Flower fax to D/C Biologists, Managers, and Attorneys attaching PI newsclip "Research suggests pesticides disrupt how salmon smell"

8/02/00 Hockberger e-mail to many regarding agenda and background materials for 8/3 meeting

8/15/00 Monk e-mail to many regarding Columbia River ESA consultation

8/16/00 Cramer e-mail to many regarding Columbia River ESA consultation

8/16/00 Trull e-mail to many regarding Columbia River ESA consultation

8/16/00 Second Cramer e-mail to many regarding Columbia River ESA consultation Providing link for downloading Draft 2000 FCROS biological Opinion from NWFS website

8/16/00 Third Cramer e-mail to many regarding Columbia River ESA consultation

8/16/00 Monk e-mail to many regarding Columbia River ESA consultation

8/17/00 Iller receipt for e-mail re: Read: ESA - Should we ask Kaumheimer to attend JB mtg on 8/24

9/20/00 Draft report by William J. McNeil, Ph.D. entitled "Progeny-To-Parent Ratios For Columbia Basin Stream Type Chinook Salmon," 11 pgs.

9/29/00 2-page report on Cascade Irrigation District fish passage issues raised by listing of steelhead trout under ESA

9/29/00 Memorandum from Patrick Monk to Tony Jantzer, Cascade Irrigation District regarding fish passage at CID facilities.

10/15/00 35-page "Progeny-to-Parent Radios for Columbia Basin Stream Type Chinook Salmon" report prepared by William J. McNeil, PhD. for YBJB

10/26/00 Memorandum from Bill McNeil to Defense Coalition Attorneys, Biologists and Managers regarding YIN proposed projects.

11/24/00 Capital Press articles entitled "Group Aim to Restore Science to Fish Recovery" and "Coalition Promotes Ag Ways to 'Save the Salmon.'"

11/25/00 Fax transmission from Charles Flower to all D/C Attorneys, Biologist and Managers with 11/00 article entitled "Salmon Enticed to Irrigation Ditch."

12/00/00 Review of Draft Discussion Paper on Evaluating Standards for Protecting Aquatic Life in Washington's Surface Water Quality Standards reviewed by William J. McNeil Ph.D 02/14/01 and discussed at 07/01 Bio Meeting.

12/05/00 Letter to Brian Iller, Esq. from Rick Cardwell, Parametrix, Inc. regarding progress report to Yakima Basin Joint Board: Risks Posed to salmon, Trout and Aquatic Life by Pesticide Use in Yakima Basin, 9 pgs.

12/20/00 Memo to Brian Iller from Ernie Brannon regarding various issues with attached November 2000 Draft Completion Report entitled "Population Structure of Columbia River Chinook Salmon and Steelhead Trout and Application to Existing Populations.

1/00/01 Statement of Work for Habitat and Fish Surveys in Irrigation Delivery Networks 11-page proposal to Bureau of Reclamation to study fish distribution including particularly ESA-listed steelhead and the irrigation drains

1/00/01 Article in Rivers/Volume 7, Number 4 entitled "Seasonal Microhabitate Use by Juvenile Spring Chinook Salmon in the Yakima River Basin, Washington, 19 pgs.

1/00/01 Report prepared by Ken Witty, S.P. Cramer and Associates and Patrick Mons for U.S. Bureau of Reclamation Yakima River Basin Water Enhancement Project and Roza-Sunnyside Board of Joint Control entitled "Statement of Work Habitat and Fish Surveys Irrigation Delivery Networks Lower Yakima River Basin."

1/03/01 Fax transmission from Charles Flower with cover page and table of contents of the NPPC "Subbasin Plan."

1/03/01 Fax transmission from Charles Flower with ½2/01 H/R letter to the editor regarding bull trout.

1/07/01 Fax transmission from Charles Flower to all D/C attorneys, biologies and managers with articles entitled "BPA Money Spent to Save Salmon," "Coho Making Appearance in River Again," "Winter Commercial Setline Season" and "Biologist Gets Thanks for Fish."

1/09/01 Fax transmission from Charles Flower to Pat M, all D/C attorneys, biologists and managers with DOE proposal "Determination of Significance and Request for Comments on Scope of EIS" and "Developing a Programmatic Environmental Impact Statement for Instream Flows."

1/30/01 Letter from Charles Flower to Steven Cramer, Brian Iller, Brent Lister and Pat Monk with 1/7/01 Seattle Times newsclip about ESA's 4(d) rule and penalties for violations.

1/31/01 Fax transmission from Charles Flower to all D/C attorneys, biologists and managers with H/R newsclip entitled "Groups Sue BPA Over Pesticide Risk to Salmon," Rick Cardwell e-mail and newsclip "Pesticides Enter Salmon Picture."

2/16/01 Letter from Jay J. Manning, Washington Environmental Council, to Jack Carpenter, Kittitas Reclamation District regarding evidence of irrigation diversions on Manastash Creed harming steelhead trout which are listed as a threatened species under the ESA.

3/02/01 E-mail from Brent Lister to Pat Monk regarding Yakima Fall Chinook Outmigration and River Temperature with attachment.

3/12/01 Draft Statement of Work prepared by Ken Witty, S.P. Cramer and Associates and Patrick Monk for U.S. Bureau of Reclamation Yakima River Basin Water Enhancement Project and Roza-Sunnyside Board of Joint Control entitled "Fish Distribution and Abundance Analysis Irrigation Delivery Networks Lower Yakima River Basin

3/28/01 Study Plan for Fish Distribution and Abundance Analysis, Irrigation Delivery Networks, Lower Yakima River Basin 19-page expanded study plan

4/17/01 5-page draft report by Pat Monk regarding USAR river operations which may affect bull trout or their habitat confidential report to Yakima Basin Joint Board (YBJB) and Yakima Basin Defense Coalition (DC) report

4/17/01 Memorandum from Patrick Monk to YBJB/ DC/ Biologists regarding USFWS recommendations for 2001 Yakima Project operations, 5 pgs.

4/28/01 Cramer e-mail to Rick Dieker regarding USFWS's letter on reservoir operations Advising there is some logic to some aspects of their recommendations but their choice of 15 bull trout in the catch at Rimrock as a trigger to hault drawdown is arbitrary; that USFWS recommendations are negotiable; working on simulation model for bull trout to predict effects on the population of allowing harvest on the Rimrock population; losing bull trout out through the outlet is the same as harvesting them; will have model assembled and ready for May 11 meeting with USFWS

4/30/01 Monk e-mail to Rick Cardwell regarding proposal to evaluate pesticides Advising his review of proposal valuable; requested he prepare estimated budget for doing general tasks related to pesticide risks to salmonid health during 2001, and identifying additional tasks to be included, i.e., work, if any, related to ESA consultation

5/02/01 S P. Cramer & Associates letter to Patricia Bailey invoicing for April 2001 work and reporting on status of assignments

5/02/01 20-page draft "Yakima Field Office Project Operations Outlook 2001 Irrigation Season" report prepared by the Yakima Field Office, U. S. BOF

5/17/01 Monk Monthly Activity Report Reporting on May 11 meeting at KRD

5/17/01 Monk fax to Bailey of 13-page article, "Simulation of Bull Trout impacts at Rimrock Reservoir Resulting from Entrainment at Drawdown" prepared by Steven P. Cramer an Ray Beamesderfer

5/17/01 BOR 6-page response to Landino's 3/22/01 letter regarding biological assessment for structural modification to Keechelus Dam

5/17/01 Monk e-mail to many providing brief update on the salmon runs this year

5/25/01 YBJB Meeting Agenda Agenda item - ESA BA

5/25/01 YBJB Meeting Minutes Discussion on Iller to setting up conference call with Cramer and interested members to begin talks on how to approach establishing a new ESU and delisting of bull trout; discussed May 11 BA meeting in Ellensburg; still no written comments from NMFS . Cramer presented results of life-history model he developed for Rimrock bull trout.

5/29/01 Iller 4-page memorandum to YBDC reporting on telephone conference with Cramer Instructed Cramer to initiate work on productivity/habitat study above Keechelus Dam pursuant to his proposal and expand it to include analysis of the effect ofish passage will have on bull trout. Reported on discussion of bull trout listing and spring chinook in Bumping River

6/05/01 S P. Cramer & Associates letter to Patricia Bailey invoicing April 2001 work and reporting on status of assignments

6/05/01 Monk e-mail to many forwarding memo from Don Harting to Yakima Watershd Technical Advisory Group Participants regarding preliminary review draft of "Habitat Limiting Factors by Subbasin" Chapter, an overview of a report being prepared by the Washington Conservation Commission intended to be a guideline for the state's salmon recovery program

6/06/01 NMFS letter to Kaumheimer regarding biological assessment for structural modification to Keechelus Dam Advising NMFS remains unable to concur with Kaumheimer's effect determination, as outlined in NMFS's 3/22/01 letter; but letter did reduce NMFS's concerns about the potential impacts of some construction activities but many of their substantive concerns remain

6/15/01 Phil Mees e-mail to J. Milton regarding TCWRA policy review

6/19/01 d.b. lister & associates letter to YBDCC invoicing work during March 22-June 18, 2001, and reporting on status of assignments

6/21/01 Project Summary Proposal by S P. Cramer & Associates "Juvenile Bull Trout Rearing Capacity Indian Creek & South Fork Tieton Subbasins Above Rimrock Reservoir (4 pages)

6/25/01 Activity Report from Patrick A. Monk to Yakima Basin Joint Board, reporting his activities and accomplishments for the past month, 2 pgs.

6/28/01 Flower fax to D/C Biologists, Managers, and Attorneys attaching 31-page Complaint for Declaratory and Injunctve Relief (NMFS use of F/M to fix "target flaws") in the lawsuit filed in the U. S. District Court, Eastern District of Washington, Okanogan County, et al. vs National Marine Fisheries Service, et al.

6/29/01 YBJB Meeting Agenda Agenda item - ESA BA

6/29/01 YRBC/Executive Session Agenda item - Bumping River Snorkel Survey and Biologists Meeting

6/29/01 YBJB Meeting Minutes Reporting NMFS, USFW, and USBR toured Kittitas, Yakima-Tieton, Roza and Sunnyside irrigation districts organized by Monk as part of the ESA biological opinion process; that NMFS continues to delay consultation in an effort to combine Keechelus and O&M activities. USBR still mantains issues are separate and is moving forward on the Keechelus schedule. Landino's letter contains some huge statements reflecting direction agency is taking. Monk will review the BPA Draft EIS.

7/00/01 Undated letter to Doc Hastings from Richard Dieker regarding biological assessment and structural modification to Keechelus Dam.

7/00/01 Undated draft AFW Irrigation Districts Stream Flow White Paper, 3 pgs.

7/02/01 Iller e-mail to many regarding his converation with Hockberger who has no knowledge of any formal intent to sue being filed by the tribe re: Keechelus rebuild but he's aware they're taking hard line and have threatened litigation on the fish passage issue

7/05/01 S P. Cramer & Associates letter to Patricia Bailey invoicing June 2001 work and reporting on status of assignments

7/06/01 Rick Dieker memo to many regarding ESA consultation

7/06/01 Monk e-mail to many regarding his thoughts on ESA consultation

7/06/01 Monk e-mail to Cramer, Lister and Payne regarding biologists meeting Thinks Keechelus tributaries field trip would be valuable as it is becoming a very hot issue for the irrigation interests, with the ESA and tribal rights becoming intertwined

7/09/01 Aquaculture Research Institute e-mail to Rick Dieker regarding ESA consultation, advising given current political c;imate in Washington and the attention the ESA is getting, thinks greater emphasis on congressional route is best

7/11/01 Iller e-mail to many with his comments to Rick's letter regarding rebuilding Keechelus

7/11/01 Flower fax to D/C Biologists, Managers, and Attorneys attaching 10-page YN proposal "Bonneville Power Administration FY 2001 High Priority Project Proposal Revie" to NPPC for money to purchase Pac Power Wapatox water right

7/11/01 Worksheet for Recommendation Development outlining project effects, alternatives and recommendations, 17 pgs.

7/13/01 Letter to Mark Miller, U.S. Fish and Wildlife Service from Richard Dieker, Yakima Basin Joint Board President regarding continuation of meetings between USFWS, USBR, NMFS and the Irrigation Districts.

7/24/01 Monk e-mail to many regarding ESA isues Haley leaving agency. BO was due first of September but doesn't appear feasible at this time.

7/27/01 YBJB Meeting Minutes No activity on ESA BA. No response to the Mark Miller letter. Letter to Hastings being drafted. Haley leaving USFW with no replacement yet.

8/00/01 Actually there is no date on this article. 6-page Regional Report "Northwest Regional Report A Tale of Two Fishes" by Professor Amy K. Kelley, Gonzaga University School of Law Reporter, Northwest Region

8/01/01 Dave Brown e-mail to Monk regading bull trout delisting Discussion of Golder Associates' review of attached 3-page document "Bull Trout Review Strategy" is a supportable approach

8/01/01 Monk e-mail to many regarding reaction to Ken Witty's proposed approach dealing bull trout delisting

8/02/01 Payne e-mail to many regarding IFIM Insteam Flow Setting and attaching RFQ list used recently by the Entiat Planning Group

8/06/01 Ray eamesderfer e-mail to Flower and Monk attaching 3-page draft outline, "Biological Basis for Assessing Salmonid Population Viability" for Cramer's assignment to outline the biological basis corresponding to a "mere maintenance" population standard

8/07/01 S P. Cramer & Associates letter to Patricia Bailey invoicing work for July 2001 and reporting on status of assignments

8/10/01 d.b. lister & associates letter to YBDCC invoicing for work and reporting on status of assignment

8/12/01 Flower fax regarding his comments on Governor Locke's speech at the Columbia-Snake River Irrigators Association Eastern Oregon Irrigators Association and Northwest Irrigation Utilities program; that Locke made it clear we need to recognize the ESA is here to stay and we must work with it rather than fight to appeal it; strongly endorsed storage as a needed management tool

8/15/01 Monk e-mail to Thomas R. Payne & Associates advising he will respond to attached 9-page article, "The Truth About Salmon in the Pacific Northwest"

8/20/01 Newspaper article "New Options for I-90 Hyak to Easton - Common Route Favored; Split Route Gone Discussing new alternatives for the I-90 expansion. Problem with original split route was that it placed fishes in the lake, which had Fish and Wildlife impacts and threatened the endangered bull trout.

8/24/01 YBJB 3-page letter to Murray and Cantell regarding biological assessment and structural modification to Keechelus Dam, regarding disagreement between federal agencies regarding the rebuilding of Keechelus Dam and asking for help in resolving impasse

8/27/01 Newspaper articles, "Audit Calls Federal Fish Officials Arrogant", and "Hatchery Salmon Will Die to Protect Dwindling Coho"

8/31/01 YBDC Meeting Minutes Reports Bumping River redd survival surveys have been completed. Good numbers of Chinook salmon and bull trout every day. Cramer will develop report; Witty has written up a strategy for work on the bull trout delisting. Monk still working on 1-page talking paper.

8/31/01 YBJB Meeting Minutes Reporting Esget, USBR, would like too discuss with EPA a compromise of "fix the dam now" and request a future feasibility study through Congress for fish passage on all damn in the Yakima Basin. USFW bull trout recovery program will recommend fish passage on all reservoirs.

9/04/01 S P. Cramer & Associates memo to Joseph R Carlson regarding Keechelus study and discussing observations made during July field work

9/05/01 S P. Cramer & Associates letter to Patricia Bailey invoices for August 2001 work and reports on status of assignments.

9/05/01 "Could a River Run Through It? A Review of the Yakima River Basin Water Enhancement Project" by Steve Wise, Research Publication P001-2 (44 pages)

9/07/01 Monk e-mail to many advising a bull trout has been caught from the Rimrock entrainment study.

9/10/01 U.S. District Court, District of Oregon's 21-page "Order" granting plaintiff's summary judgment, denying defendant's cross motion, and declaring the 8/10/98 NMFS listing decision, contained at 63 Fed. Reg. 42, 587, unlawful and setting it aside as arbitrary and capricious; is remanding matter to the NMFS for further consideration consistent with this opinion; agency further directed to consider the best available scientific information, including the most recent data, in any further listing decision concerning the Oregon coast coho salmon in Alsea Valley Alliance, et al. vs Evans, et al.

9/19/01 Flower fax to Monk attaching 3 pages of comments by Dale Bambrick regarding year 2000 = 19,000 spawners

9/25/01 Steven E George e-mail to Rick Dieker regarding New Mexico decision that found USFWS had not correctly designated Critical Habitat as agencies had not complete a full economic effects assessment and designation thus invalidated; that due to several suits including one on NW salmon designations of critical habitat, both NMFS and USF&WL have admitted their methodology for economic assessment doesn't meet requirements and will change to do it correctly; and attaching 3-page article, "Federal Judge Vacates Pgymy-Owl Habitat" dealing with federal fish agencies received from a participant on the ag AFW process

9/28/01 YBJB Meeting Agenda Agenda item: ESA BA

9/28/01 James L Buchal 6-page letter to Robert Lohn writing on behalf of Columbia-Snake River Irrigators Association's petition for removal of several species of Pacific Northwest salmon from "threatened" or "endangered" status under the ESA

10/09/01 YBJB/DC Fall 2001 Consultant's Meeting Agenda Agenda item on recent ESA activities

10/09/01 A beginning to an approach by former NWFS employee 13-page "Bull Trout Review Strategy" report

11/06/01 S. P. Cramer & Associates letter to Patricia Bailey invoices work for October 2001 and reports on status of assignments.

11/07/01 YBJB Meeting Minutes Nothing new on ESA BA

11/07/01 Monk Activity Report discusses Rimrock bull trout study

11/27/01 Monk e-mail to many regarding meeting he attended concerning Taneum Creek flow/fish issues

11/30/01 Monk e-mail to many regarding NMFS ESA hatchery review Attaching 3-page document, "Hatchery Salmon ESA Listing Review Action Plan" published recently by NMFS describing their upcoming ESA review process

12/03/01 d.b. lister & associates e-mail to Monk regarding Yakima flow and Redd data

12/04/01 Monk e-mail to d.b. lister & associates regarding NMFS ESA hatchery review

12/05/01 Monk memo to Bill McNeil regarding NMFS's review of ESA Reports that by Judge Hogan reversing ESA status of Oregon coastal cohol, he has apparently stimulated NMFS to review listings of anadromous fishes in the Columbia Basin.

12/6/01 Monk Activity Report Monk received draft Biological Opinion (BO) that he will be reviewing; discusses upcoming hatchery and status review under the ESA and has asked other bios to review the process NMFS proposes and recommend a course of action

12/07/01 YBJB Meeting Minues Reports nothing new on the ESA BA

12/07/01 YBDC Meeting Minutes Reports upcoming hatchery and status review is an ESA issue. Monk asked the other biologist to review the process NMFS proposes and comment.

12/11/01 Monk memo to YBJB/DC/Biologists regarding Keechelus Dam Rebuild ESA Consultation

12/18/01 BOR's 48-page article, "Keechelus Safety of Dams Project Biological Opinion"

12/18/01 Monk e-mail to many regarding documents Joe Carlson sent for review relevant to ESA listing of the Mid-Columbia steelhead and the upcoming review by NMFS

12/19/01 Cramer e-mail to many advising comin status review of mid-Columbia steelhead this summer is our opportunity to get these fish off of the ESA list

12/20/01 Aquaculture Research Institute e-mail to Monk regarding Coalition/ESA Review, advising it's useful to look at what has happened regarding the impact that Hogan's decision has had on the hatchery/wild issue in listing wild fish separate from hatchery fish

12/20/01 Cramer e-mail to many advising he thinks appeal to the Hogan decision will turn out to be a moote point as when decision comes, NMFS will have new determinations on its ESUs based on new data and appeals case will address an old ESA determination; need to make sure new determination is based on the full range of available data and on an accurate understanding of how to interpret that data

1/02/02 BOA letter to Steven George, of Yakima River Basin Commodity Coalition, responding to his 11/21/01 letter concerning decisions regarding releases of water from storage for fisheries purpose during fall and winter Yakima River operations

1/03/02 Monk e-mail to many regarding ESA review, attaching document "Status of Mid-Columbia Steelhead Trout" he is developing to describe the ESA review project

1/03/02 Dave Brown e-mail to many providing his comments regarding ESA review

1/07/02 Confederated Tribes and Bands of the Yakima Nation 4-page letter to John Keys III, of BOR, regarding proposed reconstruction of Keechelus Dam; stating steelhead, spring Chinook, Coho and Sockeye have been excluded from the habitat above Keechelus Dam since it was built; that bull trout exist above and below the dam and are impacted by lack of passage and isolation of populations; that restoring passage to right thing to do; Reclamation has legal duty and authority to provide passage, and that they have pressured federal and state fisheries agencies to ignore the law and are persuading Governor to renege on his commitment to the Yakima Tribal Council to likewise require fish passage in the Keechelus Dam reconstruction,

1/07/02 S. P. Cramer & Associates letter to Patricia Bailey invoices for December 2001 work and reports on status of assignments

1/09/02 Cramer memo to Monk, Witty and Lister attaching 12-page draft statement of work for completing status review of Mid-Columbia steelhead

1/09/02 d.b. lister & associates e-mail to many commenting on ESA review draft document

1/11/02 Monk's memo to Walt Larrick regarding Keechelus Biological Opinion Providing comments on he BO for letter he's drafting to USFW

1/15/02 Endangered Species Act - Section 7 Consultation and Essential Fish Habitat Consultation's 52-page "Biological Opinion" - Keechelus Dam Safety of Dams Modification", WSB-00-577, issued by Dr. Robert Lohn, Regional Administrator

1/16/02 Payne e-mail Cramer providing comments on steelhead delisting proposal

01/21/02 d.b. lister & associates letter to YBDCC reporting on status of assigned tasks

1/25/02 YBJB Meeting Minutes Kaumheimer reports USBR is maintaining that the BA be written and reviewed according to ESA guidelines. NMFS and the Nation prefer an alternate method for the Yakima Basin with their agencies participating jointly. Board supports USBR's position.

2/00/02 S. P. Cramer & Associates 21-page proposal "Prepare an Assessment of Population Viability for the ESA Status Review of Steelhead Trout in the Middle Columbia ESU"

2/05/02 Commentary by William J. McNeil, Ph.D. entitled "Definition of Wild Salmon" discussing the lineage of naturally-spawning fish any hatchery relatives and suggesting that the process of defining and differentiating species under the ESA should give priority consideration to similarity or difference in genetic composition and variability of naturally and hatchery-spawning fish.

2/05/02 18-page "Definition of Wild Salmon" commentary by William J. McNeil, Ph.D.

2/07/02 S. P. Cramer & Associates invoices January 2002 work and reports on Yakima PIT tags and provides status as the Yakima advisor on ESA and fisheries issues

2/08/02 Monk fax letter to Cramer regarding Wenatchee bull trout Providing data he prepared and text from 11-page 1997 SASSI Bull Trout/Dolly Varden report by WDFW

2/14-15/02 U. S. Bureau of Reclamation Keechelus Safety of Dams Project 48-page "Biological Opinion" U. S Fish and Wildlife Service report of December 18, 2001

2/19/02 Cramer e-mail to Monk regarding Keechelus. Advising JB and USAR will be excited about our analysis; used habitat measurements to estimate carrying capacity, used life history simulation models to estimate equilibrium run sized that could be sustained; coho were not sustainable; no chinook or steelhead; concluding evidence is compelling against gaining much value fro adding fish passage at Keechelus

2/20/02 Monk e-mail to many regarding Keechelus report draft

2/21/02 Flower fax to Monk attaching 6-page 2/11/02 Federal Register re: Delisting Pac Salmonid ESU's

2/21/02 Thomas Payne e-mail to many regarding 3-page adult fish passage criteria review

2/22/02 Steve Cramer e-mail to many regarding ESA status review and discussion of strategy for submission

2/22/02 Monk e-mail to many regarding Yakima consultants meeting on April 5, 2002, to present final results of the "Reaches" studies and scheduling April 4 meeting to review comments on ESA status reviews

2/22/02 Monk e-mail to many regarding biologists meeting to review April 12 deadline NMFS has for comments on ESA status reviews

2/24/02 d.b. lister & associates e-mail to Monk regarding conservation assessment of Oregon steelhead; provides comments on review of Mark Chilcote's report, "Conservation Assessment of Steelhead Populations in Oregon"

2/26/02 Monk Monthly Activity Report Reporting on work with Cramer & Associates and Brent Lister to complete proposal for Mid-Columbia Steelhead review, budget status, and review of Keechelus BO

2/28/02 YBJB letter to Interested Parties regarding whether steelhead trout in Mid-Columbia region should continue to be listed as threatened under the ESA and enclosing proposal to develop scientific information necessary to determine the status of Mid-Columbia steelhead

3/00/02 Salmon Report "Fish Tales" reprinted from the Wall Street Journal February 27, 2002

3/01/02 YBJB Meeting Agenda Agenda item - ESA Biological Opinion - Keechelus Dam

3/01/02 YBJB Minutes Monk reported on status of Project Operations ESA Consultation.

3/07/02 S. P. Cramer & Associates letter to Patricia Bailey invoices for February 2002 services and reports on analysis of Yakima PIT tags, finalizing Statement of Work and Budget to lead consultant team to assess population viability of ESA-listed steelhead in mid-Columbia Steelhead ESU, and fish capacity above Keechelus dam

3/12/02 Monk e-mail to many regarding NMFS rescinds current critical habitat designation for 19 West Coast salmon and steelhead populations, including 3-page recent decision by NMFS to drop their current critical habitat designations for salmon and trout

3/29/02 YBJB Meeting Agenda Agenda Item - ESA Biological Assessment

3/29/02 YBJB Meeting Minutes Regarding ESA BA, Eric talked to NMFS and tribe. Agencies totally outside of ESA timeframe USBR has discretion to limit the actionby defining a base line and a limit of the outside line.

4/02/02 Monk memo to Bill McNeil regarding multi-species status, and enclosing new releases and his commentary of 2/5/02, addressing issue of genetic differences between hatchery and wild fish

4/03/02 S. P. Cramer & Associates letter to Patricia Bailey invoicing March 2002 work and reporting on status of assignments

4/12/02 Monk e-mail to many regarding steelhead delisting criteria, attaching interim production target 7-page report "NOAA Fisheries Releases Interim Abundance and Productivity Targets for Pacific almon and Steelhead Listed Under the Endangered Speciies Act" for ESA listed salmon and steelhead recently published by the NMFS

4/23/02 Monk Monthly Activity Report Reports on his activities for ESA Listings

4/24/02 Jim Milton e-mail to many regarding input from USFWS for meeting

4/24/02 Letter and invoice from D. Bret Lister, R.P.Bio. To Yakima Basin Joint Board for consulting services

4/26/02 YBJB Meeting Agenda Agenda item - ESA BA

4/26/02 YBJB Meeting Minutes Reports no visibility activity on the basin's ESA BA

4/26/02 YBDC Meeting Minutes Reports Steve Croci, USFWS, is developing a critical habitat recommendation for bull trout in the Yakima Basin. Pat Monk is providing comments using information from the BA and ESA's definition of critical habitat.

5/00/02 Critical Habitat for Bull Trout in the Yakima River Basin: The Endangered Species Act and the Clean Water Act prepared by Patrick A. Monk, Fish Biologist for Yakima Basin Joint Board references in summary: "Designating critical habitat for bull trout in the Yakima River Basin to include all 1st, 2nd, and 3rd order streams higher than 2,000 feet in elevation, with known bull trout spawning populations, would be consistent with the Endangered Species Act. Spawning and juvenile rearing habitat is the most limiting for bull trout, and the most essential habitat necessary for the conservation of the species. In contrast, migratory sub-adult and adult bull trout occupy habitats in common with other trout and salmon species, and habitat for adults does not appear to limit their populations in the Yakima Basin. Migration conditions can limit fish access to spawning habitat, and critical habitat designations may need to be considered in cases where access to spawning streams can be impeded due to human activities. Designing critical habitat in this manner would be consistent with proposed Clean Water Act standards, making the ESA and the SWA complimentary. Economic analyses must be completed before a critical habitat designation for bull trout can be made.

5/00/02 Draft report on critical habitat for bull trout 13-page document suggesting that critical habitat designation include first, second and third order streams higher than 2,000 feet in elevation with known bull trout spawning populations

5/07/02 S. P. Cramer & Associates letter to Patricia Bailey invoicing April 2002 work and reporting on status of his assignments

5/14/02 FWS 3-page letter to Ted Sorenson regarding request for additional information on the draft BA, Tieton Dam Hydroelectric Powerhouse Construction

5/24/02 NMFS 9-page letter to Larry Cassidy, Chair Northwest Power Planning Counsil, regarding subbasin planning and the ESA

5/28/02 Ken Witty e-mail to many regarding critical habitat for bul trout

5/31/02 YBJB Meeting Agenda Agenda item - ESA BA

5/31/02 YRBC/Executive Session Agenda Agenda item - Mid-Columbia Steelhead project

6/04/02 S. P. Cramer & Associates letter to Patricia Bailey invoices May 2002 work and reports on status of assignments

6/13/02 NMFS letter to YBJB regarding status rview updates of Wst Coast salmon and steelhead under the U. S. ESA Advising our comments and information will be considered as they update biological status information and review the ESA listing determinations for the ESUs concerned

6/27/02 Monk Monthly Activity Report Reports biologists meeting went well; provide June 2002 Biologists Task List

6/28/02 YBJB Meeting Agenda Agenda item - ESA BA

6/28/02 YRBC/Execution Session Agenda Agenda item - Mid-Columbia steelhead project

7/03/02 S. P. Cramer & Associates letter to Patricia Bailey invoices work for June 2002 and reports on status of his assignments on Yakima PIT tags; that he and Ken Witty participated in a biologists review meeting in Yakima on June 11 and 12 discussing strategies and ideas for work by other biologists, toured Bumping River, and gave a presentation on mid-Columbia steelhead issues for ESA; and continues to working on follow through in information requests for tsudies of fish and habitat

7/12/02 Monk e-mail to Pat Bailey attaching meeting notes from July 10 YTAHP field tour of fish passage projects in Yakima County

7/12/02 Second Monk e-mail to Pat Bailey regarding template for preparing BA

7/18/02 Monk e-mail to many regarding steelhead review action plan

7/18/02 Richard Visser e-mail to many regarding YTAHP ESA consultation

7/19/02 Monk e-mail to many providing article on steelhead viability study "Researcher Disputes Accuracy of NMFX Extinction Analysis"

7/26/02 YBJB Meeting Agenda Agenda item - ESA BA; Monk's ESA activities in July 2002 Monk reports he have another presentation of the mid-Columbia steelhead project to WSWRA

7/28/02 Tom Payne memo to YRBC regarding progress on Yakima River Fisheries Studies Reports he and Mark Allen attended the spring biologist's meeting; conducted site visit to Bumping River and Reservoir in relation to fish passae and ESA issues

8/00/02 YBJB 1-page note on status of ESA Section 7 Consultation Process in Yakima Basin and Keechelus Dam Repair: Yakama Nation v. US

8/00/02 S. P. Cramer & Associates' Work Plan "Phase 2 of Population Viability Assessment for the ESA Status Review of Steelhead Trout in the Middle Columbia ESU (16 pages)

8/02/02 S. P. Cramer & Associates letter to Patricia Bailey invoices for July 2002 work and reports Cramer and Ken Witty reviewed correspondence and coordinated with other biologists on miscellaneous issues routed to Yakima biologists; that a work statement and budget for conducting snorkel surveys in the Bumping River has been prepared approved by JB

8/06/02 Flower fax to D/C Biologists, Managers, and Attorneys forwarding Ernie Brannon's "draft" white paper in response to NMFS's new hatchery policy and draft "petition" against NMFS's mis-use of ESU's (7 pages)

8/12/02 Monk e-mail to d.b. lister & associates attaching most recent fish counts for spring chinook and steelhead at Prosser

8/14/02 d.b. lister & associates memo to many regarding apparent negative effect of hatchery chinook smolt releases on wild Snake River chinook and enclosing copy of recent 6-page paper ("The road to extinction is paved with good intentions: negative association of fish hatcheries with threatened salmon") published by NMFS scientists in the Proceedings of the Royal Society, London, whose authors demonstrate a negative association between survival of wild Snake River spring/summer chinook smolts and numbers of hatchery spring chinook smolts released, but only in years of below average ocean productivity

8/18/02 PCD 11-page memorandum to LEM regarding Big Six: Yakama Challenge to Keechelus Re-build / Irrigation Districts' Intervention Rights Better authority exists for the right of litigants to intervene as parties-defendant in order to assert economic interests in ongoing ESA actions. Starting point for intervention rights under ESA should be Bennett v. Spear, supra.

Notwithstanding conflicting interpretations about the state's authority to require fish passage under the Safe of Dams Act and its authorizing statute, the Reclamation Act, the Yakima Nation contends that fish passage at Keechelus Dam is required under the ESA. However, as the Bureau has pointed out, the ESA does not, in and of itself, grant agencies (including the Bureau) additional authorities. So, if authority does not presently exist for the Bureau to construct fish passage at Keechelus Dam - either through the SOD or other federal statute - the ESA does not provide authority for it to do so.

8/23/02 YBJB Meeting Agenda Agenda item - ESA BA

8/23/02 YRBC/Executive Session Agenda item - Mid-Columbia Steelhead project

8/27/02 d.b. lister & associates letter to YBJB regarding status of fisheries biological consulting services work

9/00/02 U.S. District Court, Districit of New Mexico 28-page Memorandum Opinion and Findings of Fact and Conclusions of Law, The Endangered Species Act Congressional Mandates and the Sole Exception in Rio Grande Silvery Minnow, et al., Plaintiffs vs Keys, Federal Defendants, and Middle Rio Grande Conservancy District, et al., Defendant Intervenors

9/00/02 9-page draft letter to Dale Bambrick, of NOAA-NMFS, regarding BPA requesting informal consultation on canal-stream crossing and fish screen improvement project; that proposal is to place Ellensburg Water Co.'s main canal in a siphon passing underneath Cooke Creek, to build a fish screen on the EWC diversion on Cooke Creek, and to restore the Cooke Creek channel to a more natural state; that purpose of the project is to improve fish habitat conditions in the Yakima River Basin and to protet the ESA listed Mid-Columbia steelhead trout; hat it is BPA's determination that the proposal may affect but is not likely to adversely affect steelhead and requesting review of information and concurrence with our findings.

9/05/02 S. P. Cramer & Associates letter to Patricia Bailey invoices for August 2002 work and reports on status of his assignments

9/18/02 YBJB letter to Eric Glover, USBR, regarding Yakima Project Section 7 Consultation raising concerns about being kept informed of issues and concerns on project operations and requesting copy of "white paper" for our review and comment or alternatively requesting meeting with USBR, NMFS, USFWS and representatives of YBJB

9/25/02 38-page draft report "Biological Considerations for Fish Passage at Yakma River Reservoirs USBR Yakima Project" A Study of reconnaisance and feasibility assessment of restoring fish passage at five USBR Yakima Project storage reservoirs

9/27/02 YBJB Meeting Agenda Agenda item - ESA BA

9/27/02 YRBC/Execution Session Agenda Agenda item - Mid-Columbia Steelhead project

9/27/02 Monk Monthly Activity Report Reports his review of steelhead report prepared by Cramer & Associates needs more review and additional work; that he's working with Cramer to get all data sets updated which will be a central focus of activity for October; that he attended 2-day WDFW training seminar on evaluating fish passage barriers; will be working with Kittitas County Water Purveyors and the conservation district to help develop prioritization scheme for fish passage projects on Kittitas Valley tributaries.

9/28/02 YBJB Meeting Minutes ESA Biological Opinion activity focuses around an white paper memo uncirculated to parties. Ellensburg Water Co. prepared biological assessment for review for the BPA fish passage improvements. Fall count of bull trout at Bumping Lake has begun. Outflow continues to be the issue, not elevation.

10/03/02 YRBCC fax to Richard Dieker forwarding letter to D. Robert Lohn, of NMFS, regarding Yakima Project Section 7 Consultation

10/03/02 YRBCC letter to D. Robert Lohn, of NMFS, regarding Yakima Project Section 7 Consultation, advising some items identified in 9/18/02 letter from YBJB of irrigation districts have the potential to be adverse to growers and producers in the Yakima Basin; opinion long overdue and not an open process; has been conducted behind closed doors with only a few agency "experts" having access to the process an any information associated with it. Expresses frustration that agency chooses to operate behind closed doors while conducting the biological opinion; requesting process be more open and available to producers and rrigation districts operating in this watershed.

10/04/02 S. P. Cramer & Associates letter to Paricia Bailey invoices September 2002 work and reports on three projects. Cramer reviewed documents distribution to Yakima biologists; steelhead sampling in Oregon rivers of the mid-Columbia ESU has begun; and report on snorkel survey from summer has been finalized.

10/10/02 d.b. lister & associates e-mail to natz@elltel.net regarding graphing steelhead data, attaching two graphs showing relative level of wild steelhead recruitment from a series of brood years, 1978-97

10/15/02 Monk e-mail to Jim Milton, Rick Dieker and Pat Bailey providing comments regarding fish section of the Yakima Storage Dam passage report (10 pages, including graphs and charts)

10/16/02 Monk e-mail to Pat Bailey regarding discrepancies in estimates of Deschutes hatchery steelhead

10/16/02 Second Monk e-mail to Pat bailey regarding outline of NMFS submission on Mid-Columbia Steelhead

10/16/02 Third Monk e-mail to Pat Bailey regarding Oregon steelhead data

10/17/02 BOR letter to YBJB regarding Section 7 Consultations responding to his 9/18/02 letter on same subject

10/18/02 YBJB

10/24/02 YBJB Meeting Agenda Agenda item - ESA BA

10/25/02 YBDC Meeting Minutes Monk advised board on Mid-Columbia Steelhead Delisting project; Cramer still needs to do viability analysis; presentation for November will focus on hatchery versus wild information; bull trout sampling resulted in 1 adult caught out of 9. This year was a much more intense sampling than 2001. No figures yet on kokanee.

11/13/02 Monk e-mail to many regarding bull trout recovery plan

11/15/02 Monk memo to Larry Brown, Ellensburg Water Co. Search of Washington Natural Heritage Database for Eastern Washington revealed no sightings of listed species within a ten-mile radius of the project area suggesting little or no likelihood a threatened or endangered plant species will be harmed during construction project.

11/22/02 YBJB Meeting Agenda Agenda item - ESA BA and USFWS Bull Trout Recovery Plan

11/22/02 YRBC/Executive Session Agenda item - Incubation/Spawning Flows and Mid-Columbia Steelhead

12/11/02 NMFS letter to Steven George, of Yakima River Basin Commodity Coalition regarding consultation with BOR on Yakima River Operations; advising there are ways for certain types of affected members of the public to contribute to the interagency consultation process