[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT FIELD HEARING ON THE ENDANGERED SPECIES ACT 30 YEARS LATER:
THE KLAMATH PROJECT
=======================================================================
OVERSIGHT FIELD HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
Saturday, July 17, 2004, in Klamath Falls, Oregon
__________
Serial No. 108-104
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://resourcescommittee.house.gov
______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Elton Gallegly, California Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Donna M. Christensen, Virgin
Barbara Cubin, Wyoming Islands
George Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Jay Inslee, Washington
Carolina Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Jim Gibbons, Nevada, Anibal Acevedo-Vila, Puerto Rico
Vice Chairman Brad Carson, Oklahoma
Mark E. Souder, Indiana Raul M. Grijalva, Arizona
Greg Walden, Oregon Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona Stephanie Herseth, South Dakota
Tom Osborne, Nebraska George Miller, California
Jeff Flake, Arizona Edward J. Markey, Massachusetts
Dennis R. Rehberg, Montana Ruben Hinojosa, Texas
Rick Renzi, Arizona Ciro D. Rodriguez, Texas
Tom Cole, Oklahoma Joe Baca, California
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
------
SUBCOMMITTEE ON WATER AND POWER
KEN CALVERT, California, Chairman
GRACE F. NAPOLITANO, California, Ranking Democrat Member
George Radanovich, California Calvin M. Dooley, California
Greg Walden, Oregon Jay Inslee, Washington
Thomas G. Tancredo, Colorado Raul M. Grijalva, Arizona
J.D. Hayworth, Arizona Dennis A. Cardoza, California
Tom Osborne, Nebraska George Miller, California
Rick Renzi, Arizona Ciro D. Rodriguez, Texas
Stevan Pearce, New Mexico Joe Baca, California
Devin Nunes, California Nick J. Rahall II, West Virginia,
Richard W. Pombo, California, ex ex officio
officio
------
C O N T E N T S
----------
Page
Hearing held on Saturday, July 17, 2004.......................... 1
Statement of Members:
Calvert, Hon. Ken, a Representative in Congress from the
State of California........................................ 5
Prepared statement of.................................... 6
Doolittle, Hon. John T., a Representative in Congress from
the State of California.................................... 9
Prepared statement of.................................... 10
Herger, Hon. Wally, a Representative in Congress from the
State of California........................................ 7
Prepared statement of.................................... 8
Radanovich, Hon. George, a Representative in Congress from
the State of California.................................... 7
Walden, Hon. Greg, a Representative in Congress from the
State of Oregon............................................ 2
Statement of Witnesses:
Brown, Hon. Ralph, Vice-Chair, Curry County Board of
Commissioners, Gold Beach, Oregon.......................... 27
Prepared statement of.................................... 28
Carman, David, Tulelake, California.......................... 12
Prepared statement of.................................... 13
Fletcher, Troy, Klamath River Inter-Tribal Fish & Water
Commission Representative.................................. 25
Gaines, Bill, Director of Government Affairs, California
Waterfowl Association, Sacramento, California.............. 31
Prepared statement of.................................... 33
LaMalfa, Hon. Doug, Assemblyman, 2nd District, California
State Assembly............................................. 21
Prepared statement of.................................... 23
Lewis, Dr. William M., Jr., Professor of Environmental
Science and Director, Center for Limnology, University of
Colorado, Boulder, Colorado................................ 38
Prepared statement of.................................... 40
Rodgers, Kirk, Regional Director, Mid-Pacific Region, Bureau
of Reclamation, U.S. Department of the Interior............ 44
Prepared statement of.................................... 45
Smith, Hon. Jimmy, First District Supervisor, Humboldt County
Board of Supervisors, Eureka, California................... 35
Prepared statement of.................................... 37
Vogel, David A., Senior Scientist, Natural Resource
Scientists, Inc., Red Bluff, California.................... 14
Prepared statement of.................................... 16
Additional materials supplied:
Smith, Hon. Gordon H., a U.S. Senator from the State of
Oregon, Statement submitted for the record................. 4
Miscellaneous letters and statements submitted for the record 72
OVERSIGHT FIELD HEARING ON THE ENDANGERED SPECIES ACT 30 YEARS LATER:
THE KLAMATH PROJECT
----------
Saturday, July 17, 2004
U.S. House of Representatives
Subcommittee on Water and Power
Committee on Resources
Klamath Falls, Oregon
----------
The Subcommittee met, pursuant to call, at 9:00 a.m., at
the Ross Ragland Theater, 218 North Seventh Street, Klamath
Falls, Oregon, Hon. Ken Calvert [Chairman of the Subcommittee]
presiding.
Present: Representatives Calvert, Radanovich, and Walden.
Also Present: Representatives Herger and Doolittle.
Mr. Elliott. Good morning, ladies and gentlemen. I'm John
Elliott, Chair of the Klamath County Board of Commissioners. It
is my distinct honor to welcome you here this morning for this
meeting of the Water and Power Subcommittee, chaired by
Congressman Ken Calvert of California. And without any further
ado, because I know we've got some listening to do for the next
two to three hours, I'd like to introduce Congressman Ken
Calvert, California.
Mr. Calvert. Thank you very much. The oversight field
hearing by the Subcommittee on Water and Power will come to
order. The Subcommittee is meeting today to hear testimony on
the Endangered Species Act and the Klamath Project. Mr.
Mitchum, my name is Ken Calvert; I'm Chairman of the
Subcommittee, and I welcome everybody here today who has taken
valuable time to listen and educate others about this and the
community's future. I also thank those who help set this
hearing up and the Members joining me today who have worked
hard to find resolution on the complex issues we'll hear about
later.
Before we go into opening statements and testimony, I'll
ask unanimous consent for our distinguished colleagues, Mr.
Doolittle and Mr. Herger, to sit on the dais.
Without objection, so ordered.
I would like to recognize a number of individuals who will
carry out some important duties before we begin. First, Callie
Crawford, Taylor Boyd, Jacqueline Macy, and Nolan Macy, all
from the Tulelake area here in California, or down in
California, I should say, will present the colors. And if
you'll all please come forward, we'll begin with that first.
Thank you.
[Colors presented.]
Mr. Calvert. Next, will John Bowen please come up, who will
lead us in the benediction?
[Benediction given.]
Mr. Calvert. Next, will Frank King please come forward and
lead us in the Pledge of Allegiance?
Mr. King. Thank you all for coming to this hearing. I'm
Frank King. I'm a veteran of World War II and homesteader of
'49. Would you please join me in a moment of silence for those
veterans and the armed forces people serving our country now?
Thank you. Now, will you follow me in the Pledge of
Allegiance, please.
[Pledge of Allegiance.]
Mr. Calvert. Thank you, Mr. King. Now, it's my privilege to
introduce the local Congressman from this region, someone
that's my privilege to work with every day and does a fine job
for not just for this region but the State of Oregon and the
entire country, Mr. Walden.
STATEMENT OF THE HON. GREG WALDEN, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF OREGON
Mr. Walden. Thank you very much, Mr. Chairman. Thank you.
Thank you, and thank you, Mr. Chairman, for convening this
field hearing here in Klamath Falls to look at these issues
surrounding the Endangered Species Act.
Before I begin my opening statement and all that, I have to
share some difficult news. Unfortunately we've heard some bad
news about one of Klamath's own. Lance Corporal Brian Kelly, a
lifelong Klamath Falls resident and son of former Klamath Falls
Police Department Officer Pat Kelly and Joanie Kelly, was
killed in Iraq on Thursday. And so Mr. Chairman, may I suggest
that we pause for a moment of silence at this time in memory of
Lance Corporal Brian Kelly, and certainly in support of his
family and his parents.
Mr. Chairman, I want to thank you again for convening this
hearing in the Klamath Basin. The issues that have been faced
by the people in this basin have been severe. There have been
threats not only to the species, but obviously to the way of
life of many in this basin. And yet, through all of this, there
has been the sense of the need to try and work together, even
in very difficult times and with very different agendas. The
need to try to find solutions to a very complex problem that,
while triggered by a decision involving the Endangered Species
Act, had been coming for some time. And it will be some time
before all the problems are resolved. But there is a spirit in
this basin of trying to find solutions.
On the way here, you know, we diverted to look at the A
Canal screening. The accomplishment there is, I think,
significant to the enhanced survival of the sucker fish. It was
long overdue, and it's an investment that the Federal
Government made to the tune of some $15 million. But it's
essential in our efforts to try and improve the survivability
of the sucker fish. Also we're working, as you know, on
solutions to fish passage at Chiloquin Dam, to reaccess up to
95 percent of the sucker's habitat.
There are a number of conservation projects underway in
this basin, teaming farmers with government agencies to figure
out ways to better utilize water, be more efficient in its use,
and farm community has stepped forward financially and
otherwise to be good stewards of the land and the water.
And there are many other issues that are being debated,
sometimes fiercely, and it's understandable when you look at
everything that's at stake. But there is progress being made in
this basin, solid, step-by-step progress. We all know there's a
lot more to be done.
The reason that we're here today, in my opinion, is to look
at the role of a Federal law that is 30 years old and never
been updated. Endangered Species Act is a very difficult law to
administer for the agencies, and I think the things we've seen
here in the basin have given me a great passion to try and fix
this law, fix it so that it works for the people and fix it so
it works for the species.
It was as a result of a Resources Committee field hearing
after the water had been cutoff in 2001 that drove the
agencies, in collaboration, frankly, with the Bush
Administration, to ask for an independent peer review of the
major decisions made in the Klamath Basin, the decisions to
keep a high lake level and to cutoff water to the farmers. The
National Academy of Sciences was brought in, and I think most
of us have this, their final report. And in this, while they
say that many of the decisions were based on sound science,
there were real questions about the two principal decisions, of
keeping high lake levels and stream flows. And that led me to
believe that there needs to be outside independent peer review
of decisions to list or delist a species, work on recovery
programs and consultations.
We do this in many areas. The Federal Drug Administration
has 30 peer review groups; 5 of the 30 committees are
statutory, created by the 1976 Medical Devices Act. The
Department of Health and Human Services has major 18-member
peer review panels called National Committee on Vital and
Health Statistics. It reviews all data that comes in and out of
HHS before administrative decisions are made. The Marine Mammal
Protection Act has peer review commission that conducts stock
assessments and reviews recovery plans. Even the No Child Left
Behind Education Act has a peer review component. The Labor
Workforce Investment Act of the Department of Labor requires
peer review to evaluate training programs. Ag Research and
Extension and Education Reform Act requires peer review. The
Safe Drinking Water Act requires peer review. When it comes to
the survival of the species or its extinction or the survival
of a community or its economic extinction, why in the devil
wouldn't we ask for peer review so that we get it right? That's
what needs to be done.
Having said that, Mr. Chairman, I know that saying peer
review is, in my opinion, a good thing, how we implement that
will be the challenge, because literally there are hundreds of
decisions made every day. We don't want to bog down the process
to the point it doesn't work. But clearly we have to do better.
We have to upgrade a law that's 30 years old, that isn't
working, and we have to make it right.
So Mr. Chairman, I thank you for bringing the committee
here, I thank my colleagues for their efforts throughout time
on these issues, and before I close, I want to recognize that I
have a statement here from Senator Gordon Smith, who serves on
the Subcommittee on Water and Power, or I'm sorry, who serves
on the Finance Committee, and is also on the Special Committee
on Aging and on Commerce, Science, and Transportation, Energy
and Natural Resources, and Rules and Administration. He's been
a real advocate for fixing the problems in the basin. His
legislative assistant, Valerie West, no newcomer to Oregon
issues, is here as well for the hearing, and so I welcome
Valerie, and I'd like to ask the committee accept Senator
Smith's statement into the record.
Mr. Calvert. Without objection, the Senator's full
statement will be entered into the record. Gentleman have any
more comments?
[The statement submitted for the record by Senator Smith
follows:]
Statement of The Honorable Gordon H. Smith, a U.S. Senator from the
State of Oregon
Mr. Chairman, I appreciate the Subcommittee convening this
important hearing in Klamath Falls. It is vital that we examine how the
Endangered Species Act (ESA) is being implemented and enforced thirty
years after its enactment.
Unfortunately, the goals of the ESA have too often been coopted by
those with other agendas. As the late Michael Kelly so eloquently wrote
in July 2001, ``the Act has worked as intended, but it has been
exploited by environmental groups whose agenda is to force humans out
of lands they wish to see returned to a pre-human condition. Never has
this been made more nakedly, brutally clear than in the battle of
Klamath Falls....''
It is timely to re-examine the Act, and the standards established
under the Act. The best-available data standard for science under the
ESA is ill-defined and allows for sweeping regulatory decisions when
little data--or data of poor quality--is all that is available. Also,
the lack of peer review of that data or decisions based on such data,
have resulted in decisions made in the name of the ESA, that were not
supported by the evidence. Critical habitat designations often
encompass huge geographic areas, limiting human activity.
Decisions are often made at the field level, and any efforts to
review or modify them have, too often in recent years, led to the
unfounded charges of ``politicizing'' science. Scientists cannot get
their work published in academic journals unless it is peer-reviewed.
To me, it is imperative that decisions that affect people's livelihoods
and property under the ESA be peer reviewed, and some standard for the
science used in these decisions must be established.
That is why I was proud to introduce S. 2009, legislation that
would require a higher standard for the science used in administering
the ESA. The ``Sound Science for Endangered Species Act Planning Act of
2004'' is the Senate version of Congressman Walden's peer review bill.
It would require independent scientific peer review of certain actions
taken by the regulatory agencies under the Endangered Species Act. In
addition, it would require the Secretary of the Interior and the
Secretary of Commerce to give greater weight to scientific or
commercial data that is empirical or has been field-tested or peer-
reviewed.
In recent years, we in the Northwest have experienced situations in
which federal agency scientists either demanded actions not supported
by scientific data, or actually fabricated the data itself. In December
2001, it was revealed that federal employees had submitted hairs from a
Canada lynx being held in captivity as though they had been recovered
during field surveys in several national forests to determine the range
and habitat of this threatened species.
Obviously, this example pales in comparison to the biological
decisions in 2001 that led to water being cut off to Klamath Project
irrigators. That decision cannot be undone, but it must not be
repeated. As the National Academy of Sciences' report made clear, the
decisions pertaining to lake elevations in Upper Klamath Lake and flows
in the Klamath River were not supported by the empirical data, and the
suckers and the salmon in this basin will never be recovered by
focusing solely on the federal Klamath Project.
I look forward to working with my House colleagues to find
solutions to the ESA that will actually recover species while
maintaining a strong economy and way of life for those in Klamath Falls
and across this nation who make their living from the land.
______
Mr. Walden. No, Mr. Chairman, I just appreciate, again, the
Committee's diligence on these issues and support for the
people and values of this basin, and thank you for being here.
STATEMENT OF THE HON. KEN CALVERT, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Calvert. Thank you. I will make a brief opening
statement since we're here today to hear directly from various
folks who are on the ground, have firsthand knowledge of these
issues, and that's what we want to hear. I would like to
encourage those of you in the audience who want to submit
testimony for the record, please do so.
The whole point of the field hearing is to hear from those
affected directly. Since we don't have time to hear from
everyone, we'll certainly accept any statements for the record.
So please take that opportunity.
Thirty years ago, as Mr. Walden pointed out, Congress had
the best of intentions when it passed the Endangered Species
Act. In 30 years, only 7 species out of 1,300 have been
recovered, and those are mainly due to other conservation laws.
That means that the Endangered Species Act has a success rate
of less than 1 percent. But at the same time, communities
across the west are stopped cold in their tracks to the point
where some legitimately wonder whether their way of life has
also been endangered. For instance, entire projects, including
a hospital, are suddenly scrapped or delayed in my part of the
country, southern California, because of the Delhi Sands
Flower-Loving Fly, or communities or forests are needlessly
torched because the Endangered Species Act wouldn't allow for
thinning in my part of southern California. We're all too aware
of the impacts right here in this part of Oregon.
In fact, for the record I would like a show of hands of
those who have been affected firsthand by the 2001 water
shutoff. And I can't see you, but raise your hands out there.
Please, by the way, I will make a comment, any outward
expression--this is a congressional hearing, any outward
expression, unless it's asked for or acknowledged by the Chair,
is not allowed, so we would appreciate--either pro or con, so
we can do this in a very business-like manner.
Clearly, something isn't working. No one would ask you to
buy four tires for an old car that doesn't run. But in its
current form, that's exactly what the Endangered Species Act is
really doing, pouring more money into a broken, tired program
and creating more economic hardships for those already caring
for their land.
Today represents an historic opportunity to right the
wrongs of past and bring about positive change for the benefit
of the American people and wildlife. We can bring the
Endangered Species Act into the 21st century while helping
communities in the Klamath Basin have economic and water
certainty. We've already found here through peer-reviewed,
independent science conducted by the National Research Council
that more water for fish doesn't necessarily mean more fish
protections. I just hope we're utilizing that science to its
fullest extent.
There's no reason why we can't require by law independent,
peer-reviewed science for every major aspect of the Endangered
Species Act and use that science to make the best-informed
decisions in the decisionmaking process. This is not a new idea
for other Federal agencies, as was pointed out by Mr. Walden.
They do it on a daily basis. Everyone should support this
effort if they truly care about protecting and recovering
endangered species. Today's hearing, like our hearings in 2002,
is a giant results-oriented leap forward in this march. Next
week we will continue when the Resources Committee meets to
pass bills, including Mr. Walden's bill, that will bring the
Endangered Species Act out of the old school way of thinking.
We owe you, who have to live with the Endangered Species Act
every day, nothing less.
With that, I'd now like to recognize Mr. Radanovich for his
opening statement.
[The prepared statement of Mr. Calvert follows:]
Statement of The Honorable Ken Calvert, Chairman,
Subcommittee on Water and Power
The Subcommittee on Water and Power will come to order. I am Ken
Calvert, Chairman of this Subcommittee, and I welcome everyone here
today who has taken valuable time to listen and educate others about
their community's future. I also thank those who have helped set this
hearing up and the Members joining me here today who have worked hard
to find resolution on the complex issues we will hear about later.
Thirty years ago, Congress had the best intentions when it passed
the Endangered Species Act.
In these 30 years, only 7 species out of 1300 listed have been
``recovered'' and those are mainly due to other species conservation
laws. That means that Endangered Species Act has a success rate of .01%
at best. But, at the same time, communities across the West are stopped
cold in their tracks to the point where some legitimately wonder
whether their way of life has become endangered. For instance, entire
projects are suddenly scrapped in my district because of the Delhi
Sands Flower-Loving Fly or communities and forests are needlessly
torched because the Endangered Species Act wouldn't allow for thinning.
We are all too aware of the impacts here.
Clearly, something isn't working. No one would ask you to buy 4 new
tires for an old car that doesn't run. But, in its current form, that's
what the Endangered Species Act is really doing: pouring more money
into a broken, tired program and creating more economic hardships for
those already caring for their land and experiencing record drought. In
the meantime, though, it's lining the pockets of a very few, vocal
special interest groups using litigation as a way to achieve their
goals.
Today represents an historic opportunity to right the wrongs of the
past and bring about positive change for the benefit of the American
people and wildlife. We can bring the Endangered Species Act into the
21st Century while helping communities in the Klamath Basin have
economic and water certainty. We have already found here--through peer-
reviewed, independent science--that more water for fish doesn't
necessarily mean more fish protections. I just hope we're utilizing
that science to its fullest extent.
There's no reason why we can't require--by law--independent, peer
reviewed science for every major aspect of the Endangered Species Act
and use that science to make the best-informed decisions in the
decision-making process. This is not a new idea for other federal
agencies--they do it on a daily basis. Everyone should support this
effort if they truly care about protecting and recovering endangered
species.
Today's hearing--like our hearing in 2001--is a giant, results-
oriented leap forward in this march. Next week, we continue when the
Resources Committee meets to pass bills--including Mr. Walden's bill--
that will bring the Endangered Species Act out of the ``old school''
way of thinking. We owe you--who have to live with the Endangered
Species Act everyday--nothing less.
______
STATEMENT OF THE HON. GEORGE RADANOVICH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Radanovich. Thank you, Mr. Chairman, and it's a real
pleasure to be here in Greg Walden's congressional district. I
just wanted to say to the people of the Klamath Basin, I'm from
California, in the Yosemite and Central Valley part of
California, but I do have to say that the experience that
you've experienced has been really the best example of the need
for modification and change to the Endangered Species Act,
because what has happened to you, to me, has just been
inexcusable. And I look forward to learning from the panel
today and through the results of this hearing more ways in
which we can encourage people to work together, rather than be
divisive, to meet the needs of the environment, but also not
put at risk the economy of your community. So with that, I
won't go on any longer, because frankly, I left my opening
statement in the airplane, but I'm looking forward to the
testimony and hope that we'll all learn a lot from this. Thank
you, Mr. Chairman.
Mr. Calvert. We'll leave the hearing record open to make
sure we can submit your full record.
Mr. Radanovich. Thank you; I appreciate it.
Mr. Calvert. I'd now like to recognize Mr. Herger for his
opening statement.
STATEMENT OF THE HON. WALLY HERGER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Herger. Thank you very much, Mr. Chairman, and again I
want to thank you for convening this incredibly important
hearing here in the Klamath Basin. And while the Oregon side of
the Klamath Basin is represented so well by Congressman Walden,
the California side is represented by Congressman Doolittle and
myself.
And I'd like to take a moment, Mr. Chairman, if I could, to
read a very brief letter from a young man named Blake
Bettendorf. He's from Tulelake. And I can't see into the crowd,
but I believe Blake is with us today. And if he is, maybe he'd
stand. I'm not sure where he is. But anyway, he--Blake was 8
years old when he wrote me this letter in the wake of the
tragic 2001 water shutoff. He's probably 11 today. As you can
see, it was written on second grade stationary. On the back he
drew a nice picture of a tractor farming in the field.
And this is what his letter said, dated 4/12/01. ``Dear
Congressman Herger, I have farmed all my life. I want to do it
more than 8 years. I love crops and fields. Please help us.
People count on us. The stores do too. So they really need
us.'' And it's, ``Second grade, your friend, Blake.''
Mr. Chairman, Blake is the poster child for what is at
stake here. This young man is the face of agriculture in the
Klamath Basin. His future and the future of every man and woman
in this community hangs in the balance. This is why we will
continue to fight. I want Blake to grow up knowing he has a
future in this community.
While farmers have received water each year since the
shutoff, and while they were vindicated by the National
Research Council's report, this community remains at risk.
Therein lies our most important message. Nothing has changed.
Water deliveries are tenuous, agriculture continues to face
demands for water, devoid of any scientific basis, lenders are
skittish, families have left. These people are living day to
day. They cannot continue like this. We need certainty.
We will hear today from respected scientists that this
tragedy should never have happened. The NRC said, ``There is
insufficient scientific or technical justification,'' for the
high lake and reservoir levels. In other words, the science
from the 2001 is fundamentally wrong, yet it continues to drive
decisionmaking. That must end. The biological opinions must be
changed to reflect the best science, and farmers need firm
assurances that they will be involved.
The water bank must be done away with. It was supposed to
be an interim solution as storages developed and the best
science was incorporated. Instead, it has placed additional
demands on farmers and instituted more land idling. Mr.
Chairman, this water bank is harming agriculture. We need to be
vigorously pursuing water storage opportunities. Congress
passed legislation in 2000 directing the Bureau to do just
that. Here we are today, however, nearly 4 years later, and I
have not heard a word to indicate positive movement forward. We
need the committee's help to get the Bureau off the dime and
push these critical storage studies forward with the urgency
they demand.
As we reflect back on and hear testimony today about the
tragedy of 2001 and the lingering economic effects, let me
repeat this critical message: The reason why we're here,
despite some positive developments, nothing has changed. Much
remains to be done. We urgently need the committee's help using
the fresh air the NRC report provides to take the positive
steps that will create water supply certainty and restore a
stable economic future for Blake in this community. Thank you,
Mr. Chairman.
[The prepared statement of Mr. Herger follows:]
Statement of The Honorable Wally Herger, a Representative in Congress
from the State of California
Mr. Chairman, I'd like to take a moment to read a very brief letter
from a young man named ``Blake Bettendorf.'' He's from Tulelake.
April 12, 2001
Dear Congressman Herger,
I have farmed all my life. I want to do it more than 8 years. I
love crops and fields. Please help us! People count on us. The stores
do too. So they really need us.
2 grade, Your friend,
Blake
Blake was 8 years old when he wrote this letter to me in the wake
of the tragic 2001 water shut off. He's probably 11 today.
Mr. Chairman, Blake is the poster child for what is at stake here.
This young man is the face of agriculture in the Klamath Basin. His
future--and the future of every man and woman in this community--hangs
in the balance. This is why we will continue to fight. I want Blake to
grow up knowing he has a future in this community.
While farmers have received water each year since the shutoff, and
while they were vindicated by the National Research Council's report,
this community remains at risk. Therein lies our most important
message: Nothing has changed. Water deliveries are tenuous ...
agriculture continues to face demands for water devoid of any
scientific basis ... lenders are skittish ... families have left. These
people are living day to day. They cannot continue like this. We need
certainty.
We will hear today from respected scientists that this tragedy
should never have happened. The NRC said, ``there is insufficient
scientific or technical justification'' for high lake and reservoir
levels. In other words, the ``science'' from 2001 is fundamentally
wrong. Yet, it continues to drive decision making. That must end. The
Biological Opinions must be changed to reflect the best science. And
farmers need firm assurances that they will be involved.
The ``water bank'' must be done away with. It was supposed to be an
interim solution as storage is developed and this best science
incorporated. Instead, it has placed additional demands on farmers and
instituted more land idling. Mr. Chairman, this ``water bank'' is
harming agriculture.
We need to be vigorously pursuing water storage opportunities.
Congress passed legislation in 2000 directing the Bureau to do just
that. Here we are today, however, nearly four years later, and I have
not heard word one to indicate positive movement forward. We need the
Committee's help to get the Bureau ``off the dime'' and push these
critical storage studies forward with the urgency they demand.
As we reflect back on and hear testimony today about the tragedy of
2001 and the lingering economic effects, let me repeat this critical
message--the reason why we're here: despite some positive developments,
Nothing has changed. Much remains to be done.
We urgently need the committee's help, using the ``fresh air'' the
NRC report provides, to take the positive steps that will create water
supply certainty and restore a stable economic future for Blake and
this community.
Thank you.
______
Mr. Calvert. Thank you, gentleman. I would now like to
recognize Mr. Doolittle for his opening statement.
STATEMNT OF THE HON. JOHN T. DOOLITTLE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Doolittle. Mr. Chairman, thank you. You have a full
copy of my opening statement, and I will not go over that at
this time. I will simply say that I'm delighted to be here with
my colleagues. I thank you especially, Mr. Chairman, for
convening this field hearing.
I think this is a very important opportunity for us to hear
from the experts as to what needs to be done to improve the
Endangered Species Act, but also I hope, as one of the area's
representatives, that we will find a solution that will meet
the needs of all the stakeholders. It's my belief that probably
more water needs to be added to the system as a way to bring
the certainty that Mr. Herger was speaking of, as a way to
resolve a lot of the problems that we have here.
This Klamath Irrigation Project has been, I think, unfairly
criticized. It's one of the great Federal reclamation projects
in the United States, one of the earliest ones. Nevertheless,
it's not without problems, as we've come to realize over the
years, as certain major deterioration has occurred to fisheries
and brought about undesirable conditions. I think that we hold
the ability to identify solutions to remedy some of those
problems.
I support very strongly the right of the people in this
basin to the livelihood that they're accustomed to having. I
know that we have a great division of interest, say between the
Tribes and the farmers.
I would hope that a solution could be developed that would
treat all parties equitably and would actually do something to
resolve the problems rather than just to simply be a constant
source of division and discord and frustration, such as it
seems to have been over the past few years.
We have made strides in other areas farther down south in
our district. We were able to come to terms with a solution
after years and years of disagreement. These issues affecting
us here, I would submit, are more complex and perhaps more
intractable, but I think we're people of good faith working
together toward a common end, much can be accomplished. So it
is in that spirit I hope we will hold this hearing, and I thank
you again for the opportunity to be here and to draw focus to
what is really a very, very serious set of problems in this
region.
[The prepared statement of Mr. Doolittle follows:]
Statement of The Honorable John T. Doolittle, a Representative in
Congress from the State of California
Good morning, Mr. Chairman. I want to thank you for honoring the
request made by Congressman Herger, Congressman Walden and me to
conduct this important field hearing in Klamath Falls, Oregon. I would
also like to thank those who are here to testify today and the many
individuals who have continued to fight for responsible environmental
policy that encourages collaboration and community stability, not
conflict and uncertainty.
As you know, I am honored to represent the communities made up of
hard working people in Modoc County, California. For generations, the
citizens of this county and nearby counties in Oregon, California, and
Nevada have cultivated a great appreciation and respect for the natural
resources of this landscape and the wildlife that shares it. These
communities have worked and continue to work hand in hand with federal
and state agency officials in an effort to maximize the potential of
these vast resources. Unfortunately, these award-winning efforts and
leadership roles have yielded little benefits when faced with the
rigid, outdated, and unsuccessful Endangered Species Act (ESA).
Communities that once supported dozens of timber mills and raised tens
of thousands of domesticated livestock now watch in horror as the ESA
threats to cripple a third industry, that of irrigated agriculture. We
cannot stand by and let this happen. It is my hope that this House
Water and Power Subcommittee Field Hearing (Hearing) will reverse the
chain of events that have brought us to this unfortunate place and
serve as a catalyst for amending the ESA to make it a better and more
effective law while respecting the rights and interests of communities
and property owners.
From spotted owls, frogs, beetles, fish, and even soils and plants,
my constituents have suffered extreme difficulties as a result of ESA
mandates. In addition, the taxpayer has borne the cost of this
excessive law and the expensive and time consuming burdens it places on
vital local endeavors ranging from levee construction to road building
to farming. However, the costs have never been so high as they are in
the Klamath Basin (Basin). From lost crops in 2001 to the cold feeling
of uncertainty with regards to water supplies, ESA requirements and the
haphazard implementation of programs designed to ``benefit'' species
have taken a dramatic toll on the economies and social well-being of
these farming communities. I find it both ironic and disheartening that
the very communities besieged by this process are ones that were
started by men and women who sacrificed the most for our country. For
those who may not know it, the Klamath Irrigation Project (Project) was
settled by veterans of World War I and World War II and built on the
federal government's promise of a reliable water supply for crops in
perpetuity. These patriots could have never imagined that the most
serious and threatening foe to their way of life and that of their
children and grandchildren would not end up being the Japanese,
Germans, or Russians, but their own government and its misguided
policies manipulated through the judicial system by environmental
zealots and extremists.
I believe the original homesteaders would be proud of the way the
communities they started have responded to the injustices brought on by
the ESA. For the last ten years Project farmers have advocated
solutions that will bring benefits to fish and birds as well as to
sustainable agriculture. Project farmers have entered into voluntary
agreements that have improved habitat for suckers, enhanced fish
passage capabilities, restored wetlands, improved water quality, and
bettered already impressive water-efficient agricultural practices. In
addition, farmers agreed to early shutdowns in 1992, 1994, and 2000 in
an effort to conserve water for environmental purposes. To this day,
they pump valuable groundwater with minimal or no compensation. Project
farmers have been leaders in developing and encouraging new water
storage capabilities and participated in innovative partnerships with
Klamath Wildlife Refuge Managers and officials from every stakeholder
group that offers a fair and open mind. I am pleased to see that these
efforts have been recognized with recent awards and accolades. The
Klamath Water Users Association (KWUA) recently accepted two awards on
behalf of its members: a 2003 Oregon Leader in Conservation Award and
an award for contributing to the goals of the Oregon Plan for Salmon
and Watersheds. In addition to these tributes, the Tulelake Irrigation
District was granted the F. Gordon Johnston Award at the Mid-Pacific
Water Users Conference in recognition of its innovative canal lining
project. Finally, the Basin is now home to a national ``Excellence in
Conservation'' award as determined by the Natural Resources
Conservation District. Mike Bryne, a rancher and farmer in Tulelake,
was given this prestigious award for his leadership in arranging and
encouraging conservation measures on private land. Clearly, these
efforts are not driven by greed or by a desire to manipulate and
degrade the environment, but rather by fervent respect and love for the
land that supports these communities and produces commodities American
citizens take for granted every day. Project farmers understand that
the great benefits bestowed from the land come with great
responsibility for its sustainability and vibrancy. They have accepted
this responsibility and have excelled in implementing projects
beneficial to the entire watershed, sacrificing their own time and
financial resources.
While the leadership efforts of farmers have recently received high
praise and appreciation from officials in Salem and Washington D.C.,
these efforts have not lessened the burdens imposed by a bloated and
divisive water bank affecting Project farmers and by the failure to
incorporate the best available science into flow regimes for the
Klamath River and lake levels for Upper Klamath Lake.
I insist that the objective science and recommendations published
recently by the National Research Council (NRC) regarding endangered
and threatened fishes in the Klamath River Basin be implemented by the
federal agencies having jurisdiction in this matter. A brief
examination of this report yields many useful facts, smartly pointing
out that the recovery of threatened coho and endangered suckers will
demand a watershed-wide approach and will not be solved by the valiant
efforts of farmers and ranchers that make up a mere two percent of the
entire watershed. Additionally, flaws in the underlying science and
assumptions guiding agency decisions were questioned and a whole host
of insightful and easily-implemented recommendations were made. Perhaps
most striking was the report's finding that Project operations were not
responsible for the 2002 fish die-off 200 miles downstream on the
Klamath River. Also of note was its sharp rebuke of the methods and
findings of Dr. Thomas Hardy. We are here today to highlight these
aspects of the report and to find the most effective way to incorporate
the findings into the biological opinions governing species recovery
and Project operations.
It has been said that great challenges present great opportunities.
That is the situation we are all faced with in the Basin. Project
farmers have done more than just talk about conserving resources and
promoting environmental health, they have implemented worthwhile
projects on the ground while weathering unconscionable uncertainty
regarding the water that supports their livelihoods and sustains their
communities. They have stepped up to the challenges presented to them,
and it is time that the federal government recognize these efforts and
move to incorporate the recommendations contained in the NRC report as
well as other initiatives that will benefit users throughout the
watershed.
______
Mr. Calvert. Thank you. Gentleman's full statement will be
entered into the record without objection.
I would now like to recognize our witnesses today, and they
are Mr. Dave Carman, Chico, California; Mr. Carman is
accompanied by Mr. Venancio Hernandez; Mr. David Vogel, Natural
Resources Scientist, Incorporated, Red Bluff, California; The
Honorable Doug LaMalfa, Assemblyman, 2nd District, California;
Mr. Troy Fletcher, Klamath River Inter-Tribal Fish and Water
Commission representative; Mr. Fletcher is accompanied by Mr.
Allen Foreman, Chairman of the Klamath Tribes; The Honorable
Ralph Brown, Vice-Chair, Curry County Board of Commissioners,
Gold Beach, Oregon; Mr. Bill Gaines, Director of Government
Affairs, California Waterfowl Association, Sacramento,
California; The Honorable Jimmy Smith, Supervisor, Humboldt
County Board of Supervisors, Eureka, California; Dr. William M.
Lewis, Jr., Chair, Committee on Endangered and Threatened
Fishes in the Klamath River Basin, University of Colorado,
Boulder, Colorado; Mr. Kirk Rodgers, Regional Director, Mid-
Pacific Region, Bureau of Reclamation; Mr. Rodgers is
accompanied by Mr. Steve Thompson of the Fish and Wildlife
Service and Mr. Jim Lecky, National Marine Fisheries Service.
Now, before I recognize Mr. Carman to begin, I would like
to explain to all our witnesses, since we have a number of
witnesses, that we have a little clock up here. It's a 5-minute
clock. And what that means is, is that when the green light is
on, that means that there's 4 minutes have gone by. When the
yellow light is on, that means hurry up, just like going
through the--and finish your statement, because we're going to
stick to the 5-minute rule today, because that allows us a
little more time to ask questions, because we're going to go
through all of your opening statements first, and then get into
questions.
And so with that I would like to recognize Mr. Carman to
begin his testimony.
STATEMENT OF DAVE CARMAN, CHICO, CALIFORNIA; ACCOMPANIED BY
VENANCIO HERNANDEZ
Mr. Carman. Thank you, Mr. Chairman. As you said, I am
accompanied by Mister--
Mr. Calvert. I think your mike isn't on, or not close
enough.
Mr. Carman. Is that taking off of my time?
Mr. Calvert. I don't think it's on. Is there a little
switch on that? We've got some technical help coming here. I
think you have to be very close to the mike, sir. Get closer.
Mr. Carman. Are we coming through?
Mr. Calvert. I don't know. Are we coming through to the
audience? We got our aid audio guy on it right now. Hold on.
We're going to old technology here, put a wire in it.
Mr. Carman. Now what.
Mr. Calvert. There you go. We're ready. You're recognized
for 5 minutes.
Mr. Carman. Thank you, Mr. Chairman. As I said, I'm
accompanied by Mr. Venancio Hernandez.
Mr. Chairman and Members of the Committee, my name is Dave
Carman, and I am a World War II combat veteran and homesteader.
My presence here today is to represent the veteran
homesteaders. I would like to begin my testimony with an
excerpt from Americans at War, by Steven Ambrose.
``From beginning to end, the Japanese American War in the
Pacific was waged with a barbarism and a race hatred that was
staggering in scope, savage almost beyond belief, and
catastrophic in consequence. Each side regarded the other as
subhuman vermin. They called each other beasts, roaches, rats,
monkeys, and worse. Atrocities abounded, committed by
individuals, by units, by entire armies, by governments.
Quarter was neither asked nor given. It was a descent into
hell.''
I was born in 1918 in L.A., California. I joined the United
States Army in 1941. When Pearl Harbor was attacked, I was
stationed at Fort Jackson, South Carolina. As a 1st Lieutenant
of the 7th Amphibious Infantry Division, our first amphibious
landing was in the Aleutian Islands. This was followed by
Kwajalein Island, where we engaged approximately 5,000 enemy
soldiers. We landed on February 1st, and by the next evening,
the operation was complete. We took no prisoners. Our next
amphibious landing was Leyte Island during the retaking of the
Philippines, where General MacArthur made his famous remark,
``I have returned.'' The life expectancy of a lieutenant
infantryman was seven and a half minutes. I left all my best
friends; I survived. Why, I don't know. We don't know those
things.
After 4 years and 8 months of service, I came home with the
rank of 1st Lieutenant. When I heard about the homesteading
opportunity in Tulelake, California, I applied. In 1948 I was
one of 44 applicants chosen out of 2,000. At the time I had
never heard of Tulelake, except as a great hunting area. When I
arrived to see my homestead, there was nothing there, just an
expanse of opportunity.
No roads, no houses, no trees, just bare ground. I then
pitched my tent in the corner of my homestead. My wife,
Eleanor, was expecting our second child, could not join me
until later. A tent was not acceptable living quarters for a
young woman, a small child, and another baby on the way.
When I began my new life as a Tulelake homesteader, there
were approximately 300 homesteaders, most of them with
families. We united and began to build schools, churches, and a
hospital in Klamath Falls. We started a community. We were
living the American dream, and our dream was achieved by hard
work and dedication. And I must say, we could never have done
this without our wives.
In 1957 we formed our own irrigation district, taking over
from the U.S. Bureau of Reclamation. In 1967 we paid off our
portion of the Klamath Project debt to the Federal Government,
and the irrigation district became totally ours.
In closing, I want to say we fulfilled the American dream,
and in 2001 the Endangered Species Act came very close to
destroying our dream. Our dream was changed into a nightmare.
We now know that the water cutoff was not justified.
In my hand I have a patent for a homesteader signed by
President Franklin D. Roosevelt, given to a veteran of World
War I. This document guarantees the right to use water from the
Klamath Reclamation Project by a homesteader and his heirs
forever. I would like to remind everyone that our children
learned farming from us.
They are homesteaders in the same regard, just as we were
after World War II. Excuse me.
Our community has become the poster child of abuse by the
Endangered Species Act. I respectfully request that the members
of this Congressional Committee never allows us to be betrayed
by an Act that has become a tool to destroy rural America. I
thank you.
[The prepared statement of Mr. Carman follows:]
Statement of David Carman, Tulelake, California,
on behalf of the Veteran Homesteaders
Mr. Chairman and members of the committee:
My name is David Carman and I am a World War II Combat Veteran and
Homesteader. My presence here today is to represent the Veteran
Homesteaders. I would like to begin my testimony with an excerpt from
Americans at War by Stephen Ambrose: ``From beginning to end the
Japanese-American war in the Pacific was waged with a barbarism and
race hatred that was staggering in scope, savage almost beyond belief,
and catastrophic in consequence. Each side regarded the other as
subhuman vermin. They called each other beasts, roaches, rats, monkeys
and worse. Atrocities abounded, committed by individuals, by units, by
entire armies, by governments. Quarter was neither asked, nor given. It
was a descent into hell.''
I was born in 1918 in Los Angeles, California. I joined the United
States Army in 1941. When Pearl Harbor was attacked I was stationed at
Fort Jackson, South Carolina. As a 1st Lieutenant of the 7th Amphibious
Infantry Division our first amphibious landing was the Aleutian
Islands. This was followed by Kwajalein Island where we engaged
approximately 5 thousand enemy soldiers. We landed on February 1st and
by the next evening the operation was complete. We took no prisoners.
Our next amphibious landing was Leyte Island during the re-taking of
the Philippines where General MacArthur made his famous remark, ``I
have returned''.
The life expectancy of a lieutenant infantryman was seven and a
half minutes. I lost all my best friends. I survived, why I don't know,
we don't know those things.
After 4 years and 8 months of service, I came home with the rank of
a 1st Lieutenant. When I heard about a homesteading opportunity in
Tulelake, California I applied. In 1948 I was one of 44 applicants
chosen out of 2000. At the time I had never heard of Tulelake except as
a great hunting area. When I arrived to see my homestead there was
nothing there, just an expanse of opportunity. No roads, no houses, no
trees, just bare ground. I then pitched my tent in the corner of my
homestead. My wife Eleanor was expecting our second child, but could
not join me until later. A tent was not acceptable living quarters for
a young woman, a small child and another baby on the way.
When I began my new life as a Tulelake homesteader, there were
approximately 300 homesteaders, most of them with families. We united
and began to build schools, churches and a hospital in Klamath Falls.
We started a community. We were living the American dream and our dream
was achieved by hard work and dedication, and I must say we could never
have done this without our wives.
In 1957, we formed our own irrigation district taking over from the
U.S. Bureau of Reclamation. In 1967 we paid off our portion of the
Klamath Project debt to the federal government and the irrigation
district became totally ours.
In closing, I want to say we fulfilled the American dream and in
2001 the Endangered Species Act came very close to destroying our
dream. Our dream was changed into a nightmare. We now know that the
water cut-off was not justified.
In my hand, I have a patent for a homesteader signed by President
Franklin D. Roosevelt given to a veteran of World War I. This document
guarantees the right to use water from the Klamath Reclamation Project
by a homesteader and his heirs forever. I would like to remind everyone
that our children learned farming from us. They are homesteaders in the
same regard just as we were after World War II.
Our community has become the poster child of abuse by the
Endangered Species Act. I respectfully request that the members of this
congressional committee never allow us to be betrayed by an Act that
has become a tool to destroy rural America.
______
Mr. Calvert. Thank you. Thank you, Mr. Carman. Thank you
for your statement. Thank you for your service.
Mr. Carman. Thank you.
Mr. Calvert. Next I am privileged to represent--recognize
Mr. Vogel. Mr. Vogel, you're recognized for 5 minutes.
STATEMENT OF DAVID VOGEL, NATURAL RESOURCE SCIENTISTS, INC.,
RED BLUFF, CALIFORNIA
Mr. Vogel. Mr. Chairman and other Congressional members, my
name is David Vogel. Thank you for the opportunity to testify
today. I'm a fishery scientist with 29 years of experience and
have served as a science advisor to Klamath Project water users
for the past 12 years. Today I'll be summarizing two topics
that are further detailed in my written testimony.
The first point refers to the double standard used by the
fishery agencies in implementing the ESA. In 1988 it was
assumed that the suckers would be extinct in just a few years.
That population crisis never materialized. Either mistakes were
made on the assumed population status or the sucker populations
have demonstrated a remarkable improvement. I believe it was a
combination of both. The suckers are now conclusively known to
have much greater numbers, reproduction, and distribution than
originally reported. Although this is indisputable, empirical,
and positive evidence, current implementation of the ESA does
not provide the flexibility to downlist or delist the species.
The process and rationale to list a species should not be held
to a different standard for delisting. The science on the
suckers evolved with beneficial new information, but the Fish
and Wildlife Service's application of the ESA did not. Despite
the so-called ecosystem approach to recovery, advocated by
Federal agencies, their action showed otherwise. In fact, the
exact opposite took place. They focused on single-species
management and Klamath Project operations.
In 1988 the Klamath Project was not identified as having
known adverse effects on the sucker populations. Yet, 4 years
later, using limited or no empirical data, the Service turned
to the Klamath Project as their singular focus. Paradoxically,
since the early 1990s, despite an abundance of scientific
evidence on the species' improvement and lack of relationship
with Klamath Project operations, the agency increased
restrictions on irrigators. This circumstance caused tremendous
expense by diverting valuable resources away from other known
factors affecting the fish.
A similar occurrence occurred with NOAA Fisheries during
and after the coho salmon listing. The Klamath Project was not
identified as a significant factor causing declines in coho.
But shortly thereafter and with no supporting data, the agency
chose to center its attention on the Klamath Project as the
principle factor. Both agencies adopted a single-minded
approach of targeting the Klamath Project. What compelling
empirical scientific data would cause a broad-spectrum approach
for series recovery to rapidly shift into a narrow, singular
attack on project irrigators?
The bottom line on the ESA double standard is this: The
standard to list a species is vastly different than delisting a
species, and what agencies say they will do at the time of
listing is radically different after listing. The public was
misled.
Now for the good news. My second point today pertains to
the outstanding benefits provided by the NRC's final report.
It's a long-overdue breath of fresh air. This outstanding
effort and product must serve as a catalyst for balanced
natural resource management and get our collective goals back
on track. After reading the report, the benefits of an ESA peer
review become obvious. The report advocates a watershed
approach, peer review, stakeholder involvement, focus on other
factors in adaptive management actions. Notably these
recommendations were not new to the two agencies. We have
reported much of the same information to those agencies over
the past decade but were importantly largely ignored.
We are beginning to see signs of progress in the basin.
However, there are some individuals in a state of denial
over the NRC report. The agencies still have too much focus on
the Klamath Project. Instead, attention should return to a
watershed approach and other more creative and inclusive
methods of satisfying the ESA. If Federal agencies meaningfully
incorporate many of the NRC's recommendations, we fully expect
positive results. However, if the agencies ignore it, we could
again return to the disaster that transpired in 2001. The
manner in which the ESA is administered in the Klamath Basin
must change, or the species may never be delisted. This would
not be a result of biological reasons, but of procedural
inconsistencies with the ESA.
In conclusion, science is constantly evolving based on new
information. Why shouldn't the ESA also evolve and adapt based
on lessons learned, such as those in the Klamath Basin? Thank
you.
[The prepared statement of Mr. Vogel follows:]
Statement of David A. Vogel, Senior Scientist,
Natural Resource Scientists, Inc.
INTRODUCTION
Mr. Chairman and other Congressional members, my name is David
Vogel. Thank you for the opportunity to testify at this important
hearing. I am a fisheries scientist who has worked in this discipline
for the past 29 years. I earned a Master of Science degree in Natural
Resources (Fisheries) from the University of Michigan in 1979 and a
Bachelor of Science degree in Biology from Bowling Green State
University in 1974. I previously worked in the Fishery Research and
Fishery Resources Divisions of the U.S. Fish and Wildlife Service
(USFWS) for 14 years and the National Marine Fisheries Service (NMFS)
for 1 year. During my tenure with the federal government, I received
numerous superior and outstanding achievement awards and commendations,
including Fisheries Management Biologist of the Year Award for six
western states. For the past 14 years I have worked as a consulting
scientist on behalf of federal, state, and county governments, Indian
tribes, and numerous other public and private groups. During my career,
I have been extensively involved in Endangered Species Act (ESA) issues
including research on threatened and endangered species, listing of
species, Section 7 Consultations, Biological Assessments, Biological
Opinions, and recovery planning. I was a principal author of the
original 1992 Biological Assessment for the Klamath Project and served
as a peer reviewer for both of the National Research Council (NRC)
Klamath Committee's reports. I have worked as a scientific consultant
for the Klamath Water Users Association (KWUA) for the past 12 years.
I would like to bring to your attention several points highly
relevant to the purpose of this hearing. The details of my testimony
are encompassed by two main topics:
1) A serious problem with inconsistent application of ESA science
2) The benefits of the recent NRC's review of the Klamath
situation
INCONSISTENT APPLICATION OF ESA SCIENCE IN THE KLAMATH BASIN
(THE PROBLEM OF ESA DOUBLE STANDARDS)
While conducting my research, I uncovered some very troubling
information relating to the original listing of the suckers as
endangered in 1988. A chronology of events leading up to and following
the listing reveals disturbing evidence that should serve as a wake-up
call in order to avoid future ESA problems similar to those experienced
in the Klamath basin. As you will see, we have learned from the Klamath
situation that: 1) the standard to list a species is greatly different
than the standard to delist a species; and 2) what the federal agencies
claim they will do at the time of species listing (ecosystem approach)
can be dramatically different after listing (narrow, singular focus).
The following are just some representative examples, although many
others exist.
Sucker Population Estimates
The most compelling and prominent reason why the federal government
justified listing the two sucker species as ``endangered'' in 1988 was
an apparent abrupt downturn in both populations during the mid-1980s.
At that time, the sucker population declines were characterized as
precipitous (Federal Register, Vol. 53, No. 137), alarming (USFWS
1987), drastic (Williams 1986), shocking (Bienz 1986), dramatic, and a
crisis (Kobetich 1986a). In 1986, the Klamath Tribes believed that both
species would become extinct by 1991 without immediate action (Kimbol
1986). At the same time, the Bureau of Indian Affairs (BIA) suggested
the shortnose suckers would be extinct in just a few years (BIA 1986).
In 1987, a USFWS report stated that the consensus of opinion was:
``shortnose suckers are in danger of dying out in the next several
years'' (Williams 1987). In 1984, the Upper Klamath Lake population of
shortnose suckers was estimated at 2,650 fish and in 1985 too few fish
could be found to estimate the population size. The estimated Lost
River sucker population was 23,123 fish in 1984 and 11,861 fish in 1985
(Federal Register, Vol. 53, No. 137). In the Lost River watershed, it
was assumed (incorrectly) that only a small population of Lost River
suckers were present and that the shortnose suckers had so extensively
hybridized, their populations were discounted as contributing to the
species (Kobetich 1986a, Federal Register, Vol. 53, No. 137). To
support the decision to list the suckers, the USFWS believed the only
significant remaining populations were in Upper Klamath Lake. We now
know that the assumptions by the USFWS were in error and the assumed
sucker population crisis never materialized. In fact, shortly after
listing of the species, the populations demonstrated dramatic
increases.
The estimates used to justify an extremely low population in the
1980s were based on a very limited, inappropriate technique and
exceptionally small sample size, but was deemed adequate by the USFWS
to support listing the species. However, more than a decade later, with
a much more valid, sophisticated technique and extremely large sample
sizes that amply demonstrated very high sucker populations, the new
method was deemed by the USFWS as unsuitable for use in delisting.
Displaying a striking inconsistent application of ESA science in its
recent decision not to accept a delisting petition, the USFWS
concluded, ``Comparisons between current estimates and those made
during the fishery, prior to its termination in 1987, are not
informative due to extreme differences in methodology. Population
estimates made since listing, while numerically higher than earlier
estimates, show no overall trend for increasing populations within the
last decade.'' (Federal Register, Vol. 67. No. 93). The science on the
suckers evolved with beneficial new information, but the USFWS's
application of the ESA did not.
One of the most revealing statements demonstrating a conflicting
use of the ESA is provided by the USFWS in a 1986 internal memorandum.
At that time, the USFWS believed that there were only about 12,000 Lost
River suckers in Upper Klamath Lake and that suckers elsewhere were
hybridized or simply small, remnant populations. Yet given those
circumstances, the USFWS concluded: ``We have chosen not to pursue
listing of the Lost River and Klamath largescale suckers at this time
because of their larger population sizes and broader distribution''
[compared to the shortnose suckers] (Kobetich 1986a). It is apparent
the agency flip-flopped its standard for ``endangered'' status because
by the mid-1990s, it was determined that the Lost River suckers greatly
exceeded the original 12,000 population by tens of thousands of fish
and were found over a greater geographic area, yet the species remained
``endangered''.
Sucker Recruitment
The lack of significant recruitment of both species was considered
by the USFWS as a convincing reason to list the species as
``endangered'' in 1988, suggesting that neither species of sucker had
spawned successfully in Oregon for approximately 18 years (Federal
Register, Vol. 53, No. 137, citing Scoppettone 1986). Conversely, it is
now evident that the Upper Klamath Lake sucker populations have gone
from assumed little or no recruitment in the approximate 18 years prior
to listing, to recruitment in every year including substantial
recruitment in some years (NRC 2004). Based on data collected during
the 1990s, we now know the USFWS's assumptions on sucker recruitment
were flawed.
Harvest of Suckers
Just prior to the listing of the suckers in 1988, a sport snag
fishery was allowed. Before 1969, the fishery was largely unregulated
with no harvest limit; in 1969 a generous bag limit of 10 fish per
angler was imposed (Golden 1969). During the early to mid-1980s,
despite the belief that the numbers of fish were in a state of rapid
decline, the State of Oregon still allowed the sport snag fishery.
Ultimately, because of increased focus on the status of the sucker
populations, Oregon eliminated the fishery in 1987. What is
particularly interesting about this circumstance is that written
records indicate that none of the involved individuals at the time
believed that the annual sport harvest of thousands of suckers on their
spawning grounds was a significant factor contributing to the declines
in the populations (e.g., Andreason 1975). In 1986, the USFWS
concluded, ``Loss of fish to the snag fishery does not appear to have a
causal factor in the decline.'' (Kobetich 1986a) and ``Fishing does not
appear to be a significant threat for any of the suckers.'' (Kobetich
1986b). However, an examination of historical records demonstrates that
the harvest of suckers was extensive (Cornacchia 1967, Golden 1969).
The first detailed description explaining how and why the snag fishery
caused significant harm to the sucker populations was provided by Vogel
(1992). More recently, the NRC Klamath Committee came to the same
conclusion (NRC 2004). If the USFWS would have properly assessed the
known impacts on the suckers caused by the snag fishery and the
benefits from ceasing the fishery, it very likely could have affected
the ultimate listing decision.
Simply stated, the largely unregulated snag fishery slaughtered the
sucker populations. Since the fishery was eliminated in 1987, the two
sucker populations dramatically rebounded. The threat was removed and
the populations increased ten-fold. But unlike the rationale to
originally list the species, the current inflexibility of the ESA will
not account for that major beneficial effect.
Species Distribution
As stated earlier, the USFWS essentially discounted the Lost River
suckers in the drainage as a significant contribution to the species
status because only a ``small, remnant population'' was present in
Clear Lake. The shortnose suckers in the drainage were essentially
written off because of purported extensive hybridization.
As soon as just three years after the sucker listing, it became
evident that the USFWS's assumptions on the status of shortnose suckers
and Lost River suckers in the Lost River/Clear Lake watershed had been
in serious error. Surveys performed shortly after the sucker listing
found a substantial (reported as ``common'') population of shortnose
suckers in Clear Lake exhibiting a young age distribution (1-23 years)
and young Lost River suckers (3-23 years old). Within California, the
surveyors considered populations of both species as ``relatively
abundant, particularly shortnose, and exist in mixed age populations,
indicating successful reproduction'' (Buettner and Scoppettone 1991).
The geographic range in which the suckers are found in the
watershed is now known to be much larger than believed at the time the
suckers were listed as endangered in 1988. For example, other than the
abundant population of shortnose suckers found by surveys performed in
Clear Lake just after the listing, it was reported in 1991 that
shortnose suckers were found ``throughout the Clear Lake watershed in
the upper basin''. It was also reported that ``there may be a
substantial population'' of Lost River suckers in Clear Lake (Buettner
and Scoppettone 1991). Since the 1991 report, shortnose suckers have
also been found at Bonanza Springs, Anderson-Rose Dam, and Tule Lake;
Lost River suckers have been found at the latter two locations. Recent
population estimates for suckers in the Lost River/Clear Lake watershed
indicate their numbers are substantial and that hybridization is no
longer considered a significant issue (NRC 2004). Tens of thousands of
shortnose suckers, exhibiting good recruitment, are now known to exist
in Gerber Reservoir.
Had it been known, these major findings undoubtedly would have had
a significant influence on the listing decision. Again, unlike the
rationale used to list the species, the inflexibility of the ESA has
not accounted for this major improvement to fish distribution
throughout the watershed.
The USFWS and NMFS Singular Focus on the Klamath Project
The Endangered Species Act of 1973 states: ``The purposes of this
Act are to provide a means whereby the ecosystems upon which endangered
species and threatened species depend may be conserved ``''. Despite
the so-called ecosystem approach to species recovery advocated by the
USFWS and NMFS, their actions in the Klamath basin over the past decade
amply demonstrates that the exact opposite took place. They focused on:
1) a single-species approach; and 2) Klamath Project operations.
At the time of the listings in 1988, the Klamath Project was not
identified as having known adverse affects on the sucker populations,
yet four years after the listing, using limited or no empirical data,
the USFWS turned to the Klamath Project as their singular focus.
Paradoxically, since the early 1990s, despite new beneficial empirical
evidence on the improving status of the species and lack of
relationship with Klamath Project operations, the USFWS became ever
more centered on project operations and increased restrictions on
irrigators instead of paying attention to more obvious, fundamental
problems for the species. This circumstance caused tremendous expense
in dollars and time by diverting resources away from other known
factors affecting the species.
In 1987, the USFWS published a notice in the Federal Register
soliciting comments on the proposed listing of the two suckers as
endangered species. No public hearing was requested or held, probably
because the USFWS did not identify Klamath Project operations as
affecting the species. For the most part, the listing was innocuous.
Only 13 written comments were received, with none opposed to the
listing. Only two private parties responded; the rest of the comments
in support of the listing came from government agencies, an Indian
Tribe, and environmental organizations. Numerous documents prior to the
sucker listing made it evident that the USFWS would not focus on the
Klamath Project. If the suckers were proposed for listing today, it
would be interesting to note how many individuals would oppose it
knowing the scientific facts that the last 16 years have produced;
particularly if the USFWS would have revealed that it was going to
focus its attention on Klamath Project operations.
A similar circumstance occurred with NMFS during and after the coho
salmon listing in the lower basin. It cited the reasons to list coho
salmon, excluding Klamath Project operations as a significant factor
affecting the species. However, shortly following the listing, and with
no supporting data, NMFS chose to center its attention on the Klamath
Project as the principal factor affecting coho salmon. Both agencies
adopted a single-minded approach of focusing on Klamath Project
operations to artificially create high reservoir levels and high
reservoir releases. This puzzling, similar sequence of events has yet
to be explained by agency officials. What compelling, empirical
scientific data would cause a broad-spectrum approach for species
recovery to quickly turn into a narrow, singular attack on Klamath
Project irrigators?
Based on what was learned in the Klamath basin, what the agencies
say they will do at the time of a listing and what they end up doing
after the listing are radically different. These problems have
continued well after the sucker and coho listings. Now that the
independent NRC report has been published, hopefully, this unbiased and
balanced document will put things back on track toward a more holistic
approach. The fact remains, despite the ESA mandate, the USFWS and NMFS
did not use an ecosystem-based approach for species recovery.
THE NRC'S KLAMATH REPORT
As an individual who has been extensively involved with ESA
technical issues in the Klamath basin for more than a decade, I can
tell you that the NRC's final report is a long-overdue breath of fresh
air for the basin. For reasons now clearly evident, our original
recommendation for an outside technical review of the ESA activities in
the Klamath basin by an objective group such as the National Academy of
Sciences back in 1993 (KWUA 1993) was an important first step. The
benefits of an ESA peer review are obvious after reading the NRC's
final report.
The NRC Klamath Committee and the NRC staff should be commended for
a job well done. Despite intense efforts by some agencies and
individuals, the NRC Committee did not succumb to ``peer pressure
science'' to derive their conclusions. Science needs open dialogue and
debate, not the animosity and close-mindedness that some isolated
individuals and groups have generated in the basin.
We are beginning to see signs of progress with ESA activities in
the basin. However, alarmingly, there are some individuals within the
agencies that are in a state of denial over the findings and
conclusions of the NRC's report. This is evident, for example, when you
examine the recent NOAA Fisheries revised incidental take statement for
the Klamath Project Biological Opinion. The agency did not mention or
incorporate the pertinent findings of the final NRC report and
continued to cite non-peer reviewed draft reports to form their
``opinions''. Also unfortunately, there appears to be a disturbing
mindset and trend among some groups to spend time and funds
unnecessarily on litigation when it comes to ESA issues. That approach
will stifle the scientific advancement of species recovery. These two
circumstances should not be allowed to occur. Despite the NRC's final
report, the USFWS and NMFS still have too much focus on the Klamath
Project (as indicated from recent Biological Opinions) and not enough
emphasis on a watershed-wide approach. The NRC final report should
serve as the primary mechanism to get the Klamath situation back on
track toward species recovery and reduction of resource conflicts. The
agencies need to begin focusing on other factors affecting the species
and other, more creative and inclusive methods to satisfy the ESA
statute (NRC 2004).
It is very important to note that many of the most pertinent
findings, conclusions, and recommendations of the NRC Klamath Committee
were not new to the USFWS or NMFS. The NRC final report advocates a
watershed approach, peer review, greater stakeholder involvement,
oversight of agency actions, focus on factors other than the Klamath
Project operations, reduction of resource conflicts, and incorporation
of the principles of adaptive management toward species recovery. Over
the past decade, I and others reported much of the same and similar
technical findings and recommendations to those two agencies, but were
mainly ignored (e.g., Vogel 1992, KBWUPA 1993, KBWUPA et al. 1994, KWUA
et al. 2001, and comments by the KWUA on the USFWS and NMFS Biological
Opinions). Additionally, the NRC's major conclusion that there is
insufficient scientific justification for high reservoir levels and
high instream flows was always prominent in our technical comments on
the agencies' biological opinions during the past decade.
SUMMARY
Inconsistent Application of the ESA
In the Klamath basin, the science associated with the species
evolved, but the ESA did not adapt or incorporate that science. At the
time of the 1988 listing of the suckers as endangered species, the
information on population status, geographic distribution, and
recruitment was either in error or the sucker populations have
demonstrated a remarkable improvement over the past decade. I believe
it was a combination of both. The two sucker populations are now
conclusively known to be much greater in size, demonstrating major
increases in recruitment, and are found over a much broader geographic
range than originally reported in the 1988 ESA listing notice. Despite
this indisputable empirical evidence, current implementation of the ESA
does not provide the flexibility necessary to downlist or delist the
species. The process and rationale to list a species should not be held
to a different standard for delisting a species. Additionally, despite
the ESA mandate, the USFWS and NMFS did not use an ecosystem-based
approach for species recovery and inappropriately focused their
resources on the Klamath Project.
The NRC Klamath Report
The NRC Klamath Committee's final report was an outstanding effort
and the product must serve as a catalyst to advance balanced natural
resource management in the basin. If federal agencies meaningfully
incorporate many of the NRC's principal findings, conclusions, and
recommendations, we fully expect positive results to the species
recovery and reduced resource conflicts. We should use the momentum of
the NRC's final report to guide recovery efforts and watershed
improvements. However, if the agencies do not take this pro-active
approach, we could again return to the disaster that transpired in
2001. If the manner in which the ESA is administered in the Klamath
basin does not change, it is unlikely that the species will ever be
delisted. This circumstance would not be a result of biological
reasons, but because of procedural problems with the ESA and its
implementation.
Science is constantly evolving based on new research and
information. Why shouldn't the ESA also evolve and adapt based on
lessons learned such as those in the Klamath Basin?
REFERENCES
Andreasen, J. K. 1975. Systematics and status of the Family
Catostomidae in Southern Oregon. PhD Thesis, Oregon State
University, Corvallis, OR. 76 p.
Bienz, C. S. 1986. Letter to U.S. Fish and Wildlife Service, Endangered
Species Division transmitting results from the collective
efforts of the Klamath Tribe and Oregon Department of Fish and
Wildlife on the sucker study. February 6, 1986. 6 p.
Buettner, M. and G. Scoppettone. 1991. Distribution and Information on
the Taxonomic Status of the Shortnose Sucker, Chasmistes
brevirostris, and Lost River Sucker, Deltistes luxatus, in the
Klamath Basin, California. Completion Report. CDFG Contract FG-
8304. 101 p.
Bureau of Indian Affairs. 1986. Briefing paper on Klamath Tribal
resident fishery regarding the status of the shortnose and Lost
River suckers. BIA Portland Area Office. December 30, 1986.
Cornacchia, P. 1967. Eugene Register-Guard. May 7, 1967. News article
entitled ``Mullet -- homely, but popular''.
Golden, M.P. 1969. January 1969. The Lost River sucker Catostomus
luxatus (Cope). Oregon State Game Commission-Central Region
Administrative Report No. 1-69. January 1969. 9 p.
Kimbol, C. E. (Chairman, the Klamath Tribe). 1986. Letter to Stanley
Speaks, Area Director, BIA regarding immediate request of
program support for Klamath Tribal fishery resource protection.
December 22, 1986.
Klamath Basin Water Users Protective Association. 1993. Initial
ecosystem restoration plan for the upper Klamath River basin
with focus on endangered species recovery and water management
improvements. January 1993.
Klamath Basin Water Users Protective Association, Klamath County, and
Modoc County. 1994. Comments by the Klamath Basin Water Users
Protective Association, Klamath and Modoc Counties, on the
draft Upper Klamath River Basin Amendment to the Long Range
Plan for the Klamath River Basin Conservation Area Fishery
Restoration Program and the Long Range Plan. January 17, 1994.
44 p.
Klamath Water Users Association, D.A. Vogel, K.R. Marine, and A. J.
Horne. 2001. Protecting the beneficial uses of waters of Upper
Klamath Lake: a plan to accelerate the recovery of Lost River
and shortnose suckers. March 2001. 39 p.
Kobetich, G. C. 1986a. U.S. Fish and Wildlife Service Project Leader,
Endangered Species, Sacramento, CA. June 2, 1986. Memorandum to
Chief, Endangered Species, Portland, OR requesting emergency
listing of the shortnose sucker (Chasmistes brevirostris) as an
endangered species. 4 p.
Kobetich, G.C. 1986b. Memorandum from U.S. Fish and Wildlife Service
Project Leader, Endangered Species, Sacramento, California to
Assistant Regional Director, Federal Assistance, Portland,
Oregon re. ``Briefing Statement--Opposition and Support for
Listing of the Shortnose Sucker as an Endangered Species''.
July 7, 1986. 4 p.
National Research Council. 2004. Endangered and threatened fish in the
Klamath River basin: causes of decline and strategies for
recovery. The National Academies Press, Washington, DC. 397 p.
Scoppettone, G. G. 1986. Memorandum to U.S. Fish and Wildlife Service,
AFWE, Portland, Oregon regarding Upper Klamath Lake, Catostomid
research trip report. October 3, 1986.
U.S. Fish and Wildlife Service. 1987. Two Klamath River Fishes.
Endangered Species Technical Bulletin Vol. XII, No. 9.
September 1987.
Vogel, D.A. 1992. Preliminary assessment of potential factors limiting
populations of the Lost River sucker, Deltistes luxatus, and
shortnose sucker, Chasmistes brevirostris. Vogel Environmental
Services. July 1992. 29 p.
Williams, J. 1986. U.S. Fish and Wildlife Service. Minutes of the May
16, 1986 meeting -- Status of Klamath Basin suckers. May 20,
1986. 6 p.
Williams, J. 1987. Memorandum from Jack E. Williams, USFWS-Sacramento,
to Interagency Klamath Basin Sucker Working Group and
interested parties re. maintenance of juvenile shortnose
suckers at Dexter National Fish Hatchery. August 31, 1987.
______
Mr. Calvert. Thank you. I would now like to recognize Mr.
LaMalfa, Assemblyman LaMalfa, for his testimony. You're
recognized, sir, for 5 minutes.
STATEMENT OF THE HON. DOUG LaMALFA, ASSEMBLYMAN,
2ND DISTRICT, CALIFORNIA
Mr. LaMalfa. Thank you, Chairman Calvert and Members of the
Committee, not only for allowing me to testify today, but for
convening this hearing up here on such an important issue for
the Klamath Basin and State of California and for our nation.
I'm testifying today not only as the Assemblyman that
represents the area, including Modoc and Siskiyou County, but
as the Natural Resources Vice-Chairman for the Assembly in
Sacramento, as well as a lifelong rice farmer who understands
the vital need for water for producing crops, environmental
stewardship, and for the survival of our rural communities.
This is not merely a struggle between environmentalists,
local Tribes, farmers, and the government. I would like to
specifically emphasize that farmers and ranchers are the
strongest supporters of sound environmental stewardship and are
committed to improving their businesses to meet environmental
purposes. The agricultural community has a rich history of
utilizing their land for open space preservation, watershed
conservation, and wildlife habitat. The success of our
agricultural industry as a positive partner for local wildlife
habitat has not only been a huge success, but also a vital link
in the chain between environmental stewardship and the economy.
This is a critical relationship that the ESA must recognize.
Water is the lifeblood of farming, and we must not minimize
the importance of this ongoing controversy. Wrong decisions
made here in the Klamath Basin can create a precedence with far
reaching consequences. If a misapplication of a rule or
regulation can suddenly and arbitrarily shut off the water
here, it can happen anywhere in the nation. If that happens,
farmers will not be the only ones in danger; our nation's food
supply will suffer as well.
We need only look back on the oil embargoes of the '70s and
the current spike in steel and concrete prices today, driven by
actions of our rivals around the globe. They do not have
America's best interests in mind. Do we want to depend on them
for our food supply as well? Indeed, this morning, on the way
up, I saw a bumper sticker on an Explorer that said, if you
like to imported fuel, you'll love imported food, which puts me
at risk of having my whole 5-minute testimony summarized in a
bumper sticker.
But nonetheless, we must be more thoughtful about what our
regulations and ESA policies have brought on our American
Heartland and the salt of the earth families who work it all
for us. The impact of the sudden availability of water left
local farmers and ranchers immediately harmed, leaving
thousands of acres of vital farmland unable to produce. The
resulting trickle-down effect to the broader communities and
region at large was nearly insurmountable.
Only after the wholesale destruction of an entire region's
way of life was a study done that demonstrated the flaws in the
application of ESA to stop the flow of Klamath water. The
report rejects the idea that there was any scientific
justification behind 2001 shutoff of Klamath Project water to
stakeholders. It is a national tragedy that it took such
widespread harm to show the lack of credibility in the
standards set forth in the ESA. The current application of the
ESA simply is not working. It didn't work here, and this is
just one example of how dangerous faulty implementation or
faulty original standards can be.
The final report of the National Academy of Sciences has
shown that shutting off water to the Klamath Project was
absolutely incorrect response to the discovery of the low
numbers of these fish.
A full watershed approach involving the local landowners,
farmers, and ranchers will be the only effective means to
protect these fish. It is ironic that the people that suffered
the most from the hasty and panicked response in the first
place will be the individuals who are the ones involved
firsthand in the recovery of these species. It is imperative
that any solution that is implemented in the Klamath Basin must
be achieved cooperatively with input from all different
stakeholders with solutions based upon sound scientific
principles, not fear or mass hysteria.
Depriving agricultural land of the vital water it needs and
painting local farmers as the enemy of wildlife are all
ineffective solutions to a watershed-wide problem. Those have
been the only solutions attempted thus far, which is a
travesty. Uncertain science must never be used to justify a
decision that causes such devastating hardship for our people.
The government must never implement sudden and unpredictable
changes in the law or its application that are harmful to the
farming families and communities they affect.
To suddenly shut off the water tap to an ag community is
reckless. We must instead phase in thoughtful environmental
policy changes over a period of time by working together with
the people who will be affected, instead of adopting arbitrary
decisions that devastate business, communities, and lives.
The current pattern here in the Klamath Basin is flawed,
and the status quo cannot continue. None of the stakeholders
are happy or satisfied with the illogical way that the issues
affecting the project have been treated. Long-term solutions
for the basin must be comprehensive, scientifically justified,
and must approach these issues in a way that can be maintained
effectively in this region for years to come. Instead, I feel
we must shift the focus from redividing the water pie as it is
into enhancing, making larger the water pie so that historical
rights and users are respected and preserved, as well as new
needs. Our future as well as our heritage demand a vision for a
long-term solution and not crisis management. Thank you very
much.
[The prepared statement of Mr. LaMalfa follows:]
Statement of The Honorable Doug LaMalfa, Assemblyman, Second District,
California, and Vice-Chair, Assembly Natural Resources Committee,
California State Assembly
Thank you Chairman Pombo, Chairman Calvert, and Members of the
Committee, for allowing me to testify on the issue of the Klamath River
Basin and the future of the application of the Endangered Species Act
in this region. I come here today, not just to testify as an
Assemblyman who represents people and communities harmed by the initial
water shut off, but also as a lifelong rice farmer who understands the
vital need of water to producing crops, protecting the environment, and
the survival of our rural communities.
This is not strictly a multi-sided struggle between
environmentalists, local tribes, farmers, and the government. Many of
the water users have implemented many different programs in an attempt
to aid the recovery of the endangered sucker and coho salmon species
that instigated the Bureau of Reclamation's (Bureau) initial shut off
of the water supply on April 6, 2001. Assistance on creating and
restoring wildlife refuges, ecosystem enhancement, water quality
projects and strong attempts at water efficiency are just a few of the
things that local communities have taken upon themselves in order to
mitigate harmful effects on these endangered species.
The impact of the sudden unforeseen availability of water to these
local communities was devastating. Not only were farmers and ranchers
immediately harmed, leaving thousands of acres of vital farmland unable
to produce, but the resulting trickle-down effect to the broader
communities and region at large was nearly insurmountable. The loss of
water inflicted $200 million worth of economic damage to the Klamath
region. You will hear individuals testify today that entire communities
were almost wiped out entirely by this random and inappropriate
application of the Endangered Species Act (ESA).
After the wholesale destruction of an entire region's way of life,
a study showed that the application of the ESA to shut off availability
of Klamath water was inappropriate and incomplete. Moreover, the report
rejects the idea that there was any scientific justification behind the
2001 shut-off of Klamath Project Water to stakeholders. There was not
enough scientifically based proof that higher lake and river levels
would have any effect on the endangered fish. It is a national tragedy
that it took such widespread harm to show the lack of credibility in
the standards set forward in the ESA.
The final report by the National Research Council (NRC) on the
issue of these endangered species has shown that shutting the water off
at the Klamath Project was absolutely the incorrect response to the
discovery of the low numbers of these fish. The final report shows that
a full watershed approach will be the only effective means to protect
these fish--a watershed approach that would necessarily include the
farmers and ranchers in the area. It is ironic that those individuals
who suffered the most from the hasty and panicked response in the first
place, will be the individuals who are integrally involved in the
recovery of the species.
Hype, fear, and incomplete science almost led to the destruction of
an entire vital agricultural region. We cannot allow that to ever
happen again, and we must act to restore stability and harmony between
the stakeholders of the water in this region.
It is imperative that any solution that is implemented to the
myriad challenges in this region must be achieved cooperatively. There
must be input from all the different stakeholders and such solutions
must be based upon sound scientific principles as laid out by NRC
report. The foundation of these solutions must not pander to fear or
mass hysteria.
The West Coast's farmland is not just food-producing and economy-
boosting land, it is land that supports the health of the local
watershed, it is land that feeds, houses, and protects local wildlife,
it is land that promotes and maintains open space. It is a fallacy to
believe that without the use of local farmland and the cooperation of
local farmers and ranchers that the proposed improvements to the
watershed can be made to protect these endangered species. This is why
any plan for this area must be a coordinated effort between all the
stakeholders. The scientific condition of the watershed must be
determined, and a realistic balanced approach to improving it must be
worked out at the local level. Regulations and bans, depriving
agricultural land of the vital water it needs, and painting local
farmers as the enemy of the local wildlife are all ineffective
solutions to a watershed-wide problem. Those have been the only
solutions attempted thus far. That's a travesty.
We need only look back on the oil embargoes of the 1970's and the
current spike in steel and concrete prices today, driven by actions of
our rivals around the globe. They do not have America's best interests
in mind. Do we want to depend on them for our food security now by
essentially offshoring our farming as well? We must be more thoughtful
about what regulations and ESA policies have wrought on our American
heartland and the salt-of the earth families who work it for all of us.
The NRC report has provided many different approaches and ideas on
how to solve this problem. These solutions must be reviewed and a
balanced, region-wide solution based on sound scientific principles
that works for all stakeholders must be adopted.
Current application of the Endangered Species Act simply isn't
working. It didn't work here, and this is just an example of how
dangerous faulty implementation or faulty original standards can be. A
cooperative approach to revising the ESA based upon solid scientific
principles is critical to preventing the ``mass hysteria'' approach to
application that was apparently utilized here on the Klamath.
Constructive changes must be made that consider long-term solutions.
Many so-called ``environmental problems'' are attempted to be
solved by outright bans, strict regulations, or other sudden and
unpredictable changes in the law or its application. This ``shotgun''
approach to protecting the environment is too random and too harmful to
the people, businesses, and communities that it affects. Solutions
should be implemented over a period of time, so that the people and
environments that are affected can have time to adapt and implement the
ultimate goal. To suddenly shut off the water tap to an agricultural
community, to suddenly determine that a certain fertilizer or pesticide
can no longer be used, or to suddenly mandate the levels of emissions
that have to be met because of environmental concerns is unrealistic.
It gives farmers, ranchers, and other affected parties no time to
implement changes over a period of time, effectively damaging or
destroying their businesses, their communities, and their way of life.
I would like to emphasize that farmers and ranchers are definitely
NOT against environmental protection, or to making changes, adaptations
or improvements to their businesses for environmental reasons. The
agricultural community has shown time and again their willingness and
ability to utilize their land for open space preservation, watershed
conservation, and wildlife habitat. They have worked hand-in-hand with
the environmental community to change things for the better, when they
have been approached. As a rice grower, the success of our industry as
a positive partner for local wildlife habitat has been not only a huge
success, but also a vital link in the chain between environmentalism
and economy.
This is the direction that the Endangered Species Act should go. We
must endeavor to find ways to phase in thoughtful environmental policy
changes over a period of time by working together with stakeholders and
involving the actual people on the ground who will be affected, instead
of adopting arbitrary decisions with no warning that devastate
businesses, communities and lives.
The current pattern here in the Klamath Basin is flawed, the status
quo cannot continue. None of the stakeholders are happy or satisfied
with the uninformed, illogical, and capricious way that the issue of
the Klamath Project has been treated. Resources management here needs
to take place in an objective and reasonable way that balances the
needs of all the people who will be affected, with the needs of the
environment. The solution needs to be comprehensive and scientifically
justified, it needs to approach the issue in a way that can be utilized
and maintained effectively in that region.
______
Mr. Calvert. Thank you, gentleman. Thank you. Before we
introduce our next witness, I would ask that everyone please
turn off their cell phones. Apparently it's interfering with
the sound system. So if you would please turn off your cell
phones or Blackberries or whatever, it's causing electronic
problems.
And with that I would now like to recognize Mr. Fletcher
for 5 minutes.
STATEMENT OF TROY FLETCHER, KLAMATH RIVER INTER-TRIBAL FISH AND
WATER COMMISSION REPRESENTATIVE; ACCOMPANIED BY ALLEN FOREMAN,
CHAIRMAN, THE KLAMATH TRIBES
Mr. Fletcher. Thank you. Mr. Chairman, Members of the
Committee, my name's Troy Fletcher. I'm a member and executive
director of the Yurok Tribe. I'm accompanied here today by the
Honorable Allen Foreman, Chairman of the Klamath Tribes of
Southern Oregon. I'm speaking before you today on behalf of the
Klamath River Inter-Tribal Fish and Water Commission. The
commission represents three of the largest federally recognized
Tribes in northern California and the Klamath Tribes located in
southern Oregon. Collectively the Tribes' ancestral territories
covers the entire Klamath Basin. The Inter-Tribal Commission's
purpose is to serve the member Tribes' common goal of restoring
and protecting the Klamath River Basin fish and water
resources. We have advocated in the past and prior to this
meeting that each Tribe would have liked to have a
representative testify before you. We appreciate the
opportunity of what we have here. We understand some of the
constraints and other things that you're facing. In any event,
our voice is necessary; our voice is important.
With regard to the specific application of the Endangered
Species Act in the Klamath Basin, it's important to note that
the goals of the ESA fall way short of implementing the United
States' solemn commitments to native people in the basin. The
government must also consider--
Mr. Calvert. Excuse me. Will the gentleman please suspend.
Any disruptions from the audience will not be tolerated.
Please allow the witnesses to give their testimony. Thank you.
Mr. Fletcher. Thank you. In addition to the ESA, the
government must also consider the element of Federal trust
responsibility to the protection and restoration of Tribal
Trust resources, which requires the restoration of all fish
species in the Klamath Basin to a level sufficient to provide
for the meaningful exercise of Tribal fishing rights, Tribal
hunting rights, and gathering rights, etcetera. We urge the
committee to keep in mind the Federal Government's duty to
protect the resources of our Tribes, that it includes a duty to
protect all of those resources, not just the two species
subject to the ESA concerns and protection, and when this
committee discusses the best way of balancing the needs of the
species and the human needs, they keep in mind a special
Federal obligation to protect the species upon which the Tribes
depends. The Department of Commerce has confirmed that that's
their policy. In addition to recovering salmon populations to
the point of delisting, it's also to restore populations to a
level which meets Tribal Trust requirements. As to the Act
itself, the Endangered Species Act in this river has now been
polluted--politically diluted as badly as the water has been
polluted.
But it's not as simple that the National Fisheries Service
and U.S. Fish and Wildlife Service used bad science or that the
use of questionable science is the problem. The problem is the
NRC report, which turned away from the acceptable scientific
practices and the universally acceptable precautionary
principle. That's the foundation of the ESA. The ESA requires
that when dealing with listed species, Federal agencies must
rely on the best scientific information available at that time,
and if data were lacking, to err in favor of the species being
protected. As case in point, the NRC itself issued a report on
the science and Endangered Species Act in 1995, which clearly
stated, says, ``The ESA reasonably asked scientists to make
conservative decisions about protecting species on the brink of
extinction based on the best available data.'' It does not
require certainty or all the information that scientists or
decisionmakers might like to have, because it simply might not
be there.
In the Klamath in 2000, the agencies did just that, that in
the biological opinions issued. The Bureau of Reclamation had
issued a draft operations plan, which the services determined
through the best information available would jeopardize the ESA
listed species. They required higher lake levels and river
flows than the Bureau had proposed, which resulted in cutbacks
to project irrigators. The NRC then became involved under
contract with the Department of Interior, and ignoring its own
1995 report, completely turned the precautionary principal of
ESA management on its head. In essence, what the NRC concluded
was that there was no definitive proof that flows and lake
levels, which were in place during the 1990s, harmed coho
salmon or suckers, so therefore there was no scientific
evidence to change the water management pattern that was in
place during the 1990s. This new NRC process requiring
conclusive scientific evidence of harm, rather than the normal
ESA policy to ensure against harm, creates a biased risk for
harm.
One thought we'd like to leave you with and the panel with,
particularly management agencies, is the listing of the species
under the ESA indicates that past management has not been
conducive to the propagation of these species. We then have to
change something; we have to get away from the status quo. The
Tribes in the basin are made up of human beings, we're family
members, we're parents, we're grandparents, we have children,
we have the same aspiration as the other people in this basin.
When it comes to veterans, many Tribal people in this basin
died for this country, even before they had the right to vote.
So when it comes to fair and what needs to happen, we ask that
and we make clear and affirm that all the Tribes in the basin
are ready to roll their sleeves up, are ready to work with the
farming community, with Congress, with the Federal agencies, to
do what we need to do to fix this basin. But from our
perspective, it can't be the status quo; it cannot remain the
status quo. And a solution cannot be at the expense of Tribal
resources, our fisheries, our wildlife, or our gathering
materials. We're ready to work, and we ask for your leadership
to help us get there. Thank you.
Mr. Calvert. Thank you. Thank you, Mr. Fletcher. I would
now--would like to ask, next on my list is Commissioner Brown.
Mr. Brown.
STATEMENT OF THE HON. RALPH BROWN, VICE-CHAIR,
CURRY COUNTY BOARD OF COMMISSIONERS, GOLD BEACH, OREGON
Mr. Brown. Thank you, Mr. Chairman and Members of the
Subcommittee. For the record, I'm Ralph Brown from Brookings,
Oregon. I'm County Commissioner there. I also sit on the
Pacific Fisheries Management Council. I've been involved with
that--I'm entering my ninth year. I also own fishing vessels
that fish out of the Port of Brookings Harbor. I'm not going to
read my testimony. You can read every bit as good as I can. You
can use it more as background.
The theme that I would hope you would leave with here from
me, though, is summarized in one sentence: Don't forget the
people. I've been involved in management for over 20 years, in
resource management. Eighteen of those have been in positions
of decisionmaking and policymaking. The first thing that
happens when we decide that we need to do something with
resources, is that we forget that what we're always trying to
do is change people's behavior. And we tell people they have to
do things. We don't ever ask them if there's a better way to do
it. We will get further in protecting our resources if we
remember that we're trying to get people to change, that we're
going to be working with people who have motivations, they have
reasons for doing what they're doing, it benefits them some
way, and we need to work with incentives and with inducements
as much as we work with coercion in order to achieve change.
And I would hope that you will consider that as you go through
your deliberations on endangered species in the future, pay
more attention to the economics, pay more attention to the
social part of the reasons people do things.
You mentioned--Mr. Herger mentioned Blake, 8 years old,
that wants to farm. I bought my first commercial fishing
license when I was 8 years old. I started fishing summers with
my dad. At one point when was 40, I decided that I'd try to
figure out if I could figure out how much time I had spent on
the ocean, and it was 30 percent of my life had actually been
spent out on the ocean, and a good portion of that was salmon
fishing.
When I was a kid, there were four processors in the Port of
Brookings. Want to talk about human impacts, there are none
now. The buildings aren't even there. There were 10,000 salmon
boats on the West Coast. We're down to a couple hundred--a
couple thousand, excuse me.
Troy mentioned that the Tribes are people too. We're all
people here, and we all need consideration, and we're all
affected by this.
I remember kind of the high point of the downturn, if
you'll excuse my calling it a high point, in salmon on the
coast. I was sitting in a restaurant talking to a friend of my
dad's, fellow that was in his mid 60s. And he was sitting there
staring into his coffee cup, and he finally, in a very quiet
voice that I'll never forget said, I don't know what to do
anymore, I don't fit anywhere.
The Klamath River has impacted my area in ways that I can't
even begin to explain. Not too many years ago fishermen
delivered $7 million worth of salmon annually into the Port of
Brookings. Because we had the processors there, that had a
community affect of about three times that, $21 million worth
of community impact. We're down to about $700,000 in landings
or less, and we have no processors. The impact, when you have
no processors, is about one to one. The community impact of
salmon now, of commercial salmon, is about $700,000. It doesn't
take a real math whiz to see that's about one thirtieth of what
it used to be.
Remember the people. If I could sit here for 5 minutes and
just say that, remember the people, that's what I would do.
When you do your deliberations, you've seen the cartoons with
the little guy sitting on your shoulder, the devil on one side
and the angel on the other, and I hope you'll picture the
little angel say, remember the people.
I came over and met with farmers here, and it's in my
written testimony, I won't repeat it, and I saw the same fear,
and I saw the same anger that I see in Tribal people, that I
see in people on the coast. We have to get together if we're
going to fix this. We can fix it. I'm glad Troy--I'll quit here
in just a second. I'm glad Troy made the offer that he made. I
hope that the farmers will take him up on it, sit down, and
start working cooperatively, because that's the only way we're
going to fix this. Thank you.
[The prepared statement of Mr. Brown follows:]
Statement of Ralph Brown, Vice-Chair,
Curry County Board of Commissioners, Brookings, Oregon
Good morning, Mr. Chairman and members of the Sub-committee.
I am Ralph Brown of Brookings, Oregon. I wear several hats at this
hearing. I am a County Commissioner from Curry County. I sit on the
Pacific Fisheries Management Council, and own fishing vessels that fish
out of the Port of Brookings Harbor.
I want to make it clear that, although I grew up in the salmon
fishing industry, I do not fish for salmon in my fishing business now.
The truth is that I know very little about the biology of salmon in
fresh water or of the hydrology of the Klamath River. Some people in
the fishing business will think that I am a strange choice to speak on
Klamath issues because of this and, to some degree, it is a valid
criticism. I do have over twenty years resource management experience
however.
My interest in the Klamath River grows out of my fishery management
experience, out of the impact that the management of Klamath salmon has
had on the communities of Curry County, and out of several attempts to
hold meetings between Klamath Farmers and Fishermen.
Management of Klamath River salmon has had a tremendous impact on
the communities of what we call the Klamath Management Zone. This zone
runs from below Eureka, California to north of Gold Beach, Oregon. We
have intentionally moved most of the commercial salmon fishery out of
this area, and reduced the recreational fishery.
Salmon fishery management essentially consists of mapping the
various runs of fish by time and area. We try to find locations and
seasons for the fishery that allow harvests of abundant runs while
keeping the harvests of stocks of concern below allowable levels, such
that all runs are fished at capacity but not over harvested. Runs of
concern consist of both those on the threatened or endangered list and
some that are simply vulnerable to over fishing due to the timing and
location of the run. We have management concerns with several of the
runs on the Klamath River. Coho are listed under the Endangered Species
act, of course, but most of our management has been aimed at another
species, Fall-run Chinook. This fish has been a major constraint to
salmon fisheries along the Coast and management of it has had a large
impact on the communities of the Klamath Management Zone.
During summer months, Klamath River Fall Chinook are found from San
Francisco to the Columbia River. Percentages of Klamath Fish found in
the catch are highest near the mouth of the Klamath River and taper to
low levels with greater distances from the River. The area where the
percentage of Klamath River catches is the highest is the Klamath
Management Zone. Catch is limited in this area in order to allow access
to more abundant runs in other areas.
When I was a child, the Klamath Management Zone was one of the most
popular fishing areas along the Coast. Hundreds of commercial fishing
boats from Seattle to San Francisco would spend their summers fishing,
and selling their catch, in the area. Ports had processing facilities
all along the shoreline of the harbors. Today there are very few salmon
boats that fish in the area. There are no major processors, only buying
stations, located in the Ports of Gold Beach, Brookings, Crescent City
or Trinidad.
Thousands of recreational fishermen would come to these ports to
fish in the summer. We have only had full recreational fishing seasons
during the last two summers following nearly complete closures for much
of the 1980's and 1990's.
The number of commercial salmon fishing boats on the West Coast has
dropped from nearly 10,000 during the 1970's to only about 1,000 active
vessels today. Much of the restriction that brought this decline was
due to Klamath salmon abundances, and management restrictions that were
necessary on other more abundant runs to insure that catches of Klamath
Fall Chinook were kept at allowable levels. The hardships caused by
this reduction in salmon fishing along the Coast are fresh in the minds
of Coastal residents and in the salmon industry. We do not want to see
a repeat of this disaster.
My interest in getting fishermen and farmers together was the
result of a meeting with Representative Walden. A couple of years ago,
I crowded my way into a meeting with Congressman Walden concerning
reauthorization of the Magnuson-Stevens Fishery Conservation and
Management Act. We were sitting there explaining to the Congressman our
problems with lawsuits by environmental groups over NEPA processes, our
problems with inadequate data and science and overly restrictive
management as a result, when he commented that we sounded just like a
bunch of Klamath farmers. He said that the conversation that we were
having was identical to conversations with the Klamath Farmers, and yet
farmers and fishermen were at each other's throats all of the time. We
agreed that farmers and fishermen probably had more in common than we
had differences if we ever sat down and talked, and got to know each
other. He asked me to try to find a way to bring fishermen and farmers
together.
I'm not sure that I would have followed up on this but when I got
home from Washington D.C. I found a message from Dan Keppan, of the
Klamath Water Users Association, on my answering machine. He had been
contacted by Representative Walden's staff and given a report on the
discussion we had. Dan and I had our first meeting in Klamath Falls
shortly after.
In talking to Dan it was apparent that fishermen and farmers, as
resource users, have many common issues. We agreed to try to hold a
series of meetings between the fishing and farming communities and see
if we could establish communication such that our common interests
could be established and perhaps allow a more rational discourse on our
differences.
Along the Coast spanning the Klamath Fishery Management Zone, a
coalition of interested fishing groups, Ports and local Governments has
been formed. This is the Klamath Zone Fisheries Coalition. The Klamath
Zone Fisheries Coalition seemed like a natural place to start so I
contacted them and interested them in joining in the discourse.
We have had several meetings. One of these included a tour of the
Klamath Water Project and one was a tour of the fishing industry in
Curry and Del Norte counties. Our last meeting was held at a Pacific
Fishery Management Council meeting where representatives of the Klamath
Water Users Association also had an audience with the Management
Councils Habitat Committee.
For me, the tour of the Water Project was enlightening. I left
feeling that I had a much better understanding of the pride that the
farmers felt in the project and a better understanding of their view of
the history of the river. I recommend this tour to anyone with an
interest in water issues in the area.
I hope that the tour of the fishing industry gave the farmers a
similar understanding of the importance of the salmon fishery to us and
gave them some feel of the hardship that we have already felt.
Even when trying to get along and understand each other it is
sometime difficult for fishermen and farmers to have a discussion that
doesn't rub against raw wounds. Farmers and fishermen have differing
views of the world and differing views of this situation in particular.
The animosities and fears of both groups are real, intense and barely
concealed beneath some very thin skin. Simple words like ``fish die-
off'' or ``fish kill'' have different connotations to fishermen and
farmers. Fishermen innocently using the term ``fish kill'' can cause a
very visible reaction from a farmer as the farmer interprets this as
finger pointing at them. For fishermen, the term ``die-off'' implies
that there was no cause and therefore no reason to take corrective
action. Farmers feel threatened by the potential of water curtailments
but fishermen remember the hard times and feel threatened by anything
that might harm fish. The participants of the meetings that we have had
seem to be somewhat better able to look past this.
I have found a great deal of interest among individuals in
continuing these meetings and in continuing to expand the circle of
participants. Until the circle of participants is expanded
considerably, the meetings will not significantly change the debate
over the condition of the river. Funding to continue these meetings has
become a problem, and finding a group that has the trust of both the
farmers and fishermen to organize and take the lead is challenging.
I suspect that the Klamath Taskforce was intended to fulfill this
niche, but for some reason this is not working. We need to have a
discussion of the Taskforce process to see why it doesn't seem to be
working and to see if we can get a process in place that has the
function of bringing people together toward a better understanding of
each other and of the problem.
I am going to conclude with some almost random observations that I
have made during the meeting process.
Although Coho and steelhead are the listed species, in many ways,
the river is managed for fall run Chinook. Ocean management is clearly
centered on fall run Chinook and shortages of fall run Chinook are what
caused much of the curtailment of salmon fisheries in the ocean. The
fish that died a few years ago were predominately fall run Chinook.
Often when Salmon fishermen are expressing concern for salmon on the
river it is not the listed species that is being talked about. It is
fall run Chinook.
Similarly, coastal fishermen often talk about the Klamath River but
mean the entire watershed, not just the main stem. Most of the
fishermen that I talk to are convinced that the Trinity River is as
important as the main stem of the Klamath to the health of salmon in
the system. We strongly support a system-wide, watershed approach to
examinations of the river. We need to deal with the entire watershed,
not just part of it.
Finally, when dealing with the management of a wild species, such
as salmon, we usually are not trying to change the behavior of the
species but of the people that interact with the species. We are trying
to change behaviors that have caused species to decline. These may be
direct takes, such as in fishing or hunting, or may be indirect takes
through changes is habitat, but in each case we are trying to change
human behaviors. We would be better off if we kept that in the fore
front of or thoughts as we discuss these issues.
We seem to rely primarily on coercive rules to change behaviors.
This often has the effect of producing resentment, and resistance, to
the regulations and to the regulators. We need to pay more attention to
the social and economic conditions that influence behavior and look for
incentives and inducements to pull people into behavior change, not
just penalties, that push people to change.
In short, my recommendation for the Klamath River is to remember
that we are trying to change people. We need to remember that we are
dealing with good hearted, well meaning individuals on all sides, but
people that have differing understanding of the issues and of the
solutions and goals. We need to examine our process to insure that they
promote better understanding of each other, and that they promote
development of common goals. We need to be sure that we examine our
methods of promoting behavior change and whenever possible use
incentives and inducements not just coercion.
______
Mr. Calvert. Thank you. Thank you, Mr. Brown. Next, Mr.
Gaines, you're recognized for 5 minutes.
STATEMENT OF BILL GAINES, DIRECTOR OF GOVERNMENT AFFAIRS,
CALIFORNIA WATERFOWL ASSOCIATION, SACRAMENTO, CALIFORNIA
Mr. Gaines. Good morning, Mr. Chairman and Members of the
Committee. My name is Bill Gaines. I'm the Director of
Government Affairs for the California Waterfowl Association,
and I would also like to thank each of you for traveling to the
Upper Klamath Basin today to provide us with an opportunity to
talk about our concerns related to the Endangered Species Act.
The Upper Klamath Basin is the most critical waterfowl staging
area in all of North America. So important is the Klamath Basin
to Pacific flyaway and continental waterfowl that you can
easily find the Klamath Basin on a waterfowl flyway map by
simply looking for the apex in the flyway hourglass.
Historically, this Basin contained over 350,000 acres of
naturally occurring wetland habitats. Today, however, many of
these natural wetlands have been lost. Yet, each year, an
estimated 80 percent of our Pacific flyway waterfowl, nearly a
full one-third of our continental waterfowl population, travels
through the Klamath Basin annually on their migratory
adventure.
Nearly all of the remaining wetlands today in the Upper
Klamath Basin are contained within the Klamath Basin National
Wildlife Refuge Complex. These habitats not only provide
critical waterfowl habitat, but they also provide critical
habitat for an estimated 430 other wildlife species, as well as
serving as the biggest staging area for bald eagles throughout
all of the lower 48 states.
Recognizing the importance of the Upper Klamath Basin to
migratory waterfowl, in 1908 President Teddy Roosevelt
established the Lower Klamath National Wildlife Refuge as our
nation's first waterfowl refuge. Today, nearly 100 years later,
it remains by far and away our most important waterfowl refuge
throughout the entire National Wildlife Refuge System.
However, due to changes in the natural hydrology of the
basin, many of these wetlands within the complex and outside of
the complex must now be managed, they must be artificially
irrigated and intensely managed to re-create marsh conditions.
They no longer get naturally wet during flood periods. As a
result of that condition, quantity and quality of wetland
habitat available in any given year is directly tied to the
availability of water supplies for wetland management.
Some environmentalists, in their effort to protect both
fish and wildlife, have called for the elimination of
agriculture in the Upper Klamath Basin to address these
concerns. I'm here to assure you today that that is not the
solution to the Upper Klamath Basin or the Klamath watershed's
water problems. Agriculture today provides critical habitat for
Pacific flyaway waterfowl. It's similar to the Sacramento
Valley, where 700,000 acres or any 700,000 acres of rice is
critically important surrogate habitat to replace many of the
wetlands that have been lost.
Cereal grains and other wildlife friendly agricultural here
in the Klamath Basin provide an estimated 50 percent of the
food energies necessary to feed Pacific flyaway waterfowl. If
we were to do away with agriculture in an effort to free up
water supplies for managed wetlands on the refuge or for fish,
we would not help Pacific flyaway waterfowls. We would
devastate the Pacific flyaway waterfowl resource. In addition
to the habitat that agricultural production provides, growers
here in the upper Klamath Basin also play a critical role in
our annual efforts to manage our wetlands because they provide
tail water in the fall when they dewater their agricultural
lands, which is critical to the management of Upper Klamath
Basin, manage wetlands within the complex and elsewhere. The
willingness of growers and local irrigation districts, like
Tulelake Irrigation District and Klamath Irrigation District,
to wheel that water to the refuge and to provide some water of
their own for refuge management during the important fall flood
up is vitally important to our ability to manage these
wetlands, especially during the especially important fall flood
time of the year. Ag is not part of the problem here in the
Upper Klamath Basin. It's not part of the waterfowl problem. It
is part of the solution.
Three species of fish continue to hold 1,200 families and
the Pacific flyaway waterfowl resource hostage here in the
Upper Klamath Basin, and we would like to offer some solutions
that can address these problems. First of all, we ask Congress
to ask the Department of Interior agencies to veer away from
single-species and consider all species, as well as the
benefits of wildlife-friendly agriculture when they are making
decisions related to the Endangered Species Act.
We also ask Congress to seek changes in the Endangered
Species Act, which recognize our international obligation under
the Migratory Bird Treaty and to elevate waterfowl, which is
our shared international resource, to a par with listed species
under the Endangered Species Act.
We also ask Congress to elevate the priority of refuge
water deliveries to a par with Endangered Species Act actions
as well, without impacting deliveries to the agricultural
community, which are vital, not only to the local economy, but
vital to the Pacific flyaway as well. This can be done, but it
can't be done without significant Federal funding that can help
us do projects, like off stream storage projects that can help
us capture excess flows during the time of year when excess
flows are flowing down the river, or tail water return systems,
which allow growers and other water users to more efficiently
utilize the water that is available to them.
Finally, we ask for an opportunity to work with Congress in
the next farm bill to carefully design new and creative
programs specifically designed to address the needs of Klamath
Basin agriculture and to provide local growers with incentives
to provide even more wildlife-friendly agriculture to the
Pacific flyaway waterfowl.
Again, the Upper Klamath Basin is the most important
staging area for waterfowl throughout our North American
continent. It is important that we take every step we can to
address this international waterfowl resource and to protect
the agricultural growers who are so important to providing the
food energies necessary for that resource today. I thank you
for the opportunity to provide these comments.
[The prepared statement of Mr. Gaines follows:]
Statement of Bill Gaines, Director, Government Affairs,
California Waterfowl Association
Good morning. Mr. Chairman and Members of the Committee, my name is
Bill Gaines, and I am the Director of Government Affairs for the
California Waterfowl Association. On behalf of our Association's nearly
20,000 members, and waterfowl enthusiasts throughout the Pacific
Flyway, I would like to thank you for coming to Klamath Falls, and for
providing us the opportunity to present our concerns regarding the
chronic water crisis that continues to plague the Upper Klamath Basin.
Founded in 1945, the California Waterfowl Association (CWA) is a
private, nonprofit organization dedicated to the conservation of
California's waterfowl, wetlands and our sporting heritage. The
California Waterfowl Association effectively pursues this mission
through waterfowl research, habitat projects, education and outreach
programs, and Government Affairs activities.
The Upper Klamath Basin is the most critical waterfowl staging area
in all of North America. So important is the Klamath Basin to North
American waterfowl on their annual migration that the region can be
easily located on a flyway map simply by locating the ``apex of the
Pacific Flyway hourglass.''
Historically, this Basin contained over 350,000 acres of naturally
occurring seasonal and permanent wetland habitats. Today, however,
largely due to the construction of the Klamath Reclamation Project,
over 75% of these historic wetlands have been destroyed. Yet, each
year, an estimate 80% of Pacific Flyway waterfowl--representing nearly
a full one-third of the continental population--depend upon this
Basin's few remaining wetlands and agricultural lands for critical
staging habitat. In addition to waterfowl, remaining wetlands in the
Basin B nearly all of which are contained within the Klamath National
Wildlife Refuge Complex B also provide critical habitat for many other
species. In fact, more than 430 other wildlife species have been
documented in the Upper Klamath Basin B including the largest wintering
concentration of bald eagles in the lower 48 states.
Recognizing the importance of the Upper Klamath Basin to migratory
waterfowl, and the tremendous loss of waterfowl habitat resulting from
the construction of the Klamath Reclamation Project in 1906, President
Teddy Roosevelt established the Lower Klamath National Wildlife Refuge
by Executive Order in 1908. Nearly one hundred years later, the Klamath
National Wildlife Refuge Complex remains the most important waterfowl
refuge in the entire National Wildlife Refuge System.
Because of the Klamath Reclamation Project, and the manner in which
it changed the Upper Basin's natural hydrology, nearly all of the
region's wetlands must now be ``managed'' B artificially irrigated and
intensely managed to maintain marsh conditions. In effect, public and
private wetland managers in the Klamath Basin must now ``farm for
ducks''. As a result of this condition, the quantity and quality of
wetland habitat available in any given year B most notably the critical
waterfowl habitats available on the Lower Klamath and Tule Lake
National Wildlife Refuges B is heavily dependent upon availability of
wetland water supplies from the Klamath Reclamation Project.
Tragically, as you are all keenly aware, the Upper Basin's highly
limited surface water supply, combined with the regulatory actions
mandated by Biological Opinions, will result in little Project surface
water being made available to the refuges this year, and little or no
water for these managed wetlands in all but the wettest of future water
years.
Combined, Lower Klamath and Tule Lake National Wildlife Refuges
require about 216,000 acre-feet of water each year for full and
appropriate habitat management. Yet, again this year, artificially high
Endangered Species Act (ESA) mandated water levels in Upper Klamath
Lake and enhanced flows in the Klamath River will minimize Klamath
Reclamation Project deliveries to wildlife habitat on Klamath National
Wildlife Refuges--marking the fifth year in a row in which the Refuge
Complex must operate on a substantially reduced water budget. With this
summer's Project deliveries to the refuge again at a minimum, refuge
staff are being forced to cannibalize some wetland units in an attempt
to adequately manage others. The net result being a 50% reduction in
wetland habitats available on Lower Klamath Refuge.
Some environmentalists, in their effort to protect both fish and
wildlife, have sought to address this problem by calling for the
complete elimination of agriculture in this Basin in order to redirect
surface water to refuge wetlands. Our Association, however, is here to
tell you that the elimination of agriculture is not the answer. In
fact, eliminating agriculture in the Upper Klamath Basin in an attempt
to free up wetland water would substantially harm, not help Pacific
Flyway waterfowl. With three-quarters of our Upper Basin wetlands no
longer available, it is crucial that we do all we can to manage the few
habitats that remain in order to maximize their values and functions
for waterfowl and other wildlife. Yet, even if we had sufficient annual
Klamath Project water available to maximize the values of these few
wetlands, we still could not meet the biological needs of the
tremendous numbers of waterfowl that depend upon this region. As such,
similar to California's Sacramento Valley where over one-half million
acres of rice production provides vitally important surrogate habitat
for waterfowl, cereal grains and other wildlife-friendly agriculture in
this Basin are critical to meeting the annual needs of Pacific Flyway
waterfowl.
In addition to the direct habitat agricultural production provides,
perfectly timed ``tail water'' made available to the refuges by growers
who are de-watering their fields in the late summer and early fall
provides the cornerstone of surface water necessary for the especially
important annual fall flood up. Further, the willingness of farmers and
local agricultural irrigation districts to pump ground water from their
wells and wheel it to the refuges at time of greatest need, often at
little or no cost, has proved integral to refuge management throughout
this continuing water crisis. Suffice it to say that removing wildlife-
friendly agriculture from the Upper Klamath Basin B regardless of the
quantity of water it may free up for refuge use B would devastate our
Pacific Flyway waterfowl resource by eliminating roughly half of the
Upper Basin's annual waterfowl food base and our only current stable
source of annual wetland surface water supplies.
Members of the Committee, three species of fish continue to hold
the Pacific Flyway, the bald eagle, roughly 430 other wildlife species,
1,200 families and the entire local economy hostage in the Upper
Klamath Basin. The California Waterfowl Association does not believe
that this was Congress' true intent when they passed the Endangered
Species Act a few short decades ago. Truly, as our nation becomes more
urbanized, conflicts between our fish and wildlife species and our
human environment will become increasingly common. Today's crisis in
Klamath can be viewed as the ``canary in the mineshaft'' for what we
can expect in the future should resource agencies be allowed to
continue to implement the ESA as they do today.
To address these very real concerns, we ask Members of this
Committee, and all of Congress to join our Association in seeking some
solutions. We ask you to join us in calling for U.S. Department of
Interior agencies to veer away from irresponsible ``single-species''
management, and instead require that the impacts and risks to waterfowl
and wildlife be also considered when making water allocation and other
decisions under the ESA. We also ask that the importance of wildlife-
friendly agriculture and the vital water supplies that the farming
community makes available for wetland use be fully considered when
evaluating the importance of agriculture in the Upper Basin relative to
the watershed's environmental needs.
The California Waterfowl Association also asks for an opportunity
to work with Congress on seeking changes in the Endangered Species Act
which recognize our obligation to our international neighbors under the
Migratory Bird Treaty and elevate our internationally shared migratory
waterfowl resource to a par with listed species. We also wish to work
with Congress on obtaining careful, common sense amendments to the ESA
which will forever ensure that impacts to all non-listed species are
appropriately considered before implementing actions directed at
addressing listed species concerns. Closer to home, and more
specifically, we ask for Congress to direct the Klamath Reclamation
Project to elevate the priority of refuge water deliveries to an equal
par with fish water, without impacting agricultural deliveries which
are vital not only to the local economy, but also to Pacific Flyway
waterfowl.
We also urge Congress to strongly consider appropriating federal
funding for projects designed to increase the surface water annually
available to meet the region's water needs. For example, off-stream
storage facilities to capture excess flows when available, and tail-
water return systems which more effectively utilize available supplies
could play a vital role in addressing the region's water woes. In
addition, these types of facilities, if properly managed, can also
provide additional waterfowl habitat and groundwater recharge benefits.
We also hope to work with Congress to design new and creative programs
in the next Farm Bill which provide additional incentives to encourage
more wildlife-friendly farming and ranching practices.
The Upper Klamath Basin is the most important waterfowl staging
area in all of North America. Yet only about 25% of the Basin's
historic wetland habitat base remains today. With nearly all of these
remaining wetlands contained within the boundaries of the Klamath Basin
National Wildlife Refuge Complex, it is critical that we allocate
sufficient water to address the needs of the waterfowl, bald eagles and
the hundreds of other species which depend upon this habitat. When
making water allocation decisions we must also consider the vitally
important wildlife benefits provided by local agriculture, and, of
course, the importance of farming to local families and the community.
Finally, we ask the Committee to recognize that the most important
environmental assets of the Klamath Basin B its waterfowl B are also
the greatest victims of the current water management decisions. It is
also important to recognize that waterfowl hunting provides a financial
and emotional commitment to the conservation, and enhancement of
wetlands throughout North America. Throughout California, as an
example, 70% of the wetlands which remain today are privately owned and
managed, with the sole incentive of these landowners being the ability
to hunt ducks and geese on these habitats during the waterfowl season.
Yet, these wetlands directly or indirectly support hundreds of wildlife
species year-round, as well as an estimated 50% of California's listed
species.
Klamath Reclamation Project water allocations mandated to address
the needs of three listed fish species in the Klamath Basin are
seriously threatening the future health and well-being of the Upper
Klamath Basin community, and the Pacific Flyway. We urge the Committee
to recognize this serious fault and demand that future water management
strategies assure that waterfowl, including the farm and ranch food
resources, are equally protected.
The California Waterfowl Association appreciates the opportunity to
provide testimony today. We do not believe there can be only one
``winner'' in this crisis. We believe that if we all work together we
can find solutions which meet the needs of the local community, the
Pacific Flyway, other wildlife and the fish species. We look forward to
working with Congress and all interests in seeking these solutions.
______
Mr. Calvert. I thank you, gentleman. I would now like to
recognize Supervisor Smith. Supervisor Smith, you're recognized
for 5 minutes.
STATEMENT OF THE HON. JIMMY SMITH, SUPERVISOR,
HUMBOLDT COUNTY BOARD OF SUPERVISORS, EUREKA, CALIFORNIA
Mr. Smith. Thank you, Mr. Chairman, for the honor of being
here today. I really appreciate it. I am a member of the
Humboldt County Board of Supervisors. Prior to my election, I
was a commercial fisherman and owner of a 46-foot salmon
troller, which I just sold 6 weeks ago, and Dungeness Crabber,
operating out of Humboldt Bay. My nearly 40 years of ocean
fishing prompted interest in the complete life cycle of salmon.
To that end I studied and trained in salmon management in the
off season.
I'm proud to say I worked with former Congressman Bosco and
a number of sport, Tribal fishermen, business owners, and
elected officials to generate language for Public Law 99-552,
the Klamath River Restoration Act. The intent then, as today,
was to restore fish and wildlife in the Klamath River Basin.
Even during the '80s, as those discussions occurred, Tribal
Elders stated clearly, water is the key.
Sadly, we have not been able to stop the decline of
important fish species in the Klamath System. Although the
Endangered Species Act has weighed in as a tool to protect and
aide in the recovery of the Klamath's fish populations, it has
not reversed the deadly trend. The battle for water and
protections will continue.
I recognize and respect the concerns expressed by the
farmers. Humboldt County believes in protecting its
agricultural lands and the ranchers and farmers so important to
our economy. We are working diligently with the State of
California to make sure Williamson Act standards are maintained
so tax incentives can keep those agricultural lands intact;
it's absolutely essential. The same respect is extended to the
landowners in the Klamath Basin. In fact, the fishermen and
coastal constituencies support economic assistance for Klamath
Basin farmers who suffer from drought or are contributing to
water for fish and wildlife. I know some of those people and
have hunted on their lands.
It is common knowledge that other important species are
dependent on the farm lands in the Klamath Basin. Wintering
herds of mule deer and antelope forage on the agricultural
lands when winter snows force them out of the mountains. Eagles
concentrate here because of the abundant waterfowl populations,
also supported by the farmers. It is acknowledged that the
Klamath landowners have a bond with the land; they are
essential food producers and are known for being fiercely
independent, similar in every regard to the commercial
fishermen. We all share the pain for protecting listed species.
California fishermen must avoid coho salmon, but in spite
of zero harvest, the coho are still in trouble. In fact,
fishermen have been denied access to huge areas of ocean and
abundant Central Valley stocks to eliminate incidental contact
with listed coho. Most certainly, coho protections and low
numbers of Klamath chinook continue to have profound impacts to
Humboldt County's economy. Of great concern is the loss of
about 50 percent of the California salmon fishing fleet since
1995, which is, by the way, 1,320 vessels. At an average
$40,000 income, discounting idle vessels, that's a $40 million
in annual losses.
Of equal importance is the economic devastation dealt to
the recreational fisheries and the once-thriving service
industries. The Tribes are also suffering irreparable harm with
continuous cuts to their commercial subsistence and ceremonial
salmon harvests.
Throughout history coho and chinook have been able to
withstand El Ninos, floods, and droughts, although their
populations suffered in the short-term. They cannot, however,
be expected to support fishing economies when babies die in the
river by the hundreds of thousands and adult spawners meet
sudden death, as in 2002. The thousand plus fishing businesses
that perished over the last 9 years are testimony to those
losses. Prior to 1995, California lost an additional 4,000
vessels with staggering ramifications to support businesses and
related employment. As an example, Humboldt Bay has only one
fish processor left, and three once-thriving boat repair
facilities are gone forever. Although these losses are not
wholly attributable to the Klamath salmon failure, it is the
most significant factor in the economic decline.
This year's fisheries managers again reduced fishing
opportunity to protect projected low returns of Klamath River
chinook. The very token Humboldt and Del Norte Counties' quota
was reduced by 40 percent. These and other stringent
regulations are in effect because of dismal returns last year.
Those returning adults are now what is left of the
approximately 300,000 young salmon that died in the river in
2000, 2001. This year young fish are again dying by the
thousands before they can complete their journey to the ocean.
And finally, the regulations are clear and immediate, more
closures, reduced harvest, huge economic impacts from Central
Oregon to San Francisco, and never any assistance on the coast,
not even recognition that economic disasters continue to occur
on the coast with alarming regularity.
So I would ask, in summation, Mr. Chairman, if we could
investigate and agree on the cause of juvenile and adult
deaths, increase flows in the Klamath and Trinity Rivers.
Please support Humboldt County's effort to have the 50,000 acre
fee made available, as the '59 Contract once stated. We will
help make sure those fish don't die. And maintain and fully
fund, please, the Klamath Task Force and the Management Council
so that those decisions made with sound science can be
implemented, even though they do affect fisheries. If you have
to close them down, we want the best information and best
managers. And I thank you all for being here today. It's a
great, great opportunity for all of us. Thank you.
[The prepared statement of Mr. Smith follows:]
Statement of The Honorable Jimmy Smith, First District Supervisor,
Humboldt County Board of Supervisors, Eureka, California
Thank you Mr. Chairman for the honor to appear here today. My name
is Jimmy Smith. I am a member of the Humboldt County Board of
Supervisors. Prior to my election, I was a commercial fisherman and
owner of a 46-foot Salmon Troller and Dungeness Crabber, operating out
of Humboldt Bay. My nearly forty years of ocean fishing prompted
interest in the complete life cycle of salmon. To that end I studied
and trained in salmon management in the off season.
I am proud to say, I worked with former Congressman Bosco and a
number of sport and Tribal fishermen, business owners and elected
officials to generate language for P.L. 99-552, the Klamath River
Restoration Act. The intent then, as today, was to restore fish and
wildlife in the Klamath River Basin. Even during the early 1980's, as
those discussions occurred, Tribal Elders stated clearly ``water is the
key.'' Sadly, we have not been able to stop the decline of important
fish species in the Klamath system. Although the Endangered Species Act
has weighed in as a tool to protect and aide in the recovery of the
Klamath's fish populations, it has not reversed the deadly trend. The
battle for water and protections will continue.
I recognize and respect the concerns expressed by the farmers.
Humboldt County believes in protecting its agricultural lands and the
ranchers and farmers so important to our economy. We are working
diligently with the state to secure Williamson Act standards to
maintain tax incentives to keep agricultural lands intact. The same
respect is extended to the landowners in the Klamath Basin. In fact,
the fishermen and the coastal constituencies support economic
assistance for Klamath Basin farmers who suffer from drought or are
contributing water to fish and wildlife. I know some of those people,
and have hunted on their lands. It is common knowledge that other
important species are dependent on the farm lands in the Klamath Basin.
Wintering herds of mule deer and antelope forage on agricultural
lands when winter snows force them out of the mountains. Eagles
concentrate here because of the abundant waterfowl populations, also
supported by the farmers. It is acknowledged that the Klamath
landowners have a bond with the land; they are essential food producers
and are known for being fiercely independent. Similar in every regard
to the commercial fishermen. We all share the pain for protecting
listed species. California fishermen must avoid Coho salmon, but in
spite of zero harvest, the Coho are still in trouble. In fact,
fishermen have been denied access to huge areas of ocean and abundant
Central Valley Chinook stocks, to eliminate incidental contact with
listed Coho. Most certainly, Coho protections and low numbers of
Klamath Chinook continue to have profound impacts to Humboldt County's
economy. Of great concern is the loss of about 50% of the California
salmon fishing fleet since 1995, which is 1,320 vessels; at an average
$40,000 income, discounting idle vessels, that's a $40,000,000 annual
loss. Of equal importance is the economic devastation dealt to the
recreational fisheries and the once thriving service industries. The
Tribes are also suffering irreparable harm with continuous cuts to
their commercial, subsistence and ceremonial salmon harvests.
Throughout history Coho and Chinook have been able to withstand El
Ninos, floods and droughts, although their populations suffered in the
short-term. They cannot however, be expected to support fishing
economies when babies die in the river by the hundreds of thousands and
adult spawners meet sudden death as in 2002. The thousand plus fishing
businesses that perished over the last nine years are testimony to
those losses. Prior to 1995, California lost an additional 4,000
vessels with staggering ramifications to support businesses and related
employment. As an example, Humboldt Bay has only one fish processor
left and three once thriving boat repair yards are gone forever.
Although these losses are not wholly attributable to the Klamath salmon
failure, it is the most significant factor in the economic decline.
This year fisheries managers again reduced fishing opportunity to
protect projected low returns of Klamath River Chinook. The very token
Humboldt and Del Norte Counties quota was reduced by 40%. These and
other stringent regulations are in effect because of dismal returns
last year. These returning adults are what are left after approximately
300,000 young salmon died in the Klamath River in 2000. This year young
fish are again dying by the thousands before they can complete their
journey to the ocean.
The regulations are clear and immediate, more closures, reduced
harvest, huge economic impacts from Central Oregon to San Francisco;
and never a penny in assistance. Not even recognition that economic
disasters continue to occur on the coast with alarming regularity.
Although the ESA lacks perfection, it is not to blame for the conflicts
occurring in the Klamath Basin. Protections are needed to assure
survival of Klamath fish.
WHAT COURSE DO WE SET?
1. Investigate and agree on the cause of juvenile and adult salmon
mortalities.
2. Increase flows in the Klamath and Trinity Rivers. Support
Humboldt County's request for the Bureau of Reclamation to give the
50,000 acre feet, as promised in the 1959 Contract Agreement. Humboldt
has agreed to use the water to prevent fishery disasters. Releases
could be structured under the guidance of federal, state and Tribal
fishery managers.
3. Support water banking and increasing storage capacity.
4. Expand our relationship with knowledgeable local government
officials. Leaders like County Supervisors Joan Smith and Marcia
Armstrong have proven backgrounds and a willingness to work with
agriculture, tribes and fisheries interests. Exchange ideas, especially
areas of documented success.
5. Maintain and fully fund the Klamath Task Force and the Klamath
Management Council. Even though they make serious fishery management
and restoration decisions, they make recommendations based on sound
science with open process.
I stand by to help in any way that I can. Thank you for this
generous opportunity to speak today.
______
Mr. Calvert. Thank you, Supervisor. I would now like to
recognize Dr. Lewis for his testimony. Dr. Lewis, you're
recognized for 5 minutes.
STATEMENT OF WILLIAM M. LEWIS, JR., CHAIR, COMMITTEE ON
ENDANGERED AND THREATENED FISHES IN THE KLAMATH RIVER BASIN,
AFFILIATED WITH NRC, UNIVERSITY OF COLORADO, BOULDER, COLORADO
Dr. Lewis. Mr. Chairman and Committee Members, thank you
for inviting me to this meeting. My name is William Lewis. I am
professor of Environmental Sciences at University of Colorado
in Boulder, and I served, between 2001 and 2003, as Chair of
the National Research Council's Committee on Endangered and
Threatened Fishes in the Klamath River Basin.
As you know, there was a drought in 2001. And the drought
coincided, and I think this is something we might forget the
significance of, coincided unexpectedly with the release of
regulations that had been prepared ahead of time, restricting
water management latitude of Klamath Project, which delivers
water to about 220,000 acres of privately irrigated lands, east
and south Upper Klamath Lake. The coincidence in time of these
events was such of course to lead to the total shutoff of water
for the first time to the Klamath Project. In effect the
Project was dried up for that season. Had this coincidence not
occurred, there might have been time to evaluate by calculation
what the effects of this regulation would be in an extreme
year, perhaps some measures would have been taken to prevent
this kind of tragedy.
At any rate, there were--a lot of things were said on both
sides of this issue, and some of them weren't very scientific.
But there were some scientific questions that were raised. The
water users wanted to know what basis the agencies had for
making these decisions, and of course, the agencies had
explained their basis in their documents, but I think the users
wanted interpretation, reassurance, and a criticism, I suppose,
of these decisions.
So the Academy was called on to form a committee, and that
was the committee of which I was Chair. The committee had two
charges.
One was to prepare rather quickly, over a period of a year,
an interim report to focus on the documents surrounding the
2001 opinion and evaluate the science. That was the language
that was used in the task. And notice that this stops short of
saying whether or not the agencies did exactly the right or
wrong thing, but rather to evaluate the scientific basis for
the decisions that they made, and then to take a broader
overview and determine as best they could what would be needed
to make the fishes recover in the future.
In its first effort, which resulted in an interim report,
the committee found a lot of scientific basis for a number of
the recommendations of the agencies. For example, I would cite
the fish screen, which the U.S. Fish and Wildlife Service has
been requiring for over a decade and finally was created in
2004, I'm glad to say.
But where water management considerations were concerned,
the committee could not find a strong scientific basis at all,
either with regard to water levels in Upper Klamath Lake or
flows in the Klamath main stem. And so it concluded that these
decisions were poorly based in a scientific sense.
The committee also recognized, however, that the agencies
must use their judgment quite extensively in carrying out the
Endangered Species Act, in the same way a physician uses
judgment in prescribing medication early on in a course of
treatment. But we also recognize that the agencies could be
expected reasonably to change their position as information
develops, adjust, perhaps even retract from earlier decisions,
and the public must understand this ebb and flow of scientific
information and the effect it might have on an agency.
At any rate, the interim report was received with great
controversy. The irrigators felt that the committee had sided
with irrigation, had seen the merits of irrigation somewhat.
And people who were interested in environmental protection felt
that the committee had not held up its side in looking after
the endangered fishes. Actually, the committee really did
neither of those things.
It simply answered the question that was put to it and
didn't interpret in terms of policy. But it did raise an
interesting issue, and that is what an agency does when it
makes an initial judgment that subsequently is contradicted by
hard information. That is a very interesting question about the
agencies.
Then there was the final report. In the final report, the
committee concluded that none of these three fish species could
be caused to recover merely by negotiations with the Klamath
Project.
That simply is far too narrow a scope, that this is a
basin-wide problem, that there are many opportunities to
improve the welfare of these fish beyond water level
manipulation and flow manipulation, and the committee outlined
a number of these.
Now, the committees--excuse me, the agencies that the
committee was considering knew about a lot these things, but
didn't have the money to pursue a lot of them, so I'm glad that
Congress has acted on that, and I'm glad that the agencies are
showing new energy, and I sense, as Representative Walden said,
that there is energy in the community here to move
constructively on these issues, but it will require much better
communication, less animosity, and more money. Thank you.
[The prepared statement of Dr. Lewis follows:]
Statement of Dr. William M. Lewis, Jr., Professor and Director, Center
for Limnology, University of Colorado at Boulder, and Chair, Committee
on Endangered and Threatened Fishes in the Klamath River Basin, Board
on Environmental Studies and Toxicology, Division on Earth and Life
Studies, National Research Council, The National Academies
Good morning, Mr. Chairman and members of the Committee. My name is
William Lewis, Jr. I am professor of Environmental Science and Director
of the Center for Limnology at the University of Colorado's Cooperative
Institute for Research in Environmental Sciences. I recently served as
Chair of the National Research Council's Committee on Endangered and
Threatened Fishes in the Klamath River Basin. The National Research
Council (NRC) is the operating arm of the National Academy of Sciences,
National Academy of Engineering, and the Institute of Medicine; it was
chartered by Congress in 1863 to advise the government on matters of
science and technology.
The Lost River sucker and shortnose sucker of the Klamath River
basin were listed as endangered by the U.S. Fish and Wildlife Service
under the federal Endangered Species Act in 1988. These two fish
species, which are restricted in their distribution to the Klamath
River basin, were so abundant a century ago that they served as a major
food source for American Indians and supported a commercial fishery.
Both species are large, have a long life span, and can tolerate a
number of kinds of environmental extremes that many other fishes
cannot. The two species originally occupied much of the upper half of
the Klamath River basin. Their distribution and abundance are now much
reduced, and most of the present subpopulations are not self-
sustaining.
In listing the two endangered sucker species, the U.S. Fish and
Wildlife Service cited overfishing as one cause of decline. Other
causes are also important, however, as indicated by the failure of
these species to recover after a ban on fishing in 1987. The U.S. Fish
and Wildlife Service identified water management practices (including
water-level manipulation and entrainment of fish through irrigation
structures), adverse water quality, introduction of competitive or
predatory fishes not native to the Klamath basin, physical alteration
of habitat such as marshes and spawning areas, blockage of migration
pathways, and genetic isolation of subpopulations. These factors are
related to a number of human activities, including irrigated
agriculture, power production, and livestock management.
The coho salmon, a migratory species that spends approximately half
of its life in streams and the other half in the ocean, is distributed
from California to the Aleutian Islands. It is divided into distinctive
genetic subgroups that are termed ``evolutionarily significant units.''
One of these evolutionarily significant units spawns and develops
through its early life stages in waters of the Klamath River basin and
nearby drainages. Although once abundant in the Klamath River basin, it
has declined notably over the last 80-90 years. As a result of its
decline, it was listed in 1997 by the National Marine Fisheries Service
as threatened under the federal Endangered Species Act. In evaluating
the decline, the NMFS listed overfishing as one initial cause.
Prohibition of fishing for wild coho (as distinguished from hatchery
fish, which bear hatchery markers) has not led to recovery, however. In
attempting to identify other factors that may be suppressing coho, the
NMFS has listed irrigation-related flow manipulation of the Klamath
River, physical blockage of migration pathways by dams or irrigation
structures, high temperature or other poor water-quality conditions
related in part to flow manipulation, and physical habitat impairment.
Coho presently occupy only the lower portion of the Klamath River
basin, below Iron Gate Dam. Their previous distribution, prior to the
installation of mainstem dams, extended upstream. Coho mature almost
exclusively in tributary waters, and migrate to the ocean during spring
to complete the second half of their life cycle prior to their return
for spawning, after which they die.
As required by the Endangered Species Act (ESA), the two listing
agencies responsible for ESA actions on behalf of the listed suckers
and coho salmon have conducted formal consultations with the U.S.
Bureau of Reclamation, which manages water in parts of the upper
portion of the Klamath River basin through its Klamath Project, which
serves 220,000 acres of private, irrigated agricultural lands. Because
water management is a potential direct or indirect factor affecting the
listed species, the consultations were intended to produce
documentation of the operational effects of the Klamath Project on the
listed species, and to elicit proposals from USBR for avoidance of
jeopardy to these species through future operations of the Klamath
Project. The listing agencies have engaged in numerous rounds of
consultation with the USBR. The consultations have culminated in the
production of biological assessments by the USBR and biological
opinions by the listing agencies. In its biological assessments, the
USBR has proposed changes in water management and screening of its main
water intake as well as some other measures intended to benefit the
fish. In all cases, however, the listing agencies have found the USBR
proposals inadequate and have required more extensive changes in water
management and some greater commitments to other actions as well.
The agencies released assessments and opinions during early 2001,
as they had in previous years. The biological opinions of the two
listing agencies for 2001 required substantially increased stringency
in management of water by the Klamath Project. Specifically, the USFWS
required that annual minimum water levels in Upper Klamath Lake, which
is home to an impaired population of endangered suckers, be less
extreme than in previous years, which in effect eliminated part of the
storage value of the lake for the Klamath Project. In addition, the
NMFS required higher minimum flows downstream of Iron Gate Dam. The
effect of this requirement was to reduce further the ability of the
USBR to store water in Upper Klamath Lake for use in irrigation. Thus,
the total amount of water available to the USBR for use by the Klamath
Project in dry years was significantly reduced as a result of the 2001
biological opinions.
After release of the 2001 biological opinions by the listing
agencies, it became clear that 2001 would be a year of extreme drought.
Whereas similar extremes of drought in recent years (1992, 1994) had
led to water restrictions for the Klamath Project, they had not
eliminated irrigation on the private lands irrigated by the Klamath
Project. The new restrictions for water level in Upper Klamath Lake and
flows in the mainstem Klamath could not be met, however, without
cessation of irrigation on the lands served by the Klamath Project.
While a small amount of water was made available late in the season,
there was virtually no irrigation through the Klamath Project during
the growing season of 2001. Thus, the coincidence of an extreme drought
with new restrictions on water management combined to make disastrous
consequences for Klamath Project irrigators and their economic
dependents. Had 2001 been a normal or wet year, the restrictions no
doubt would have generated much controversy, given that the
implications for drought years of the future would have been evident
through calculations of water shortfalls in dry years. The events
combined, however, to force the controversy to a crisis over a period
of just a few weeks, during which water users and their supporters
criticized the decisions of the listing agencies, while parties with
economic or other interests in fish applauded the ESA-based water
restrictions as a step toward restoration of the three listed fishes.
The economic hardship brought on by the combination of drought and
the new water restrictions focused much attention on the scientific
basis for judgments that were made by the listing agencies. Therefore,
the U.S. Department of the Interior and the Department of Commerce
asked the National Academy of Sciences (NAS) to form, through the
National Research Council (NRC), a committee (the NRC Committee on
Endangered and Threatened Fishes in the Klamath River Basin) that would
be capable of assessing the scientific and technical issues surrounding
the water restrictions. The committee's charge, which was written by
the U.S. Department of the Interior and Department of Commerce in
consultation with NRC staff, called for the committee to produce an
interim report focusing on the strength of scientific support for the
biological assessments and biological opinions of 2001. In a second
phase, leading to a final report, the committee was charged with a
broader overview of the requirements of the listed species for recovery
in the future. The committee released its interim report in February
2002 and its final report in October 2003. As is the case with all NRC
reports, these two reports were rigorously reviewed externally and were
revised by the committee in response to review under supervision of the
NRC and the NAS.
In its interim report, the NRC committee found that proposals by
the USBR for water management in the future left open the possibility
of establishing lower mean water levels in Upper Klamath Lake and lower
mean flows in the Klamath River main stem than had been the case over
the past decade. Although it was not clear whether changes of this type
were actually the intent of the USBR proposals, the committee found the
proposals unjustified on grounds that lower mean operating levels and
flows were unknown and were not analyzed scientifically by the USBR for
its assessments.
In analyzing the USFWS's biological opinion if 2001, the NRC
committee found considerable scientific support for a number of
requirements specified by the USFWS. For example, installation of a
fish screen to prevent outright mortality of multiple age classes of
endangered suckers entering the Klamath Project's main irrigation canal
near the outlet of Upper Klamath Lake was proposed by the USFWS, and
the committee found this recommendation highly supportable. In
examining the scientific basis for a USFWS requirement that water
levels in Upper Klamath Lake be held higher than they had been in the
recent past, however, the committee found considerable data, collected
primarily with federal support during the 1990s, that the projections
of benefit to the fish from this change in management were contradicted
by evidence. Specifically, extremes of water quality impairment
producing mortality of suckers in Upper Klamath Lake did not coincide
with years of low water level. Also, proposed benefits sought through
expansion of habitat associated with higher water levels did not appear
in the form of a higher output of young fish, as determined by sampling
of fish during the 1990s. Thus, the committee found the scientific
basis for the requirement for stricter regulation of water levels in
Upper Klamath Lake to be unsupported scientifically, but also noted
that this conclusion would not be a valid argument for expanded water-
level manipulation.
For evaluation of the needs of coho salmon, the National Marine
Fisheries Service relied heavily on habitat modeling, which is common
practice for predicting the benefits to fish of higher flows in streams
or rivers. The modeling results were not available in final form to the
NMFS when it wrote its 2001 opinion, and were not available to the NRC
committee during its deliberations. Thus, the NMFS decisions in 2001
based on incomplete modeling could not be considered well supported.
More importantly, an underlying assumption of the modeling was that
habitat requirements of coho salmon could be equated with habitat
requirements of Chinook salmon, which also occupy the Klamath basin.
The committee noted that coho salmon are much more strongly dependent
on tributaries than Chinook salmon, and therefore are less sensitive to
mainstem conditions during the rearing phase than Chinook salmon. Thus,
the overall approach of the NMFS, in the opinion of the committee, was
scientifically weak. The strongest point brought forward by NMFS had to
do with possible benefits of an April flow pulse that would assist the
young fish in migrating to the ocean. While this benefit had not been
quantified or evaluated empirically, it at least had some potential to
be valid.
While the NRC committee found strong scientific support for a
number of requirements given by the listing agencies in 2001, the
requirements related to water levels in Upper Klamath Lake and water
flow in the Klamath main stem had no substantial scientific basis, in
the opinion of the committee. This conclusion, as given in the interim
report, generated much positive reaction from the community of
irrigators and their economic dependents and much criticism from
environmentally oriented observers. It seemed to many that the
committee had sided with the irrigators and against environmental
interests. The committee, however, was merely responding to its charge,
and was not aligning itself with one set of interests or the other.
Following the issuance of the interim report, the agencies were
required to go through yet another round of consultations and produce
assessments and opinions, as before, because of the expiration of the
2001 documents after one year. While the NRC report was not binding on
the agencies, it stimulated some changes in the ESA consultations of
2002. In general, the agencies were more energetic and innovative in
their consultations than they had been in previous rounds, and were
able to produce a ten-year plans rather than one-year plans. Although
the ten-year plans can be reopened at any time by the listing agencies,
they provide a degree of stability that favors both water management
and recovery actions. The USBR, recognizing that use of water on behalf
of fish would be a constant feature of future water management, offered
increased concessions that it considered to be useful but still
consistent with future delivery of meaningful amounts of water through
the Klamath project over a wide range of water-year types. It proposed
development of a water bank, which might include conditional water
rights to be obtained by lease or purchase and to be used to reduce
pressure on the irrigation water source during years of drought. The
USBR also offered an April flow pulse below Iron Gate Dam to benefit
coho during their migration and made several other kinds of concessions
related to coho.
The two listing agencies found the proposals of USBR to be useful
but insufficient. Thus, they found that the USBR's proposed operations
as outlined in the biological assessment of 2002 would leave the three
species in jeopardy, and they issued ``reasonable and prudent
alternatives,'' as required by the ESA. The reasonable and prudent
alternatives placed deadlines on a number of the proposals made by USBR
and also put a volumetric requirement on the water bank. The USFWS,
while continuing to back the concept of benefit to the endangered
suckers from reduced water-level fluctuations in Upper Klamath Lake,
moderated its water-level requirements so as to be more consistent with
the data collected on the suckers during the 1990s. Fish screening
continued to be an issue; screening of the main canal supplying the
Klamath Project was required by USFWS and was accomplished during 2004.
The USFWS made several other requirements as well.
The NMFS continued to endorse its habitat-based flow modeling
leading to requirements for higher flows in the Klamath main stem, on
grounds that expanded habitat in the main stem would benefit coho. The
NMFS moderated the effect of these requirements on the Klamath Project,
however, by recognizing that the USBR accounts for only approximately
half (57%) of total irrigation water use above Iron Gate Dam. Thus, the
NMFS apportioned to USBR 57%, rather than 100%, of the quantitative
requirement for water needed to meet its prescribed flows at Iron Gate
Dam. It also required, however, that USBR participate in actions
required to make up the balance (43%) of the water required to provide
minimum flows, and it endorsed the water-bank concept.
In its final report, the NRC committee gave several major
conclusions relevant to the long-term recovery of endangered and
threatened species in the Klamath River basin. First, the committee
noted that none of the three species could be expected to recover
through any program that is primarily or solely based on consultations
with the USBR related to operations of its Klamath Project. While the
Klamath Project consultations are mandatory, factors suppressing the
species extend well beyond the Klamath Project. For suckers, blockage
of a large amount of potential spawning habitat by Chiloquin Dam and by
numerous small, privately managed tributary dams and diversions
constitutes ``take'' (mortality or life-cycle impairment) and must be
eliminated or circumvented. Restoration of habitat in tributary
spawning areas for the suckers above Upper Klamath Lake also is
critical, and expansion of resting areas for larval fish at tributary
mouths for Upper Klamath Lake is important. The committee viewed the
feasibility of reversing poor water-quality conditions in Upper Klamath
Lake as low for the near future, and therefore recommended strong
emphasis on stimulation of the production of young fish for Upper
Klamath Lake to offset adult mortality and expansion or introduction of
subpopulations at other locations where manipulation of environmental
conditions might be more feasible. For example, the committee
recommended establishment of a subpopulation in Lake of the Woods,
where suckers were poisoned decades ago in order to make way for game
fish.
For coho, the committee recommended much more emphasis on
tributaries, where young coho either succeed or fail in reaching the
smolt stage for migration to the ocean. The tributaries are plagued by
a variety of problems, including excessive drawdown in summer, numerous
blockages and diversions that affect the movement of salmon, high
temperatures caused by loss of riparian vegetation and excessively low
flows during summer, diversion of cold spring flows that originally
provided year-round benefit to salmon, degradation of physical habitat
by dams, inadequate control of erosion, and effects of livestock on
stream banks and stream channels. In addition, mainstem dams block
access of coho to tributary habitat, and introduction of large numbers
of competitive hatchery-reared fish (mostly steelhead and Chinook) may
reduce the success of young, wild coho during their downstream
migration; both types of impairment should be considered for possible
action. Correction of problems affecting coho obviously must extend far
beyond the boundaries of the USBR's Klamath Project.
The NRC committee also diagnosed some procedural and organizational
problems with the recovery efforts in the basin. There are no adequate
ESA recovery plans for any of the three species. Funding for recovery
programs has been inadequate, and would not have supported actions of
the scope necessary to produce recovery. Because of intense partisan
feelings within the basin about recovery strategies, the agencies must
find ways of fostering collaboration through a diverse committee of
cooperators who are fully informed on recovery plans and proposals, and
who have the opportunity to debate and contribute to them. Guidance for
well-meaning landowners who attempt to improve the environment would be
very useful in maximizing the beneficial effects of private money
directed toward remediation.
The listing agencies in the Klamath basin have been strongly
criticized for using judgment not supported by bedrock scientific
information. The NRC committee, as expressed in its reports, did not
agree with the notion that professional judgment is a useless or
inappropriate tool to be used in environmental actions such as those
required by the Endangered Species Act. Professional judgment, which
involves application of knowledge about the basic requirements of a
listed species, is mandatory for agencies that implement the Endangered
Species Act. The NRC committee did note, however, that the use of
judgment is much more defensible when data are not available, or when
judgment is confirmed by at least some data, than when it proves to be
inconsistent with accumulating data. In the latter instance, the
listing agencies would more likely be effective if they were to modify
their judgments, and should not be criticized for doing so, given that
modification of initial judgments in response to observations or data
is a constant feature in all fields of applied science.
The committee concluded that there is much untapped potential for
recovery of the three listed species in the Klamath River basin.
Recovery efforts must extend beyond the Klamath Project and its
operations to embrace all major factors known to cause mortality or
impairment of the endangered fishes. If efforts of this scope can be
designed, and are supported by steady funding from the federal
government, implementation of the Endangered Species Act in the Klamath
River basin could be an inspirational example, especially for the
western states.
______
Mr. Calvert. Thank you. Our last witness, Mr. Rodgers,
you're recognized for 5 minutes.
STATEMENT OF KIRK RODGERS, REGIONAL DIRECTOR, MID-PACIFIC
REGION, BUREAU OF RECLAMATION; ACCOMPANIED BY STEVE THOMPSON,
REGIONAL DIRECTOR, U.S. FISH AND WILDLIFE SERVICE; AND JIM
LECKY, ASSISTANT REGIONAL ADMINISTRATOR FOR PROTECTED
RESOURCES, NATIONAL MARINE FISHERIES SERVICE
Mr. Rodgers. Thank you, Mr. Chairman. My name is Kirk
Rodgers. I'm the regional director for the Bureau of
Reclamation's Mid-Pacific Region. Accompanying me today are
Steve Thompson with the Fish and Wildlife Service and Jim Lecky
of NOAA Fisheries. Both of those agencies have key roles in the
Klamath effort. Your request for our testimony asked that we
address water certainty and address endangered species issues
as they relate to the project. We have provided written
testimony and ask that that be entered into the record. I'd
like to summarize that for you today.
One of the fist things mentioned is, as you're aware, the
Klamath River is not adjudicated, and although that is
underway, it does--it will maybe take several more years to do
that. And the importance of that is that it helps identify in
times of shortage where the priorities go. And so that's one of
the things that we think that is a significant challenge to
certainty in operations.
But beyond that, and under the current state of the law,
Reclamation is obligated to operate the project in compliance
with the Endangered Species Act. And the Act limits operational
discretion and requires compliance with biological opinions. In
the 2001 biological opinion from Fish and Wildlife Service
requires minimum lake levels to protect endangered suckers. The
NOAA Fisheries biological opinion requires releases to maintain
river flows to protect downstream salmon.
In 2001, the infloat Upper Klamath Lake was about half of
the average and the 5th lowest it had been since '05. Median
requirements from the BOs left insufficient water for the
project, as we're all aware, and we're aware of the
consequences that that had. And as those consequences were upon
us, we were continually asked tougher and tougher questions.
And as has been discussed today, we engaged the services of the
National Research Council, and Dr. Lewis has eloquently covered
their findings. Let me just add that we have, in addition to
those things he's discussed, we've learned some things about--
many things from that. But I'd like to cover a couple. One
would be that professional scientists can interpret and apply
the same data in different ways. We've learned that peer review
has value and that we can improve our decisionmaking when we do
add additional scientific knowledge. So we should apply peer
review as rigorously as we can, where it's appropriate.
Second, I'd like to mention that, as an operational agency,
the reclamation needs information in order to make good
decisions. And we depend on the scientific community to provide
a good knowledge base for us and to advise us in our
decisionmaking. These are complex systems, and they need
information to make good decisions.
And so to that end, in cooperation with my colleagues,
reclamation is taking action to support improvements in
scientific data collection. And just to mention a few, we're
looking at independent flow analysis of the Upper Klamath
Basin. That will assist us in understanding and agreeing on
base conditions. There's been a lot of disagreements on what
base conditions were. We need to know that. We need to improve
our forecast models so that we can include groundwater response
and improve the accuracy and reliability of those forecasts.
And we're cooperating in the development of a river flow
analysis to better understand fish habitat needs. Those were a
few examples.
In addition to that, we're working with Fish and Wildlife
Service and NOAA fisheries to adjust--make adjustments to the
biological opinions. That will assist us in improving
certainty. One example is a new incremental adjustment
methodology, which will be employed when the hydrology dictates
an adjustment to a different water year type. That's been a
complication and a problem in the past, and this new
methodology we have, hope will help smooth that out. We
appreciate the cooperation from the Service and NOAA Fisheries
in those action.
We also are doing several other things, and let me just
quickly tick off a few of those. This water bank thing that
we're doing is helping to provide water for fish while it
compensates landowners who voluntarily enter into those
programs. We're conducting storage investigations, such as the
Long Lake investigation for an off stream reservoir. We're
implementing water conservation measures, such as the one we
just offered to Klamath Irrigation District. That will save
2,000 acre feet per year when they line their canal, and things
like removing Chiloquin Dam.
I see I'm out of time. Perhaps in the course of the Q & A,
we can answer any other questions that you may have. Steve,
Jim, and I will be glad to do that for you. Thank you, Mr.
Chairman.
[The prepared statement of Mr. Rodgers follows:]
Statement of Kirk Rodgers, Regional Director, Mid-Pacific Region,
Bureau of Reclamation, U.S. Department of the Interior
Mr. Chairman, my name is Kirk Rodgers, and I am the Regional
Director of the Bureau of Reclamation's Mid-Pacific Region. I
appreciate the opportunity to appear before your Subcommittee this
morning to discuss Reclamation's efforts here in the Klamath Basin. In
attendance with me today are Steve Thompson of the Fish and Wildlife
Service and Jim Lecky of NOAA Fisheries. Both agencies have played key
roles in the Klamath effort.
Your request for our testimony asked for Reclamation's approach to
providing water certainty and resolving endangered species issues as
they relate to the Klamath Project. We have provided written testimony
and ask that it be made a part of our response to these important
topics. I would like to briefly summarize that testimony today.
As you are aware, the Klamath River is not adjudicated. That is,
perhaps, one of the more significant challenges to certainty in
operations. Under the current state of the law, Reclamation is
obligated to operate the Klamath Project in compliance with the
Endangered Species Act. The result is that operational discretion is
limited to complying with the two existing Biological Opinions (BOs).
The 2001 BO from the Fish and Wildlife Service requires minimum
lake levels to protect endangered suckers in Upper Klamath Lake, while
the NOAA Fisheries BO requires specific releases to maintain river
flows to protect salmon downstream.
In 2001, water inflow to Upper Klamath Lake was about half of
average and the fifth lowest of any year since 1905. Irrigation needs
were high because rain and soil moistures were low; however, meeting
the requirements from the BOs left insufficient supplies for the
irrigators.
To irrigators, the water supply interruption in 2001 was
unacceptable. And Reclamation could not wave a magic wand and instantly
create enough water to satisfy all of the human and environmental water
needs.
Many agencies, irrigators, community leaders, and others began
asking questions about the biological needs of the endangered species.
The President formed the Klamath River Basin Working Group, involving
the Secretaries of Interior, Commerce, and Agriculture and the Chairman
of the Council on Environmental Quality. The National Academy of
Sciences' National Research Council (NRC) was asked to assemble a team
of top scientists to examine the Klamath Project and the 2001 BOs.
The results were interesting. The NRC found that there was no
connection between fish survival and lake levels. It found that water
temperatures, particularly in late summer, and competition and
predation from hatchery fish to be important factors affecting ESA-
listed fish survival in the river.
The NRC also found that actions focusing primarily upon Klamath
Project operations would not yield fish recovery in the Klamath basin.
What have we learned from this effort? At least a couple of things:
1. Professional scientists can interpret and apply the same data
in different ways;
2. Adding to our scientific knowledge base is very important to
decision-making for these complex systems.
To that end, Reclamation is taking action to support improvements
in scientific data collection to support decision-making, such as:
Developing an ``independent flow analysis'' of the Upper
Klamath Basin, which will assist us in understanding and agreeing upon
base conditions;
Improving our forecast models to include groundwater
response and improve the accuracy and reliability of our forecasts;
Cooperating in the development of a river flow analysis
to better understand fish habitat needs.
We are also consulting with Fish and Wildlife Service and NOAA
Fisheries with regard to adjustments to the BOs which will assist with
improving certainty. One example is a new Incremental Adjustment
Methodology which will be employed when the hydrology dictates an
adjustment to a different water year type.
We appreciate the cooperation of the Fish and Wildlife Service and
NOAA Fisheries in addressing issues such as these.
Other actions we have underway include:
Managing a water bank, which compensates land owners who
elect to forego Project water by either idling crop land or pumping
groundwater
Conducting storage investigations including Long Lake, an
off-stream reservoir
Increasing Upper Klamath Lake storage capacity
Implementing water conservation measures, such as the
recent Water 2025 grant to the Klamath Irrigation District for a canal
lining project, saving up to 2000 AF per year
Removing Chiloquin Dam
Mr. Chairman, just about everyone--from the President's Cabinet
Level Working Group to NRC scientists and others around the country--
have called for basin-wide cooperation, coordination, and management to
deal with the tough water resource issues in the Klamath Basin.
Consequently, Reclamation is leading the Conservation Implementation
Program to develop a process based upon science, stakeholder
involvement, adaptive management, and Basin-wide cooperation.
The Conservation Implementation Program will help the stakeholders,
Tribes, States, and all Federal agencies craft solutions for both the
short and long term.
I would be pleased to answer any questions you might have.
______
Mr. Calvert. All right. I thank you, gentleman. We're now
going to go into the questions. I'll remind the Members that
under our Committee Rules, we have a 5-minute limitation.
However, we'll have time for several rounds of questions.
And first I'll recognize myself. I'll start with Mr. Carman
and Mr. Hernandez. And again, Mr. Carman, thank you for your
service. My father also served in the South Pacific. He was at
Okinawa and Iwo Jima, and he's no longer with us, but your
statement was quite eloquent, and we certainly appreciate what
you've done.
The question, though, is for both Mr. Carman and Mr.
Hernandez. How did the 2001 shutoff impact the Hispanic and the
agricultural communities in the basin? Mr. Hernandez, would you
like to answer that?
Mr. Hernandez. Well, number of families had to move, mainly
the father, because he has to go find source of work, or you
know, they got to support their families, so they have to do
something. And unfortunately some of the kids, you know, in our
culture, the kids don't mind the mom as they do the dad, so
some of them got in trouble. Some of the kids did, so that's a
big effect.
Mr. Calvert. And it's one thing that, serving as Chairman
of this committee, I go all around the country, and I see the
pain with everyone. Mr. Brown mentioned, remember the people. I
see various conflicts around water is a very emotional subject,
because it is truly the lifeblood of many communities, whether
it's Brownsville, Texas, or New Mexico, or here in California--
or here in Oregon or in California. But one of the issues that
we need to reflect, how do we solve these problems? And one of
the questions that I'd like to have an answer to is storage.
Mr. Herger brought that up. Would more storage give us more
flexibility in addressing this problem from everyone's
perspective? And I'd just like a yes or no from all the
witnesses, because I'm limited in time. Mr. Hernandez, why
don't you start, yes or no, would flexibility help--would more
water storage help?
Mr. Hernandez. If we have more water, definitely will help.
Mr. Calvert. Mr. Carman.
Mr. Carman. Yes.
Mr. Calvert. Mr. Vogel.
Mr. Vogel. Yes.
Mr. Calvert. Mr. LaMalfa.
Mr. LaMalfa. Sites reservoir, Auburn Dam, please.
Mr. Calvert. Mr. Fletcher.
Mr. Fletcher. Depends on the type of storage.
Mr. Calvert. Mr. Foreman.
Mr. Foreman. Yes, location.
Mr. Calvert. Mr. Brown.
Mr. Brown. In general, I'd say yes.
Mr. Calvert. Mr. Gaines.
Mr. Gaines. Yes.
Mr. Calvert. Mr. Smith.
Mr. Smith. Yes.
Mr. Calvert. Dr. Lewis.
Dr. Lewis. Yes, if it's not firmly committed to continual
use.
Mr. Calvert. Mr. Rodgers.
Mr. Rodgers. Yes.
Mr. Calvert. Mr. Thompson.
Mr. Thompson. Yes.
Mr. Calvert. Mr. Lecky.
Mr. Lecky. Yes.
Mr. Calvert. My God, we've got a--it's unanimous.
With the help of this group here, we just passed a bill in
California. Actually, it affects the entire West, called Cal
Fed, as Mr. LaMalfa referred to some of the storage that we've
discussed over the years. But that is the most difficult part.
It's not just money. Folks talk about money as part of the
solution. That certainly is, but it also takes political will
on everyone here to let everyone know that reasonable storage,
done properly, given the flexibility in the systems to allow
for water, for the environment, for farmers, for communities,
is part of the solution. So I would hope that you as
individuals and the areas that you represent and the committees
that you head would be a proactive participant, and that is, I
think, a part of the solution.
This is one last question in my timeframe. In light of the
NRC report indicating that the 2000 water shutoff was possibly
not scientifically justified, did incomplete science lead to
the action that caused such pain in this valley? I'd ask
probably Dave Vogel first.
Mr. Vogel. The short answer is yes. I think one of the
speakers mentioned this earlier, there's a lot of data out
there, but scientists often have different interpretations of
the same data. And one of the benefits of peer review is you
get a fresh new perspective to look at the same data and help
determine whether or not you can come to the same conclusions.
Usually you have a hypothesis you want to test. You subject
that hypothesis to a rigorous set of scientific standards, then
you let other scientists examine what you've done to make a
determination, whether or not they agree or disagree with you.
That's, again, one of the benefits of the peer review that was
provided by the NRC's report.
Mr. Calvert. And Dr. Lewis.
Dr. Lewis. The NRC committee found that by the end of the
1990s, there was a substantial amount of information on water
level in Upper Klamath Lake to suggest that the original idea
of holding the water level higher wasn't going to benefit the
suckers in itself.
That was a reasonable idea to begin with, data were
collected as they should have been, but then the conclusion
wasn't reached early enough that we were on the wrong track,
either that or some scientists continued to believe there might
be something wrong with the data or not enough data. The
committee felt the data base was pretty substantial by 2000,
2001.
Mr. Calvert. Thank you. Mr. Walden.
Mr. Walden. Thank you. Dr. Lewis, I want to follow up on
that, because I know in the Tribes' testimony, Mr. Foreman's
that's been submitted for the record, and I assume Mr. Fletcher
would agree, they don't think your group paid enough attention
to Tribal rights and that there are other issues involving lake
levels that weren't considered. Can you respond to that?
Dr. Lewis. Well, The NRC committees are very strictly held
to their task. They're not allowed to embroider on their task.
The task had to do only with the Endangered Species Act issues
within a certain arena defined by that question about degree of
scientific support.
But it did acknowledge the Tribal Trust responsibilities of
the Federal Government in its statement on context, but it did
not deal with that question because it wasn't asked to.
Mr. Walden. Part of the issue before this committee, and
certainly in our mark-up next week, if that were to occur, is
should peer review be required under major ESA decisions? Now,
in your role on the NRC panel of the National Academy, you
engaged in that peer review. Was your data--were your data or
your conclusions peer reviewed?
Dr. Lewis. Yes, they were very thoroughly reviewed.
Mr. Walden. Internally and externally.
Dr. Lewis. Yes, both.
Mr. Walden. OK. So are you--is it correct to assume you're
a supporter of peer review science?
Dr. Lewis. It's sometimes unpleasant.
Mr. Walden. But we all go through that every 2 years. You
know, we get peer reviewed too. And I guess that's the point.
There are those who say peer review will be too costly and slow
down the process. Now, I believe--I suppose that could be the
case, if you peer reviewed absolutely every single little
decision that goes on. Where do we find the balance here,
because is seems to be, in the case of Klamath, a lack of peer
review, had we had your report before the decisions were made
to shut off the water, I think we would have had a different
outcome.
Dr. Lewis. Quite possibly. No, I agree with you. I don't
think every single decision or proposal needs to be reviewed. I
think the main question for review is: Is the agency on the
right track here or is it off track? Has it sort of drifted off
of the line of evidence that is most suggestive of what should
be done? Because that's easy to do if you're very closely
involved with something, you have an initial idea, you continue
to follow it, but maybe you get off track after a while, maybe
somebody from the outside has fresh eyes and says--
Mr. Walden. Wait a minute.
Dr. Lewis.--you know, this really doesn't add up anymore.
Mr. Walden. All right.
Dr. Lewis. Might have been a reasonable idea to begin with,
but doesn't anymore.
Mr. Walden. All right. I want to pick up on what my
Chairman did. Does everyone here on the panel support the
concept of having these decisions independently peer reviewed
by panels from the National Academy of Sciences? Can we start
at this end, and just a yes or no. Does anybody here oppose it?
I mean, do you support independent peer review of ESA related
decisions?
Mr. Hernandez. Do I support it?
Mr. Walden. Yeah, yes or no, or if you don't have an
opinion, that's fine too.
Mr. Hernandez. I don't have an opinion.
Mr. Walden. Mr. Carman.
Mr. Carman. Yes.
Mr. Walden. Mr. Vogel.
Mr. Vogel. I would have to say with major decisions, yes.
For minor ones, probably not.
Mr. Walden. All right.
Mr. LaMalfa. Where there's big economic impact or new
precedence, I think it's critical.
Mr. Walden. Or a major impact on the species, I assume too,
economic or species. Mr. Fletcher.
Mr. Fletcher. Yes. Different people consider different--is
it the NRC, is it OSU? You know, we can get into that debate as
well, who does the peer review.
Mr. Walden. Sure. The legislature I have would call on the
National Academy to set up panels, independent scientists who
are certified in whatever issue it is, and from those panels
you'd have peer review. So you'd support that concept? Mr.
Foreman.
Mr. Foreman. Yes, peer review should be done. Science
remains within science; politics should be left out of it.
Mr. Walden. OK. Mr. Brown.
Mr. Brown. We've gone to peer review process in the Pacific
Management Council for the stock assessments. It's pretty well
ended most of the argument over the underlying science and
level--
Mr. Walden. OK. Mr. Gaines.
Mr. Gaines. Absolutely.
Mr. Walden. Mr. Smith.
Mr. Smith. Yes.
Mr. Walden. Dr. Lewis, I think you've already--
Dr. Lewis. I endorse peer review, but if I commit the
Academy to it, I could be in trouble.
Mr. Walden. You can just speak for yourself as a scientist
today.
Dr. Lewis. Peer review can be very useful, but it also can
be overdone.
Mr. Walden. All right. And that's what we're going to have
to figure out. Mr. Rodgers.
Mr. Rodgers. We need peer review.
Mr. Walden. OK. Mr. Thompson.
Mr. Thompson. I think I'd agree with Dr. Lewis. I agree--
Mr. Walden. Why don't you take that mike so our audience
can hear.
Mr. Thompson. I agree that the peer review process is a
very healthy process and very good for us, but I would be
concerned about the number of peer review actions for action
agencies that have to take timely actions to get out the door.
Mr. Walden. Can you give me an example of where that could
cause a problem?
Mr. Thompson. For instance, the Sacramento office does 250
biological opinions in a year. If we were to do peer review of
each one of them, that would add on 6 months, a year, a long
period of time.
Mr. Walden. All right.
Mr. Doolittle. May I just add--would you yield just for a
follow-up question?
Mr. Walden. Since I'm in a negative zone on time, yes.
Mr. Doolittle. Is that 6 months to a year for the total 250
subject to peer review or 6 months to a year for each of the
250?
Mr. Thompson. Each individual action could add up to 6
months to a year, depending on the complexity of the decision
and how difficult they are.
Mr. Doolittle. Thanks.
Mr. Walden. All right. Mr. Lecky.
Mr. Lecky. I think peer review is an important component of
the scientific--essential component of the scientific process,
but these aren't scientific decisions necessarily. We're
required to make a decision in the absence of information. A
legitimate scientific decision sometimes is, I don't know the
answer. That's not an OK decision under the ESA. We have to
arrive at an opinion.
Mr. Walden. So even if you don't have science upon which to
base your decision, you still have to make a decision?
Mr. Lecky. That's correct.
Mr. Walden. But once you make that decision, there's really
no appeal anybody here has, right, short of going to the God
squad?
Mr. Lecky. Well, not even the God squad is eligible. The
appeal they have is in the courts, which is frequently taken
advantage of, and of course that slows things down as well. I
think, my view, part of the solution is recovery planning and
investing in that process and getting the kind of information
that would lead us to understand the importance of watershed
management and where the real limiting factors for populations
are up front would help drive these consultation processes in a
more logical fashion.
Mr. Walden. I understand that, but I also think there's a
role for peer review certainly. Thank you, Mr. Chairman.
Mr. Calvert. Thank you, gentlemen. Mr. Radanovich.
Mr. Radanovich. Thank you, Mr. Chairman. I've always
thought that if the Endangered Species Act were as strictly
enforced in urban America as they were in rural America, the
dynamic in Congress would change rather quickly and we'd have
ESA reform in a heartbeat. An example that I have found has
been on the Wilson Bridge, the construction of the Wilson
Bridge across the Potomac River in Washington, D.C., and the
Washington Aqueduct, which purifies water for the District of
Columbia. Clearly, the conclusions in those environmental
reports that allowed for the construction of the bridge and the
purification of water would never be considered as satisfactory
in rural America, and yet each area has had a listed endangered
species. And so my question is to anybody who wants to answer
it, if the Klamath Basin here had a population of 2 million
people, would what happened in 2001 have occurred? Anybody on
the panel want to respond?
Mr. Hernandez. Depends if you had the same number of people
that made the wrong decision.
Mr. Radanovich. No response.
Mr. Calvert. Silence answers the question.
Mr. Radanovich. Silence answers the question. Let me ask
you this, because in the case of the Washington Aqueduct in
Washington, DC, it had been occurring for about 30 years, that
they'd dump about 200,000 tons of Potomac River sludge laced
with chemicals through a national park into a heritage river,
the Potomac River, onto the spawning grounds of the endangered
short-nosed sturgeon. And for 20 to 30 years, there's never
been a lawsuit challenging the Washington Aqueduct's conducting
this practice. Can you tell me if there were environmental
lawsuits that prompted the decision of 2001? Were there
environmental lawsuits that prompted the agencies to shut the
water down to farmers in 2001.
Mr. Lecky. There was a lawsuit, I believe, for not having
the opinion in place. The remedy was to just issue an opinion.
It didn't specify what the outcome of that opinion had to be.
Mr. Radanovich. Can you tell me who sponsored the lawsuit?
Mr. Lecky. I can provide you with that information.
Mr. Radanovich. You don't know it.
Mr. Lecky. I don't recall. I don't want to misname the--
Mr. Radanovich. Does anybody know? Mr. Fletcher.
Mr. Fletcher. That was PCFFA, et al, challenging, I
believe, the 2000 biological opinion.
Mr. Calvert. Gentleman, for the record, please state the
group again that filed the lawsuit.
Mr. Fletcher. I think that was PCFFA, et al, challenging
the 2000 biological opinions.
Mr. Radanovich. Can you tell me what PCFFA is?
Mr. Fletcher. It's the Pacific Coast Federation of
Fishermen's Association. We also joined that lawsuit as well as
a result of the 2002 fish kill, just for your information.
Mr. Radanovich. OK. One further comment, can anybody give
to me--Mr. Vogel, I have an idea that your testimony's very
good, that might have an idea to answer this question, but how
can a law be changed so that there's an equal application of
the Endangered Species Act in every case where there is a
listed endangered species?
Mr. Vogel. Let's see, is your question referring to the
enforcement or lawsuits or--
Mr. Radanovich. All of the above.
Mr. Vogel. OK. I think it's pretty evident, there's enough
case history examples through biological opinions nationwide
that there's no question it's inconsistently applied throughout
the United States.
Mr. Radanovich. Do you have a solution for that?
Mr. Vogel. Well, I'm definitely an advocate for peer
review.
In fact, 2 years I went back to Congress and testified at
the House Resources Committee in favor of peer review
legislation. That would be a tremendous start. There's a lot of
ambiguity in the ESA that I think needs to be clarified. That
ambiguity allows too much subjectivity by individuals in how
it's implemented, so the ambiguity needs to be clarified as
well.
Mr. Radanovich. Thank you very much. I'll wait for the next
rounds. Thank you.
Mr. Calvert. Mr. Herger.
Mr. Herger. Thank you, Mr. Chairman. And I want to thank
each of our witnesses for your outstanding testimony. Mr.
Brown, I think you really hit on it, remember the people. I
think that's why we're really all here today and how crucially
important it is that we all work together cooperatively to
solve this incredibly complex problem that we have.
And I want to also specifically recognize a constituent of
mine, Mr. Hernandez, and I want to thank you for coming today
and being--and Mr. Carman, for having him come with you. Mr.
Hernandez, you certainly do have a very unique story about how
the tragic water shutoff of 2001 affected you and your family.
And I believe it's important for us to--in highlighting the
very real, very devastating human impacts. And if you would,
Mr. Hernandez, could you take a brief moment to share with us
your story on how you arrived here in the basin and how the
2001 decision ultimately impacted you and your family?
Mr. Hernandez. Well, I arrived here in 1973, and I work
here for 5 years or so. Then I went back to Mexico, got
married, but since I was here, you know, 5 years and I came
here, I was only seventeen years old, so I know this was the
place to grew up a family. So when I got married, I decide to
come here to Klamath Basin.
We have five kids. One of them was done with school; she's
a nurse. Two more in college, one of them is--hopefully he'll--
and I know he'll graduate from high school this coming year.
The other one decide to make his--he make his own decision to
serve the Army--in the Army. And I thought, since he was going
to be there for 3 years, I figured he had enough and would get
out. Well, last January he told me that he was going to re-
enlist. I said what? You want to re-enlist? And he said--I say,
why? I like it. And last 2 months or so, he says, I'm re-
enlisted and now I'm going to go to Iraq. I say, what? I'm
going to Iraq. And I told him, why don't you just get a gun and
shoot me and be dead? He pat me on the back, and he said, will
be all right. One of you members, you said that somebody from
Klamath Basin got killed. What assures me that he's going to be
all right? It's his own decision, but you know, I think as a
Congressman, we ought to do the right things, you know, ensure
our kids or wives or whatever that they are reclude with all
the rights and all the--you know, give them the rules so they
know what they're going for and, you know. I just want to make
sure that they are reclude properly and tell them their rights
and the rest.
And how this 2001 affect me, well, you know, farm went, as
we say, bye-bye. If it was wrong decision or was right
decision, I mean, I'm done now.
Mr. Herger. So in other words, you lost your farm and you
lost your--I believe you went out and did equipment work for
other farmers; is that correct?
Mr. Hernandez. Well, I lost my farm. My equipment that I
slowly got, it was sold out.
Mr. Herger. So you started here as an immigrant, raising a
family here--
Mr. Hernandez. Yes.
Mr. Herger.--an outstanding family, obviously a patriotic
family, that your son is serving our country now in the War on
Terrorism. But in the process, in 2001, you actually lost what
you had worked so hard for; is that correct?
Mr. Hernandez. That's correct, that's all that.
Mr. Herger. So we can see that we--and this is a concern of
Blake, and again, his letter.
Mr. Hernandez. I know Blake; I know that kid.
Mr. Herger. You know Blake?
Mr. Hernandez. I know his father.
Mr. Herger. And the picture of working with the tractor.
Mr. Hernandez. I know exactly what little kids will feel. I
mean, Tulelake is nothing but farming. Merrill, Malin, and half
of Klamath Falls, nothing but farming, or better than half of
Klamath Falls. And not only them, you got Bonanza, I mean, you
know, they might not be affected by the water cutoff, because
they're down below us, I guess I should say--
Mr. Herger. And these decisions have affected you so
dramatically, to say that we deserve good science, at the
minimum, we deserve good science.
Mr. Hernandez. Yes, we do.
Mr. Herger. We deserve to have all our scientists look at
these issues and make sure they're not needlessly making these
decisions to shut off your water, which ultimately causes you
to lose your whole livelihood. To say those are important and
crucial is quite an understatement, isn't it?
Mr. Hernandez. Yes, it is.
Mr. Herger. Thank you very much. Thank you, Mr. Chairman.
Mr. Calvert. Thank you, gentlemen. Mr. Doolittle.
Mr. Doolittle, you're recognized.
Mr. Doolittle. Thank you, Mr. Chairman. Dr. Lewis, earlier
when you testified, you indicated that you were not asked in
the request that caused you to undertake your study, you were
not asked to determine whether the decision made in 2001 or the
actions taken there were the right actions; is that an
accurate, fair phrase of what--
Dr. Lewis. What I was trying to get at is that we were
asked to judge whether there was significant scientific support
beneath each of these recommended--required, actually, required
actions. The difficulty of jumping directly from that to right
and wrong and that the agencies, as indicated earlier, often
are required by law to make a decision when there is no
significant site-specific information at all. And then would be
true to say there isn't any real strong scientific basis here,
we're dealing with professional judgment. But one cannot
possibly rule out the use of professional judgment in any sort
of applied science. We don't do it--we don't rule it out in
medicine or engineering. We have to use it in environmental
work as well.
However, where the committee came up with a distinction is
that in this case, during the 1990s, quite a bit information
had accumulated that ultimately looked directly contradictory
to the original idea for fixing, if you will, the Upper Klamath
Lake sucker population. So you could ask the question. We
didn't ask the question: Was the agency right to go ahead
anyway and retain the theory they was working on when it looked
increasingly unsupportable from a scientific point of view,
were they being--
Mr. Doolittle. Dr. Lewis, I'm asking you that question.
Give me your answer, please.
Dr. Lewis. Is that--that would have to be personal to me,
because I don't know what the committee would say in the case.
Mr. Doolittle. All right. So let me ask you this: How do I
get the committee to answer that question?
Dr. Lewis. Well, you'd have--the committee is out of
business.
Mr. Doolittle. All right. So what process do we need to go
through to have that question answered?
Dr. Lewis. Well, see, the question is not entirely
scientific.
We gave you the science part of it, so someone in policy or
law would have to say whether the agency was being excessively
conservative, conservative to the point of making--running a
high risk of making an error.
Mr. Doolittle. I assume you may answer questions that
aren't entirely scientific from time to time.
Dr. Lewis. Yes, but I'm not considered an expert in
nonscientific questions.
Mr. Doolittle. So if we asked the National Research Council
to answer that question, are they going to tell us, we can't do
it, or we don't do it?
Dr. Lewis. I suspect they would tell you they don't deal
with policy or politics. They deal with technology, science.
They answer science-based questions, and that's what they were
formed for. That's what's in their founding documents.
Mr. Doolittle. Well, just for my information, who exactly
can address a question to the National Research Council? Does
it have to come from the executive agencies, as this one did?
Dr. Lewis. No, it can come from Congress, for example--
Mr. Doolittle. And is Congress this Subcommittee, an
individual Member of Congress, or a full committee, or a joint
resolution, or a single House resolution? What is Congress for
that purpose?
Dr. Lewis. Anyone who has a budget.
Mr. Doolittle. Fair enough.
Dr. Lewis. Yes, the government makes the request, the
Congress makes the request to the Academy, usually through an
agency, through an agency budget, and basically requires the
agency to request the Academy to do a job. Now, the Academy--
Mr. Doolittle. They get somebody else to pay for it.
Dr. Lewis. That's right.
Mr. Doolittle. Good plan.
Dr. Lewis. But the problem is that the Academy doesn't--is
not part of the government and does not accept all requests. It
doesn't do politics, and it rarely does policy, only does
policy if there's a strong factual scientific technical
component to it.
Mr. Doolittle. All right. Thank you. Mr. Rodgers, I
probably will only just get into this before my time ends, but
the biological opinions that the agencies come up with, well, I
guess really--maybe I'm asking--maybe I shouldn't ask you this.
I guess the biological opinions come out of either the Fish and
Wildlife or NOAA. So let me withdraw the question to you and
ask Mr. Thompson or--is it Lecky?
Mr. Lecky. Lecky.
Mr. Doolittle. Lecky. Are those biological opinions--I
guess those come about because someone has filed a petition for
listing a species as threatened or endangered; is that right.
Mr. Thompson. No. The biological opinions are to provide
for incidental take, NEA section 7 is a Federal--
Mr. Doolittle. OK. That pertains to section 7. All right.
So somebody wants to do that, and then you do the section 7
consultation.
Mr. Thompson. Somebody has an incidental take in their
legal duties if they do it out in the landscape, and they need
coverage for that take.
Mr. Doolittle. OK. And that request is made to--
Mr. Thompson. Biological--
Mr. Doolittle.--the regional director.
Mr. Thompson. Usually it's a field level. The project
leader out here for the Bureau would submit a biological
assessment to the project leader in Klamath Falls or Fish and
Wildlife Service or NOAA, and we would render a biological
opinion based on their biological assessment.
Mr. Doolittle. All right. Let me see if I understand this.
So somebody out in the field makes a request, and when they
make the request to the agency, who actually--who gets the
request? Does it go through you first as the head of the
region?
Mr. Thompson. No, normally they go through the field level.
Mr. Doolittle. So it just goes directly to the field?
Mr. Thompson. And depending on the level of controversy.
Some, like the Klamath, would come through Kirk probably and
then back over to me, if they're that controversial.
Mr. Doolittle. Then who makes the determination as to how
controversial they are?
Mr. Thompson. We do, sit and talk back and forth--
Mr. Doolittle. You mean you and Kirk do?
Mr. Thompson. Yes.
Mr. Doolittle. So you get a chance, as the head of your
region, each of you, before some opinion is actually issued, is
that right, to decide?
Mr. Thompson. The way it generally works is Kirk and I talk
four or five times a day on a general basis. A topic will come
up, we'll discuss it, and we'll try to estimate how
controversial that would be and if we need to be involved or
not, or if it's one that's a minor decision that the field
project leader could make or even a medium or major.
Mr. Doolittle. But the field project leader wouldn't just
get this request and start to work on the opinion and tell you
about it a few days later or something?
Mr. Thompson. No.
Mr. Doolittle. You'd know right away that this was going
on; is that right?
Mr. Thompson. Normally what we do on controversial or even
tough biological opinions is, the day that we know about them,
that they're initiated from the agency, we talk then with our
field project leader, midway, and then toward the end of the
decision.
Mr. Doolittle. And do you have some discretion as to who
actually writes this biological opinion?
Mr. Thompson. Yes.
Mr. Doolittle. As the head of the agency? All right. Well,
I'll--yeah, Chairman, give me more time. Can you comment on
that, Mr. Lecky?
Mr. Lecky. I'm sorry. Just a point, NOAA Fisheries is
organized a little bit differently than the Fish and Wildlife
Service is, and we're a little more centralized. Our opinions
result as requests for consultation from other agencies, and
those requests come to our regional administrator, and their
staff routes it to the appropriate location for work, but the
product is actually signed approved by the original
administrator.
Mr. Doolittle. Oh, that's a key difference, whereas this
product in Fish and Wildlife ends up being signed off in times,
unless you decide otherwise, I guess by the project leader; is
that right?
Mr. Thompson. The controversial ones, I will sign those.
Mr. Doolittle. You will sign those?
Mr. Thompson. Yes.
Mr. Doolittle. OK. But I mean, there's a lot of this gray
area as to what's controversial and what's not. Maybe this
thing in Klamath started out as noncontroversial, although
probably not.
Mr. Thompson. No.
Mr. Doolittle. All right. I'll come back in my next round
and want to go more into this, I think. Thank you.
Mr. Calvert. Thank you, gentlemen. Maybe this question
would be for Mr. Rodgers, and I'm going to get into the issue
of adjudication. And I just kind of--I was involved in the
negotiation with the Colorado River recently on trying to
resolve that issue, the Quantification Settlement Agreement
between the upper and lower basin states, which we finally came
to some resolution on. But a lot of that, as you know, circled
about the adjudication of the Colorado River and many, many
years of work. And it seems to me that this problem here has a
lot of different players, obviously the agricultural community,
fishing community, the endangered species community, the
environmental community, but it all goes back to water and how
we utilize that water. How much adjudication has taken place
over time? Is there any firm knowledge of who owns what around
here, as far as water, just for the record?
Mr. Rodgers. There have been more than one adjudication.
Lost River did go through an adjudication, which is the east
side of the project. And to my knowledge, no water rights
certificates were ever issued as a result of that, although the
priorities were established on the Lost River.
The Klamath River is, as of this date, unadjudicated, but
the adjudication is presently underway. And so as it stands
right now, the State of Oregon, who would manage that
adjudication, who is managing that adjudication, is in a
position of having some knowledge about where the priorities
are, based on permits that they've issued in the past, are in a
difficult posture, because we've approached them about this in
the past when there are water shortages and we ask them to
regulate accordance with priority, they tell us because the
river is unadjudicated, they don't have a legal mechanism with
which to enforce priority.
Mr. Calvert. Now, part of that adjudication, as it moves
forward, and I know that, as they all are complicated, part of
it is obviously involved with the Endangered Species Act and
how we manage sufficient water flow to satisfy that Act the way
it's presently configured. Hopefully we can make some changes
to that, but as the way it's presently configured, has there
been discussion here--people seem to be upset about single-
species management--about overlaying that with a multispecies
habitat conservation plan? Has there been discussions in this
region about that?
Mr. Rodgers. There have been discussions about that. And in
fact, we, working with NOAA Fisheries and Fish and Wildlife
Service, have engaged a process called the Conservation
Integration Program where we're looking, on a basin-wide basis
at--the principal foundation of it will be for endangered
species compliance, but we want to expand that out to encompass
and look at the needs of other species so that we're taking
them as a whole.
Mr. Calvert. Because it seems to me we've got a short-term
problem in how we manage this--get through this problem,
continuing problem, in the short term, short term being the
next few years, and how do we get through to a long-term
solution to this problem? Part of that is going to be
adjudication, where everybody understands what their rights are
and can deal with it, and obviously management, both in the
short term and the long term, management plan for this project,
and then of course how we deal with the various species and
agricultural rights, Tribal rights, etcetera, etcetera,
etcetera. And are we heading down that path yet? Are the people
getting in a room yet to start talking about that long-term
solution--
Mr. Rodgers. Yes, as it relates to the adjudication, but
those matters take quite a long time. I would like to add one
thing with regard to adjudication, that which is underway on
the Klamath River is being handled by the State of Oregon, and
the rights that they're adjudicating are for those residents of
Oregon, and it won't address the adjudication of rights
downstream from where--when the river crosses the border, as I
understand it.
Mr. Calvert. And it may be, though, that if we're going to
have a long-term solution to this problem, obviously short-term
work on that, but the long-term solution is to have all parties
involved in this long-term negotiation--
Mr. Rodgers. Absolutely.
Mr. Calvert.--to come to an ultimate resolution?
Mr. Rodgers. Yeah. Our view is that this is a basin-wide
effort that must be engaged by the communities that are here to
help solve the problem.
Mr. Calvert. And in this case we have two step, you know,
it seems to me that if we can--of course, I don't know if you
want to use the quantification settlement agreement as an
example. It took us a number of years to resolve that issue,
but it seems that this would be somewhat--much more simpler
than what we went through with the Colorado River.
Mr. Rodgers. I'm not sure. My colleague Bob Johnson, who
worked on that, has informed me of many of the issues they
have. I think there's some very strong parallels and
similarities here, that I think it would be equally as
complicated.
Mr. Calvert. But you don't start until you begin?
Mr. Rodgers. That's correct.
Mr. Calvert. Mr. Walden.
Mr. Walden. Thank you, Mr. Chairman. I want to follow up on
that. And this is probably a sensitive question to ask, but oh,
well. Is there a forum in place today to reach a basin-wide
solution? There are a lot of different groups, and it seems
like we keep adding them. Do you all believe there is one group
today that is capable, that everybody's in, or do we need to
get rid of all those and start a new one? I'm just throwing out
ideas here. Mr. Vogel, we'll start with you.
Mr. Vogel. The short answer's no. There a lot of groups and
organizations that have attempted--
Mr. Walden. Right.
Mr. Vogel.--that kind of approach over the years, but they
haven't been successful, because the issues, frankly, are
extremely complex. We have multiple interest groups, multiple
legal priorities and so forth. The Endangered Species Act ends
up being one of the biggest stumbling blocks. Despite what
product those groups might produce, they still have to deal
with the Endangered Species Act.
Mr. Walden. All right. I'm going to have to move fairly
quickly here because I got a couple other questions. Is there a
group today, and this isn't disparaging about the work these
people are doing, because Lord knows they put incredible hours
into it, but the question is: Do we have a forum today to solve
the problem? Assemblyman.
Mr. LaMalfa. My answer would be, we need one, in that my
dealings with some of our farmers on the California side see
that we have this arbitrary stripe between--
Mr. Walden. Right.
Mr. LaMalfa.--California and Oregon, where there's two
different sets of regulations, and one side maybe being more
restrictive than the other, you can guess which side that is,
but the folks that are farming up here--
Mr. Walden. I know.
Mr. Radanovich. There's four of us up here.
Mr. Walden. Yeah. If you quit drilling your wells and
sucking our water underneath the line--
Mr. Calvert. Gentleman from Oregon will please--
Mr. Walden. Oh, I will, I'll settle down. Would you like a
little water, sir? OK. Can we--
Mr. Calvert. This water's from California.
Mr. Walden. I thought I noticed a taste to it. Go ahead.
Mr. LaMalfa. Real quick, the need, though, for some kind of
consistency for folks for the practical needs they have that
work on both sides of the state lines with regards to
regulation and having maybe some sort--
Mr. Walden. So it needs to have be a bi-state--we ought to
have people both sides of the line?
Mr. LaMalfa. And maybe some kind of a waiver where there
could be commonly accepted set of standards for farming
practices and water use, etcetera.
Mr. Walden. All right. Mr. Fletcher.
Mr. Fletcher. Same thing goes for working groups, task
force, those type of things, throw them out and make people
come to the same table and speak to the same issues, don't
argue over terms.
Mr. Walden. Mr. Foreman, Chairman.
Mr. Foreman. The forum that is available today, at least on
the Oregon side, is the landowners and stakeholders in the
basin. That's where the real solution needs to come from.
Mr. Walden. All right. Mr. Brown.
Mr. Brown. Thank you. I actually addressed that in my
written testimony, where I concluded that there is not a forum
at this time.
Mr. Walden. All right. Mr. Gaines.
Mr. Gaines. There absolutely is not a forum in place today
that brings the right interests to the table and has everybody
represented and that has people that are empowered to make
decisions on behalf of their constituents. We need one.
Mr. Walden. Good point. Mr. Smith.
Mr. Smith. Thank you, Congressman. No, we don't have one,
but not at the expense of the Management Council, Klamath
Management Council or Task Force. Those are good groups.
Mr. Walden. All right. Dr. Lewis.
Dr. Lewis. The NRC committee recommended a committee of
collaborators, which would consist of people who disagree with
each other, not people who agree with each other, because there
is the problem right now.
Mr. Walden. All right. Mr. Rodgers.
Mr. Rodgers. One does not exist. We do need one. Some
preliminary work is underway.
Mr. Walden. All right. Mr. Thompson.
Mr. Thompson. I agree with Kirk.
Mr. Walden. All right. Mr. Lecky.
Mr. Lecky. Actually, we recognize that in our biological
opinion, and we ask the Bureau to explore putting together the
CIP, which we think is a forum that might work.
Mr. Walden. Here's what then I would ask of each of you, is
can you get back to, I think I'll speak for myself, but I
assume for other members of the Committee, within the next
couple of weeks on who should be on such a forum, how it should
exist and all of that. Give us some ideas, each of you will
commit to do that so we can look at create--if we got a bunch
of forums and everybody at this panel agrees none of them are
constituted in a way that will solve the problem or give us a
basin-wide solution, then for heaven sakes, let's figure out
how to come up with one. I know that won't be easy, but could.
Dr. Lewis, on page 9 of your written testimony, you state
that factors stressing the species, sucker and coho, extend
well beyond the Klamath Project. What are the most beneficial
activities we should be undertaking today, tomorrow, next year
to recover those species? And before I have you answer, I just
wanted to put on the record, too, because there was some
discussion of funding into the basin, in Fiscal Year 2001,
$11.1 million came into this basin for this sort of work. The
budget we just approved, the appropriations bill in energy and
water contains $28.1 million into this basin. That's a 153
percent increase under this Administration and this Congress to
try and address these issues, and that doesn't include other
funds that I know are coming in through Equip and elsewhere.
Dr. Lewis.
Dr. Lewis. I think the--
Mr. Walden. It's on.
Dr. Lewis. OK. I think the money you provided is very
invigorating, so I think that will do a lot. But let me give
you an example of the role of money in doing important
projects. U.S. Fish and Wildlife Service, probably as far back
as 1988, when the suckers were listed, said put a screen on the
A Canal.
Mr. Walden. Right.
Dr. Lewis. Now, they're documented thousands--tens of
thousands of endangered fish being killed right there, very
obvious. It's a mechanical solution. The USBR didn't do it. So
our committee said, why didn't you do it? They said, well, we
get our money from Congress, a lump of money that size must
come from Congress. We can't do it out of our operating funds.
So there's a problem there on implementation of physical
projects and a lot of physical projects are necessary in this
basin.
Mr. Walden. And we've since done that.
Dr. Lewis. Right, you've done--
Mr. Walden. And Chiloquin Dam.
Dr. Lewis. Chiloquin Dam's another one, yes. And we need--
in the lower basin, we need a lot of habitat restoration for
coho; we need to remove or circumvent or build passes around a
lot of small obstructions to the movement of fish.
Mr. Walden. Do you concur that this problem will not be
solved solely on the backs of the project?
Dr. Lewis. No. This task is indicated in our summary. The
list of items goes way beyond the physical layout or the
operations of Klamath Project. Now, some good physical projects
could be done inside the project, because the project overlays
the center of the original distribution of the suckers. So
there's some good opportunities there for physical projects
that don't necessarily involve manipulation of water in the
easy sense.
Mr. Walden. OK. Thank you. I'm out of time. Thank you.
Mr. Calvert. Mr. Radanovich.
Mr. Radanovich. Just a couple quick questions. Thank you,
Mr. Chairman. Can someone tell me how much money's been spent
on the sucker and coho salmon restoration since 2001, and is it
possible to determined how many fish have been recovered since
then?
Mr. Thompson. I could get you those numbers, but I don't
have them right in front of me.
Mr. Radanovich. Can you get them for me then?
Mr. Thompson. Yes, I will.
Mr. Radanovich. Is there any science right now saying that
the sucker fish are better off because of the 2001 shutoff?
Mr. Thompson. Science that says the suckers are better off
because the shutoff.
Mr. Radanovich. Right.
Mr. Thompson. There was a drought year and a lot of other
issues there, so it's kind of hard to say what the populations
are because or not of the shutoff. There's a lot of other
factors that affect the suckers. So the suckers are still
struggling, if that's the answer you're looking for; they're
still at low numbers.
Mr. Radanovich. Still at low numbers.
Mr. Thompson. Yes.
Mr. Radanovich. Then science to show that.
Mr. Thompson. Yes.
Mr. Radanovich. OK. All right. Thank you, Mr. Chairman.
Mr. Calvert. Mr. Herger.
Mr. Herger. Thank you, Mr. Chairman. Everyone's talking
about the fact that this species is down. Mr. Vogel, could you
tell us, is there some evidence that the species is there?
Mr. Walden. Can we get a microphone.
Mr. Vogel. Thank you. The question was, are the species--
Mr. Herger. Everyone is talking about the species not
being--the species is down. Don't we have some evidence--have
you found some evidence to indicate that perhaps the species is
indeed there?
Mr. Vogel. Oh, there's no question the species is there.
The way the Endangered Species Act is structured is that they
need a variety of population parameters to evaluate whether or
not they're threatened or endangered. So we know they're there;
there's no question about it. The question is: Where are they,
how many are there, what's their distribution, what's their
reproductive ability, and so forth. And I firmly believe that
the data that we have in hand now demonstrates very clearly
that the population numbers of both Lost River and short-nosed
suckers is much greater in size, over a much broader
distribution, demonstrating much greater recruitment than was
believed at the time the suckers were listed in 1988.
Mr. Herger. Therefore, if we--if they in 1988 knew that
they had the numbers that you say we're aware of now, perhaps
they might not have even been listed.
Mr. Vogel. Yes, I think that's the case. And that's based
on a lot of background research I did through the Freedom of
Information Act of internal documents within the agencies that
led up to the listing. In fact, in 1986 the U.S. Fish and
Wildlife Service staff responsible for whether or not to pursue
these listings believed there was only 12,000 Lost River
suckers in Upper Klamath Lake, and the suckers elsewhere were
considered very small or just remnant populations. But they
said, we will not pursue endanger because they didn't believe
they were endangered. Only 12,000 fish, and yet, just a couple
years later, in the early '90s and mid '90s, we now know for a
fact that that number's exceeded by tens of thousands of Lost
River suckers all over the drainage. But now they flip flop and
they say, they are endangered. So that's one of the problems
with the subjective nature. What constitutes endangered?
Mr. Herger. Did you work with the Fish and Wildlife at one
time?
Mr. Vogel. Yes, for 14 years.
Mr. Herger. Fourteen years. That's a pretty alarming
statement that you've just made.
Mr. Vogel. Well, there is a lot of information in the
administrative record that is in my written testimony that
demonstrates even more examples of those type of situations.
Mr. Herger. Just moving to another line of questioning, one
thing everyone seems to agree with is that we need more water.
And we live in an area of the country where our water falls in
the winter time, and we're a desert in the summertime. So it
really boils down to storage. And Mr. Rodgers, as I mentioned
in my opening statement, I'm extremely concerned that we have
not seen any positive movement forward on studies examining new
storage opportunities here in the Basin. And as you know, under
the legislation passed by Congress in 2000, the Bureau was
directed to study ways to augment water supplies in the Klamath
Project through construction of new facilities or by adding to
existing ones to add net new water yield for the agriculture in
the project.
Mr. Rodgers, I'd like to ask, what is the status of these
water storage feasibility studies? I understand the continued
study of a potential Long Lake Project, an offstream storage
reservoir is supported by more than twenty local groups,
including five California and Oregon counties. It's also my
understanding that this reservoir was examined in 1987 as part
of a larger examination of three potential offstream reservoir
sites, but that at the time it was not considered economically
viable. However, an independent consultant, MBK Engineers of
Sacramento, reviewed those numbers and indicated that they are
unnecessarily large. That consultant indicated a new, different
analysis could yield much different results. Again, what is the
status of the Long Lake study, and what is the status of, in
general, of water storage feasibility studies?
Mr. Rodgers. Bureau of Reclamation did study Long Lake, and
as you mentioned, we did have some technical problems that we
had identified at the time. One was financial. When we were
doing the study, one of the objectives is to figure out whether
you're going to get sufficient benefits for the cost you're
going to invest. And our finding at the time was we would get
.4 dollars back for every dollar invested, based on the
analysis that we were doing. That was one problem.
And the second problem was that geology in the basin was
suspect in the sense that, recognizing this was going to be an
offstream storage, meaning you would have to use energy to pump
water up into it out of Upper Klamath Lake area and then hold
it there, you could recover some of that energy as you brought
it back out through generators, but it wouldn't be a one-for-
one benefit. You wouldn't want that to leak, because if you
were going to put that system in place and the foundation were
to seep back out on you, then the energy would have been lost.
So those two things led us to believe that it wasn't a
viable project. Since that time, as you're correct, there have
been consulting studies that have been engaged, and we are
conferring with those groups and are re-engaging that study as
we speak. So we are in the process of taking another look at
Long Lake. Preliminarily, our findings are that there could be
upwards of 300,000 acre feet of water stored in that system. By
capacity I don't know what the yield might be on it yet,
because recognize you'd have to capture water as it was coming
out in a run-off state, and it might take very large pumps to
capture that narrow window of time when you're having the run-
off in order to fill that system up. So the economics will also
be a factor there. We'll need to look at that. We are looking
at it.
As far as other studies, there are a couple of things that
we do have underway. One is the possibility of expanding the
capacity of Upper Klamath Lake. We have looked at it from the
standpoint of enlarging it or raising it and concluded that
that might not be feasible preliminarily, but it doesn't mean
that there isn't possibilities there, because as you're aware,
Upper Klamath Lake is a reclaimed lake. And there's perimeter
areas along that have been diked and farmed, and it's possible
that one could consider reflooding some of that area to gain
storage. So that would be one possibility. And one such example
is, for instance, the Barns property, which has been identified
as a great potential. It could increase the storage capacity of
the lake by approximately 30,000 acre feet if reflood--or up to
30,000, depending on how it was managed. So we are looking at
those things. We recognize that you would like to see those
moved along more quickly, and we're sensitive to that.
Mr. Herger. Thank you.
Mr. Calvert. Thank you, gentlemen. Mr. Doolittle.
Mr. Doolittle. OK. Back to the biological opinions. I have
here in the committee analysis that on June 3rd, 2002,
Reclamation formally objected to both of the biological
opinions and opted, I guess, one of those came from National
Marine Fisheries and one came from National Fish and Wildlife
Service; is that what we're talking about?
Mr. Rodgers. [Witness nodded head.]
Mr. Doolittle. OK. And opted to operate under a 1-year plan
that it argued complies with the biological opinions. So when
you object to biological opinions, whom do you object to? The
ones that issued them, or you know, how does this work?
Mr. Rodgers. The process that we follow is simply is, we
put together a proposed course of action or a project that
we're going to engage. We write up what the description of the
project will be, and we do an analysis on whether or not we
believe that--or what the effects will be to the species that
are targeted, the endangered species, and we present that to
the Fish and Wildlife Service for their opinion.
Mr. Doolittle. Is this--and I just asked--is in response
after you've read their biological opinion or while they're
formulating it.
Mr. Rodgers. I was just going--I'm doing a little bit of
background--
Mr. Doolittle. OK.
Mr. Rodgers.--if I could, for the foundation. We then get
their opinion back from them after we've presented them with
our assessment. They either make a nonjeopardy call or a
jeopardy call, and if it is a jeopardy call, meaning the
proposed project will jeopardize the species, then their
obligation is to present to us a reasonable and prudent
alternative so we can proceed with the action and present that
to us. Our responsibility then is to determine whether it's
reasonable or prudent.
Mr. Doolittle. So you're still kind of in the driver's
seat, even though you have to be afflicted with their
biological opinions.
Mr. Rodgers. Yeah. I have the ability to object. And I can
even say, that, no, I won't accept your biological opinion, and
I'd going to do the action anyway.
Mr. Doolittle. Oh, you can.
Mr. Rodgers. Yes.
Mr. Doolittle. Have you ever done that before?
Mr. Rodgers. No.
Mr. Doolittle. May I encourage you to do so?
Mr. Rodgers. Well, let me tell you what the consequences
are, Congressman. For each species that I harm, harass, or kill
because I ignored their opinion and took the action, and I
don't have incidental take, the fine is, if I recall, it's
$25,000 per incident and a year in jail.
Mr. Doolittle. So this is personal to you at that point?
Mr. Rodgers. It gets very personal at that stage.
Mr. Doolittle. So we've got a law like that, that basically
no one then would ever do that.
Mr. Rodgers. I wouldn't.
Mr. Doolittle. Are you aware that anyone has? I mean, I
would suspect not, but have you ever heard of anyone who did do
that?
Mr. Rodgers. I'm not aware of anyone who has.
Mr. Doolittle. Would that be, gentleman, your experience as
well?
Mr. Lecky. There are many examples of where graft jeopardy
opinions have resulted in discussions between our agencies,
either with the Bureau or Core of Engineers or agencies that do
most of the consultations in California. And those discussions
usually find solutions and middle ground so that the project
can go forward and incidental take can be authorized.
Mr. Doolittle. Let me ask you this; this is really what I'm
trying to get to. I don't think I'm mischaracterizing this, the
National Research Council report came out and said that lake
levels and the increased flows did not--there was not a
scientific basis for solving the fish kill that happened in
2001, and maybe they could be helpful in some other way, but I
think that's pretty much what the NRC report said. And then,
Mr. Rodgers, you've got a preliminary draft report issued by
Reclamation, December, 2003, that indicates the historical
summer flows on the Klamath were less than what had been
prescribed in the 2001 opinion for coho as designed by the NOAA
Fisheries. Since these actions that were taken in 2001 have had
such devastating effect upon the people in this basin and since
we now know that those actions were necessary and that indeed
harm was done, why aren't these biologic opinions being
modified in the light of subsequent knowledge and experience?
Mr. Lecky. Congressman, they were. The 2001 opinions are no
longer in place. They were both--they were both--
Mr. Doolittle. OK. But you're still, for example, demanding
under some opinion that we have to get to 100,000 acre feet in
this water bank next year, which is--I understand is going to
be nearly impossible, meaning that maybe it's possible, but not
without hardship. You're going to impose hardship; why?
Mr. Lecky. Just to clarify, that's the 2002 opinion.
Mr. Doolittle. OK. The 2002.
Mr. Lecky. We did look at the 2002 opinion for coho salmon
does--is a jeopardy opinion. We made a finding that the
Bureau's proposed operations for the period of time, 2002
through 2012, would likely jeopardize coho. Our view was that
their proposal was inconsistent with the NRC report and that it
would have allowed river flows to degrade over that decade, and
rather than operating to a ceiling of a minimum 12, we
established the flow schedule as the floor and augmented that
for use in the spring time. Again, the recommendations are
consistent with the NRC report to improve out migration
opportunities for coho salmon in the spring runs.
Mr. Doolittle. And yet, in apparently their newest report
that isn't final yet, and we wish it would be, indicates that
the river dried up in spots, historically, before we ever had
the Klamath Project. So if anything, the Klamath Project made
things better in the terms of the amount of water available,
not worse?
Mr. Lecky. Well, that report is still in process. It hasn't
been developed, there are--so we need to look at that report
and consider it.
Mr. Doolittle. Well, Mr. Rodgers, it's indicated to me that
this--well, I don't know, when's it going to happen? When are
we going to have it final so we can move on this?
Mr. Rodgers. We are proposing to reconsult on the present
biological opinions, and our plan is to have the reconsultation
concluded by the water year that begins in 2006. We'll be going
through the process of reconsultation through '05, at the end
of this water year and beginning of next, and have it concluded
by '06.
Mr. Doolittle. Well, given that that will impose an
enormous hardship, to get to 100,000 acre feet, because you're
waiting until 2006, can't you speed this up so that we can
avoid imposing that additional hardship?
Mr. Rodgers. Well--
Mr. Doolittle. After all, you kind of owe them that, given
what you did in 2001, don't you?
Mr. Rodgers. Well, these are--you know, these are difficult
questions and issues. We work on this water bank that--I mean,
you're characterizing as a hardship, and I know it's not easy
for folks, but it is a willing seller arrangement, where they
do get compensated by coming forward and saying, we have this
water that we would have diverted, we're willing to make it
available and be compensated for it so that it can go to these
fishery needs.
Mr. Doolittle. Here's what I worry about, I mean, willing
sellers is good as far as it goes, but there's a famous example
in the southern part of the state involving willing sellers
that permanently changed the whole region and basically made it
pretty much a desert. And I worry about that as the area's
representative, for at least part of the area. I worry about
that being the solution, that we--you know, because look what's
happened to the logging industry under the phony nonsense
involving the spotted owl. We've lost all these mills, we've
ruined our forests, we're paying millions and millions of
dollars to fight forest fires that now are so out of control we
have no hope in the next 20 years of ever getting on top of
this problem, and I see that type of thing happening here in
the Klamath Basin unless we jump in.
So I just want to--I guess my time is up, but as one
representative, Mr. Rodgers, and the rest of you, not just Mr.
Rodgers, he's just stuck in this position being head of the
local Bureau of Reclamation here, but I just would say, as the
people's elected representative for one congressional district
from the State of California, I would urge you to do everything
you can to err on the side of the people who live here. And if
you have to make a choice that either benefits the people or
the species and you have that discretion, err on the side of
the people, because if the people aren't there, you're not
going to have the species, you're not going to have the Klamath
Irrigation Project that provides the water in the dry years,
you're not going to have the crops being grown that support the
waterfowl that we're heard about, that Mr. Gaines talked so
eloquently about.
I mean, after all, God created the earth for men and women,
and these men and women have been good stewards of what has
been under their jurisdiction, and I just would, you know,
hearing that--given the history of this in 2001 and now that,
you know, not you personally, Mr. Rodgers, I'm going to say you
to the ones who are involved as decisionmakers, when you had to
make a quick decision and you decided to take a radical action
that nearly killed the patient, you know, even the Hippocratic
oath says do no harm, you just about killed the patient in that
one. And now you have a chance to help the patient considerably
by mitigating the requirements of this water bank. And please
consider that, because I think putting these people through the
idea of getting into 100,000 acre feet, I suspect once some of
these people have sold their water rights, they may throw in
the towel and leave. And I'm afraid that's the agenda of some,
not of the people sitting here, but I think the agenda of some
would be to have this become sort of a quasi national park or
something up here, where there's very little going on except
the waterfowl flying back and forth, and next thing I know,
we'll be paying tax payers subsidies to grow crops at the
government's expense so that we have food for these things. I'd
like to see a multidimensional, multipurpose use.
Thank you, Mr. Chairman.
Mr. Calvert. Thank you, gentlemen. Mr. Walden. Mr. Walden
will ask the last round of questions, and we'll be closing the
hearing out.
Mr. Walden. Thank you, Mr. Chairman. Again, I want to thank
my colleagues for being here today and speaking out on behalf
of the folks of this basin, and I appreciate your comments and
certainly glad to have your participation in this issue.
Mr. Brown, I want to thank you. I remember our meeting in
my office, I think you made reference to it in testimony, about
the need and some of the problems your folks face are identical
to problems my folks face, glad you all got together, Dan Capen
and you, and began some conversations. I think a lot of these
problems emanate from the ESA being improperly administered or
flawed. And if the ESA is flawed, it's up to us in the Congress
to fix it. That buck stops here, and I think it's flawed, and I
think it needs to be fixed.
Mr. Fletcher referenced the fact that PCFFA, the Pacific
Coast Fishermen's Federation Association, I think I'm close on
that, Glen Spain's group, was part of the ligation. Tell me,
are you a member of that as a fisherman, Mr. Brown?
Mr. Brown. No.
Mr. Walden. Do you know of--can we get a mike down there to
you? Do you know fishermen who are? Is this--I've never figured
out who PCFFA is and who they speak for. Are they a fishermen's
group?
Mr. Brown. Yes. And actually, the acronym, Pacific Coast
Federation of Fishermen's Associations is just as it says, it's
a federation of associations. And to some degree Mr. Smith can
speak a little bit more to that in terms of California, in that
it grew out of California, and there were member associations
in California. As far as I know, there are no member
associations in Oregon.
Mr. Walden. In PCFFA?
Mr. Brown. Right.
Mr. Walden. All right.
Mr. Brown. And again, individuals don't join,
associations--
Mr. Walden. Associations join.
Mr. Brown.--join, and like I said, there's--as far as I
know, there are no association members in Oregon.
Mr. Walden. All right. Mr. Smith, are there--how many
association members, do you know, in California?
Mr. Smith. It's, Congressman, a number of ports, and they
don't all participate, but there are a number of ports that are
under the umbrella of PCFFA, or at least when I was involved.
Mr. Walden. You're not involved now?
Mr. Smith. No.
Mr. Walden. All right. Do you know--
Mr. Smith. Would you like the individual ports, some of
them?
Mr. Walden. That would be good.
Mr. Smith. Santa Barbara, Morro Bay, Half Moon Bay, San
Francisco, Bodega Bay, Ft. Bragg, Eureka, and I think there are
probably a couple of others in southern California.
Mr. Walden. Do you feel PCFFA speaks for individual
fishermen? Because they weigh in on all of these issues up
here.
Mr. Smith. I think there's a mixed feeling.
Mr. Walden. All right. I can tell you there's an intense
feeling among some. I want to go back to this issue of suckers
and, Mr. Thompson, I'm going to direct this at you, and then
maybe Mr. Foreman and Mr. Vogel could weigh in as well. One of
the questions I've asked at just about every one of these
hearings is, how many suckers were they when it was determined
there weren't enough and they had to be listed? How many are
there now? But most importantly, how many do there need to be
to delist? And I know I'm asking for empirical data here, how
many suckers, and I know there's also this issue about the year
class of suckers, so I'd like comments as well about what led
to the decline in the populations, because I understand that a
lot of them were simply snagged and caught and killed in a
period of time when perhaps we didn't recognize the importance
of age class of fish. So I know that's a lot in one question,
but can you weigh in, and then hopefully we have time for the
other witnesses.
Mr. Thompson. Yeah. I'm trying to think of where to start.
The listing part, Mr. Vogel is correct, and part of it, in
the listing--to get a species listed is, and to generalize, a
little bit easier than it is to get off the list. And if you
look at the, you know, what the National Academy report said,
and their report was the population densities of suckers are
low, and there are no signs of the population returning to
their previously high levels, so what we start to look at then
is the threats that occur to the population. And we've talked a
lot about the screening, about Chiloquin Dam, about the lack of
spawning habitat out there, and the abandonment of spawning
habitat, the reduction in the fishing pressures, all those
things are good things that have happened, that continue to
happen and hopefully will help recover the species.
To get off the list, we have to look at the population
levels and also the threats that are in place. And that's what
we're proposing to do now with a 5-year status review, which we
are going to walk through the current status of the species,
take into account the National Academy's report, and also ask
all the other people in the valley and up and down the river
what their thoughts are on the status of the science, of the
species, and the populations. After we complete the peer-
reviewed status review, we will ask--I will ask our staff to
complete the updated recovery plan, and then I can answer your
questions a lot better about how many, when they would come off
the list, and when populations would be stable.
Mr. Walden. Because, I mean, I'll make sure Chairman will
not only get the information, too, from the Klamath Tribes and
Dr. Vogel, but it just seems to me that we go into these
listings, I think the Chairman said there are 7 that have
recovered out of 1,300 put on the list, and we need to do a
better job of figuring out what the end target is, because we
keep throwing things out that--we've taken 24,000 acres out of
farm production, we've screened the A Canal, we're working on
removal of Chiloquin Dam or pass it. We're doing a lot of these
things, but it seems like the end of the day, it's never
enough. And so I want a recovery program and I want to hold
people's feet to the fire to say, if we do these things, then
that will lead to a delisting and not keep moving the goal
post. Is that--do you have any other comments on that?
Mr. Thompson. No. I think those are all valid concerns,
that we need to move in that direction. And I would like to
also compliment the farming community up here for--my uncle's a
dairy farmer, and I have seen, when you challenge farmers to do
good things to the resource, they generally respond the best
way they know how, so I think the farming community's made some
huge strides forward.
Mr. Walden. I'm getting the hook from the Chairman, but can
we have the Chairman respond maybe, Mr. Foreman? Can we get a
mike down to Chairman Foreman? And while that's happening, I
want to thank Sheriff Evenger of the Klamath County Courts,
City of Klamath Falls, Donny Boyd, Mike Burn, Bob Gasser, Dan
Kempen, and others here, and everybody involved in the Ross
Ragland Theater, and everybody who made the hearing possible.
There, I got that public service announcement in, and you now
have the microphone, Chairman Foreman. Thank you.
Mr. Foreman. OK. Thank you, Congressman Walden, and I
appreciate your efforts in making it possible for the Klamath
Tribes to at least be here to answer some questions. I think
the real issue here today, and with all due respect,
Congressman Doolittle, is at what point in time are we going to
go back and determine the damages done to society? We've got to
think about this a bit, because life did not begin with the
creation of the Klamath Reclamation Project; life began before
that. There were people here prior to that. Their hurts and
their lifestyle was upturned just as much as anybody else's
was. And the loss of our fisheries is just as important as the
loss of other things.
And I'm somewhat offended by the tone here, because we
sympathize, we recognize with the farm community, and we don't
want to see them suffer the things that we've suffered. But
life did not begin in 1959 or 1905. There was life before that,
and we have to recognize that all of us in this basin have
suffered, and we've got to keep that in mind.
I want to as--I want Tribal children to grow up knowing
that there's fish available for them to harvest, just as farm
children should grow up knowing that they should have a future.
There has to be a balance here. If we continue on this road,
that doing away with the ESA is going to solve this problem in
the basin, we're deceiving ourselves. We've really got to get
to the point where we recognize the real problems here. Storage
is one of them, we all agree to that. We've got to work toward
a solution toward the real issue.
I view the ESA as basically the gas gauge in your car. And
if one were to take the gas gauge out--the gas gauge basically
warns you if you're low on gas. By taking the gas gauge out and
repairing it, removing it, doing whatever, is not going to
solve the problem that you're low on gas. You can put a new one
in, and you're still going to be low on gas. We've got a more
serious problem here in the Basin, and I really need to make
that point. So I thank you.
Mr. Walden. I would just--I think what you're hearing some
of us say is we want to make sure that gas gauge reads
adequately and appropriately and you can trust what the reading
is. I mean, that's my view of why we need peer science.
Mr. Foreman. We agree.
Mr. Walden. Mr. Chairman, I'd also like to ask unanimous
consent at this time to enter into the record a video recording
of some events that took place today.
Mr. Calvert. Without objection, so ordered.
[NOTE: The video submitted for the record has been retained
in the Committee's official files.]
Mr. Walden. Thank you, and thank you for your generous
time.
Mr. Calvert. No problem. Mr. Herger, you have a closing
statement.
Mr. Herger. Thank you, Mr. Chairman. I want to, on behalf
of everyone, sincerely thank you for bringing this hearing
here. We've heard this morning how incredibly important,
crucial this is to the lives of all of us who live here in
southern Oregon and northern California. And I have to believe,
and I do believe and know, that a nation that some three
decades ago could not only put a man on the moon but bring him
back alive can certainly work together to meet the needs of our
fishermen, of our Indian Tribes, of the Venancio Hernandez of
our community and certainly of the 8-year-old Blakes of the
world, that we can do that. Certainly that is our task, and by
working together and rolling up our sleeves, we can do that.
And again, I believe this hearing today is helping us move
closer to doing that. So thank you very much.
Mr. Calvert. Thank you, gentleman. Mr. Doolittle for his
brief closing statement.
Mr. Doolittle. Thank you, Mr. Chairman. Mr. Foreman, I
apologize if my remarks offended you. I did not mean to offend
you, but I do believe in those remarks, but I hope you know--
and that's why I began opening the way I did today--that I
recognize that this is a complex problem that has many parties.
I think this has been an outstanding hearing. I mean, there's
more agreement here that we saw out of everyone today, even
with widely divergent points of view, that we have seen, at
least that I have seen expressed before. I do believe that
there is a solution. I recognize that, and you had great
testimony, by the way. For those of you who haven't read it,
I'm sure it's out there to read. But it was--it made the points
very effectively about how life didn't begin with the birth of
this Klamath Irrigation Project. And I recognize there are
problems to the fisheries that are--perhaps they're permanent,
maybe many of them can be resolved. We hope they can, and I
will certainly support, you know, that resolution to improve
them, not just getting the things delisted, but making them be
even more prolific as they once were.
And that will take a cooperative effort.
But I just--I do want to say, as the area's representative,
we can all sit around here and have our rhetorical positions,
or we can find a solution. I believe that with goodwill and
with enough resources devoted to it, it is possible to have a
solution.
I must say, I appreciated hearing from the coastal
representatives, since those aren't my areas, learning about
the, you know, the real problems of the commercial fishermen at
that end. That was useful to understand. And if we do these
things right, then all of these issues should improve. Anyway,
I for one make the commitment to work together to do that, and
I'm sure my colleagues feel the same. And I thank you, Mr.
Chairman, for this hearing.
Mr. Calvert. I thank you, gentleman, for his statement. I
would like to thank this community for hosting us here today.
It certainly was helpful to me and certainly to this committee
to listen to this great testimony from all of our witnesses,
obviously from a diverse point of view, but as Mr. Doolittle
stated, there's some hope here. I hear some folks who want to
come around and sit down and try to work this out. This has
happened before, and I would suggest that that begin as soon as
possible, that you all start working for a long-term solution
to this. It won't happen overnight. You got a lot of Federal
agencies involved, such as Core of Engineers, EPA, Fish and
Wildlife, etcetera, etcetera, etcetera. But it won't begin
until you start, as I said earlier, so I would encourage you do
that.
In the short term, I hope that we, all of us, can help.
We're legislators, we have a job to do, but at the end of the
day, it really takes good management on the part of our
agencies, and I know that they feel under the gun here today,
and I appreciate that, but it's a big responsibility. We
appreciate your attention to this issue.
Again, I'd like to thank this community for hosting us, and
with that, I have one little statement here for the record. The
hearing record will be held open for ten additional days for
responses. For those interested in submitting testimony for the
record, please e-mail the testimony to
[email protected], or fax the testimony,
that's easier, (202)226-6953. If there's no further business
before this committee, I want to thank the Members for
attending. We are adjourned.
[Whereupon, at 11:40 a.m., the Subcommittee was adjourned.]
NOTE: The letters and statements submitted for the record
by the following individuals and organizations have been
retained in the Committee's official files.
Armstrong, Marcia H., Fort Jones, California
Baines, Larry, Medford, Oregon
Black, Eric, Co-Chair, SOSS
Borchmann, Craig
Bowen, Liz, Callahan, California
Bradford, Carol District Manager, Medford Irrigation District
Brock, William and Melyn, Bonanza, Oregon
Buckman, Jennifer T., Lingell Valley Irrigation District
Bushue, Barry, President, and Greg Addington, Associate
Director, Government Affairs, Oregon Farm Bureau Federation
California Farm Bureau Federation (faxed)
Cartwright, Therese, Rocky Point, Oregon
Cheyne, Alvin, Klamath Falls, Oregon
Cochran, Jo Whitehorse, Klamath Falls, Oregon
Cole, Robert, Chiloquin, Oregon
Cowman, Chuck, Everett, Washington
Eicher, Jeff, Manager, Rogue River Valley Irrigation District
Foreman, Allen, Chairman, The Klamath Tribes
Fuhr, Brian, Rocky Point, Oregon (support upgrade of ESA)
Gasser, Patsy, Merrill, Oregon
Gasser, Bob, Merrill, Oregon
Gherardi, Terry, Pollack Pines, California (faxed)
Grader, William F. ``Zeke,'' Jr., Klamath Falls, Oregon
Griffith, John
Hart, Blair, Hart Cattle LLC
Hays, John V., Unity, Oregon
Heiney, Wilma, Tulelake, California
HisleBeard, Will
Howell, Donald, President, Siskiyou Resource Conservation
District
Hunt, Helen Newkirk
Jud, William
Kennedy, William D., Klamath Falls, Oregon
Keppen, Dan, Klamath Water Users Association
Kerns, E. Martin and Shirley, Klamath Falls, Oregon
Kerr, John and Priscilla, Merrill, Oregon
Krizo, David, Tulelake, California
Krizo, Jacqueline, Tulelake, California
LeDieux, Patricia, Klamath Falls, Oregon (support upgrade of
ESA)
Ligon, Jeraldine, Sierra Vista, Arizona
Meline, Rick, Klamath Falls, Oregon
Moudry, Chris
Pendleton, Jim, Manager, Talent Irrigation District
Ransom, William C., Chairman, The Klamath Bucket Brigade,
Inc.
Rathbun, Floyd W., Fallon, Nevada
Rick, Sharon E., Tulelake, California (faxed)
Riddle, Lee
Rivett, Robin L., Pacific Legal Foundation
Rodenhurst, Aaron K., Rocky Point, Oregon
Rykbost, Dr. Kenneth, Klamath Falls Oregon
Scronce, Karl, President, Oregon Wheat
Shepard, Richard B., Ph.D..
Shumate, Sharon, Chairman, Ferry County Natural Resource
Board
Smith, Joan T. Supervisor, Siskiyou County, California
Smithson, Julie Kay, London, Ohio
Stefenoni, Thomas E. Manager, California State Grange
Thomas, Rachel, Huachuca City, Arizona
Tonsing, Robert, Executive Director, NPPC
Tulelake Growers Association, Tulelake, California
Turner, Randall and Bonnie, Malin, Oregon
Unger, Roberta, Klamath Falls, Oregon
Urquides, Jess
Ward, Rick, Klamath Falls, Oregon
Wiggins, Gary, Meza, Arizona
Will, Wade and Dorothy, Tulelake California
Williams, McCoy, Director, Financial Management, GAO
Winnied, Mr. and Mrs., Tulelake, Oregon
Woodley, Rick, Klamath Falls, Oregon
Woodman, Barbara, Klamath Falls, Oregon
Wright, Cindy, Tulelake, California
Wright, Jan, Gem Limousin Ranch