[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]




  ENDANGERED SPECIES ACT: THE PLATTE RIVER COOPERATIVE AGREEMENT AND 
                           CRITICAL HABITATS

=======================================================================

                        OVERSIGHT FIELD HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

              February 16, 2002 in Grand Island, Nebraska

                               __________

                           Serial No. 107-88

                               __________

           Printed for the use of the Committee on Resources



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                         COMMITTEE ON RESOURCES

                    JAMES V. HANSEN, Utah, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,                   George Miller, California
  Vice Chairman                      Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana     Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Peter A. DeFazio, Oregon
Elton Gallegly, California           Eni F.H. Faleomavaega, American 
John J. Duncan, Jr., Tennessee           Samoa
Joel Hefley, Colorado                Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado              Calvin M. Dooley, California
Richard W. Pombo, California         Robert A. Underwood, Guam
Barbara Cubin, Wyoming               Adam Smith, Washington
George Radanovich, California        Donna M. Christensen, Virgin 
Walter B. Jones, Jr., North              Islands
    Carolina                         Ron Kind, Wisconsin
Mac Thornberry, Texas                Jay Inslee, Washington
Chris Cannon, Utah                   Grace F. Napolitano, California
John E. Peterson, Pennsylvania       Tom Udall, New Mexico
Bob Schaffer, Colorado               Mark Udall, Colorado
Jim Gibbons, Nevada                  Rush D. Holt, New Jersey
Mark E. Souder, Indiana              James P. McGovern, Massachusetts
Greg Walden, Oregon                  Anibal Acevedo-Vila, Puerto Rico
Michael K. Simpson, Idaho            Hilda L. Solis, California
Thomas G. Tancredo, Colorado         Brad Carson, Oklahoma
J.D. Hayworth, Arizona               Betty McCollum, Minnesota
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana

                      Tim Stewart, Chief of Staff
           Lisa Pittman, Chief Counsel/Deputy Chief of Staff
                Steven T. Petersen, Deputy Chief Counsel
                    Michael S. Twinchek, Chief Clerk
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                

                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on February 16, 2002................................     1

Statement of Members:
    Hansen, Hon. James V., a Representative in Congress from the 
      State of Utah, Prepared statement of.......................     5
    Osborne, Hon. Tom, a Representative in Congress from the 
      State of Nebraska..........................................     2
    Rehberg, Hon. Dennis, a Representative in Congress from the 
      State of Montana...........................................     3

Statement of Witnesses:
    Amack, William Rex, Director, Nebraska Game and Parks 
      Commission.................................................    35
        Prepared statement of....................................    36
    Bishop, Ron, General Manager, Central Platte Natural Resource 
      District...................................................    70
        Prepared statement of....................................    72
    Carlson, Merlyn, Director, Nebraska Department of Agriculture    43
        Prepared statement of....................................    44
    Cook, James R., Legal Counsel, Nebraska Department of Water 
      Resources..................................................    45
        Prepared statement of....................................    47
    Keys, Hon. John W., III, Commissioner, Bureau of Reclamation, 
      U.S. Department of the Interior............................     6
        Prepared statement of....................................     9
    Kraus, Donald D., General Manager, Central Nebraska Public 
      Power and Irrigation District..............................    76
        Prepared statement of....................................    78
    Morgenweck, Ralph, Executive Director, U.S. Fish and Wildlife 
      Service, Mountain Prairie Region...........................    13
        Letter submitted for the record..........................    15
    Sands, David, Executive Director, Audubon Nebraska...........    64
        Prepared statement of....................................    66
    Schrock, Hon. Ed, Nebraska State Senator, Chairman of the 
      Natural Resources Committee................................    29
        Prepared statement of....................................    32
    Schwarz, Tom, Board of Directors, Nebraska Water Users.......    61
        Prepared statement of....................................    63

Additional materials supplied:
    Adams, Don, Jr., Nebraskans First, Statement submitted for 
      the record.................................................    94
    Burkholder, David, Cozad, Nebraska, Statement submitted for 
      the record.................................................    88
    Currier, Paul J., Ph.D., Executive Director, Platte River 
      Whooping Crane Maintenance Trust, Inc., Letter submitted 
      for the record.............................................    89
    Warren, Ruth, Hastings, Nebraska, Letter submitted for the 
      record.....................................................    87

 
  OVERSIGHT FIELD HEARING ON THE ``ENDANGERED SPECIES ACT: THE PLATTE 
          RIVER COOPERATIVE AGREEMENT AND CRITICAL HABITATS''

                              ----------                              


                      Saturday, February 16, 2002

                     U.S. House of Representatives

                         Committee on Resources

                         Grand Island, Nebraska

                              ----------                              

    The Committee met, pursuant to call, at 1:07 p.m., in the 
Hornady-Marshall Auditorium, College Park, 3180 West Highway 
34, Grand Island, Nebraska, The Honorable Tom Osborne, 
presiding.
    Mr. Osborne. The Committee on Resources will come to order.
    The Committee is meeting today to hear testimony on the 
Endangered Species Act: The Platte River Cooperative Agreement 
and Critical Habitats.
    I might mention by way of preface that although this is a 
field hearing, this is still a Congressional oversight hearing 
and we request that the audience and participants maintain and 
follow the rules and decorum of the House. You should refrain 
from verbal outbursts such as applause or booing. There are a 
lot of people here today. We do not have the time to listen to 
all of you, we will keep the hearing record open to receive 
written testimony.
    I might mention that all of the people testifying today 
have some direct role in the determination of critical habitat 
or the cooperative agreement. We have a great many groups that 
have an interest in this--agriculture groups, conservation 
groups and so on. And it is my understanding that there have 
been one or two groups that feel they have been excluded, but 
the invitations have been issued by the Resources Committee, 
not by me or my staff, and we have determined these people that 
we think have the greatest input, the greatest impact on the 
subject matter at hand today.
    As we mention in the opening statement, we are amenable to 
receiving written statements from any group. We also will stay, 
after the hearing is over, my staff, myself maybe some people 
from the Resources Committee, and we will be willing to listen 
to anyone that has commentary, that has questions. And so we 
are very glad that you are all here today, but we would like to 
have you adhere to those rules.
    So with that, we will proceed with the hearing, and I would 
like to at this point start with a brief opening statement and 
then Congressman Denny Rehberg will also have a chance to make 
an opening comment.

  STATEMENT OF THE HONORABLE TOM OSBORNE, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF NEBRASKA

    Mr. Osborne. First of all, I would just like to point out 
the reason for the hearing. As almost everyone here knows, the 
Endangered Species Act is probably about as far-reaching an Act 
as Congress has ever passed. It impacts a great many people.
    An example that may not be typical but is certainly 
disturbing is what happened in the Klamath Basin in Oregon last 
year. As many of you know, the irrigation water was cutoff in 
the Klamath River primarily to protect the short-nosed sucker 
and actually because of some protection for the Coho salmon 
fishery. And of course, many farmers lost their crops, they 
lost their irrigation water and some of them were bankrupted. 
So this came as somewhat of a surprise to lots of people. They 
already had their crops in the ground and it was a very 
upsetting situation.
    And to make things somewhat worse, the subsequent studies 
have indicated, by the National Research Council, that what was 
done was inappropriate, that it really did not help the short-
nosed sucker, it did not help the Coho salmon, and therefore 
was unnecessary.
    And so the reason we are doing this today is to make sure 
that we do not have something like that happen where people are 
caught unaware, where all of the parameters have not been laid 
out and discussed. We are not here to in any way attack or 
pillory Fish and Wildlife, we are here to try to understand 
exactly what is going on, make sure that all the cards are laid 
on the table and so that the endangered species, human beings, 
farmers, ranchers, municipalities, recreational users of the 
river are able to maximize whatever outcome that we can arrive 
at.
    This hearing has been called for basically two different 
purposes: One is to examine the cooperative agreement and the 
in-stream flows in the Platte River as they relate to the 
cooperative agreement; and then second, the designation of 
critical habitat for endangered species in Montana, North 
Dakota, South Dakota, Minnesota and Nebraska. This designation, 
it is my understanding, is supposed to come out March 15, and 
so this hearing has been scheduled now so we get as much 
preliminary information as we possibly can as to what that 
critical habitat designation may look like, and give us some 
chance to respond if there are concerns.
    The procedure--as I mentioned earlier, we need to bear in 
mind that this is not a town hall meeting, it is a more formal 
setting at the present time, and so we will proceed 
accordingly.
    The desired outcome of this hearing is as follows: As I 
mentioned, we are going to provide information to all of the 
concerned parties and we want to use that information 
proactively. So often, as I have experienced government in my 
short period of time, we spend an awful lot of time pointing 
fingers and finding out who to blame and looking backward. And 
the main objective today is to find out what the facts are and 
say here is where we are today. This is our situation, this is 
the hand that has been dealt us, and where do we go from here. 
What can we do constructively, proactively to make this 
situation work better. And so I hope that is the mindset that 
we carry forward.
    As you know, the endangered species involved would be the 
whooping crane, the pallid sturgeon, the least tern, the piping 
plover has been listed as a threatened species but not 
endangered, and then of course peripheral and maybe not so 
peripheral for some of you, the black-tailed prairie dog is a 
candidate for endangered or threatened listing and we may touch 
upon that a little bit today.
    Each witness will be given 5 minutes to read a prepared 
statement and those will be followed by questions from 
Congressman Rehberg and myself. So with that, we will proceed 
with the hearing.
    Congressman Denny Rehberg is from Montana. Denny was the 
Secretary of State--
    Mr. Rehberg. Lieutenant Governor.
    Mr. Osborne. --Lieutenant Governor, I am sorry, in Montana 
for 6 years and is a rancher in Montana. He knows a great deal 
about such issues as we are dealing with today and I just 
really appreciate his being here because he had to change his 
schedule to get here.
    Jerry Moran from Kansas was supposed to be here, but he had 
a funeral that came up today unexpectedly and so he would have 
been here. So Denny and I will be the only two that will be 
present. So Denny, why do you not go ahead and make any 
comments that you might have at this time.

STATEMENT OF THE HONORABLE DENNIS REHBERG, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF MONTANA

    Mr. Rehberg. Thank you, Congressman Osborne and thank you 
for allowing me the opportunity to enter into your legislative 
district and for those of you that have made me feel at home.
    You know, one of the things you find when you move to 
Washington, D.C. and you start identifying the problems that 
exist with many of the national pieces of legislation that 
occur in that arena is that a lot of people support reform, as 
long as it does not change anything.
    And that is one of the things that we find with the 
Endangered Species Act. We know it has problems or you would 
not have the joke ``shoot, shovel and shut up.'' Any time a 
joke like that is established, it is more reflective of a 
problem that exists. And I thank you, Tom for inviting me to 
this hearing because I think you clearly have the same 
understanding that I do, that oftentimes when these rules and 
regulations are developed around a national piece of 
legislation, in my case in Montana, Washington, D.C. is 2000 
miles from my district. Some people think the sun rises and 
sets on the Potomac and they do not have a clear understanding 
of what it is like to try and live under the rules and 
regulations and laws that were created by someone that might 
have had a pretty good idea from their own perspective 
representing 15 square blocks in downtown New York City. But if 
we were ever to try and create a critical habitat out of 
Central Park or re-establish the grizzly bear or the wolf in 
their backyard, they might have a different feeling about it.
    So it is important for Congress to have hearings in places 
like Nebraska for the specific opportunity that we can 
highlight and showcase and hear from people that have to try 
and deal with a rule or law or regulation that does not make 
sense to a rural part of the state, the Midwest or the West. 
And that is what we are here to do today.
    I was appointed by Chairman Hansen, Jim Hansen, the 
Chairman of the Resources Committee, to an Endangered Species 
Working Group. The purpose of that group was five Republicans, 
five Democrats to try and sit down and come up with some 
changes that we could get through Congress. It took us 2 months 
to agree at what time and what room we would meet, so that 
would give you an indication of the complexities and the 
controversies that were going to exist with any kind of reform 
that would be considered seriously by the U.S. Congress.
    That committee has pretty well folded. We almost go to the 
point where we could talk about sound science and a peer review 
committee, but we were still having some difficulties. So a 
point comes finally when you need to come out to the public, 
such as yourself, and hear from those of you, hopefully after 
the hearing and the audience and those of you who are witnesses 
today, to help us identify the areas where we think that we can 
have logical change, a reform that people can understand, or 
maybe we can give you some input in an area where you have not 
considered or you just need to know there is Congressional 
support for making change or studying something further. It is 
part of our role, it is part of our duty as elected officials, 
and it gives me a great deal of pleasure to be here with you in 
Nebraska today.
     So I look forward to hearing from the witnesses and again, 
Congressman Osborne, thank you for giving me an opportunity to 
attend this hearing in your district.
    Mr. Osborne. Thank you for being here, Denny. I know you 
are anxious to do away with the introductory comments, but I 
was asked to read a brief statement from Jim Hansen, who is the 
Chairman of the Resources Committee. Jim is from Salt Lake, so 
he has to be at the Olympics and was required to be there 
actually, he had planned to be here if he could. But I will 
just read two or three paragraphs that he wrote. He said:
    ``I would like to welcome everyone to today's hearing on 
behalf of the House Resources Committee. I wish I could be with 
you today.
    ``The Endangered Species Act has a profound impact on all 
our lives. The proposed critical habitat for the piping plover 
will affect your livelihoods, your access to agricultural water 
and your enjoyment of the land around you. I share your 
concerns for these things, I am a rural man myself. My people 
are farm people, I understand the profound impact Federal 
limitations on land use and access can have on people's lives.
    ``I am a strong advocate for public access and multiple 
uses of our land and resources. Over the years, I have been 
appalled by the problems the Endangered Species Act has created 
for countless landowners, farmers and business owners.
    ``While people have been harmed, this law has done little, 
if anything, to actually help species. We must reform the ESA 
into a useful law that helps both wildlife and people. My 
committee will begin that process this year.''
    What Jim says is exactly the way he feels, he feels that 
the Endangered Species Act certainly fulfills a purpose, but it 
has caused a great deal of consternation and I know that he 
does plan to do whatever he can to make some modifications that 
make it more effective.
    [The prepared statement of Chairman Hansen follows:]

  Statement of The Honorable James V. Hansen, Chairman, Committee on 
                               Resources

    I would like to welcome everyone to today's hearing on behalf of 
the House Resources Committee. I wish I could be with all you today. 
The Endangered Species Act has a profound impact on all of our lives. 
The proposed critical habitat for the Piping Plover will affect your 
livelihoods, your access to agricultural water and your enjoyment of 
the land around you.
    I share your concern for these things. I'm a rural man myself. My 
people are farm people. I understand the profound impact federal 
limitations on land use and access can have on people's lives.
    I am a strong advocate for public access and multiple uses of our 
land and resources. Over the years, I have been appalled by the 
problems the Endangered Species Act has created for countless 
landowners, farmers and business owners.
    While people have been harmed, this law has done little, if 
anything, to actually help species. We must reform the ESA into a 
useful law that helps both wildlife and people. My committee will begin 
that process this year.
    I commend Representative Osborne for holding this hearing today. He 
has emerged on the Resources Committee as a strong advocate for rural 
America and the diverse use of the land. I admire his vision and hard 
work in bringing the ear of Washington to Grand Island to hear your 
concerns today.
    He has rolled up his sleeves and worked hard to protect your 
interests. He will be a judicious and balanced voice in the coming 
debate over ESA reform.
    This important hearing is the first in a series of three hearings 
the committee will hold on ESA. Later this spring, we will introduce 
legislation that improves ESA. It won't be sweeping reform. This is a 
little like eating an elephant. You do it one bite at a time.
    The first bite will make sure that sound science in used in making 
ESA decisions that affect us. It will require peer review of these 
decisions by respected regional scientists. This not only ensures good 
science, it ensures local expertise and input on the management of 
local resources.
    I look forward to the excellent suggestions Mr. Osborne and Mr. 
Rehberg will bring back to Washington following this hearing. Please 
follow up with these members and feel free to follow up with the 
committee staff as we begin the critical work of ESA reform this year.
                                 ______
                                 
    Mr. Osborne. So at this time, I would like to recognize the 
first panel of witnesses before us. We have Mary Ann Bach, who 
is the Regional Director of the Great Plains Region, U.S. 
Department of Interior, Bureau of Reclamation. We have 
Commissioner Keys, who is from the Bureau of Reclamation, we 
are glad to have him here. Mr. Morgenweck who is from U.S. Fish 
and Wildlife Services in Denver and oversees this region, this 
area, we appreciate his being here. We have Mr. Bob McCue, who 
I understand at one time was here in Grand Island and he is 
currently with the Ecological Services as a Supervisor in 
Region 6. We are glad to have you people here and we will 
start, I believe with Commissioner Keys, is that correct, on 
the first opening statements.
    As you all know, you will be given the lights, 5 minutes 
green light, 1 minute of amber light and then when the red 
light comes on, we hope that you will have concluded your 
remarks. Thank you.

STATEMENTS OF THE HONORABLE JOHN KEYS, COMMISSIONER, BUREAU OR 
  RECLAMATION, U.S. DEPARTMENT OF THE INTERIOR ACCOMPANIED BY 
 RALPH MORGENWECK, EXECUTIVE DIRECTOR, U.S. FISH AND WILDLIFE 
  SERVICE AND ROB McCUE, ECOLOGICAL SERVICES SUPERVISOR, U.S. 
              FISH AND WILDLIFE SERVICE, REGION 6

              STATEMENT OF THE HONORABLE JOHN KEYS

    Mr. Keys. Mr. Chairman, I am John Keys, Commissioner of the 
Bureau of Reclamation. It is indeed a pleasure to be here today 
to testify before the Committee on the participation of the 
Department of the Interior in the Platte River Recovery 
Implementation Program. I would ask that my full written 
statement be made part of the record for this hearing, please.
    Mr. Osborne. Without objection.
    Mr. Keys. We are going to handle this in two different 
stretches. I will talk about the agreement and then Mr. 
Morgenweck will address the critical habitat issues for the 
plover.
    Bureau of Reclamation and the Fish and Wildlife Service 
have been extensively involved in implementation of the 
Cooperative Agreement for Platte River Research and other 
efforts relating to the Endangered Species Act along the 
Central Platte River in Nebraska. Mr. Morgenweck and I are the 
Department's representative on the Governance Committee for 
that agreement, and Ms. Bach and Mr. McCue are our alternates 
on that Committee.
    That Cooperative Agreement is an effort to collaboratively 
develop a basin-wide program for recovery of those four 
endangered or threatened species that you talked about earlier.
    Of course, the North and South Platte Rivers rise in the 
snowfields in Colorado and Wyoming and come together at North 
Platte to form the Platte River. In those basins, the North and 
South Platte Basins, there is over 7.1 million acre-feet of 
water stored for projects in those three states. It involves 
about 190 storage facilities and there is ultimately about 1.9 
million acres of land irrigated with that water. And of course, 
it proves power generation and municipal and industrial water 
supplies at the same time.
    These projects and other activities along the Platte River, 
including the habitat for threatened and endangered species 
that use the Big Bend Reach in central Nebraska.
    Now on May 15, 1978, Fish and Wildlife Service first 
designated critical habitat for the whooping crane along the 
Central Platte River. Now under a court order, they are working 
with critical habitat designations for the piping plover. There 
have been a lot of efforts over these years that have led up to 
the Cooperative Agreement between the states and the Federal 
Government. Because of the four threatened or endangered 
species listings in the Platte Basin, there have been a lot of 
concerns about the effects of existing water projects on 
habitat, the prospects of as many as 57 individual Section 7 
consultations for all of our projects under the Endangered 
Species Act. And then there is the prospect of having to 
develop operating conditions for those projects to operate and 
protect those species. All of these factors provide a strong 
basis for the need for us to come to some kind of agreement 
that would ensure a basin-wide Endangered Species Act 
compliance program and a way for us to deal with those 57 
separate consultations that were possible out there.
    Some of the projects affected by those listings are the 
Federal dams on the North and South Platte Rivers; the Colorado 
Big Thompson Project in Colorado. There are six municipal and 
industrial withdrawals of water from the river along the Front 
Range that would be affected, and there are hydropower 
facilities that would be affected. The main one here is the 
power plant at McConaughy.
    Now the Cooperative Agreement was first signed in 1997 and 
after three and a half years of discussion and negotiations, it 
was signed by the Governors of Colorado, Wyoming and Nebraska 
and the Secretary of the Interior. That agreement established a 
basis for a basin-wide Platte River species recovery program, 
and it set the mechanism in place for a recovery program to be 
developed that would allow existing water-related Federal 
activities to proceed in compliance with the Endangered Species 
Act, without having to do full consultation on each one 
individually. That proposed basin-wide recovery plan and its 
agreement also sets proposed adaptive management. In other 
words, as we are implementing this thing, what changes should 
be made to is, is there something that we would encounter along 
the way, somebody may have been adversely impacted or it did 
not quite make it in an area and we could adaptively manage 
that program to get away from some of those harms or 
shortfallings along the way.
    The recovery program purposes include habitat and benefits 
for conservation and recovery throughout the basin, and it does 
it on a cooperative, collaborative consensus type basis. In 
other words, we are not going to run over one single person to 
accomplish an end here. ESA compliance for existing and new 
water-related activities in the Platte River Basin are one of 
the big reasons that we are working on it. Also, trying to 
prevent future listings. If we do these things, we can 
anticipate where we may need to do something else that might 
prevent a future listing. It would also mitigate any new water-
related activities, as set forth in the new depletion plans for 
each one of the states; in other words, looking to the future, 
when we may need more water in some of those basins. And it 
gives us an organizational structure to ensure that state and 
stakeholder involvement in the recovery program is a reality. 
We need to have those folks involved in the process that would 
be affected in the end.
    Some of the key elements of that proposed recovery plan for 
the first increment--the first increment covers about 13 
years--but one of the main parts of that is to try to improve 
flows in the Central Platte River, trying to reduce those 
shortages to the Fish and Wildlife Service target flows. And 
some of our first looks at that say that it would take 
somewhere between 130,000 and 150,000 acre-feet to do that. We 
would achieve that with the development of three water 
regulation projects. The first one is the Tamarack groundwater 
recharge project, the second one is modification of Pathfinder 
Dam in Wyoming and third is an environmental account for water 
in Lake McConaughy. The results of all three of those should 
produce somewhere around 80,000 acre-feet of that water. Let me 
hasten to add that not a single acre-foot of that water would 
be taken from anyone. If there was any water purchases, it 
would be done from a willing buyer and on a willing buyer-
willing seller basis.
    The next part of it would be the implementation of the 
Water Action Plan. That is for getting that additional water to 
get it up to the 130,000 to 150,000. That would be developed 
with the states, the water users, the Federal agencies and the 
conservation groups and would focus on incentive-based ways to 
get that done. Again, not taking water from anyone.
    The second basis of the proposed recovery plan is land, the 
acquisition of about 10,000 acres of habitat land from willing 
participants over this 13-year period. Again, there would be no 
condemnation of lands to accomplish this. It includes lands 
that are already out of production or they are in production 
but they are part of the program. That 2600 acre Cottonwood 
Ranch that is part of Nebraska Public Power District's are 
there would be included in there.
    The third part of it is the adaptive management program 
that I talked about before.
    Now long-range and certainly well past the 13 years, is the 
objective of trying to get up to 29,000 acres of land into this 
adaptive management program. Certainly the 9000 acres that are 
protected and managed by the Platte River Whooping Crane Trust, 
the Audubon Society and the Nature Conservancy in the Valley 
would be included in that. This is not something that we are 
just trying to add to.
    Now as I said, the agreement originally set for 3 years. In 
December of 2000, the agreement was extended to June 30 of 
2003, so that all three states and the Department and that 10-
person committee can complete the necessary work. So we still 
have about a year and a half left on putting these plans 
together.
    Now how does the process work? I think the first thing to 
talk about with the Cooperative Agreement is the Governance 
Committee. There are 10 members on that Governance Committee, 
two of which are Ralph Morgenweck and myself. There is one 
representative from each state, there are the two Federal 
members, there are two members representing the conservation 
organizations and there are three members representing water 
users in those states that are subject to the consultation.
    Now the Governance Committee operates by consensus. It 
generally meets every month and recently they have been meeting 
very regularly trying to get stuff worked out. Funding for the 
operation of this thing is provided by the three states and the 
Federal Government.
    Now where are we right now? Right now, the Governance 
Committee is working to develop the proposed program, has been 
doing that for over 3 years. Certainly, we are hustling to try 
to meet that June 30, 2003 deadline. Most of the key elements 
to the program have already been agreed to. There are some 
details to be worked out and a few issues.
    The draft Environmental Impact Statement, once the 
Governance Committee agrees on major elements of the program, 
that draft Environmental Impact Statement will be produced. 
Concurrent with that draft statement will be a Biological 
Assessment of the program under the Endangered Species Act.
    Then after that is done and the draft Environmental Impact 
Statement is put out, the Fish and Wildlife Service would then 
issue their Biological Opinion on that.
    As I said, adaptive management is the way this thing will 
work and as new things come up to be addressed, they will 
certainly be done so.
    Mr. Osborne. I am afraid I have to interrupt you here. If 
you all can watch that monitor in front of you, there is a red 
light there.
    Mr. Keys. Oh, goodness, I did not even see that.
    Mr. Osborne. When that red light comes on, that means you 
have got to wrap up. So you might want to turn it to you.
    Mr. Keys. I knew they turned it the other way for some 
reason.
    Let me just summarize, sir, by saying that we feel that 
this agreement is the way to go for the Platte River Basin. 
There will be no taking of water, there will be no taking of 
land and the by-word is willing buyer, willing seller for 
obtaining that land and water. Existing uses will be protected 
under it, existing uses of groundwater and surface water will 
be grandfathered. The question is future development and how 
that is handled. We feel that is a state issue, certainly that 
is why the three states are there, the waters belong to the 
state and that is their big decision, is how to handle future 
development.
    Certainly when we get through, we will answer any other 
questions.
    Mr. Osborne. There will be some questions. Thank you.
    [The prepared statement of Mr. Keys follows:]

 Statement of John W. Keys, III, Commissioner, Bureau of Reclamation, 
                    U.S. Department of the Interior

    Mr. Chairman, my name is John Keys. I am Commissioner of the U.S. 
Bureau of Reclamation, Department of the Interior. I am happy to be 
here to provide you with information concerning the participation of 
the Department of the Interior in development of the Platte River 
Recovery Implementation Program. I am accompanied by Ralph Morgenweck, 
Regional Director for the Mountain Prairie Region of the U.S. Fish and 
Wildlife Service, and Maryanne Bach, Regional Director for the Great 
Plains Region of the Bureau of Reclamation. My written testimony deals 
with the cooperative agreement and with the proposed critical habitat 
for the piping plover, as requested in the Committee letter. My oral 
testimony will address the cooperative agreement aspects of the 
statement. Mr. Morgenweck will answer any questions on critical habitat 
issues.
    Both Reclamation and the Service have been extensively involved in 
the implementation of the Cooperative Agreement for Platte River 
Research and Other Efforts Relating to Endangered Species Habitats 
Along the Central Platte River, Nebraska (Cooperative Agreement). Mr. 
Morgenweck and I are the Department's official representatives to the 
Platte River Governance Committee. Ms. Bach is my alternate to the 
Committee and Bob McCue serves as alternate for Mr. Morgenweck. Staff 
from both agencies have been involved in all of the meetings and in the 
work of the Governance Committee and its subcommittees (which I will 
describe later in more detail). In addition, Reclamation and the 
Service are co-leads in preparing a Programmatic Environmental Impact 
Statement (PEIS) and the Service is responsible for preparing a 
Biological Opinion on the proposed recovery program.
    The Cooperative Agreement is an effort to collaboratively develop a 
basinwide program for the recovery of four threatened or endangered 
species (whooping crane, piping plover, least tern, and pallid 
sturgeon). My statement will cover several major aspects of the 
Cooperative Agreement including the Department's role in its 
implementation, some background and history leading up to the 
Agreement, some key features of the Agreement, a summary of the 
accomplishments and decisions of the Governance Committee to date, and 
my understanding of upcoming actions.

Background and History
    The North and South Platte Rivers originate from snowmelt in the 
Rocky Mountains in Colorado. The rivers enter Nebraska via Wyoming and 
Colorado to form the Platte River at North Platte, Nebraska. Water 
projects on the North and South Platte store over 7.1 million acre-feet 
of water in 190 storage facilities, irrigating 1.9 million acres, 
generating power, and providing municipal water supplies and 
recreation.
    These projects and other activities have affected the Platte River, 
including the related habitat of the four threatened or endangered 
species (noted above) that use the ``Big Bend Reach'' of the Platte in 
Central Nebraska.
    On May 15, 1978, the Service designated critical habitat for the 
whooping crane along the central Platte. Under court order, the final 
designation of critical habitat for the piping plover is currently 
pending.

Factors Leading to the Cooperative Agreement
    With the existence of four threatened or endangered species in the 
Platte River Basin, there were concerns about: the effects of the 
existing water projects on the habitat of these species; the prospects 
of having to undertake numerous individual consultations under Section 
7 of the Endangered Species Act (ESA) throughout the basin; and the 
possibility of operating conditions being placed on those projects to 
protect the listed species. All these factors provided a strong impetus 
for water users, the three States, the Federal government, and 
conservation groups to get together to look for a better way to bring 
the various projects into compliance with the ESA and to provide a 
level of certainty for water users in the basin. Some of the projects 
involved included:
      The Federal dams on the North Platte River in Wyoming 
and the Colorado-Big Thompson Project in northern Colorado;
      Six municipal and industrial water projects along the 
Front Range of Colorado which, pursuant to biological opinions by the 
Fish and Wildlife Service issued to the Forest Service, were required 
to implement reasonable and prudent alternatives to offset depletions 
to the Central Platte in Nebraska;
     The hydropower facilities in Nebraska, including Kingsley 
Dam/Lake McConaughy, have licenses issued by the Federal Energy 
Regulatory Commission which are conditioned upon the development of a 
recovery program.

The Cooperative Agreement
    On July 1, 1997, after three and a half years of discussion and 
negotiation, the Cooperative Agreement was signed by the Governors of 
Wyoming, Nebraska, and Colorado, and the Secretary of the Interior. The 
Cooperative Agreement established the basis for a basinwide endangered 
species recovery program for the Platte River and is the mechanism 
through which a recovery program is to be developed to allow existing, 
water-related Federal activities to proceed in compliance with the ESA, 
but without the need for full consultation on each individual project.

The Proposed Basinwide Recovery Program
    The Cooperative Agreement sets forth a proposed adaptive management 
program to be implemented on an incremental basis with the first 
increment lasting thirteen years. Many details of the second increment 
will be worked out during the first increment based upon new data 
collected as a result of research and monitoring conducted during the 
first increment.
    The purposes of the recovery program include:
     to secure defined benefits for the target species and 
their associated habitats to assist in their conservation and recovery 
through a basinwide cooperative approach agreed to by the three states 
and the Department;
     to provide ESA compliance for existing and new water-
related activities in the Platte River Basin;
     to help prevent the need to list more basin-associated 
species pursuant to the ESA;
     to mitigate new water-related activities in a manner that 
will not increase the responsibilities of other signatory states, as 
set forth in the New Depletions Plans of the individual states; to 
establish and maintain an organizational structure that will ensure 
appropriate state government and stakeholder involvement in the 
implementation of the recovery program.
    Key elements of the proposed recovery program for the first 
increment, as set forth in the Cooperative Agreement, are:
     improve flows in the central Platte through reducing 
shortages to the Service's target flows by 130,000 to 150, 000 acre 
feet. This will be achieved by: (1) Development of three water 
regulation projects--the Tamarack groundwater recharge project in 
Colorado; (2) Modification to Pathfinder Dam in Wyoming; and (3) an 
``environmental account'' in Lake McConaughy in Nebraska, which are 
anticipated to provide approximately 80,000 acre-feet.
     implementation of a Water Action Plan to provide the 
additional water. This Plan, developed collaboratively with the States, 
water users, Federal agencies and conservation organizations, focuses 
on incentive-based water supply and conservation measures.
     acquire 10,000 acres of suitable habitat from willing 
participants between Lexington and Chapman, Nebraska. This includes 
Nebraska Public Power District's 2600 acre Cottonwood Ranch. (Note that 
many of the details concerning the acquisition and management of 
habitat have been and are being worked out with the Governance 
Committee's Land Subcommittee, whose members include many local 
landowners. For example, they have helped the Governance Committee 
develop policies concerning tax losses resulting from implementation of 
the recovery program and relationships with local landowners).
     utilize an adaptive management approach, using monitoring 
and research results. An Integrated Research and Monitoring Program has 
been drafted which includes various research measures to investigate 
channel stability issues.
    The Cooperative Agreement sets forth a long-range objective of 
protecting 29,000 total habitat acres. Included in this 29,000 acres 
are 10,000 acres to be acquired during the first increment, and 9,000 
acres currently protected and managed by the Platte River Whooping 
Crane Trust, the National Audubon Society, and the Nature Conservancy 
within the Central Platte Valley.
    The period prescribed in the Cooperative Agreement for development 
of the recovery program was three years. However, in December 2000, 
this was extended to June 30, 2003, in order to allow the three States, 
the Department, and the other members of the 10 member Governance 
Committee to complete the necessary work.

How Does this Process Work?
    First, the Cooperative Agreement established a Governance Committee 
to review, direct, develop policies, and oversee the development of the 
Proposed Program. The Governance Committee consists of ten members, 
plus their alternates. Members include one representative per state 
selected by the Governors; two Federal members including Reclamation 
and the Service; two members representing conservation organizations; 
and the final three members representing water users in the three 
States who have a federal nexus and are subject to ESA consultation.
    The Governance Committee, which operates on a consensus basis, 
generally meets on a monthly basis to conduct official business and/or 
participate in technical sessions covering major components of the 
Proposed Program.
    The Governance Committee hired Dale Strickland as the Executive 
Director. Mr. Strickland plays a key role in the functioning of the 
Committee. He assists and coordinates the management of the Committee's 
work, facilitates communications, and coordinates the wide range of 
activities involved in developing a consensus-based recovery program.
    Much of the detailed work and analysis has been carried out by 
subcommittees of the Governance Committee utilizing staff from the 
participating organization and outside contractors. In addition, local 
landowners in Nebraska have actively participated in the work of the 
Land Subcommittee.
    Funding for the implementation of the Cooperative Agreement comes 
from the three states and the Federal government, as set forth in the 
agreement.

Where Are We Now?
     The Governance Committee has been working on the 
development of the proposed program for over three years, meeting 
monthly and sometimes more often. Key elements of the program have 
already been agreed to, but there are a few remaining issues to be 
worked out.
     Once the Governance Committee comes to an agreement on 
the major elements of a proposed program, the Department will analyze 
the elements of that program in a draft Programmatic EIS (DEIS) which 
will likely be available for public comment about six months later.
     Concurrent to preparation of the DEIS, a Biological 
Assessment will be completed.
     Subsequent to the release of the DEIS, the Service will 
then prepare a draft Biological Opinion on the Proposed Program which 
will be available for public review.
     There will be a number of additional items and actions to 
continue to be worked out over the coming months.
    While some have expressed concerns about the relative pace of the 
process, it is important to understand that the Platte River effort 
has, from the beginning, been based on the premise that all solutions 
and decisions should be reached by consensus. While that process may 
take a little longer at the front end, we believe that in the long run, 
it will be a better solution that can be widely supported. Throughout 
the process, no one party has forced their position on any of the other 
parties. We have had to work through our differences. Or, in some 
cases, we agreed to disagree, but then found a path to keep the process 
moving forward. I would also like to note that we have been fortunate 
to have had considerable help and advice from local landowners and 
private citizens. Their input has greatly improved the options we have 
considered and will significantly improve the Proposed Program. I would 
like to thank them for their hard work their time, and their 
dedication.

Piping Plover Critical Habitat
    I will now provide information to the Committee concerning the 
process of designating critical habitat for the northern Great Plains 
population of piping plovers, noted by the Committee as a principal 
focus of the hearing. My comments will describe the generic procedure 
associated with the designation process. Finally, I will provide 
information specific to the piping plover proposal and the likely 
outcomes of the proposal on the area in which the species and its 
critical habitat is present.

Definition of Critical Habitat
    The Endangered Species Act (ESA) defines critical habitat, in 
Section 4, as those specific geographic areas that are essential for 
the conservation of a threatened or endangered species and which may 
require special management considerations.
    A designation does not establish a refuge or sanctuary for the 
species and only applies in situations where Federal funding or a 
Federal permit or activity is involved.
    Not all areas found within the boundaries designated as critical 
habitat are essential for the conservation of the species. Human-made 
structures such as boat ramps, roads, and parking lots are not proposed 
to be designated as critical habitat for the piping plover even though 
they fall within designated boundaries.

Economic Analysis
    Section 4 of the ESA also requires that an analysis of the 
potential economic impacts of designating critical habitat be conducted 
as part of the designation process. The analysis estimates the possible 
costs of the proposed critical habitat on federal actions involving 
private landowners, tribes, and Federal, State, and local agencies. The 
estimated costs include possible future consultations under Section 7, 
and project modifications resulting from these consultations. Based on 
recent court decisions, the Service is completing economic analyses 
which reflect the co-extensive economic impacts of critical habitat 
designation and the economic impacts associated with the listing of a 
species.
    Areas may be excluded from the critical habitat designation if the 
benefits of excluding it outweighs the benefits of designating the area 
as part of critical habitat, unless the Secretary of the Interior 
determines that the failure to designate critical habitat will result 
in the extinction of the species.

Outcomes of Critical Habitat Designation
    The principal outcome of a critical habitat designation is the 
requirement, under Section 7 of the ESA, that Federal agencies consult 
with the Service before taking actions, issuing permits, or providing 
funding for activities that might adversely modify critical habitat. In 
some cases, the designation creates no new consultation workload for an 
activity. This is because consultation for Federal activities that may 
affect species listed as threatened or endangered is already required, 
whether or not critical habitat has been designated.
    The Service seeks to work with landowners and Federal agencies as 
early as possible in the consultation process to identify measures to 
reduce or eliminate effects to listed species or designated critical 
habitat. Most projects go through unmodified. Some projects are 
modified through informal consultation with input from landowners and 
Federal agencies. In some cases, Federal agencies request initiation of 
formal consultation.

Piping Plover Critical Habitat Designation
    The northern Great Plains breeding population piping plover, a 
migratory shorebird, was listed under the ESA in 1986 as a threatened 
species. The Service chose not to designate critical habitat at that 
time. As a listed species, the piping plover is already protected 
wherever it occurs and Federal agencies are required to consult on any 
action they take that might affect the species, regardless of critical 
habitat designation.
    The critical habitat for the Great Plains breeding population of 
the piping plover was proposed in response to litigation brought by 
Defenders of Wildlife against the Service for failure to designate 
critical habitat. The Service was ordered by the Federal court to 
propose critical habitat for the northern Great Plains piping plover by 
May 31, 2001 and to issue a final rule by March 15, 2002.
    The proposal includes 196,576 acres of habitat and 1,338 river 
miles in Minnesota, Montana, North Dakota, South Dakota, and Nebraska. 
Proposed areas of critical habitat for the plover include prairie 
alkali wetlands and surrounding shoreline; river channels and 
associated sandbars and islands; and reservoirs and inland lakes and 
their sparsely vegetated shorelines, peninsulas, and islands. While 
large sections of the river corridors are proposed as plover critical 
habitat, the designation is narrowly drawn to exclude most non-river 
related development. In addition, throughout the designated area, human 
structures such as mainstem dams, buildings, marinas, boat ramps, bank 
stabilization and breakwater structures, row-cropped or plowed 
agricultural areas, sand pits, high bank bluffs along the Missouri 
River, and roads are not proposed for critical habitat for the plover 
even if they fall within critical habitat designation boundaries.
    As part of the rulemaking process, the Service held informational 
meetings in the affected states during the summer of 2001 and accepted 
public comment, reopening the comment period to allow extensive comment 
on the proposed rule.

Piping Plover Critical Habitat--Economic Analysis
    A draft economic analysis for the piping plover designation was 
developed by Bioeconomics, Incorporated, a Montana-based economic 
consulting firm. The draft analysis was completed to comply with court 
decisions requiring an expanded economic impact analysis and was 
submitted for public review and comment in January 2002.
    The draft analysis for the Great Plains population of the piping 
plover finds that over the next 10 years, the estimated future costs of 
Section 7 consultations to private applicants and other Federal 
agencies would be approximately $552,500 per year. Of that sum, no more 
than $58,000 is attributable to the designation of critical habitat.
    In Nebraska, the analysis foresees 5 formal consultations per year 
and 38 informal consultations per year for the plover on the Platte, 
Loup and Niobrara Rivers. The primary activities in Nebraska likely to 
result in consultation are expected to be associated with direct 
modifications of the river or its shorelines, such as bank 
stabilization, water depletion, sand and gravel mining operations, 
levee construction and water well fields. Because of previous 
consultations conducted on behalf of species associated with these 
three rivers, the presence of other listed species in the area, and the 
already-designated critical habitat for the endangered whooping crane, 
the report concludes that there would be little additional costs in 
Nebraska.
    In closing, Mr. Chairman, the consensus-based Platte River process 
has been a learning experience. But let me stress that it is moving 
forward and I believe it will result in a plan to both protect the 
myriad of species and provide the crucial level of certainty for land 
owners, farmers, and other water users in the three-state Platte River 
Basin.
    That concludes my testimony, I am pleased to answer any questions.
                                 ______
                                 

 STATEMENT OF RALPH MORGENWECK, EXECUTIVE DIRECTOR, U.S. FISH 
                      AND WILDLIFE SERVICE

    Mr. Morgenweck. Mr. Chairman, I will address a few comments 
about the critical habitat designation for the piping plover.
    First, what is critical habitat? The designation involves 
the identification of lands or river corridors, in this case, 
that are found within a geographic area where the particular 
species, in this case the piping plover, are found. And those 
areas that are identified are those that provide the life 
requisites for that particular species, so places to breed, 
places to raise their young, et cetera. Those areas are also 
identified that may need some kind of additional management but 
they are also judged to be required for the conservation of 
that species. Well, what does the conservation of the species 
mean? In the context of the Endangered Species Act, when we say 
conserving the species, what it means is bringing to bear all 
those things that we can do to get the species to a point where 
the Endangered Species Act is no longer required to protect it.
    In addition to that, there may be some areas that are not 
currently occupied by the species that are judged to be 
required for the recovery of the species. They also may be 
identified as critical habitat.
    Along with the identification from a biological standpoint, 
is required an economic analysis and in the course of 
evaluating the economic analysis, certain areas may be dropped 
from critical habitat designation if the benefits of 
designating it are not as great as the disbenefits of the 
economic impact, as long as that exclusion of those areas that 
may be dropped will not result in the extinction of the 
species. So that is a process that the Fish and Wildlife 
Service has to go through as they evaluate the economic impact.
    The reason that we are designating critical habitat is that 
it clearly says in the Endangered Species Act that at the time 
of listing, critical habitat should be designated unless it is 
not determinable, which means you get another year to do the 
work, or if there is some reason that designation of critical 
habitat would result in some threat to the species, for example 
vandalism of nesting areas or something of that sort.
    But over the years, what has really driven us to where we 
are now is the case law decisions made by Judges. Historically 
the Fish and Wildlife Service has not designated critical 
habitat at the time of listing. There are many in the Fish and 
Wildlife Service who question the true conservation value of 
designation of critical habitat but nonetheless, the law is 
very clear, and there have been a series of lawsuits that have 
spoken very, very clearly that the Service is obligated to 
designate critical habitat. As a result of a lawsuit, the Fish 
and Wildlife Service has been ordered by the court to designate 
critical habitat for the piping plover. Further, the court has 
ordered us to designate that critical habitat by the 15th of 
March of this year. We have published a proposal in the FEDERAL 
REGISTER, received comment on that for 60 days, we then re-
opened the comment period when the economic analysis became 
available, that too was published for public comment for 
another 30 days. So we have received about 90 days worth of 
comments on the proposal, about 30 days worth of comments on 
the economic analysis.
    I know that there are many concerns about was that 
sufficient time. The issue of whether or not additional time 
can be made available is a question that is being discussed now 
by the Department of Interior with the Justice Department 
because it would require the approval of the Judge who is 
handling this case, to give us that additional time and I am 
sorry to say I do not have an answer to that question today. 
But those discussions are certainly ongoing.
    So I think, Mr. Chairman, I will conclude with those 
remarks and take any questions that you have.

    [A letter submitted for the record by Mr. Morgenweck 
follows:]

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[GRAPHIC] [TIFF OMITTED] T7750.006

[GRAPHIC] [TIFF OMITTED] T7750.007

[GRAPHIC] [TIFF OMITTED] T7750.008

    Mr. Osborne. Thank you very much for your testimony. I 
realize it takes some time and some thought to prepare a 
statement and even though you may not be able to read the 
entire statement, it will go on the record, it will go to the 
Resources Committee and it will be a valuable resource.
    I guess I would like to start with the beginning. I talked 
about being proactive and I am afraid I may violate my own rule 
a little bit here, but we will go back to May 15, 1978, the 
Fish and Wildlife Service designated critical habitat for the 
whooping crane on the Central Platte, a 56-mile long corridor, 
three miles wide from Lexington to Chapman. I think everybody 
is aware of that designation.
    I would like to quote from a letter from Gary Lingle, Gary 
worked for the Whooping Crane Trust for a number of years, 
studied the whooping crane. I think he currently works for 
University of Nebraska-Lincoln. And in his letter, he said 
this, ``The data is overwhelming in that whooping cranes are 
birds of palustrine and lacustrine wetlands, not riverine 
habitat.'' Now that is fancy language to mean that they 
normally do not live on rivers.
    ``During the 1981-1984 radio tracking study of whooping 
cranes, 18 whoopers were tracked on three southbound and two 
northbound migrations, none of them used the Platte River. 
These birds never used the river for roosting, rather they used 
the same palustrine wetlands that the sandhill cranes use in 
that particular staging area.''
    He goes on to say, ``Once again, wetlands with a 
predominant type habitat for roosting. It is interesting to 
note that since the completion of the Kingsley Dam in 1941, the 
whooping crane population has increased 13 fold. I wonder if 
the Platte River would ever be considered if the Fish and 
Wildlife Service was charged with designating critical habitat 
today. Whooping crane experts that I have visited with would be 
hard pressed to consider the Platte River, given our current 
state of knowledge. Certainly, none would be willing to state 
on a witness stand that the continued existence of the species 
would be in jeopardy if the Platte River were to disappear.''
    Now the reason I read this is that this is certainly one 
who is independent, this was a person who worked for the 
Whooping Crane Trust for many years, studied the river very 
closely, has no ax to grind. Much of what I have heard 
anecdotally backs this up, this type of thing, that very, very 
few whooping cranes are ever seen on the Platte River.
    And so since we have made this designation of 56 miles, 
that is where it all started and that is what has gotten us to 
this point with the Cooperative Agreement and the critical 
habitat and so on.
    Do you gentlemen see any way that that can be re-evaluated? 
It does not seem to me that we would continue to move forward 
with something that makes no sense if the science is not there. 
And so I would appreciate your comments on this and I realize 
most of this designation was done probably long before you were 
in your current jobs and we are not blaming anyone here, but we 
are just asking is there anything that can be done to rectify 
this situation, given what appears to be some fairly strong 
evidence that the whooping crane really does not use that 
stretch of the Platte River in the way that many people have 
assumed that they do.
    Mr. Morgenweck. Mr. Chairman, I might have a bit of a 
disagreement with the contents of the letter. I believe since 
1966, we have confirmed sightings of about 171 whoopers as they 
pass through the area and I believe that somewhere in the 
neighborhood of 140 some were found to be using the river, the 
remainder were in fact roosting in areas--the wetlands along 
the Platte.
    I think that as years have gone on, I think the evidence is 
quite strong, and there is certainly some room for differences 
of opinion as to whether or not the Platte is essential for 
roosting. I also think that it does indicate that whoopers 
perhaps do use several kinds of habitat for roosting purposes.
    Mr. Osborne. If you will speak more directly into your 
microphone, I think it will be better.
    Mr. Morgenweck. So I would say, No. 1, I have some 
disagreement with the contents of the letter.
    The second point you raise was can you revisit critical 
habitat designations. The answer is yes. They could be 
revisited, they could be revised to reflect more current 
science, so yes, that is always a possibility.
    I guess the third point would be the question whether or 
not the designation of critical habitat by itself, as opposed 
to the listing of the species, whether that is in fact causing 
a great deal of economic impact that would have not been there 
were it just for the listing. In other words, does the critical 
habitat designation add an additional economic burden that 
simply having it listed under the Endangered Species Act does 
not cause. And generally we find those things to be fairly 
small increments.
    Mr. Osborne. I appreciate your answer. I guess my question 
to you would be, there may be disagreement on the data. When 
you talk about 170 sightings, that certainly is not annual, it 
maybe what--
    Mr. Morgenweck. It was since 1966.
    Mr. Osborne. --four or five a year--three or four a year?
    Mr. Morgenweck. Well, there are less than 200 birds also.
    Mr. Osborne. What I am saying is that if we are looking at 
two to three to four to five birds a year out of 150 to 200, it 
seems to me that that is not a critical habitat. Now I am not 
an expert, you are, but I am saying would you be willing to 
have that revisited and have the research examined by an 
independent review committee? Is this something that would make 
sense?
    Mr. Morgenweck. As a matter of fact, in the construction of 
the Cooperative Agreement and the recovery program that we are 
now negotiating, peer review plays a very important part. The 
committees have developed peer review protocols to be used. The 
models that we are using, the data that we are using, all are 
available for peer review any time that the Governance 
Committee chooses, whether it be issues related to what 
whooping cranes use in terms of habitat, whether it is flow 
targets, whatever it is. And we are very supporting of that 
peer review process.
    Mr. Osborne. I appreciate that.
    Mr. Rehberg.
    Mr. Rehberg. Thank you, Congressman Osborne. I am going to 
be able to leave Nebraska with a suntan, I thank you for that.
    [Laughter.]
    Mr. Rehberg. Hard to explain to my folks back home how I 
picked that up in the Midwest.
    Mr. Keys, I understand that the National Academy of 
Sciences recently completed the peer review of the scientific 
basis for the decisions made in the Klamath last summer. There 
are equivalent concerns raised here about the quality of the 
science. In your opinion, are the similarities between how the 
data was interpreted in the Klamath Basin to what has been done 
over the years here on the Platte? And I guess more 
importantly, do you foresee the same kind of decision made by 
various government entities that precipitated the protests on 
the Klamath and then the ultimate uproar and then now the 
Academy of Science's study?
    Mr. Keys. Mr. Chairman, Mr. Rehberg, the National Academy 
of Science review that was done on the Klamath certainly 
indicated that there were conclusions drawn from a shortage of 
data there that may not have been adequate at the time. It said 
that the Fish and Wildlife Service may have set some lake 
levels or release levels higher than they should have been. It 
also told the Bureau of Reclamation that we should not operate 
that lake level system any lower than we had in the past, that 
there was no justification for doing that. We are in the 
process of working that review into the Biological Assessment 
for the Klamath Basin and reissuing it in the near future.
    Comparison with this system here--any time that you have an 
Endangered Species Act listing and a drought, you have set up 
for a Klamath situation. You throw onto that the lack of an 
adjudicated river system and then you are bound for disaster. 
And then when people do not talk to each other, you almost 
cannot avoid a disaster. And that is what happened in Klamath.
    The beauty of this situation here is the agreement and the 
cooperation among all the parties. The states are involved, the 
water users are involved, the Federal Government is involved--
all of those folks are talking. Should this be peer reviewed? 
Yes, absolutely yes. At that time when this agreement and all 
of its stuff is together in about a year and a half, it will be 
done. There is a peer review protocol built into the process up 
to that point and certainly when it is over, that will be 
accomplished.
    To me, the set up here of this committee keeps us from 
having a Klamath.
    Mr. Rehberg. As I was listening to your testimony, I was 
wondering do you have the ability in the numbers that you 
establish for a standard or historic level of consideration for 
multiple year drought? I am sorry, I cannot speak to Nebraska, 
but I can tell you in my own home county, we are entering our 
sixth year of drought, statewide it is 4 years. And so 
decisions are made on the levels of areas like Flathead Lake, 
where we were all caught off guard last year. We allowed the 
dam to produce more hydro than they should have early in the 
season. Of course it went to California--that is another issue. 
And then later on in the year, we were caught in violation and 
my point to you is are you currently considering multiple year 
droughts, can you consider that and are we headed for a 
situation similar to Klamath even though you have a cooperative 
agreement, if you establish too high a level for a standard?
    Mr. Keys. Mr. Chairman, Mr. Rehberg, the answer to your 
question is a resounding yes, it has been considered and 
certainly we are trying to craft that thing so that it does not 
happen.
    When I was first involved in this thing, I asked my folks 
what effect on the system does us making that water available 
for this agreement make--in other words, the 130,000 to 
150,000. The answer is that water does not have a measurable 
effect on the system. When they evaluated the system and its 
effect at Grand Island, the reduction in the water flow was 50 
cubic feet per second. In a river the size of the Platte River 
with its wide braided channels, you cannot measure 50 second 
feet, it is that small.
    We then asked OK, how serious was the drought that you 
considered. The worst drought that has been measured in this 
basin was in the early 1950's. They put that drought on the 
operation that we are talking about and then they followed it 
with another one. In other words, they put two of those 
droughts back to back to each other and it still did not have a 
measurable impact on the Platte River. That is a degree of 
comfort for us that we will not have that devastating effect on 
the river system.
    When I talked about adaptive management, if you see that 
maybe there is a potential for having three of them, then we 
start adapting so that we do not impact those economic 
resources that we depend on.
    Mr. Rehberg. What happens in June 2003 if things are not 
done? Will land transfer, title be affected, will projects be 
affected or are they so affected now that it will not matter, 
it will just be a continuation, we will ask for a continuation 
and nobody will notice?
    Mr. Keys. Certainly with the schedules that we have right 
now, we anticipate it being done. I would say that if it is not 
done, it is too important to us to just cut it off and say we 
are done, we would look to extend that so that we get it done 
right. It is too important to the State of Nebraska, the State 
of Wyoming and Colorado and to the resource here for us to 
short change that.
    Mr. Rehberg. But you have the power to short change--you 
have the power to stop project by ruling if it is not done by 
June 2003?
    Mr. Keys. To stop projects, I am not sure what you mean, 
sir. If it means diversion of water, certainly I do not have 
that kind of power myself.
    Mr. Rehberg. I am just wondering what authority establishes 
the June 3, I know it becomes a goal and I worry that we do not 
come to an agreement as well, but I am worried about the 
effects on private property rights and irrigators and economic 
development. Even though economic development cannot 
necessarily be considered when it is established for critical 
habitat, we cannot ignore economic development and how it 
affects communities and lives and so if June 3, 2003 comes 
along and the authorities come in and say well, sorry, but we 
gave you until June 2003 to get this done and you did not get 
it done, so now we are going to affect or change one of your 
operating procedures, thereby affecting my ability to pay for 
my kids' shoes. I am going to be a little cranky. And so, you 
know, I just want to know what is going to happen if 2003 comes 
along and nothing is done.
    Mr. Keys. Mr. Chairman, Mr. Rehberg, I would anticipate if 
it is not done, we would extend that consultation so that we 
could finish it. I would defer to Mr. Morgenweck if he has a 
better answer than that.
    Mr. Morgenweck. The objective we have in this program is to 
have a consensus agreement among the parties and we have 
extended this program to try to do that. I think we are 
optimistic that we can meet our goals. I guess there is always 
the opportunity to consider further extensions if that were 
absolutely necessary. Hopefully it will not be.
    Mr. Osborne. Thank you, Mr. Rehberg. I would like now to 
turn to the topic of least terns and piping plovers. And again 
referring to Mr. Lingle's letter and again pointing out the 
fact that he worked for Whooping Crane Trust, is not 
representative of any farm-ranching operations, currently works 
for the University of Nebraska. This was his observation after 
a number of years working with the Whooping Crane Trust.
    And I quote him in the letter, ``The Central Platte River 
does not offer any naturally occurring nesting habitat for 
these species [the least tern, piping plovers] is amply 
demonstrated by the fact that no tern or plover chicks were 
known to fledge on any natural river sandbar during the entire 
decade of the 1990's. The 50 to 60 day window of flows less 
than 1500 cubic feet per second during late May through mid-
July is necessary to allow for nesting and subsequent fledging. 
This did not happen in the 1990's. Nests and/or young were 
flooded out.''
    Now what he is saying here is that in that 56-mile stretch 
of the Platte, those who studied the issue could not find any 
record of any fledging of least terns or piping plovers over a 
10-year period. And I think there are many people here today 
who are of the same opinion.
    The concern that we have is that if we designate critical 
habitat for the piping plover in that same stretch of river and 
it really is unnecessary, again, this is something that we 
would like to have considered. When he talks about a 50-60 day 
window of flows of less than 1500 cubic feet per second, what 
he is saying here is that these flows cannot be manipulated 
through McConaughy. I think the assumption is that we can have 
pulse flows, we can put 8000 cubic feet per second down at 
certain times of the year and then we can reduce it to 2400 
cubic feet per second in May and then we can reduce it. But the 
point is that if you have a reasonable range below McConaughy 
at any point, you are going to go over 1500 cubic feet per 
second. And what that does is it floods out the nest and it did 
every year for 10 years. Now again, there may be disagreement 
here and my question is simply would you be willing to submit 
to a further peer review rather than just saying this is a 
critical habitat region. Can we make sure we have the data to 
indicate that this is necessary?
    I imagine, Mr. Morgenweck, you would be the one to answer 
that question.
    Mr. Morgenweck. Yes, I would be. A couple of points. First 
a general point and then I will get to the specific question 
that you asked about peer review of it as well.
    I think that it is perhaps too narrow a point of reference 
to pick a particular decade to look at what has happened in 
terms of fledging on the river. And the reason I say that is 
this. These birds evolved in systems that saw periodic high 
flows, that saw the creation and erosion of sandbars in the 
river systems over a period of time and took advantage of those 
new sandbars that were lightly vegetated to nest. And one of 
the things that has happened over the years since we have 
controlled the flow on the Platte is that the ability to have 
those newly created sandbars is much reduced because the flows 
have been changed and high flows have been attenuated. So the 
situation that these birds evolved under has changed at the 
hand of man.
    Now I think that also we have to take a larger view of what 
is happening with the population as a whole. I do not think we 
can just look at the piping plovers and least tern on the 
Platte River and say well, you know, the habitat has changed 
here, so therefore the Platte is not important any more. I 
think we have to look at what is happening overall, and 
overall, there has been some pretty tough going for these 
species.
    Now we have had some good fortune on the Missouri system as 
it relates to the piping plover over the last 5 years or so, 
since there were very, very high water events in 1997 and 1998 
on the Missouri that did in fact create a great deal of nesting 
habitat and the birds capitalized on it and increased their 
populations on the Missouri River something like 470 percent 
over the last few years. But nonetheless, the species still is 
not at the point of recovery. So I think there is a 
contribution that the Platte can make.
    The second part of your question was peer review. I again 
have nothing but good things to say about peer review. The way 
I view it we cannot lose. If we find that we are wrong and peer 
review can correct it, that is good. If we find that we did get 
the biology right, that is good too.
    Mr. Osborne. Well, I appreciate your answer and I 
appreciate the spirit with which you answered, which is 
obviously to try to do the right thing. Often times people get 
locked into positions and then they want to defend that 
position in the face of all reason and I do not believe that is 
the case here.
    So we would welcome that opportunity, because if for 10 
straight years, there has been no fledging, we realize that it 
is a much larger issue than the 56 miles of the Platte, but 
does it make sense to designate 56 miles of the Platte River as 
critical habitat for the piping plover if there are no piping 
plovers nesting in the river and it is almost impossible to 
control the flows because of rainwater. It does seem odd that 
the one success story we have had has been sand pits, has been 
the shores of Lake McConaughy and those are exempted from 
critical habitat designation, it is my understanding. And yet 
we are trying to force it onto the river, which does not seem 
to work. So this is what I would like to see somebody do, is to 
make sure that we have got our facts straight. I hate to see us 
dismiss 10 straight years of data and say well, that is maybe 
just an oddity, we are not sure that that is the fact. I think 
we ought to check it out a little bit further.
    So anyway, I appreciate that and Mr. Rehberg, I believe it 
is your chance.
    Mr. Rehberg. Just a couple more questions, Mr. Chairman.
    Mr. Keys, real quickly, the 10,000 acres that you intend to 
purchase, are you going to use land and water conservation 
funds or is that a state function?
    Mr. Keys. Let me call on the persons doing that. Mary Ann.
    Ms. Bach. Mr. Rehberg, the land acquisition is acquisition 
in the broadest of terms because it can be through lease 
arrangements, through conservation easements, through a whole 
assortment of land approaches. And that funding, the particular 
funding, is actually an item that is estimated under the cost 
of the program in contrast to the land and water conservation 
funds. However, I know Fish and Wildlife has some arrangements 
on ground already and I might ask Dr. Morgenweck if he has 
anything more to add.
    Mr. Morgenweck. Congressman, I do not think that the actual 
source of the funding has been determined yet in terms of the 
land acquisition. One of the important points about land 
acquisition--acquisition of interests in land, and I think it 
is very important for us to remember what we are trying to do 
in the Platte does not necessarily mean that we have to acquire 
in fee title. Easements would be great, other arrangements 
whereby the habitat is there, who owns it is not so important.
    There are restrictions when you use Federal money to 
purchase land interests that may not be there if the money were 
appropriated under another authority. Land and Water 
Conservation Act has very specific requirements. So I do not 
know what the best source of money might be.
    One thing I might add is that Congress has I think helped 
all of us in the last go around when they created a series of 
new grants for states and for private landowners, something in 
the neighborhood of I believe $135 million that can be granted 
to states and tribes to work on things like endangered species 
or species that are declining, trying to get to them before 
they are listed, and perhaps some of those funds may also be 
used to acquire interests in land. So we have some more options 
than we had a couple of years ago.
    Mr. Rehberg. Mr. Keys, just so I can close the loop then, 
the 29,000 acres that you talk about, is that inclusive of the 
10,000 or is that an additional 29,000?
    Mr. Keys. It is inclusive, yes.
    Mr. Rehberg. And that is all anticipated to be inside of 
the cooperative area or strictly in Nebraska?
    Mr. Keys. Inside the cooperative area, sir.
    Mr. Rehberg. OK. Mr. Morgenweck, one question for you. In 
your recent op ed on critical habitat, you write, ``Critical 
habitat has no effect on private landowners unless they are 
undertaking a project that requires Federal permits or funding. 
So far the Fish and Wildlife Service has not included Federal 
farm programs as ones that trigger the Fish and Wildlife 
Service to review the activities; however, some Fish and 
Wildlife Service officials have expressed a desire to include 
all farm programs as ones that would trigger a review of the 
program by the Fish and Wildlife Service. Is this your intended 
policy?
    Mr. Morgenweck. Wherever there is a Federal program that 
funds or permits an activity that could affect endangered 
species, then a consultation may be required if upon 
examination there would be some adverse effect. We have worked 
with the NRCS in Nebraska on a number of issues to evaluate 
whether or not the programs require consultation. In one case 
that I can recall, and I may ask Bob McCue to help me which 
specific ones they were, NRCS did an extensive evaluation as to 
whether or not these programs led to any depletions from the 
Platte and found they did not. And so as a result, there was no 
consultation required because there were no negative effects.
    Mr. Rehberg. But when you are creating a definition of 
critical habitat and you include the opportunity to be able to 
include private land within that critical habitat, even if the 
endangered species had not been present in that location but it 
may have an environment conducive to the recreation and then I 
come in for emergency assistance for piping water to put in a 
tank for cattle in all pastures that I have not had water in 
because of drought for 3 years, you are telling me then that 
under your definition, there is an opportunity because I took 
that Federal dollar for the cost share on the piping, to have 
my land included in the critical habitat for the black-tailed 
prairie dog.
    Mr. Morgenweck. I am not sure that I understand the 
question, but let me take a crack at it and if you will tell me 
whether or not I got it right.
    [Laughter.]
    Mr. Morgenweck. The critical habitat designation or the 
listing of a species can trigger the Section 7 consultation. It 
is not the consultation that then drives us to designate 
critical habitat and so I was not sure from your question which 
way you were asking.
    Mr. Rehberg. But if you have the opportunity and you made 
the statement in your opening statement that if you had the 
opportunity to include land that was not--did not currently 
have an endangered species inside of a critical habitat. All 
right, now let us set aside that private land over there into a 
critical habitat because it has the potential of housing a 
black-tailed prairie dog population. I go in, because of a 
drought, third or fourth year, my springs dry up, I get a 
Federal payment on my cost share to bring water out to there. 
You are telling me then that can kick in the determination that 
that should be included in that critical habitat because it has 
got the potential because there is a town a mile away or for 
some other reason cannot be the area where they are re-
established because of some other reason.
    Mr. Morgenweck. I think the answer is no. And the reason I 
think the answer is no is that the--what you describe, that is 
currently unoccupied habitat that has the elements for life for 
a particular species can be designated as critical habitat if 
it is viewed that that is needed to recover the species--that 
is true. All right, now if you have that species--I am sorry, 
that designation has been made and you want to take an action 
in that now designated critical habitat. If the farm program 
that you are availing yourself of, if we have evaluated that 
with the NRCS, we may have found that there is no effect, thus 
no consultation is required. Generally what we want to do with 
NRCS is to consult, what we call a programmatic level; in other 
words, look at that particular activity across an entire state 
and do one consultation on that and deal with it that way, so 
that the individual landowner is not burdened with having to 
deal with a consultation for emergency stock watering, for 
example.
    Mr. Rehberg. OK, that brings me then to my real question, 
CRP. Do you intend to use the Federal payments that go to CRP 
for the purposes of establishing critical habitat areas for the 
re-establishment of some of the issues such as the piping 
plover?
    Mr. Morgenweck. I would say no, I would say CRP would not 
have a bearing on designating critical habitat.
    Mr. Rehberg. OK.
    Mr. Keys. Mr. Chairman, Mr. Rehberg, let me finish the 
answer on your question on whether it is in the cooperative 
area. The cooperative area does include all of the critical 
habitat for the species. In this case, all the critical habitat 
is in Nebraska, so all of that land would be obtained in 
Nebraska.
    Mr. Rehberg. Thank you.
    Mr. Osborne. OK, we will go one more round of questions. We 
do not want to wear you guys out; however, you are the key 
players here, we really want to make sure we have a chance to 
talk to you a little bit.
    Mr. Keys, you made one statement earlier and I know you 
made it in good faith. I guess I would take some issue when you 
talked about 80,000 acre-feet being contributed into the 
environmental account, being used in the cooperative agreement 
and that that would not be taken from anyone. I think some 
would disagree.
    I remember in 1990, 80,000 acre-feet were dumped down the 
Platte--or down the canal in the river out of Lake McConaughy, 
dropped it about three feet at a time of year where that water 
that would later be used for irrigation could not be used. 
Effectively, it did not do anybody any good and it did not seem 
to do the species any good and it did ruin the walleye spawn 
because I am a walleye fisherman, and so all the eggs were left 
high and dry in the lake because the walleye had just spawned. 
And it seems like sort of a capricious and arbitrary decision. 
So I just wanted to point out to you that I think that many 
people feel that water that is released out of McConaughy or 
down the river at times of the year where that water is not 
captured for irrigation, sometimes it is not even used for 
power, does have a cost to it and that it is something that 
really is not necessarily non-impact water.
    Let me just ask one more question and I will refer to the 
work by David Bowman of the Fish and Wildlife Service here in 
Grand Island, 1994, and this is what he said, he said, ``While 
the information used by the Service in formulating the target 
flows is the best available, continual acquisition and analysis 
of scientific and habitat management information are 
necessary.'' And what he said is that, ``however, in written 
testimony, the Central Platte NRD has stated that the same in-
stream flow target numbers, when used by the Nebraska Game and 
Parks Commission in an in-stream flow water rights application 
before the Nebraska Department of Water Resources, were 
rejected by the State of Nebraska as being too high. 
Nonetheless, the Fish and Wildlife Service continues to use the 
in-stream flow target numbers that were rejected after a 
thorough review on the record.''
    Can you explain how this action is consistent with the 
assumption that was included in the original goal for the in-
stream flows, which essentially said, you know, we are going to 
work this out by consensus. I have heard that word used several 
times today and yet it seems that there have been cases where 
there has been considerable argument as to the in-stream flow, 
the target flows, and their validity based on some research, 
and yet oft times these concerns have been disregarded out of 
hand.
    Do you have any comment as to how this should be addressed? 
Do you think this is appropriate behavior or do you feel that 
when the State of Nebraska says these flows are too high, we do 
not think this is right, that some process should be put into 
play at that point?
    Mr. Morgenweck. Mr. Chairman, two comments. One, you 
previously mentioned an incident I think in 1990 where a 
substantial amount of water was--
    Mr. Osborne. It was about that, it was 12 years ago I 
believe. It may have been in regard to the FERC relicensing, 
but the Fish and Wildlife Service was involved, I believe, at 
that point in the decision.
    Mr. Morgenweck. If I could, Mr. McCue, on my left, was here 
at that time and I might ask him to provide a couple of 
comments on that.
    Mr. Osborne. Sure.
    Mr. Morgenweck. And then I would answer your other 
question.
    Mr. McCue. As I remember it, that was required by FERC 
under one of the annual licenses for Nebraska Public Power 
Districts' effort and it came out of their water storage. I 
think that before long, we all realized that it really was not 
doing much good other than lowering the lake and we in the 
Service supported the request by NPBD to stop that flow.
    Mr. Osborne. That is good to hear. I had the wrong culprit.
    [Laughter.]
    Mr. Osborne. But the point is that releases like that that 
do not seem to make much sense do set people's teeth on edge 
and they do cause people to have a certain amount of concern 
and cynicism. So I just wanted to point that out to you. But I 
guess my final question was simply the issue of consensus and 
if the State of Nebraska or some other reputable agency says we 
just do not agree with these target flows, do we automatically 
stay with Fish and Wildlife Service or is there some 
negotiation process?
    Mr. Morgenweck. A couple of comments. One is that there 
have been other situations I believe where the State of 
Nebraska has used our target flows and the testimony behind 
them to support water rights applications I believe by Nebraska 
Game and Parks, for example, and I think at least one other 
case as well.
    One of the offers that we have made to the Governance 
Committee repeatedly is that as it relates to target flows, we 
are perfectly willing and ready to have them peer reviewed any 
time that the Governance Committee chooses. And the reason that 
we have this standing offer is that we know that as time goes 
on and we learn more, both about the species and about how the 
river itself operates, that it may be time to modify the flow 
target. So far the Governance Committee has chosen not to have 
those peer reviewed. I think that at some point, they will get 
to the point where they will believe that it is time. And we 
are perfectly willing to participate and support that in any 
way that we can.
    I would just say that in their thinking some of the members 
of the Governance Committee look at it this way--well, if we 
have it peer reviewed and we find the Service is wrong and the 
levels go down, in other words, the flow targets are less, 
well, that is good because that frees up more water for other 
considerations. On the other hand, if it is peer reviewed and 
found that the flow targets are too low, then do we have to 
support the Fish and Wildlife Service at these higher flow 
targets? So I think the members sometimes find themselves in a 
situation where they are not really sure that they want the 
peer review to happen right now. But I think that it will 
happen and we are supportive of it.
    Mr. Osborne. I am glad to hear that and I think most people 
would be on the side of actual data and you hear the term sound 
science that seems to depend so much on who is doing the 
research, and I know in talking to Secretary Norton, she is 
adamant on the importance of true independent peer review and 
true sound science. And I know she feels badly about the 
Klamath Basin situation and that probably could have been 
averted by sound science. And so we appreciate your attitude 
and your spirit about the thing and we will hold you to that 
and we hope that most people will want accurate data so we may 
be able to get some things done that way.
    Congressman Rehberg, do you have any further questions?
    Mr. Rehberg. I do not.
    Mr. Osborne. OK, we will let you out of this hot box here 
and we will turn down the lights a little bit. We are going to 
need about a three or 4 minute break here to do that. So we 
will take a short break while we get our next panel ready. And 
I want to thank you gentlemen for being here and also Ms. Bach 
for being here, we appreciate your testimony.
    [Recess.]
    Mr. Osborne. In the interest of time, we would like to get 
started. I would like to introduce the panel of The Honorable 
Ed Schrock, State Senator, Chairman of the Natural Resources 
Committee; Mr. Rex Amack, Director of the Nebraska Game and 
Parks Commission; Mr. Merlyn Carlson, Director, Nebraska 
Department of Agriculture and Mr. Jim Cook, the Legal Counsel, 
Nebraska Department of Water Resources.
    The Chairman now recognizes Senator Schrock to testify for 
5 minutes. We hope we have got the monitor working correctly. 
So we appreciate you gentlemen being here and Mr. Schrock, 
proceed.

STATEMENT OF THE HONORABLE ED SCHROCK, NEBRASKA STATE SENATOR, 
          CHAIRMAN OF THE NATURAL RESOURCES COMMITTEE

    Mr. Schrock. Congressman Osborne, Congressman Rehberg, 
ladies and gentlemen. I am a landowner, irrigator and farmer in 
northern Phelps County. I am a third generation farmer, my sons 
are the fourth generation, I farm with two sons, and the fifth 
generation is in diapers.
    I am here today to testify the Cooperative Agreement for 
Endangered Species on the Platte River and the proposed 
designation of a critical habitat for the piping plover.
    Nebraska has established a clear system of water rights 
based upon the uses of water and the priority dates of those 
uses. Creatively solving some of the endangered species issues 
in the Platte River Basin requires that we consider means of 
flexibility within these rights while at the same time 
protecting those rights and uses for future generations.
    As we speak, the legislature and my committee specifically 
are considering various pieces of legislation related to 
leasing and banking water and the conversion of water rights 
between uses. My committee has advanced a bill, LB-1023 to the 
full legislature for debate. This bill creates a water policy 
task force which will examine five issues relating to water 
policy in Nebraska over the course of 18 months at a cost of 
$750,000, and one of the subcommittees will address the 
Endangered Species Act. It is supported by Governor Johanns and 
supported by Senator Wehrbein, who is Chair of the 
Appropriations Committee.
    While the state was likely to have considered these issues 
in its own timeframe, the Cooperative Agreement discussions are 
forcing us into the situation of considering many of these 
issues in a compressed timeframe. While these issues are 
important to resolving endangered species issues in the context 
of the Cooperative Agreement, it is more important that we 
legislators of the state consider very carefully the long-term 
effects that any of these actions might have. The legislature 
will not jeopardize the Constitutional rights of our citizens 
or our agriculture economy in the state because of rushed or 
ill-considered measures.
    That being said, let me extend my support to the 
Cooperative Agreement process. A cooperative process among the 
states and the Federal Government--let me emphasize the 
cooperative part, because my understanding is that many of the 
delays and arguments in finalizing this program are a result of 
the Federal agencies insisting on their way as the only way. A 
cooperative process is the most effective way to protect and 
manage the species of concern and at the same time consider the 
needs of the state and its citizens.
    This agreement, given adequate funding and participation of 
the Fish and Wildlife Service in truly a cooperative fashion 
has the ability to provide meaningful management of the 
Endangered Species Act in question, to preserve and protect the 
people, the social systems and the economies of the basin and 
also to serve as a model for the entire nation. However, it is 
only when the leaders of the Fish and Wildlife Service and its 
sister agencies can communicate effectively their own vision of 
how the Act was intended to work for the benefit of the species 
and the people to the field representatives of the agencies, 
that programs such as this can work.
    Often times it appears to me, the best intention of all 
parties notwithstanding, that individuals within the 
participating groups misuse the powers granted to them by the 
people of the United States and ultimately thwart what is best 
for all. It would be a tragedy if this potentially landmark 
program was destroyed by some of these individuals who feel 
very strongly that their opinions and visions are what is best 
for everyone. It seems that these individuals would rather have 
contentious legal battles instead of a program built upon 
mutual trust and a goal of finding the truth through adaptive 
management and good scientific investigation.
    It is exactly this apparent use of individual opinions 
rather than sound measured scientific knowledge that disturbs 
me as I read about and hear from my constituents regarding the 
proposed designation of critical habitat for the piping plover.
    And I am going to have to be a little faster, I can see 
that.
    In my own District, the Central Nebraska Public Power and 
Irrigation District's FERC relicensing shows what effects it 
can have from such a listing. This 14-year relicensing was long 
and contentious, not so much because of the existence of 
endangered species but because of the critical habitat 
designation of the Central Platte River for the whooping crane. 
I want to emphasize that it was the habitat, not the species, 
which caused most of the problems for relicensing. 
Additionally, the economic analysis provided by the Service did 
not consider the costs incurred by the irrigation district. No 
analysis was made of impacts to sand and gravel mining, housing 
developments, recreation, municipal water supplies, agriculture 
and I could go on.
    Last, I want to discuss the species itself and the proposed 
critical habitat designation. I want this Committee to know 
that I believe the Endangered Species Act, as conceived, is an 
important and meaningful piece of legislation. I support 
protecting endangered species and their habitat when it is 
truly in the interest of the species and does not come at an 
undue price to the public.
    However, much of this proposed designation for critical 
habitat for the piping plover is not appropriate. Historical 
data indicates that this species was never very abundant on the 
Central Platte and in fact may never even have nested in this 
region until after water development activities took place. 
Evidence exists today that in much of the area proposed for 
designation, piping plovers have never nested. Indeed, except 
for sand pits and other artificially created habitat, which are 
specifically excluded from the designation, there has been no 
piping plover nesting above Grand Island, Nebraska for over 10 
years. This is not critical habitat either in fact or by the 
Service standards applied elsewhere in the designation. If 
there were natural habitats where nesting regularly occurred, 
then these areas should be specifically defined as provided in 
the law, and then properly designated. Blanket designations of 
large, undescribed reaches of land without any nesting violates 
the law and further undermines the credibility of the Fish and 
Wildlife Service.
    I am sorry I had to hurry through this. If you have any 
questions, I would be glad to answer, but just let me tell you, 
I have lived on my farm all my life. I live in the house I grew 
up in. My neighbors and my farmers and the people of this state 
are good stewards of the land. We want to work with you in a 
cooperative manner, whether it be the Congress of the United 
States or the U.S. Fish and Wildlife, but we want reasonable 
solutions to reasonable problems. That is why I and many others 
decided we needed a water policy task force, and it is made up 
mainly of irrigators and farmers, but environmentalists, 
municipalities and other concerns are also represented.
    One of the problems we had in the hearing was that 
everybody said the task force was too big, but then everybody 
says to me I want to serve on that task force, including Mr. 
Carlson from the Department of Agriculture. He was left off and 
he wants on. So I have to draft an amendment to put Mr. Carlson 
on the Water Policy Task Force.
    Mr. Carlson. Thank you.
    Mr. Schrock. And I will gladly do that.
    Nobody wanted to exclude anybody from this, but it has the 
potential to help us solve a lot of our problems. I do not want 
the legislature to solve our water problems, I want farmers and 
irrigators to solve our problems and one of the problems is the 
Endangered Species Act. But I hope it can become a positive and 
not a negative.
    Thank you for your time.
    Mr. Osborne. Thank you, Mr. Schrock. I did not know you 
could talk that fast.
    [Laughter.]
    Mr. Osborne. Mr. Amack.
    [The prepared statement of Mr. Schrock follows:]

  Statement of The Honorable Ed Schrock, Nebraska State Senator, 38th 
                          Legislative District

    Good afternoon ladies and gentlemen. My name is Ed Schrock and I am 
the Nebraska State Senator from the 38th Legislative District. 
Currently, I serve as chair of the legislature's Natural Resources 
Committee. I am also a landowner and farmer in northern Phelps County. 
I am here today to testify regarding the Cooperative Agreement for 
Endangered Species on the Platte River and the proposed designation of 
critical habitat for the piping plover.
    The Cooperative Agreement is important to Nebraska as it provides a 
means to resolve most Endangered Species Act consultation issues and it 
serves as the basis for the Federal Energy Regulatory Commission 
licenses for the Central Nebraska Public Power and Irrigation District 
and for Nebraska Public Power District. It also serves as the basis for 
the reasonable and prudent alternatives for other water related 
activities such as the surface water irrigation projects in the 
Nebraska panhandle that receive water from federal reservoirs in 
Wyoming.
    This proposed program has, as its cornerstones, provided land and 
water to protect and improve the habitat for three endangered species, 
including the piping plover, and to test whether or not the actions 
taken for these species might benefit a fourth species, the Pallid 
Sturgeon, which occasionally enters the lower Platte.
    While the Cooperative Agreement provides a means to handle issues 
related to the four endangered species, it also has impacts upon 
individual residents and businesses within the state and requires 
consideration of legislation by the state to enable the state to fully 
comply with some of the proposed provisions of this program.
    Many of the issues related to managing endangered species in the 
Platte basin require changes in the timing and quantity of water 
flowing in the Platte River. Nebraska has very specific laws related to 
water allocation and use that have served the state well for over 100 
years. Indeed Nebraska's constitution provides for the right of its 
citizens to use the surface waters of the state for beneficial 
purposes. These constitutional and legal provisions are the foundation 
for much of Nebraska's agricultural economy as well as the communities 
built around that economy. Since those early laws were passed there is 
now the recognition that it is not just the uses of surface water that 
impact the river but that the use of our vast and important ground 
water resources are linked integrally with our rivers and streams. 
Because resolving the biological issues require modifying some of our 
actions related to the river, we must also address the relationship of 
ground water and surface water of the state.
    Nebraska has also established a clear system of water rights based 
upon the uses of the water and the priority date of those uses. 
Creatively solving some of the endangered species issues in the Platte 
Basin requires that we consider means of flexibility within these 
rights, while at the same time protecting those rights and uses for 
future generations.
    As we speak, the legislature and my committee specifically, are 
considering various pieces of legislation related to leasing and 
banking water rights, conversion of water rights between uses, 
establishing a legal linkage between ground water and surface water and 
so on. My committee has advanced a bill, LB 1023, to the full 
legislature for debate. This bill creates a Water Policy Task Force 
which will examine five issues relating to water policy in Nebraska 
over the course of eighteen months at a cost of $750,000.00.
    While the state was likely to have considered these issues in its 
own time frame, the Cooperative Agreement discussions are forcing us 
into the situation of considering many of these issues in a compressed 
time frame. While these issues are important to resolving endangered 
species issues in the context of the Cooperative Agreement, it is more 
important that the legislature of the state consider very carefully the 
long term effects that any of these actions might have. The legislature 
will not jeopardize the constitutional rights of our citizens or our 
agricultural economy in Nebraska because of rushed or ill-considered 
measures.
    That being said, let me extend my support to the Cooperative 
Agreement process. A cooperative process among the states and the 
federal government--let me emphasize the cooperative part, because my 
understanding is that many of the delays and arguments in finalizing 
this program are a result of the federal agencies insisting on ``their 
way is the only way''----a cooperative process is the most effective 
way to protect and manage the species of concern and at the same time 
consider the needs of the state and of its citizens.
    Because under the formal procedures of the Endangered Species Act, 
only those activities with a direct federal nexus are required to 
consult, and therefore often times mitigate for impacts to endangered 
species, the costs of the Act often are levied only upon a few, leading 
to an unbalanced burden for what is truly a national issue. Under this 
proposed program many water related activities not normally within the 
purview of the Act are brought into the mix, this increases the burden 
upon the state and results in not just our consideration of legislation 
which I mentioned earlier, but also an increase in costs. These costs 
are a result of federal actions on behalf of the entire nation. For 
these reasons, I believe that the federal government should bear the 
majority of costs for these activities. It is my understanding that as 
the drafters of this proposed program have developed the details of the 
program, they have discovered their original estimate of 75 million 
dollars is likely to be only half of what is needed to adequately fund 
the program. While a 150 million dollar program is small by comparison 
to similar programs in California and Florida, it is a huge commitment 
upon the part of the states. Because Nebraska, in particular, is 
already incurring costs related to the implementation of this program 
through water and habitat and through potential changes to our laws, I 
feel that it is the responsibility of Congress to fund the additional 
cash portion of this program.
    This program, given adequate funding and the participation of the 
Fish and Wildlife Service in a truly cooperative fashion, has the 
ability to provide meaningful management for the endangered species in 
question, to preserve and protect the people, social systems, and 
economics of the basin, and also to serve as a model for the entire 
nation. However, it is only when the leaders of the Fish and Wildlife 
Service and its sister agencies can communicate effectively their 
vision of how the Act was intended to work for the benefit of the 
species and people, to the field representatives of the agencies, that 
a program such as this can work.
    Often times, it appears to me, the best intentions of all the 
parties notwithstanding, that individuals within the participating 
groups misuse the powers granted to them by the people of the United 
States, and ultimately thwart what is best for all. It would be a 
tragedy if this potentially, ``landmark'' program were destroyed by a 
few individuals, who feel very strongly that their opinions and visions 
are what is best for everyone. It seems that these individuals would 
rather have continuous legal battles instead of a program built upon 
mutual trust and a goal of finding the truth through adaptive 
management and good scientific investigation.
    It is exactly this apparent use of individual opinions rather than 
sound, measured scientific knowledge that disturbs me as I read about 
and hear from my constituents regarding the proposed designation of 
critical habitat for the piping plover.
    Aside from the obvious lack of scientific foundation for large 
parts of this proposed designation and from the obvious procedural 
disregard for public input in the process, which I will address 
shortly, there is already a far better means to protect this bird and 
its habitat than by a critical habitat designation. This means is the 
Cooperative Agreement. Here is a proposed program whose sole purpose is 
to manage and protect piping plovers, least terns and whooping crane 
habitat and to do it in a cooperative fashion using adaptive management 
techniques and relying upon the collection of sound scientific data to 
guide those decisions. This is a process that is not an edict from some 
over-zealous bureaucrat but a process that involves the states and the 
people who live along the river and work with these birds regularly. 
This is the way to truly and effectively protect and manage these 
birds. Using an alternative program is not without precedent. In the 
process of this very proposed listing, several areas were excluded 
based upon the existence or proposed existence of a management plan 
that adequately protected the birds and their habitat. Perhaps the best 
example of this is the exclusion of Lake McConaughy from the proposed 
designation. This lake's shore, unlike the Central Platte River, IS the 
nesting area for one of the largest concentrations of piping plovers 
anywhere in North America. Yet because the owner of this lake, the 
Central Nebraska Public Power and Irrigation District, has a Federal 
Energy Regulatory Commission license that requires them to have a 
shoreline management plan that includes protection of the birds, this 
lake was excluded. Certainly a program developed by a group including 
the Fish and Wildlife Service and the three states and participants 
such as the district is adequate protection without the undue 
regulation and restrictions that may come from critical habitat 
designation.
    Regarding the procedural issues surrounding this proposed 
designation, I am appalled at the actions of the Fish and Wildlife 
Service. The Service has had since 1985, when it listed the piping 
plover as threatened, to designate critical habitat. At that time the 
Service, in my view, correctly found that it was not appropriate to 
designate critical habitat, because of the transitory nature of the 
birds' nesting requirements. Notwithstanding that original finding as a 
result of a lawsuit, the Service has now, for the very reasons it found 
inappropriate in 1985, proposed critical habitat designation. In June 
of 2001 the Service proposed this designation, providing only an 
incomplete environmental analysis, not the least omission of which was 
an economic analysis. This so-called economic analysis dated November 
2001, was released to the public December 28, 2001, with a requirement 
that comments were due in 30 days. Clearly the Service had the time 
after the court decision to compile the necessary data and complete the 
necessary analyses in a timely manner to fulfill their obligations; and 
yet, the Service chose not to release this document until they held it 
for over a month and then during a holiday week. Not only was it 
released when few people were available, but it was to be provided to 
the public electronically over the Department of the Interior's website 
that was and is inaccessible. Clearly, this was meant to restrict 
public participation. Perhaps more importantly, the 30-day comment 
period required by the Service is in clear violation of the 60-day 
review requirement of the Act. Even with a court order setting their 
schedule, the Service cannot use its own negligence as an excuse for 
not complying with the law.
    Notwithstanding the unacceptable procedural elements, the economic 
report provided by the Service was, in my opinion, completely 
inadequate. The argument that there is little or no additional economic 
impact as a result of habitat designation beyond the species listing 
does not ring true nor does it comply with the recent decision of the 
10th Circuit Court regarding economic analyses. In my own district, the 
Central Nebraska Public Power and Irrigation District's FERC 
relicensing shows what effects can result from such a listing. This 14-
year relicensing was long and contentious, not so much because of the 
existence of endangered species, but because of the critical habitat 
designation of the central Platte River for the whooping crane. I want 
to emphasize that it was the habitat NOT the species, which caused most 
of the problem in that relicensing. Additionally, the economic analyses 
provided by the Service did not consider the costs incurred by 
individuals and businesses either directly or as lost opportunities. No 
analysis was made of impacts to sand and gravel mining, housing 
developments, recreation, municipal water supplies, agriculture, and I 
could go on. Clearly this report is inadequate to depict the true costs 
of this proposed legislation.
    Lastly, I want to discuss the species itself and the proposed 
critical habitat designation. I want this committee to know that I 
believe the Endangered Species Act, as conceived, is an important and 
meaningful piece of legislation. I support protecting endangered 
species and their habitat when it is truly in the interest of the 
species and does not come at an undue price to the public.
    However, much of this proposed designation for critical habitat for 
piping plovers is not appropriate. Historical data indicates that this 
species was never very abundant on the central Platte and in fact may 
never even have nested in this region until after water development 
activities took place. Evidence exists today that in much of the area 
proposed for designation, piping plovers have never nested. Indeed, 
except for sand pits and other artificially created habitat which are 
specifically excluded from the designation, there have been no piping 
plovers nesting above Grand Island, Nebraska, for over 10 years. This 
is not critical habitat either in fact or by the Services standards 
applied elsewhere in the designation. If there are natural habitats 
where nesting has regularly occurred then those areas should be 
specifically defined as provided in the law and then properly 
designated. Blanket designation of large undescribed reaches of land 
without any nesting violates the law and further undermines the 
credibility of the Fish and Wildlife Service.
    I thank you for this opportunity to provide input into this 
important process, and for your time.
                                 ______
                                 

   STATEMENT OF REX AMACK, DIRECTOR, NEBRASKA GAME AND PARKS 
                           COMMISSION

    Mr. Amack. Congressman Osborne and Representative Rehberg, 
it is a privilege and honor for me to be here today in 
America's heartland, Grand Island, Nebraska and represent the 
Game and Parks Commission.
    I grew up just south of here about 60 miles if the crow was 
flying, if you are rolling a flat tire, it is about 75. I grew 
up on a farm and currently am somewhat of a displaced farmer, 
working in government in a very challenging time and a very 
challenging number of issues that it seems like when we get our 
arms all around the issues, more of them emerge. The Endangered 
and Threatened Species Act is certainly an issue that has given 
Nebraska political leaders, given Nebraska civic leaders, given 
Nebraskans as a whole a very stiff challenge really.
    You have asked me here today to share the Commission's 
views regarding the Platte River Cooperative Agreement and the 
Game and Parks Commission experiences in protecting species in 
Nebraska in coordination with the United States Fish and 
Wildlife Service and the Nebraska Game and Parks Commission 
acting along.
    Well, let me say that the Nebraska Game and Parks 
Commission certainly joins the Nebraska legislature and 
Governor Mike Johanns of the state in supporting the 
Cooperative Agreement. And while we have not played any major 
role in the development or management of that agreement, we 
have served on a number of the working committees and we fully 
support the intent and goals of the Platte River Cooperative 
Agreement.
    The issue I think that has been said here many times is 
that what we really need is a lot of cooperation and 
togetherness and the Governance Committee addresses that and 
gives us a tool. Some of the problems with rules and 
regulations and laws is you have to have tools to implement 
them, and sometimes we do not have that. The most common tool 
that I hear for Endangered Species Act or any other rule or 
regulation or law that is difficult to administer is common 
sense. And sometimes it seems like the laws do not allow for 
that to happen. And so I think it is important to take into 
consideration what tools we can be given, what tools people can 
have to reach a consensus of common sense.
    Next year will be the 30th anniversary of the Endangered 
Species Act. The Endangered Species Act was preceded in 1966 by 
the Endangered Species Preservation Act. The Endangered Species 
Preservation Act established authority to create a list of 
endangered species and a minimal program to conserve them. A 
year later, there were four species--no, excuse me--a year 
later, the first list contained the black-footed ferret, the 
Florida panther, the whooping crane, the bald eagle and the 
California condor. Five years later, in 1973, the Endangered 
Species Act was enacted. the House passed the bill 390 to 12 
and the Senate passed a similar measure on a 92 to 0 vote. 
President Richard Nixon signed the new bill into public law.
    The new law expanded its predecessor by making all plants 
and animals eligible for listing, including subspecies. It also 
established threatened species as those likely to become 
endangered. The Endangered Species Act established protection 
of species by making it illegal to take endangered species and 
provided harsh penalties.
    Well, what started out as 114 species across America is now 
over 1000 and it is still growing. It is important, I think, 
for us all to realize that the U.S. Congress and Senate passed 
these laws and assigned primarily the United States Fish and 
Wildlife Service to handle them. But the United States 
Endangered Species Act does not belong to the United States 
Fish and Wildlife Service, in my judgment. It belongs to the 
citizens of the United States. And how we choose as a society 
to implement those laws and bring them into a situation that 
will work for everybody is basically our choice.
    And I would conclude my remarks by saying that the Game and 
Parks Commission, we work with a lot of programs with the 
United States Fish and Wildlife programs to enhance, preserve, 
protect species. In Nebraska, we rarely if ever work by 
ourselves independently, we work with Nebraska landowners. 
Nebraska is 97 percent privately owned and Nebraska landowners 
are the key ingredient to species protection and recovery 
programs. Without the cooperation and help from landowners, we 
are not on first base.
    Thank you.
    Mr. Osborne. Thank you, Mr. Amack. Mr. Carlson.
    [The prepared statement of Mr. Amack follows:]

   Statement of William Rex Amack, Director, Nebraska Game and Parks 
                               Commission

    Mr. Chairman and members of the Committee on Resources, it is a 
privilege and honor to provide testimony to you this afternoon here in 
America's Heartland at Grand Island, Nebraska representing the Nebraska 
Game and Parks Commission. My name Rex Amack. I am a native Nebraskan 
having grown up on a farm on the Republican River in Webster County 
near Red Cloud about 60 miles due south of this hearing room. I have 
worked for the Nebraska Game and Parks Commission since June, 1967. I 
have served the Commission as Agency Director since April, 1988.
    You have asked me here today to share the Commission's views 
regarding the Platte River Cooperative Agreement and the Game and Parks 
Commission's experiences protecting species in Nebraska in coordination 
with the United States Fish and Wildlife Service and the Nebraska Game 
and Parks Commission acting alone.
    The Nebraska Game and Parks Commission has been a participant in 
the Platte River Cooperative Agreement since its inception. Although 
the Commission has not played a major role in the formation or 
operation of the Cooperative Agreement, we have been involved in 
committee work developing the Nebraska Program and we fully support the 
Agreement's intent and goals. The issue is extremely complex and there 
are no simple solutions to the problems and conflicts that have arisen 
during the past several decades over the future use of Platte River 
water. The waters of the Platte River serve the people of Wyoming, 
Colorado and Nebraska in many ways. The Platte provides municipal and 
industrial water supplies for about 3.5 million people, it is used to 
irrigate millions of acres of farmland, it generates millions of 
dollars of hydroelectric power, and it provides a variety of habitat 
for fish and wildlife, including the four endangered species that are 
the subject of the Cooperative Agreement. The Platte and the associated 
reservoirs provide anglers, hunters, wildlife viewers, boaters and 
other outdoor recreation enthusiasts opportunities to pursue and enjoy 
their activities, resulting in significant social and economic 
benefits.
    Protection and restoration on an ecosystem scale is more effective 
than trying to save one species or one small habitat at a time. A basin 
approach such as the Cooperative Agreement is preferable to a piecemeal 
approach. The Cooperative Agreement is attempting to bring the many 
parties of the basin together to attempt to find solutions to the many 
problems associated with limited water resources and threatened and 
endangered species.
    By bringing all effected parties together, everyone gets a chance 
to provide input and to see how the process is established so there is 
not the perception of the federal government, especially the United 
States Department of the Interior, carrying out its mission without 
input or other parties' considerations.
    The Cooperative Agreement provides the opportunity through the 
Governance Committee and the Committees that are addressing land, 
water, and technical issues, for Nebraska farmers, Natural Resources 
Districts, irrigation districts, state agencies, and conservation 
organizations to have a place and voice at the table, and to help shape 
the recovery programs. Input from all Platte River interests is 
essential for successful cooperative management of the Platte River 
resource.
The Cooperative Agreement is in the best interests of Nebraska's 
        citizens.
    Next year is the 30th anniversary of the Endangered Species Act 
which was preceded by the 1966 Endangered Species Preservation Act. The 
Endangered Species Preservation Act established the authority to create 
a list of endangered species and a minimal program to conserve them. A 
year later the first list contained the black-footed ferret, the 
Florida panther, the whooping crane, the bald eagle, and California 
condor. Five years later, in 1973, the Endangered Species Act was 
enacted. The House passed the bill 390 to 12 and the Senate passed a 
similar measure on a 92 to 0 vote. President Richard Nixon signed the 
new bill into public law. The new law expanded its predecessor by 
making all plants and animals eligible for listing, including 
subspecies. It also established threatened species as those likely to 
become endangered. The Endangered Species Act established protection of 
species by making it illegal to ``take'' endangered species and 
provided harsh penalties.
    What started out as 114 species across America is now over 1000 
species and growing annually. A few species have perished, but there 
have been success stories such as the bald eagle, Peregrine falcon and 
American alligator. Twenty seven species have been removed from the 
list.
    Congress has wrestled over reauthorizing the Endangered Species Act 
for years. Some believe the Act is too burdensome, others believe the 
Act needs to be strengthened and actions need to be sped up and more 
species listed and critical habitat established. One key to addressing 
this issue is to find ways to reward landowners for conservation that 
protects and restores valuable habitat for these species. More than 
half of the listed species occur on private or non-Federal lands. 
Private landowners are critical to the conservation and recovery of 
most of the listed species. Partnerships with landowners are essential 
in this process.
    The United States Fish and Wildlife Service works with private 
landowners in the conservation and recovery of species by providing 
technical assistance and through ``safe harbor'' agreements. A safe 
harbor agreement assures landowners that improving habitat for species 
will not restrict land-use options on their land in the future. The key 
to recovery is the cooperation of many partners working together to 
develop innovative conservation and management actions that benefit the 
species, while accommodating socioeconomic goals.
    The Nebraska Game and Parks Commission is granted general authority 
under Nebraska statutes, which state, ``the commission shall have sole 
charge of the state's parks, game and fish, recreational grounds, and 
all things pertaining thereto.'' With that broad authority comes great 
responsibility towards those resources. Nebraska's wildlife is owned by 
all citizens and the Commission is charged with the welfare of our 
state's flora and fauna. The Nebraska Legislature has also enacted the 
Nongame and Endangered Species Conservation Act.
    The Mission statement of the Nebraska Game and Parks Commission is, 
``Stewardship of the state's fish, wildlife, parks, and outdoor 
recreation resources in the best long-term interests of the people and 
those resources.'' If future generations are to enjoy those resources, 
we must perpetuate and enhance all fish, wildlife, and park resources 
for recreational, aesthetic, educational, and scientific use by 
Nebraska citizens and their visitors.
    One of the Commission's goals is to conserve ecosystems upon which 
Nebraska Nongame resources depend. To attain that goal, we have 
established five objectives.
    1. Conserve the land and water base that support nongame resources.
    2. Increase the appreciation and awareness of nongame resources.
    3. Attain the knowledge necessary for conservation of nongame 
resources.
    4. Conserve viable populations of nongame resources.
    5. Secure funding and the work force needed to carry out 
conservation activities for nongame resources.
    ``Through Statute the Nebraska Legislature finds and declares:
    (1) That it is the policy of this state to conserve species of 
wildlife for human enjoyment, for scientific purposes, and to insure 
their perpetuation as viable components of their ecosystems;
    (2) That species of wildlife and wild plants normally occurring 
within this state which may be found to be threatened or endangered 
within this state shall be accorded such protection as is necessary to 
maintain and enhance their numbers;
    (3) That this state shall assist in the protection of species of 
wildlife and wild plants which are determined to be threatened or 
endangered elsewhere pursuant to the Endangered Species Act by 
prohibiting the taking, possession, transportation, exportation from 
this state, processing, sale or offer for sale, or shipment within this 
state of such endangered species and by carefully regulating such 
activities with regard to such threatened species. Exceptions to such 
prohibitions, for the purpose of enhancing the conservation of such 
species, may be permitted as set forth in the Nongame and Endangered 
Species Conservation Act; and
    (4) That any funding for the conservation of nongame, threatened, 
and endangered species shall be made available to the commission from 
General Fund appropriations, the Nongame and Endangered Species 
Conservation Fund, or other sources of revenue not deposited in the 
State Game Fund.''
    The U.S. Fish and Wildlife Service has been given similar 
responsibilities on the Federal level, but with many more restrictions 
placed upon them. Many people attack the Service for doing the job 
Congress has assigned them to do. The Endangered Species Act belongs to 
the citizens of the United States, not the U.S. Fish and Wildlife 
Service. They administer the Act and with that responsibility comes 
great criticism. They continue to be sued from groups for not listing 
species as well as from parties attempting to overturn their decisions 
to list species and their critical habitats.
    The Commission is always looking at ways to work with landowners 
that benefit them as well as wildlife. Generally, when steps are taken 
to protect threatened and endangered species and their habitats, you 
are improving habitat for other species.
    Many of the new federal programs are system-based problem solving, 
looking at the big picture and will be working with the private 
landowners. In Nebraska, 97% of the land is privately owned. To have 
any chance for success in recovery programs, working successfully with 
private landowners is an absolute must.
    There are definitely species that have polarized citizens of our 
state including the prairie dog, whooping crane and pallid sturgeon, 
but there are success stories such as the river otter that is a State 
endangered species that had been trapped out of existence. A very 
successful reintroduction program through our agency has restored that 
species to most of the state's river systems in the past 25 years. This 
program may not have received press coverage that programs such as the 
gray wolf reintroduction in Yellowstone or the red wolf in the 
southeast, but it also saw no opposition by the landowners and citizens 
of the state. The river otter has never been listed as a federal 
endangered species as it has remained plentiful in some portions of its 
range, it has been a state endangered species from the beginning of the 
state list. We are proud of this successful re-introduction and believe 
it serves as a example of how a species can be saved.
    The demand for wildlife technical assistance by private landowners 
along the Platte River has increased dramatically during the last 10 
years. The U.S. Fish and Wildlife Service and the Nebraska Game and 
Parks Commission have provided technical advice and funding to hundreds 
of private landowners along and near the Platte River. Clientele 
include landowners who wish to improve their property for duck and 
goose hunting, ranchers seeking ways to improve their pastures for 
cattle and wildlife, and grain farmers wanting to convert marginal 
cropland to grasslands. The U.S. Fish and Wildlife Service and the 
Nebraska Game and Parks Commission have programs that can pay producers 
up to 100% of habitat restoration costs and in some cases provide an 
annual land use payment. All private lands programs the Commission 
sponsors are done strictly on a voluntary basis.
    Funding provided by the U.S. Fish and Wildlife Service through 
their Partnerships for Fish and Wildlife Program have been critical in 
helping to meet the demands of private landowners. As more and more 
duck and goose hunters discover the benefits of brush clearing and 
wetland slough development, demand for these projects will very soon 
outstrip the availability of funds. A Nebraska Environmental Trust 
grant was received several years ago to provide additional funds for 
habitat projects along the Platte River. Although most landowners are 
primarily interested in improving their land for waterfowl hunting, 
secondary benefits to island clearing include improved habitat for 
whooping and sandhill cranes, piping plovers, least terns, and other 
wildlife.
    The recent increased demand for private lands assistance along the 
Platte River resulted in the hiring this winter of a biologist who will 
focus solely on assisting private landowners along the Platte River 
from Gothenburg to Columbus. This individual is being jointly funded by 
the Game and Parks Commission and The Nature Conservancy. We are 
currently in the process of setting up local advisory groups made up of 
farmers and ranchers to determine what types of programs are needed to 
improve the Platte Valley's grazing lands for cattle and wildlife 
production. The Game and Parks Commission has applied for a $900,000 
federal grant through the U.S. Fish and Wildlife Service to provide 
funding for a cost-share assistance program that will benefit producers 
along the Platte River.
    Two programs through the U.S. Department of Agriculture, the 
Wetland Reserve Program and the federal Wildlife Habitat Incentives 
Program have been very beneficial in the region to producers and 
wildlife. The Wetland Reserve Program will pay for the cost of wetland 
restoration and can pay producers up to 100% of the agricultural value 
of their land if they are willing to enter into a conservation 
easement. The Wetland Reserve Program encourages producers to graze and 
hay wetlands in this program to help maintain the habitat benefits. The 
Wildlife Habitat Incentives Program has been used to do several 
projects aimed at improving grazing lands in the Platte River Valley.
Recent Projects
    In December 2001, Todd Tyler, a farmer in Merrick County put nearly 
900 acres of his Platte River land in the Wetland Reserve Program under 
perpetual easement. The U.S. Department of Agriculture paid the 
landowner 100% of the agricultural value of his land. The Game and 
Parks Commission along with Pheasants Forever, and Ducks Unlimited paid 
for an easement on an additional 37 acres that did not qualify for the 
program. The Game and Parks Commission and U.S. Fish and Wildlife 
Service will likely be contributing additional funds towards the 
restoration. Within the last two months, five landowners in the 
immediate vicinity of the Tyler farm have inquired about enrolling in 
the Wetland Reserve Program.
    In December 2001, two landowners downstream of the Ft. Kearny Hike-
Bike bridge enlisted the support of the Nebraska Game and Parks 
Commission, U.S. Fish and Wildlife Service, Platte River Crane Trust, 
and the National Audubon Society to clear brush from several Platte 
River islands to improve goose and duck hunting. A secondary benefit 
will be improved viewing of sandhill cranes by the public from the Game 
and Parks Commission's viewing bridge.
    In December 2001, two landowners near Shelton enlisted the support 
of the Game and Parks Commission and U.S. Fish and Wildlife Service to 
remove trees and brush from several islands and create a warm water 
slough. These landowners were primarily interested in improving duck 
and goose hunting but sandhill cranes and potentially whooping cranes, 
least terns and piping plovers will also benefit.
    During October 2001 a producer along the Platte River near Kearney 
requested the Game and Parks Commission's assistance to remove cedar 
trees from a pasture to improve grazing and wildlife productivity. 
Cedars were removed using funds from the Game and Parks Commission, 
U.S. Fish and Wildlife Service and the Nebraska Environmental Trust. 
The Commission is working with the producer to set up a planned grazing 
system. Sandhill cranes and other wildlife will benefit from this 
project.
    Successful projects with U.S. Fish and Wildlife Service and 
Threatened and Endangered species
Section 6 Funding Program
    Under Section 6 of the Endangered Species Act, the U.S. Fish and 
Wildlife Service provides funds annually for work on federally listed 
species. This can include inventory, research or conservation projects. 
In the past the Commission has received funds to do work (primarily 
research and inventory) on the species including: whooping crane, least 
tern, piping plover, American burying beetle, pallid sturgeon, Topeka 
shiner, western prairie fringed orchid, blowout penstemon and the Ute 
Lady's tresses orchid. Through this research we have gained a better 
understanding of the ecology, biology and distribution of these species 
which in turn has aided the development of more effective conservation 
strategies for these species.
Blowout Penstemon
    The U.S. Fish and Wildlife Service provided funding for research to 
better understand what management practices would benefit this species. 
In addition, the U.S. Fish and Wildlife Service has collaborated with 
University of Nebraska-Lincoln researchers to re-introduce this species 
at several sites on National Wildlife Refuges in Nebraska. The 
Penstemon is making progress toward recovery.
Western Prairie Fringed Orchid Pesticide Protection
    The Commission is currently conducting research in cooperation with 
landowners in Pierce County to develop methods for herbicide 
application that will not be harmful to the orchid but will meet the 
landowners objectives of complying with the noxious weed control act. 
The U.S. Fish and Wildlife Service is a cooperator in the project. Once 
the techniques have been developed, we will develop a program to 
provide financial and technical assistance to landowners to incorporate 
the methods.
    Raptor Electrocution Program. A cooperative program including the 
U.S. Fish and Wildlife Service, Nebraska Game and Parks Commission, and 
all power companies in Nebraska that are members of the Rural Electric 
Association. The power companies have agreed to report any raptor 
electrocutions to the U.S. Fish and Wildlife Service and have agreed to 
make modifications to the structures where the electrocutions occurred. 
This program has been operating since 1988 and allows the industry to 
report electrocutions without being in violation of the Endangered 
Species Act.
    The Tern and Plover Conservation Partnership is a well-developed 
program of data collection, conflict mitigation, public involvement and 
education. In order to conduct these activities on private lands, a 
high level of cooperation and trust is required between wildlife 
managers, landowners, river users, federal and state law enforcement 
officials, and gravel mining companies. This partnership has been very 
successful in raising the awareness of every one involved about 
Threatened and Endangered species while addressing the needs of the 
gravel mining industry. The Tern and Plover Conservation Partnership, 
which includes the University of Nebraska Cooperative Extension, 
Nebraska Game and Parks Commission, the U.S. Fish and Wildlife Service, 
Western Sand and Gravel, Arps Gravel and Concrete, Mallard Sand and 
Gravel, Overland Sand and Gravel, Lyman-Richey Corporation, the 
Nebraska Environmental Trust, the Nebraska Air Boaters Association, the 
Great Plains Council of Girl Scouts, has developed these relationships 
and stands uniquely poised to affect meaningful conservation and 
conflict mitigation. In addition to these partners, 14 mining companies 
and landowners serve as ``cooperators'' allowing access to their land 
and participating in program activities and 75 to 100 volunteers 
contribute their time through the ``Adopt a Colony'' program. Federal 
Law Enforcement officials support this effort and are impressed with 
the effectiveness of this partnership and it's ability to address both 
the species and industries needs without law enforcement involvement.
    Surveys of Threatened and Endangered species in Nebraska usually 
involve the Fish and Wildlife Service and Nebraska Game and Parks 
Commission personnel. Depending on the survey, coordination of efforts 
is the responsibility of one or the other agency and participation may 
include biologists from each of the agencies and possibly from other 
cooperators. Survey results are provided to all participants and shared 
with the public. These surveys are possible because of the cooperation 
between the Nebraska Game and Parks Commission and the Fish and 
Wildlife Service. Neither agency has sufficient staff to effectively 
carry out all these surveys alone but by combining our efforts, we are 
able to successfully accomplish these important activities. Threatened 
and Endangered bird species surveys conducted that involve biologist 
from both agencies include the Bald Eagle Mid-Winter and Nesting 
surveys, Least tern and piping plover surveys and Whooping Crane 
Migration Monitoring activities. Threatened and Endangered Species 
Surveys and Monitoring activities include informal agreements with 
Nebraska Public Power District, Central Nebraska Public Power and 
Irrigation District, United States Fish and Wildlife Service, The 
Nature Conservancy, the Nebraska Environmental Trust and others to 
assist with conducting these activities.
    Thank you.
                                 ______
                                 
    [An attachment to Mr. Amack's statement follows:]

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    [GRAPHIC] [TIFF OMITTED] T7750.002
    
 STATEMENT OF MERLYN CARLSON, DIRECTOR, NEBRASKA DEPARTMENT OF 
                          AGRICULTURE

    Mr. Carlson. Yes, Congressman Osborne and Chairman and 
Congressman Rehberg and other guests, my role as Director of 
the Nebraska Department of Agriculture is to do my best to 
promote and protect agriculture in this great state. In my 
promotional role, I can tell you that our producers here raise 
some of the finest quality, safest food you will find in this 
nation and maybe even in the world. And we just do not raise a 
little, we raise a lot. Our 50,000 producers are at or near the 
top nationally in a number of categories including cattle, 
hogs, corn, soybeans, alfalfa, great northern beans, green 
sorghum and the list goes on. These products eventually become 
your steaks and your pork chops and your snack food and your 
morning cereal.
    And water is the key to unlocking the source of this 
bountiful food supply. In Nebraska, we are fortunate to be 
blessed with nearly 24,000 miles of rivers and streams and 
underground aquifers making it possible to irrigate over eight 
million acres of cropland, and to some extent, in my opinion, 
irrigation equals food security, or you could say irrigation 
ensures food security.
    So when I think about the Endangered Species Act and how it 
is being implemented in Nebraska, I must say that I do have 
some concerns for our farmers and our ranchers and for our 
communities and our counties and even for our state as a whole. 
I say this because roughly one in every four Nebraskans depend 
on agriculture for employment, so anything that negatively 
affects the water supply to our producers also has a potential 
to ripple through our entire economy and the impact of the 
Cooperative Agreement and the critical habitat designation for 
the piping plover and the designation effect to the use of 
groundwater, depending on how they are finalized, could be 
substantial.
    For example, in the Platte River where much of the good 
irrigated ground is selling for between $1500 and $1800 an acre 
or even higher, the inability to irrigate forces farmers to 
revert to dry land practices. The possibility of corn reaching 
225 bushel yield drops to 50 bushels per acre or below because 
the region simply does not get enough rainfall to produce a 
corn crop. In many instances, farmers will be forced to fallow 
the ground, which means they will get only a crop once every 2 
years and this can translate into lost income, into lost jobs, 
into lost tax revenue and crop farmers may not be the only ones 
feeling the pinch under those circumstances. What about the 
fertilizer and the seed corn dealers and the elevators? They 
depend on a thriving agriculture industry, so whatever affects 
farmers also affects those industries.
    What about livestock producers? They also figure into the 
picture because Nebraska, we feed 40 percent of our feed grains 
to our own livestock.
    And on to another note, the difference between property tax 
values on irrigated land and on dry land could potentially make 
huge dents in revenues. These are monies that are relied on by 
county governments and by school district entities that cannot 
afford loss of income in these lean budget time. Let me say 
that again--lean budget times.
    My concerns are not without basis. Of the top 10 corn 
producing counties, all but Chase County have a Platte River 
connection. Regarding the top 10 soybean producing counties, 
six border the Platte. Of the major hay producing counties, 
three--Dawson, Lincoln and Scottsbluff--have Platte River ties 
and another three--Cherry, Sheridan and Dawes--have a Niobrara 
River connection, an area being scrutinized as piping plover 
habitat.
    So far, I have listed my concerns as they affect producers 
of both crops and livestock and agriculture input dealers. But 
I also want to note my concern for the future of value-added 
production in the state. We have been and will continue to push 
for economic development in Nebraska, based around taking our 
raw agriculture products and adding value through processing. 
This helps more of these agriculture dollars close to home, 
helping to fuel our rural economies. But these types of 
facilities often require great quantities of water and we do 
not want to shut the door on those opportunities and say that 
our water is all gone. So we need to keep the value-added 
initiative in mind as we continue to work on the Cooperative 
Agreement.
    My point in all of this is that Nebraska agriculture 
producers have a great deal at stake in the development of the 
Cooperative Agreement and the designation of the proposed 
critical habitat for piping plover. But we are not the only 
ones. The cost and the consequences of both issues, while 
affecting every single farming and ranching operation in the 
state, will also impact the economies that depend on them, 
including the rural economies as well. Agriculture must 
continue to have a seat at the table in any discussions on each 
of these matters.
    In addition, besides just having a seat at the table, I 
cannot emphasize enough importance on having sound scientific 
information and you mentioned that earlier, Congressman, during 
the discussion in order to make the best possible decisions. I 
mention this because of the Klamath River issue. You are all 
aware of how this situation escalated last year when regulators 
shut off irrigators in order to protect flows for specific 
threatened and endangered species of fish. Now a recent report 
from the National Research Council citing new scientific 
evidence that does not support the need for these higher water 
levels.
    So in closing let me say now is the time for level heads to 
keep the level of our streams that supports a shared beneficial 
use. Thank you.
    Mr. Osborne. Thank you, Mr. Carlson. Mr. Cook.
    [The prepared statement of Mr. Carlson follows:]

     Statement of Merlyn Carlson, Director, Nebraska Department of 
                              Agriculture

    My role, as Director of the Nebraska Department of Agriculture, is 
to do my best to promote and protect agriculture in this great state. 
In my promotional role, I can tell you that our producers here raise 
some of the finest quality, safest food you'll find in this nation, and 
maybe even in the world. And we don't just raise a little, we raise a 
lot. Our 50,000 producers are at or near the top nationally in a number 
of categories, including cattle, corn, soybeans, alfalfa meal, great 
northern beans, grain sorghum, and the list goes on. These products 
eventually become your steaks, your pork chops, your snack foods, your 
morning cereal.
    Water is the key to unlocking the source of this bountiful food 
supply. In Nebraska, we are fortunate to be blessed with nearly 24,000 
miles of rivers and streams, and underground aquifers, making it 
possible to irrigate 8.1 million acres of cropland. To some extent, in 
my opinion, irrigation equals food security.
    So, when I think about the Endangered Species Act and how it is 
being implemented in Nebraska, I must say that I do have some concerns 
for our farmers and ranchers, for their communities and counties, and 
even for the state as a whole. I say this, because roughly one in every 
four Nebraskans depend on agriculture for employment, so anything that 
negatively affects the water supply to our producers, also has the 
potential to ripple through our entire economy. The impact of the 
Cooperative Agreement and the critical habitat designation for the 
piping plover, depending on how they are finalized, could be 
substantial.
    For example, in the Platte Valley, where much of the good irrigated 
ground is selling for between $1,500 to $1,800 an acre, the inability 
to irrigate forces farmers to revert to dryland practices. The 
possibility of corn reaching 225 bushel yields drops to 50 bushels per 
acre or below because the region simply does not get enough rainfall to 
produce a corn crop. In many instances, farmers will be forced to 
fallow ground, which means they'll only get a crop once every two 
years. This can translate into lost income, lost jobs, lost tax 
revenue. And crop farmers may not be the only ones feeling the pinch 
under these circumstances. What about the fertilizer and seed corn 
dealers, the elevators? They depend on a thriving agriculture industry, 
so whatever affects farmers, also affects these industries. What about 
our livestock producers? They also figure into the picture because in 
Nebraska, we feed roughly 40 percent of our feed grains to our own 
livestock.
    On another note, the difference between property tax values on 
irrigated land and on dryland could potentially make huge dents in 
revenues. These are monies that are relied on by county governments and 
school districts, entities that cannot afford loss of income in these 
lean budget times.
    My concerns are not without basis. Of the top 10 corn producing 
counties, all but Chase County have a Platte River connection. 
Regarding the top 10 soybean producing counties, six border the Platte. 
Of the major hay producing counties, three--Dawson, Lincoln and 
Scottsbluff--have Platte River ties and another three--Cherry, 
Sheridan, and Dawes--have a Niobrara River connection, an area being 
scrutinized as piping plover habitat.
    So far, I have listed my concerns as they affect producers of both 
crops and livestock, and agriculture input dealers, but I also want to 
note my concern for the future of value-added production in the state. 
We have been, and will continue, to push for economic development in 
Nebraska based around taking our raw agricultural products and adding 
value through processing. This helps keep more of these agricultural 
dollars close to home, helping to fuel our rural economies. But, these 
types of facilities often require great quantities of water. We don't 
want to shut the door on these opportunities, so we need to keep the 
value-added initiative in mind as we continue work on the Cooperative 
Agreement.
    My point in all of this is that Nebraska's agriculture producers 
have a great deal at stake in the development of the Cooperative 
Agreement and the designation of proposed critical habitat for the 
piping plover. But, they aren't the only ones. The costs and 
consequences of both issues, while affecting every single farming and 
ranching operation in this state, will also impact the economies that 
depend on them. Agriculture must continue to have a seat at the table 
in any discussions on each of these matters.
                                 ______
                                 

STATEMENT OF JAMES R. COOK, LEGAL COUNSEL, NEBRASKA DEPARTMENT 
                       OF WATER RESOURCES

    Mr. Cook. Thank you. I think you are both aware that I am 
here substituting for Roger Patterson today. Roger is the 
Director of our Department. Unfortunately, his mother passed 
away earlier this week and that is the reason he is not able to 
be here with you today.
    Most of the written testimony I have submitted is devoted 
to explaining the Platte River Cooperative Agreement process 
and its status and I will limit my verbal remarks to that issue 
as well.
    Roger is the Nebraska member on the Governance Committee 
that Mr. Morgenweck referred to earlier. I am the alternate 
member for Nebraska on that Committee.
    I might also indicate to you that later in my testimony, I 
am going to refer to the last page of my testimony which was a 
comparison chart. We will talk about the relationship between 
flows and I will bring that to your attention later.
    Nebraska is supportive of and fully participating in the 
Platte River process to develop an endangered species program 
for the Platte. Our previous experiences in this state and in 
other places have indicated to us that the collaborative 
approach should be preferable to relying strictly on a 
regulatory approach implemented just by the U.S. Fish and 
Wildlife Service. However, supporting that process does not 
necessarily mean that it will lead to a program that is 
acceptable to Nebraska. I think it is very important to realize 
there will be many factors that will be considered by the 
Governor and by the other local entities that will be 
responsible for implementation of that program once it is fully 
designed. Several of those factors are outlined in my written 
testimony.
    I would be glad to answer any questions about the details 
of the proposed endangered species program, but I will 
emphasize only one aspect of that in my remarks, because of 
time today. That is Nebraska's own state new depletion plan. As 
explained in the written remarks, if we are to have a basin-
wide voluntary program, each state must develop a depletion 
plan that prevents new uses begun on or after July 1, 1997 from 
causing new depletions to target flows in the Lexington to 
Chapman reach of the Platte River. A group of Nebraskans 
representing those entities that would be responsible for 
implementing a new depletion plan has been meeting since early 
1998 to develop that plan.
    In Nebraska, the Platte River has been essentially closed 
to new surface water developments for a number of years. In 
fact, several large water projects have been denied through our 
own state mechanisms over the last several years, at least in 
part because of our own version of the Endangered Species Act. 
Nebraska legislature adopted a bill similar to that in effect 
in the Federal legislation in Congress in the mid-1970's.
    However, groundwater development has continued and it is 
probable that the vast majority of the potential uses that 
would be affected by a new depletion plan would be uses of 
groundwater.
    The new depletion plan we have been working on is not 
complete, but it is important to describe how it has evolved 
and how the current version of the plan relates to the 
Endangered Species Act. If I could, as I mentioned earlier, I 
would like to draw your attention to this comparison chart, 
which is the last page in my written testimony. This chart 
shows all of the different in-stream flow rates relevant to the 
issues being discussed today. Those in red are the Nebraska in-
stream flows appropriations, those are the ones that have 
Nebraska water rights. The light green, dark green and dark 
blue bars shows the U.S. Fish and Wildlife target flows for 
dry, normal and wet years, respectively.
    The original version of the Nebraska new depletion plan 
would have required new groundwater users to offset any adverse 
effects of their new use on the Fish and Wildlife Service 
target flows; that is, the flows depicted by the green and blue 
bars. That, however, proved to be unacceptable in Nebraska. And 
as a result, we have modified the process and we now have a 
different approach.
    The approach involves a two-step process. First, the new 
user would be responsible for offsetting any adverse effects to 
Nebraska water rights, not the target flows. Those Nebraska 
water rights include the in-stream flow appropriations shown in 
red on the chart. In part, those appropriations are for 
threatened and endangered species, but as you can see, they 
tend to be lower than the target flows.
    Second, to the extent that offsetting depletions to water 
rights fail to also offset the depletions to the target flows, 
the State of Nebraska, not the groundwater users, would be 
responsible for any remaining offset required to meet program 
objectives.
    The significance is that Nebraska groundwater users would 
not be regulated on the basis of the green and blue target 
flows, but would have their obligations determined on the basis 
of interference with Nebraska's own water rights, including the 
red in-stream flows. Approaching new depletions in that way 
will not eliminate all our concerns about the Fish and Wildlife 
Service target flows. Very substantial state expenditures might 
be needed to offset depletions to those flows; however, it does 
avoid placing the burden for those flows on Nebraska 
agriculture or on other groundwater users. The depletion issues 
those users would face under the plan are issues Nebraska needs 
to address, whether or not we have a basin-wide program for 
threatened and endangered species. As Senator Schrock mentioned 
earlier, the Endangered Species Act is what has brought us to 
the table, but it is something we must deal with on our own 
regardless of that.
    Given the time limits here, it is not possible to discuss 
all of the potential obstacles to success of the program. Some 
of the obstacles may need to be addressed by the Congress. 
Included among those will be the need for additional funding 
for the cost of the program, ensuring that the three states 
have adequate time to modify policies and provide the funding 
that we are required to provide and, if necessary, provide more 
flexibility in the Endangered Species Act when, as is true in 
the Platte, the science is uncertain, but the parties are 
willing to engage in a program that would be positive for the 
species and also improve the scientific basis for future 
actions.
    That concludes my testimony, I would be glad to answer any 
questions.
    [The prepared statement of Mr. Cook follows:]

   Statement of James R. Cook, Legal Counsel, Nebraska Department of 
                           Natural Resources

    Mr. Chairman and members of the committee, my name is Jim Cook. I 
am legal counsel for the Nebraska Department of Natural Resources and 
am testifying today on behalf of Roger Patterson, the department 
director. Roger fully intended to appear before your committee this 
afternoon. I am sorry to report that he is unable to do so because his 
mother passed away Tuesday and the funeral is today. I know he would be 
glad to answer any questions you might have at a later time or to 
provide additional information if desired.
    In Roger's absence I will present testimony today on two subjects: 
(1) the Platte River Cooperative Agreement and (2) the proposed 
designation by the U. S. Fish and Wildlife Service of critical habitat 
for the piping plover. Most of my remarks will be devoted to the 
Cooperative Agreement. In my comments on that subject I will attempt to 
summarize the proposed ``program'' as it exists today, discuss 
Nebraska's reasons for participating in the ongoing process to 
formulate that program, relate some important considerations Nebraska 
will be facing before we make a decision on initiation of the program, 
and indicate how Congress might be able to help that process be 
successful. With regard to the critical habitat issue, I have attached 
a copy of Mr. Patterson's August 10, 2001 letter about the proposed 
habitat designation. That letter summarizes and explains the 
department's position on that subject.

                   Platte River Cooperative Agreement
Introduction and Summary of the Platte River Cooperative Agreement

    On July 1, 1997, Nebraska, Colorado, Wyoming and the United States 
Department of the Interior entered into a partnership to develop a 
basin-wide recovery ``program'' for threatened and endangered species 
in the Central Platte River Basin. Called the Platte River Cooperative 
Agreement (PRCA), the program's primary purpose is to provide recovery 
oriented habitat for the whooping crane, piping plover and the interior 
least tern. The pallid sturgeon, which uses the Platte only near its 
mouth, is also a target species for the proposed program. For now it is 
uncertain whether any efforts other than those intended for the benefit 
of the other target species will be directed specifically towards 
sturgeon recovery.
    A ten-member governing body call the Governance Committee (GC) has 
been responsible for the activities undertaken to date and would be 
responsible in the future if the program is actually implemented. The 
GC includes representatives from the U.S. Fish and Wildlife Service 
(USFWS), the U.S. Bureau of Reclamation, each of the three states, 
water users from three geographic areas in the Platte River Basin, and 
environmental organizations. Dale Strickland of West Inc., is the 
Executive Director for the current effort.
    The proposed program would take a phased, adaptive management 
approach. Assuming the cooperating partners agree to the terms of the 
program, the first phase is expected to be 13 years in length. It would 
have three primary components; the Water Action Plan (WAP), the 
Depletion Plans, and a Habitat Plan, each of which is described in more 
detail below. Water goals for the program relate to ``target flows'', 
which have been identified by the U.S. Fish and Wildlife Service 
(USFWS). For information purposes, an attachment to this testimony 
compares the ``species'' and ``annual pulse'' components of the USFWS 
target flows to water rights granted by Nebraska for instream flow 
purposes.

Water Action Plan (WAP)
    The target flows for the endangered species in the Central Platte 
reflect the flow levels the USFWS believes are needed to provide 
adequate habitat for those species. Actual daily flows historically 
have fallen short of those target flows, in the aggregate, by an 
average of approximately 417,000 acre feet (af) per year. There is 
substantial disagreement about whether the identified target flows are 
biologically or hydrologically necessary or even beneficial to the 
habitat and/or recovery of the species. While the USFWS believes they 
are, they have also stated they are willing to review and possibly 
revise the target flows as better science becomes available.
    In the meantime, incremental improvements in flows would be sought. 
The goal during the first increment of the proposed program would be to 
reduce shortages to the current target flows at Grand Island by an 
average of 130,000 to 150,000 af per year. Three projects already being 
implemented or planned by the three States will produce an estimated 
80,000 af per year. The first project is an ``environmental account'' 
(EA) in Lake McConaughy, where 10% of the storable inflows between 
October and April are stored, managed and released with the objective 
of reducing shortages to target flows. There is a cap of 100,000 af 
that can be stored annually and a 200,000 af total storage cap. Since 
its creation in 1999, the EA has been used to improve flows in the 
central Platte throughout much of the summers of both 2000 and 2001.
    The second project is an enlargement of Pathfinder Reservoir in 
Wyoming. Water from that project will be managed with a similar 
objective; it is still in the planning stage, but if implemented would 
provide 34,000 af in storage capacity for the program.
    The third project is the Tamarack Project in Colorado. The Tamarack 
Project, which is expected to yield an average of about 10,000 af in 
the habitat area, would take water out of the river during times of 
excess flows (most often during the winter months) and temporarily 
store it in shallow alluvial aquifers where it would naturally return 
to the river at times when flow shortages are more likely. Tamarack is 
under construction and currently is partially operational.
    The additional 50,000 to 70,000 af necessary to realize the 130,000 
to 150,000 af goal for the first increment will be obtained through 
other projects. Those projects will be selected throughout the basin, 
must be acceptable to the states, and will be implemented throughout 
the first increment of the program. They are most likely to be storage 
and retiming and/or conservation oriented.
    A Reconnaissance Level Water Action Plan which lists the projects 
now proposed was completed in September, 2000, and will be revised as 
necessary.Inclusion of projects in the WAP simply means that they will 
be advanced to the feasibility level of study to undergo further 
analysis (i.e. engineering studies, economic and social impacts 
studies, etc.). Changes are likely before final decisions are made.

Depletion Plan
    While the WAP is designed to put ``new water'' into the river 
(water that would not normally be there, at that time), each state's 
Depletion Plan will be designed to prevent increased shortages to 
target flows caused by new or expanded uses of water begun on or after 
July 1, 1997. New uses that contribute to target flow shortages would 
be subject to mitigation, either with water or with dollars that could 
be used to produce water. An overview of Nebraska's current draft New 
Depletion proposal, which is subject to change, follows:
     In addition to the need to prevent new depletions to 
target flows, Nebraska's plan has the objective of protecting flows 
needed by senior surface water rights from depletions caused by new or 
expanded uses of water.
     The flows proposed for use as ``target flows'' for the 
Lexington to Chapman reach are what are referred to as the ``species 
flows'' and the ``annual pulse flows'' developed by the U.S. Fish and 
Wildlife Service. As mentioned earlier, a comparison of those flows 
with the Nebraska instream flow appropriations is attached to this 
testimony. Use of the ``target flows'' does not mean that the state 
believes those flows are necessary to prevent jeopardy to the species 
involved.However, if a Platte River Program is actually implemented, 
those flows would serve as the initial reference points for determining 
(1) periods of flow shortage, i.e. when new depletions would have to be 
offset, and (2) periods of flow excess, i.e. when water was available 
for retiming so it could serve as the required offset for new 
depletions during flow shortages.
     For new or expanded uses of groundwater or surface water 
begun between July 1, 1997 and December 31, 2003, the draft proposes 
that the state would determine the extent to which those increases in 
water use would cause new depletions to ``target flows'' and would 
implement projects and programs as necessary to offset those new 
depletions when they occur.
     For new or expanded uses of groundwater beginning 1-1-
2004 or later, a two step process would be used to offset any new 
depletion to ``target flows.'' First, those making a new or expanded 
use of groundwater would be responsible for offsetting new depletions 
to flows needed for senior Nebraska surface water rights including the 
Nebraska instream flow appropriations. The draft proposes that the 
state would be responsible for the second step of the process, which 
would be to offset depletions to ``target flows'' caused by new or 
expanded uses of groundwater to the extent those depletions would not 
otherwise be offset as a result of the offsets for depletions to water 
right flows.
     Also beginning 1-1-2004, any new surface water 
appropriations would be subject to state imposed conditions to avoid or 
offset new depletions to ``target flows.'' No special provisions would 
be needed to prevent new depletions to senior surface water rights 
because such protection is an inherent part of the surface water 
appropriation system.
     Periodically, perhaps every 5 years starting on or around 
2008, the state would conduct a new land use inventory to determine 
changes in irrigated acres, collect additional information as needed, 
and assess the overall sufficiency of the combined offset measures to 
offset depletions to ``target flows.'' If more offset water was being 
provided than was determined necessary through that assessment, credit 
for the offset of future new depletions would be available. If not 
enough offset water was being provided, the state would implement 
projects and programs as necessary to make up the deficiency.

Land Component
    Terrestrial habitat is also deemed necessary to meet the needs of 
the species. The proposed program would over time result in the 
development and protection of 29,000 acres of terrestrial habitat 
between Lexington and Chapman. This long-term goal could change as a 
result of adaptive management. The goal for the first increment of the 
proposed program would be to develop and/or protect at least 10,000 
acres. NPPD's Cottonwood Ranch property located between Overton and Elm 
Creek (2,650 acres) would be dedicated to the program. That would leave 
an unmet first increment need of 7,350 acres. That habitat would be 
acquired from willing participants via leasing, conservation easements, 
and purchases. The initial focus would be placed on riverine and wet 
meadow type habitat that would or could form a ``habitat complex''. 
Some limited quantity of other types of habitat, such as sandpits, 
likely would also be acquired. Also, the Platte River Whooping Crane 
Maintenance Trust, the Nebraska Game and Parks Commission, the Nature 
Conservancy, and the Audubon Society currently own several thousand 
acres of potentially eligible habitat. Eventually, those holdings are 
expected to contribute to meeting the 29,000 acre goal, but they will 
not count toward the 10,000 acre first increment goal.

Why Nebraska is Participating in the C.A. Process
    Relicensing by the Federal Energy Regulatory Commission of the 
Platte hydropower projects indicated to Nebraskans that there were many 
problems with the non-collaborative regulatory approach under the ESA. 
The costs expended as part of that process and the frustrations 
experienced with it did not set an example most were willing to repeat. 
On the other hand, the collaboration that occurred in negotiating the 
Cooperative Agreement eventually provided the basis for much more 
acceptable relicensing provisions and demonstrated that better ways of 
meeting the species needs could be found. Choices between the strictly 
regulatory approach and the collaborative method were going to have to 
be made soon relative to other water uses, most notably ESA 
consultations regarding the operation of the North Platte projects that 
are so important to the Panhandle. Problems were also expected with 
other activities in Nebraska (e.g. Section 404 projects). In addition, 
many uncertainties existed about the application of the ESA to 
activities which were not then being treated as subject to the ESA, but 
which also affect flows, such as groundwater use. That combination of 
reasonably predictable but unacceptable consequences for some 
activities and huge uncertainty for others suggested to Nebraska that 
trying to meet the species needs in ways that inflicted less pain on 
water users and others was well worth the effort.

Possible Advantages to the Proposed Program
    The following is a list and explanation of what Nebraska sees as 
the potential advantages of continuing with the collaborative approach 
which would serve as the foundation for the Cooperative Agreement:
     Basinwide approach--important both for funding and for 
providing water
    The recovery process will be very resource intensive and far beyond 
what the directly affected interests or the State of Nebraska could 
accomplish by themselves. Because the program is to address the impacts 
of water related activities throughout the basin, it is imperative that 
the entire basin contribute to the recovery process. It is also 
important to recognize that some of the upper reaches of the North and 
South Platte Rivers flow through areas that are owned and/or managed by 
various Federal agencies. Actions by those agencies have also 
contributed to the river's current condition and there also are 
numerous federal water supply and irrigation projects and facilities on 
the Platte.
     Incremental approach
    The initial recovery actions proposed by the USFWS are far beyond 
what could be done in a single step process, and there are concerns 
that some of the requirements and actions might even be in excess of 
what is even beneficial to the species. An incremental approach will 
allow for actions to be implemented only after careful planning and 
that will hopefully prevent undue hardship from being imposed. The 
incremental approach will also allow for further study and possible 
refinement of recovery actions and proposals.
     Grandfathering of pre 7-1-1997 water uses
    One of the concerns in Nebraska regarding the ESA is that water 
could be taken from people with existing developments. The 
grandfathering of pre 7-1-1997 uses will prevent adverse impacts on 
those current uses. Without a program and the included grandfather 
clause there is nothing to insure that pre 1997 uses would be 
protected.
     Voluntary measures used throughout, rather than measures 
being imposed through the regulatory process
    As discussed earlier, the Platte system extends into three states. 
The states and their citizens know what actions are realistic, 
economically feasible and politically acceptable. By building the 
program on voluntary participation rather than mandatory requirements, 
those involved will be far more motivated to make the program work for 
both the species and for the people living in the area.
     Peer reviews
    The peer review process will allow for proposed actions to be 
evaluated by outside authorities and hopefully minimize the possibility 
of implementing activities that are of little or no benefit to the 
species. Some of these proposed activities will be very costly, so it 
is imperative that all actions be reasonable, beneficial and 
scientifically supported.
     Adaptive management will be employed
    Everyone involved in the process recognizes that there are many 
questions relative to the proposed recovery actions. Those include: 
details about how and to what extent the Platte River hydrologic system 
interacts with the underlying ground water system; how river flows 
relate to sediment movement and what effect each has on the streambed 
and banks; and basic questions about trends in species population 
numbers. It is important that the program be allowed the flexibility to 
change as more information is learned about the river, the species and 
their desired habitats.
     Having a seat at the table
    Allowing the states, the water users and the environmental 
community to participate in the decisionmaking process for the Platte 
river species will be beneficial to the species, the USFWS, and the 
stakeholders in the basin. It will help soften fears about 
implementation of the ESA, and the collective thinking that is employed 
will encourage actions that are feasible, beneficial and more 
acceptable.
     Federal financial assistance to be provided
    As discussed earlier the importance and appreciation of the basin 
and associated species carries far beyond the borders of the three 
states. Federal agencies own, have control of, and/or manage lands and 
water usage facilities on the river and the recovery program will be 
more expensive than could be borne by the states or by their water 
users
     Better opportunity to achieve equity among those 
contributing to habitat declines
    Without a collaborative program, only those subject to federal 
jurisdiction would be held responsible for taking the steps deemed 
necessary by the USFWS to recover the species. This could place a 
disproportionately heavy burden on a few.The process outlined in the 
Cooperative Agreement will provide the forum for a more equitable 
distribution of that burden.

Important Considerations Prior to Nebraska's Acceptance of the Program
    Final decisions by the states and by the Department of Interior are 
still a ways off and each party likely will have its own set of 
considerations about the advantages and disadvantages of the proposed 
program before it decides whether accepting the proposed program is the 
right thing for it to do.For Nebraska, that decision will depend upon a 
number of factors including the following:
     Achieving equity among the three states and the federal 
government
    The significance of the Platte River, associated habitats and 
identified species extends far beyond the borders of the state. 
Nebraska needs to believe that the burden of protecting and restoring 
these habitats and species will be borne equitably among the three 
states and the federal government.
     Having a better understanding of what will happen if no 
program is implemented
    Nebraska needs a clear understanding of the implications of the 
``No Action'' or no Program alternative, so that we can determine the 
best choice for Nebraskans. For example, how or would both present and 
future groundwater uses be treated in the absence of a collaborative 
effort?
     The ability of Nebraska to develop and implement an 
acceptable ``new depletion plan''
    The Nebraska New Depletions proposal summarized earlier in this 
testimony demonstrates the difficulty of implementing a program that 
requires the integrated management of groundwater and surface water 
where that has not previously been done and in a hydrologic system as 
complex and extensive as is the Platte. It is important to remember, 
however, that the need for groundwater management to protect 
streamflows may exist in Nebraska whether or not Nebraska decides to 
participate in the proposed program. The question may be whether the 
timeline for initiating the proposed program is too short for the 
concept of integrated management to be first accepted and implemented 
by Nebraskans.
     Public acceptance
    Nebraskans also need to believe that the actions being imposed are 
based on good science, that the proposed recovery actions are 
reasonable and justified and that the program is in the best interest 
of the citizenry.
     Program costs
    Like most other states, Nebraska is currently experiencing 
substantial revenue shortfalls. Budgets have been trimmed, but more 
will be needed. All of this comes at a time when the state and its 
citizens will be asked to do more and more. To aid with that concern, 
more federal assistance will be needed as additional burdens are 
imposed.

How Congress Could Help
     Provide an increased level of funding
    The original program budget of $75 million, which was developed 
using 1997 dollars, was based on some assumptions that since have 
proven to be incorrect. Those costs, which were to be shared 50% by the 
federal government and 50% by the states collectively, have risen to an 
estimated $150 million based on 2001 dollars. They may go higher as 
cost estimates are improved and there will be many costs to the states 
not included in the estimates, e.g. the cost of implementing the new 
depletion plans. More federal dollars will be required and there are 
numerous reasons why additional federal financial support would be 
warranted. First, there is a very substantial federal presence in the 
Platte River Basin. The government has many flood control and water 
supply projects in the basin and owns millions of acres of land in the 
national forests and in other federal holdings. The activities 
performed or not performed by the government on those lands has 
significant impact on the water yield from those lands and consequently 
on the flows in the Central Platte. Also, the Platte is without 
question a national resource. There is substantial federal interest in 
the endangered species that would be benefited by the Program and in 
the migratory waterfowl for which the Central flyway is so critical. 
The federal government will also benefit greatly from the research that 
will be conducted as part of the program.
     Insure that the states have adequate time to implement 
changes to state laws and to appropriate any state funds needed
    The current timeline for reaching a decision on the implementation 
of the program is sometime in the latter part of 2003. For Nebraska and 
perhaps for all states, that initial decision will need to be followed 
by many other affirmative decisions if the program is to be successful. 
The Nebraska Legislature will need to adopt new laws and provide what 
may prove to be substantial amounts of funding for the costs of the 
program and the costs of the projects needed to offset new depletions 
caused by new and expanded water users. In our state, seven natural 
resources will need to implement groundwater management plans that 
will, for the first time, require the regulation of groundwater to 
protect streamflows. Some of those decisions cannot be expected 
immediately after the decision to initiate the program. We anticipate 
that the program will allow sufficient time for those decisions to be 
made, but if that proves to be a problem, congressional assistance 
could be sought.
     Support use of flexibility under the ESA, particularly 
whenever states are willing to engage in cooperative efforts.
    Flexibility is certainly needed in the Central Platte where 
scientific questions seem to be more abundant than answers. Whether the 
USFWS and the three states will be able to find the flexibility 
required to reach mutually acceptable goals for the Platte under the 
ESA as currently written remains a concern.

         Proposed Designation of Piping Plover Critical Habitat

    The Nebraska Department of Natural Resources submitted comments on 
the proposed designation of critical habitat for the piping plover in a 
letter dated August 10, 2001. Rather than repeat the substance of those 
comments here, the letter is attached to this testimony. However, I do 
want to emphasize one comment in the August 10 letter. That concerns 
the relationship between the proposed Platte River Recovery Program and 
the critical habitat designation. If the three states and the 
Department of Interior are successful in establishing a basinwide 
program for the Central Platte endangered species, including the piping 
plover, designation of critical habitat for that reach would be 
unnecessary and inappropriate. We therefore continue to urge exclusion 
of the Central Platte from the designation. If the Service feels 
compelled to include that area for now because the Program has not yet 
been established, that area should be deleted when the Program is 
established.
    That concludes my testimony. Thank you. I would be glad to attempt 
to respond to any questions.
                                 ______
                                 
    [Attachments to Mr. Cook's statement follow:]

    [GRAPHIC] [TIFF OMITTED] T7750.003
    
August 10, 2001

Nell McPhillips
South Dakota Ecological Services Field Office
U.S. Fish and Wildlife Service
420 South Garfield Avenue, Suite 400
Pierre, SD 57501

RE: LProposed Designation of Critical Habitat for the Northern Great 
Plains Breeding Population of the Piping Plover [66 Fed. Reg. 31760 
(June 12, 2001)]

Dear Ms. McPhillips:

    On June 12, 2001, the United States Fish and Wildlife Service 
(USFWS) published in the Federal Register its ``Proposed Designation of 
Critical Habitat for the Northern Great Plains Breeding Population of 
the Piping Plover'' (Proposed Designation). According to the Federal 
Register Notice, the deadline for submitting comments on the proposal 
is August 13, 2001.
    The notice which was published in the Federal Register was 
inadequate in a number of ways. That notice included only a single 
large-scale map of Nebraska and legal descriptions of parcels proposed 
to be designated. It would be impossible for a land owner to know if 
they would be affected by the Proposed Designation based on the large 
scale and large tracts identified in the notice. Obviously critical 
habitat does not fit neatly into the rectangular grid system of land 
surveys. The notice attempts to cure this inadequacy by stating that 
the critical habitat does not include ``developed areas'' and ``other 
lands . . . unlikely to contain primary constituent elements.'' However 
the Proposed Designation provides no information as to the location of 
these excluded areas. In the absence of more precise information as to 
the actual and specific lands to be identified as critical habitat it 
is difficult to comment on the Proposed Designation.
    On Wednesday, July 18, 2001, a public informational meeting was 
held by USFWS staff in Grand Island, Nebraska regarding the Proposed 
Designation. At that meeting there were numerous maps and aerial 
photographs delineating areas along the Platte, Loup and Niobrara 
Rivers in Nebraska as piping plover critical habitat. It was explained 
that all of the land lying within the general delineations would not be 
the actual critical habitat but only those which met certain criteria. 
Questions to your staff at the meeting were generally answered by 
pointing to a specific tract or island and saying ``that could be 
critical habitat'' and pointing to another and saying ``that probably 
wouldn't be critical habitat. It was quite confusing for the general 
public to know exactly what specific parcels would be designated.
    Perhaps of greatest concern regarding the Proposed Designation is 
the fact that USFWS has not completed the economic impact analysis 
which is required in Sec. 4(b)(2) of the Endangered Species Act (ESA) 
and an environmental analysis under the National Environmental Policy 
Act. As the Tenth Circuit Court made clear in New Mexico Cattle Growers 
Association v. U.S. Fish and Wildlife Service, Congress intended that 
the USFWS conduct a full and complete analysis of all economic impacts 
of a critical habitat designation. Section 4(b)(2) of the ESA states 
that ``[t]he Secretary shall designate critical habitat . . . after 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat'' 
(emphasis supplied). By presenting a general Proposed Designation on 
maps and photos without any underlying documentation, the USFWS has 
made it extremely difficult for any informed or useful review and 
commentary by concerned individuals and entities.
    For these reasons, it is imperative that USFWS provide:
    1. The economic and environmental impact analysis of the Proposed 
Designation as required by the Endangered Species Act Sec. 4(b)(2).
    2. maps which show both the general boundaries of the areas along 
the Platte, Niobrara and Loup Rivers proposed for designation as piping 
plover critical habitat and the delineation of the specific tracts of 
land proposed to be designated and/or the location of all lands 
excluded from the designation sufficient to allow members of the public 
to easily ascertain which areas are included in the designation and 
those that are not.
    3. Republish the Notice for the ``Proposed Designation of Critical 
Habitat for the Northern Great Plains Breeding Population of the Piping 
Plover'' which includes the information in 1 and 2 above.
    4. Provide all persons and entities 120 days from the 
republication of the Notice in which to file comments on the Proposed 
Designation.
    In addition to the above, I suggest that the USFWS consider 
excluding, at least for now, the Central Platte River portion of the 
Proposed Designation. We are concerned that the proposal is not based 
on a consistent application of the criteria relating to ``primary 
constituent elements.'' Reasons used for exclusion of other rivers, 
e.g. limited documented nesting, could appropriately be used as reasons 
for excluding this portion of the Platte at this time. A concerted 
effort is being made by the States of Nebraska, Wyoming and Colorado 
together with the USFWS to develop a program under the Cooperative 
Agreement. If that program is implemented, the Central Platte will have 
an increased availability of nesting sites, but will also be eligible 
for such an exclusion because the program will include conservation 
management plans that specifically address the conservation and 
recovery of the piping plover. If you conclude you are unable to 
exclude the Central Platte now, we believe a commitment should be made 
to review and remove the designation once a program is in place.
    I recognize the USFWS is under court order to make a final critical 
habitat designation for the northern great plains population of piping 
plovers by March 15, 2002. However, the USFWS needs to recognize that 
those individuals and entities who may be affected by such designation 
are entitled to all relevant information for review and comment during 
the designation process.
    Thank you for the opportunity to comment.

Sincerely,

Roger K. Patterson
Director
                                 ______
                                 
    Mr. Osborne. Thank you very much. We will now start a round 
of questioning.
    Mr. Schrock, a very difficult question, but I would like to 
ask you what relation you see between surface and groundwater 
in regard to the Cooperative Agreement. We have a potential 
critical--well, we have a critical habitat designation of 56 
miles, three miles wide. Can you explain your understanding of 
exactly what this does to groundwater, how far out from the 
river, has anybody determined this, where are we allowed to 
drill wells or not. Any thoughts you have. I know this would 
probably be under the purview of your Committee to try to 
figure this out, but I would appreciate your thoughts.
    Mr. Schrock. Congressman Osborne, I believe that even a 
hydrologist cannot explain the underground water in the state 
of Nebraska. Having said that, there is a connection between 
groundwater and surface water. The water that flows in the 
Platte River does recharge the underground water, but also the 
irrigation wells that are close to the proximity of the river 
do have an impact on river flows. To what extent, I do not 
know. How far it goes out depends upon the area and the region. 
I am not a hydrologist but I believe that we can acknowledge 
that there is a connection between groundwater and surface 
water in this state.
    If we do not, I think there would be a series of lawsuits 
and then the courts will decide if there is a connection 
between groundwater and surface water. And I think we are 
finding that out on the Republican River Basin as the water 
master and our state officials negotiate with Kansas on what is 
happening in the Republican River Basin. For your information, 
Representative Rehberg, that is a basin in southwest Nebraska, 
south of the Platte, which we are having a little trouble with 
Kansas on the understanding of who should be able to use the 
water and who should not be able to use the water.
    But there is a connection. What the extent is--it depends 
on how close it is to water, what the formation of the sands 
and gravels are underneath that water, but I do not think even 
hydrologists understand what is going on in Nebraska, nor do I 
think they ever will understand.
    Mr. Osborne. I understand there is even some connection 
between the Platte River and water over in the Republican Basin 
and of course we have got some problems out near Bridgeport 
with wells and a lawsuit.
    Mr. Schrock. Right. I might--may I just quickly add for 
Representative Rehberg's benefit, if you took the water that is 
stored underground in the state of Nebraska and put it on top 
of the ground, if Nebraska was level, the state would be 33 
feet deep in water. Of all the states west of the Mississippi, 
nobody has near the water resources that we have. It is very 
valued by our farmers and it does not seem to be depleting. 
That is kind of amazing to me and many other people. There are 
areas, but they are mainly isolated, where the groundwater 
table has declined. But for the most part in our state--and 
part of that is due to the efficiencies that farmers have 
instigated in their irrigating systems. We are not using as 
much water to produce crops as we used to, we are becoming more 
efficient. And I think that helps in the long run.
    Mr. Osborne. As I see this, there is going to be a battle 
shaping up between the Fish and Wildlife Service possibly and 
irrigators in where do you draw the line. And I am assuming 
that some of the purview of your proposed committee would be to 
examine these issues. Do you see any adequate independent 
review system that is not in the hip pocket of the state of 
Nebraska and not in the hip pocket of the Fish and Wildlife 
Service that could maybe come to some equitable understanding 
as to where you can drill a well and where you cannot without 
depleting the Platte River?
    Mr. Schrock. You are never going to do something when it 
comes to regulation that will satisfy all farmers. But let me 
tell you, this task force is going to have a facilitator and a 
consultant and I think they are going to keep our feet to the 
fire, and hopefully some meaningful information will come out 
of that in at least 18 months from the time that the task force 
has been appointed. So maybe there will be some answers there 
we do not already have. Hopefully that will be the case.
    Mr. Osborne. Mr. Carlson, do you feel that agricultural 
interests have had adequate representation in the formulating 
of the Cooperative Agreement? Do you feel that--
    Mr. Carlson. That is a good one. I think so. That is out of 
my purview but from my understanding, I would say that we have 
been at the table and I think we have been heard. And I think 
agriculture, as I said in my testimony, are in support of a 
shared beneficial use. But let us do it on an economic and a 
balanced beneficial use basis.
    Mr. Osborne. All right. And last, Mr. Cook--Mr. Amack, I am 
saving you for Mr. Rehberg.
    [Laughter.]
    Mr. Osborne. Currently McConaughy contributes roughly 
100,000 acre-feet?
    Mr. Cook. Up to that much.
    Mr. Osborne. Up to that. Pathfinder, 34,000 acre-feet; 
Tamarack, 10,000 acre-feet.
    Mr. Cook. Tamarack has several phases, the first phase 
would be 10,000 acre-feet, that is correct.
    Mr. Osborne. And I believe the Colorado Supreme Court may 
have reversed some of the machinations with which they have 
determined their contribution in other areas and I do not know 
where that stands. But my question to you, given those figures 
and also the amount of land that we are to contribute, do you 
feel that Nebraska is being treated fairly in this issue? Do 
you feel like it is an equitable distribution?
    Mr. Cook. That is one of the toughest issues we have dealt 
with, Congressman. The question of fair share has been an issue 
that we have talked with the other states about. Certainly as 
you look at not only what would be coming out of Lake 
McConaughy, but also the other water projects that are in 
feasibility stage right now, we have a number of those in the 
Water Action Plan that Mr. Keys mentioned earlier. The majority 
of those are also in Nebraska, so Nebraska would be providing 
more than what you would call a fair share of water if you 
wanted to divide water up strictly on the basis of where the 
contributions to the problem have come from.
    One of the difficult things to deal with though is the 
closer you can get to the habitat area, the more efficient you 
can be in managing that water and in meeting the objectives. 
The farther away you get from the habitat area, the more timing 
problems you have, the more difficulty in making releases and 
later there is an intervening rainfall event that provides more 
water. So there are arguments for providing the water closer to 
the habitat area as well.
    We are not done discussing the fair share issue yet. It is 
still an issue that is on the table, it is one that we have had 
to lay to the side for awhile because we have had to deal with 
some other issues like channel stability and some other things, 
but it is still an issue that we have to get resolved, and it 
will be an issue for the Governor when the time for a final 
decision comes.
    Mr. Osborne. When you visit the South Platte River near 
Deckers, which I have done a few times, there is a lot of 
water. When it hits Ogallala, many times of the year, there is 
nothing. And 10,000 acre-feet is not much of a contribution, it 
is almost all coming out of the North Platte. So I think it is 
something we ought to bear in mind.
    Mr. Rehberg.
    Mr. Rehberg. Thank you, Congressman Osborne.
    Could I ask a quick question of Senator Schrock first and 
that is are you wells, your well water adjudicated or is it 
strictly surface water?
    Mr. Schrock. The surface water is adjudicated, the well 
water is not.
    Mr. Rehberg. Is there movement afoot within your state to 
adjudicate the wells?
    Mr. Schrock. In certain areas of the state, the wells are 
controlled. I will tell you we have a system of natural 
resource districts, I believe there are 23--am I right there, 
Jim?
    Mr. Cook. Yes.
    Mr. Schrock. Twenty-three. And they have the authority to 
regulate water within their district. A lot of times the 
problem is those districts are not basin-wide and so you have 
to take a basin-wide approach to it. And you know, those of us 
in Nebraska feel that is where our water management should come 
from with our natural resource districts. And they have been 
working for 30 years and working well. Some may say they have 
not responded quick enough, some may say they are responding 
too quick, but we do have mechanisms in place to control 
underground water pumping where the citizens of that area deem 
it is necessary.
    Mr. Rehberg. Thank you. Mr. Carlson, I can attest to the 
quality of your farming practices. I did feed cattle for a few 
years.
    Mr. Carlson. I thought you would challenge some of my--
    Mr. Rehberg. No, you got some of my Montana money. The only 
thing I will challenge you on is football, I represent the 
state that did win the National Championship.
    [Laughter.]
    Mr. Rehberg. Montana won the Division 2 national title.
    [Laughter.]
    Mr. Rehberg. I promised Mr. Osborne I was not going to 
bring that up, but I had to. Sorry.
    [Laughter.]
    Mr. Rehberg. Mr. Amack, I wrote down your term ``displaced 
farmer,'' I like that. When people ask me, they say you must be 
crazy for having quit ranching, I said no, just deranged. So 
now I will refer to it as displaced, I like that term better 
than deranged.
    You know, one of the reasons I wanted to be at this hearing 
and one of the reasons I wanted to talk to individuals such as 
yourself is my concern about prairie dogs in Montana and the 
likelihood that they are going to in fact--some consider 
prairie dogs for listing as an endangered species. You have 
been tasked with the assignment, I believe, or your agency, of 
coming up with a solution to keep it from happening, at least 
from the perspective of Nebraska. We wish you all good will.
    How do you intend to do that and I guess a broader question 
is I think you mentioned that you were not part of the 
Cooperative Agreement, maybe I misunderstood you, that you were 
not a participant, and clearly you have a good working 
relationship with landowners because you are 97 percent owned 
by deeded property as opposed to my state, which is almost 35 
percent owned by the Federal Government. That does not even 
take into account state and local ownership.
    So I guess I want a little discussion from you about your 
relationship with landowners, how you have been able to create 
a good working relationship and how do you hope to offset the 
potential devastation that would occur if we are so foolish--if 
anybody is listening--in listing the prairie dog as an 
endangered species in this country.
    Mr. Amack. I got the easy question. Well, Congressman, 
Rehberg, the black-tailed prairie dog is a very difficult issue 
and one of the things that is most difficult with it is that 
when Congress establishes laws for the people of the United 
States to live by and follow, it seems that often times as laws 
get in place, it is not an easy thing to do, you have a House 
that has lots of votes and you have a Senate that has votes and 
you have to get together and come out with conclusive 
legislation that is a public policy for this country. But then 
there is another side to that public policy, in the courtroom. 
And the black-tailed prairie dog issue was driven by a lawsuit. 
Now that brings a whole other transfer. In other words, we have 
now transferred the public policy from the chambers in 
Washington to the chambers in a courtroom and the public policy 
takes a different approach. And this public policy now as being 
set forth has challenged--through lawsuits the United States 
Fish and Wildlife Service was challenged that the black-tailed 
prairie dog is threatened and 11 states were involved in this--
the land mass involved.
    From one perspective, it is an excellent idea to try to 
solve resource issues on a regional basis rather than a 56-mile 
stretch of river in Nebraska. But on the other side, you have 
to have some consensus that that the problem is there and that 
has been an issue with the black-tailed prairie dog, because in 
the 11 states, and Nebraska is one, our science, our biologists 
do not agree that the black-tailed prairie dog merits listing 
under the endangered species act.
    So we kind of got in a situation where we outran out 
headlights. The government is usually way behind their lights 
and run into something, because it was dark, but in this case 
we, to a certain extent, outran them. We were trying to meet 
deadlines without data, we were trying to develop programs and 
recovery programs without a lot of data. And so in the state of 
Nebraska right now, we are somewhat still gathering data, still 
trying to gather some consensus of what we might do.
    We created a task force which included landowners and 
government leaders, community leaders, conservation leaders. 
And it has been very difficult to try to shape some sort of 
plan to deal with the prairie dog. And part of it is there are 
so many unknowns. There is the CCAA phase of what might happen 
here, a very complicated safe harbor type formula. It is hard 
to understand, it's hard to get an explanation of it.
    And here is a case that I mentioned earlier in my opening 
remarks where we do not have very many tools. It is not any 
different than when you are farming, when you are building a 
house, when you are setting public policy, you have to have 
tools to do it. If you do not have the tools--
    Mr. Rehberg. Were you responsible as an agency for the plan 
that was put together on the river otter?
    Mr. Amack. Yes.
    Mr. Rehberg. How was that done successfully? I mean here 
again you did not hear about it as being as much of a 
contentious issue as the wolves are in Montana or the grizzly 
bear. Of course, I do not know if river otter would eat 
anybody.
    Mr. Amack. They do not eat people.
    Mr. Rehberg. OK, that might be the difference.
    Mr. Amack. Although we did hear from a lot of fishermen 
that they do eat fish and we did hear from some fishermen that 
they do--
    Mr. Rehberg. Can you use the same format to placate the 
judiciary and the national agencies in the way you developed 
your plan for the prairie dog, as you did with the river otter 
or are they two different issues and there is nothing that we 
can learn from that in Montana or Washington?
    Mr. Amack. My feeling is, Congressman, that they are 
substantially different and it might be a good comparative 
analogy to what you said, the river otter compared to the 
grizzly bear, I mean there is a substantial difference in 
trying to formulate recovery programs. But in the case of the 
river otter, as you mentioned, they do not eat people, they do 
eat fish, we had a lot of meetings with landowners and the 
rivers that we put the otters in, they were indigenous here 
once, they took to it and it has been a very successful 
program. People that see them, people that have them on their 
property really enjoy them.
    Mr. Rehberg. Which is really the way to the Endangered 
Species Act, we have put the incentive in the wrong place. We 
have created a disincentive for people to do the right thing, 
it becomes a punishment and that is why, again, the shoot, 
shovel and shut up.
    Mr. Amack. Exactly.
    Mr. Rehberg. So you have in fact tried to create an 
incentive for them.
    Mr. Amack. Uh-huh.
    Mr. Rehberg. There was another question I was going to ask 
but it has slipped my mind right this second. I will think of 
it in a second. I am too young for this, Tom.
    [Laughter.]
    Mr. Osborne. I am old enough, I cannot remember anything at 
all.
    [Laughter.]
    Mr. Osborne. Well, we appreciate this panel being here. Mr. 
Rehberg has to leave about 3:30 and we want to make sure we get 
to the next panel. If he has to go out in the middle of the 
panel, do not take offense, I will stay here.
    Mr. Rehberg. I wanted to ask Mr. Cook a quick question and 
that is--unfortunately, I wish I had asked Mr. Morgenweck the 
same question, but you think of it after they leave the panel.
    I worry about adding new species. You know, it is nice to 
have a Cooperative Agreement, but what happens after your 
cooperative agreement and you start coming up with new and 
creative species that are dying or threatened and you want to 
add them. And I guess my question is what is to stop the Fish 
and Wildlife Service from doing that, that once the Cooperative 
Agreement has been established, adding additional species and 
does it mess up your Cooperative Agreement?
    Mr. Cook. Congressman Rehberg, I do not think there is 
really anything to stop them from doing that. Whether it messes 
up the Cooperative Agreement will depend a lot on what the 
habitat needs of that species is. If it happens to be habitat 
that is very compatible with the target species we have in the 
Cooperative Agreement now, we are probably in good shape. One 
of the objectives of the Cooperative Agreement is to try to 
prevent listing of additional species. So if we can do that by 
doing the things we are going to do for the whooping crane, 
piping plover, least term and pallid sturgeon, then we are all 
better off for that.
    I think we all worry about what happens if there is a 
species that has an entirely different need or especially if it 
is one that happens to conflict in habitat needs with the 
habitat needs of the four that we are targeting. And I do not 
have an answer for that, that is something we would try to work 
through as a Cooperative Agreement if we were faced with that.
    Mr. Rehberg. OK, thank you.
    Mr. Osborne. I would like to thank the panel for being here 
and we will go ahead and jump right into the next panel. We 
appreciate you coming.
    [Applause.]
    Mr. Osborne. At this time we would like to recognize the 
last panel of witnesses. For those of you who are anxious to 
say something, as I said, I will stay around and my staff will 
stay around. If you do not want to stay, we certainly 
understand and that will be fine with us, but if you feel like 
there are some things you want to get off your chest, we will 
stay and listen to what anybody has to say.
    Having said that, I would like to introduce Tom Schwarz, 
who is on the Board of Directors of Nebraska Water Users, who 
will be a member of this panel; Mr. Dave Sands, the Executive 
Director of the Audubon Nebraska; Mr. Ron Bishop, the General 
Manager, Central Platte Natural Resource District and Don 
Kraus, the General Manager, Central Nebraska Public Power and 
Irrigation District.
    We appreciate you gentlemen, your patience, we appreciate 
you being here today, and with that, we will start with Mr. 
Schwarz.

 STATEMENT OF TOM SCHWARZ, BOARD OF DIRECTORS, NEBRASKA WATER 
                             USERS

    Mr. Schwarz. Thank you, Congressman. Good afternoon, ladies 
and gentlemen, my name is Tom Schwarz, I am a farmer from 
Bertrand, Nebraska and I am here reporting the Nebraska Water 
Users (NWU).
    NWU is an organization that is devoted to educating the 
public regarding irrigated agriculture and protecting the 
rights of those involved in that practice. Our membership is 
statewide and we represent both surface and groundwater users, 
many of whom farm along the Platte River Valley.
    Our organization traces its roots to a Federal court order 
issued 12 years ago this week. Early in the relicensing of 
Central and NPPD, environmental organizations, with the backing 
of the U.S. Fish and Wildlife Service, attempted to require the 
districts to release water stored for irrigation, supposedly to 
benefit endangered species. Before the order was stayed, 80,000 
acre-feet of water was dumped, and to this day, no benefits to 
the species were ever shown. This example is not an extreme, it 
is exactly what Fish and Wildlife is demanding now as we work 
on a Cooperative Agreement, a process borne out of the FERC 
Projects license settlements.
    In theory, the process looks good--spread the cost to 
protect habitat for endangered species among three states and 
the Federal Government. Instead of one endless consultation 
after another on hundreds of projects, we will have one 
consultation to cover all of them. Instead of blindly releasing 
water and protecting undefined habitat, we will have a program 
based upon an incremental approach using adaptive management to 
evaluate our activities before we make errors.
    That was the theory. NWU has grown concerned about the 
promises made. The very word ``cooperative'' has become suspect 
as time and again, a part of the deal would be brokered by the 
governing committee of the Cooperative Agreement would be 
undone by low level Fish and Wildlife persons. ``Cooperative'' 
to the Service apparently means ``my way.''
    For example, recently a new mitigation was introduced that 
calls for adding sediment to the river. Not only was Nebraska 
being asked to provide 130,000 acre-feet of water and 10,000 
acres of habitat, now the ridiculous idea of adding thousands 
and thousands of tons of sand to the river has been introduced. 
Needless to say, there has been no peer review of the shoddy 
science that led to this faulty conclusion. The Service pushed 
ahead with this deal because the program they designed appeared 
in their modeling to actually harm the habitat because the new 
water they were adding might remove sediment for sand bars and 
affect the river channel.
    This brings me to my next point, which is the exact purpose 
of a cooperative agreement for any endangered species program. 
I have always believed the purpose was to help the species, but 
it appears that in the Central Platte, the purpose is to gain 
power through control of water and land. The evidence is 
overwhelming, every spring, 500,000 sandhill cranes use the 
river. Their numbers have increased since the 1960's. Of the 
150 whooping cranes that migrate a few weeks later, never more 
than a handful of them land on the Platte River. Yet the 
Service says there is not enough habitat for those 150 birds. 
How can this be when the Service uses sandhill crane habitat as 
a surrogate for the whoopers?
    The Platte River is the only river for which the Service 
has developed target flows. It does not seem to matter that the 
flows desired by the Service decrease habitat for whooping 
cranes in every bridge segment but two, by making the water too 
deep.
    Another example is the piping plover. The only place that 
piping plovers have nested west of Columbus in the last 10 
years is on sand pits created by the gravel industry, even 
though hundreds of natural sandbars exist. Yet the Service has 
proposed critical habitat for this bird through this entire 
reach, specifically excluding the only areas the birds use, the 
sand pits.
    Gentlemen, the system that we now have related to 
administering the ESA is broken. I do not believe that what we 
now experience in central Nebraska is what Congress intended.
    I am a farmer and an irrigator. I live on the land and I 
love to watch birds and wildlife. I favor protecting endangered 
species. I want my children to appreciate and respect nature. I 
believe that habitat that is truly critical for a species 
should be protected if it does not unduly harm private 
individuals.
    I do not believe you should designate over 100 miles of 
river where the birds do not nest, especially when the very 
goal is habitat improvement. I do not believe that the law 
should be evaded by Federal agencies, that the public should be 
excluded from participating or that incomplete data and 
opinions should be used as fact and as a basis for extending 
regulation.
    Thank you.
    Mr. Osborne. Thank you, Mr. Schwarz. Mr. Sands.
    [The prepared statement of Mr. Schwarz follows:]

Statement of Tom Schwarz, Bertrand, Nebraska, representing the Nebraska 
                              Water Users

    Good afternoon Ladies and Gentlemen. My name is Tom Schwarz. I am a 
farmer from Bertrand, Nebraska, and I am here representing the Nebraska 
Water Users, also known as NWU.
    NWU is an organization that is devoted to educating the public 
regarding irrigated agriculture and protecting the rights of those 
involved in that practice. Our membership is statewide and we represent 
both surface and ground water users, many who farm here along the 
Platte River.
    Our organization traces its roots to a federal court order issued 
12 years ago this week. Early in the relicensing process for FERC 
Projects 1417 and 1835--the hydroelectric projects of Central Nebraska 
Public Power and Irrigation District (or Central) and Nebraska Public 
Power District (or NPPD)--environmental organizations, with the backing 
of the U.S. Fish and Wildlife Service, attempted to require the 
districts to release water stored for irrigation, supposedly to benefit 
endangered species.
    Before the order was stayed 80,000 acre feet of water was dumped 
and to this day no benefits to the species were ever shown.
    This example is not an extreme. It is exactly what Fish and 
Wildlife is demanding now as we work on the Cooperative Agreement, a 
process born out of the FERC projects license settlements.
    In theory the process looks good. Spread the costs to protect 
habitat for endangered species among three states and the federal 
government. Instead of one endless consultation after another on 
hundreds of projects, we will have one consultation to cover all of 
them. Instead of blindly releasing water and protecting undefined 
habitat, we will have a program based upon an incremental approach 
using adaptive management to evaluate our activities before we make 
errors.
    But that was the theory. NWU has grown concerned about the promises 
made. The very word ``cooperative'' has become suspect as time and 
again a part of the deal brokered by the governing committee of the 
Cooperative Agreement would be undone by low level Fish and Wildlife 
persons. ``Cooperative'' to the Service apparently means ``my way.''
    For example recently a new ``mitigation'' was introduced that calls 
for adding sediment to the river. Not only was Nebraska being asked to 
provide 130,000 acre feet of water and 10,000 acres of habitat, now the 
ridiculous idea of adding thousands and thousands of tons of sand to 
the river each year had been introduced.
    Needless to say there has been no peer review of the shoddy science 
that led to this faulty conclusion. The Service pushed ahead with this 
deal because the program they designed appeared in their modeling to 
actually harm the habitat because the ``new'' water they were adding 
might remove sediment for sandbars and affect the river channel.
    This brings me to my next point and that is the exact purpose of a 
Cooperative Agreement or any endangered species program. I have always 
believed the purpose was to help the species. But, it appears that in 
the Central Platte, the purpose is to gain power through control of 
water and land.
    The evidence is everywhere. Every spring 500,000 Sandhill cranes 
use the river and their numbers have increased since the 1960s. Yet of 
the 150 whooping cranes that migrate a few weeks later, and never more 
than a handful of them land on the Platte, we don't seem to have enough 
habitat. How can that be when the Service uses Sandhill habitat as a 
surrogate for the whoopers?
    The Platte River is the only river for which the Service has 
developed target flows. It doesn't seem to matter that the flows 
desired by the Service decrease the habitat for whooping cranes in 
every bridge segment but two by making the water too deep.
    Another example is the piping plover. The only place that piping 
plovers have nested west of Columbus (roughly 50 miles downstream from 
here) in the last 10 years is on sandpits created by the gravel 
industry, even though hundreds of natural sandbars exist. Yet the 
Service has proposed critical habitat for this bird throughout this 
entire reach--specifically excluding the only areas the birds use, the 
sand pits.
    Gentlemen, the system that we have now related to administering the 
ESA is broken. I don't believe that what we experience in central 
Nebraska is what Congress intended.
    I am a farmer. I live on the land and I love to watch birds and 
wildlife. I favor protecting endangered species. I want my children to 
appreciate and respect nature. I believe that habitat that is truly 
critical for a species should be protected IF it does not unduly harm 
private individuals.
    I do not believe you should designate over 100 miles of river where 
the birds do not nest--especially when the very goal is habitat 
improvement. I do not believe that the law should be evaded by federal 
agencies, that the public be excluded from participating, or that 
incomplete data and opinions be used as fact and as the basis for 
extending regulation.
    Thank you.
                                 ______
                                 

 STATEMENT OF DAVE SANDS, EXECUTIVE DIRECTOR, AUDUBON NEBRASKA

    Mr. Sands. Good afternoon, Congressmen. My name is Dave 
Sands and I am the Executive Director of Audubon Nebraska. But 
up until about 5 years ago, I enjoyed a very different career, 
as my brother and I ran a third-generation meat business that 
produced steaks from Nebraska beef. I was raised with an 
appreciation for the cattle industry in our state and my father 
also instilled a deep appreciation for Nebraska's rivers, 
prairies and wildlife.
    My love of the outdoors eventually led to a membership in 
Audubon and, on occasion, I would volunteer to represent 
Audubon Nebraska's positions in the state legislature. About a 
decade ago, I was approached by Audubon's national office to 
become involved in a Federal project--the FERC relicensing of 
Kingsley Dam.
    From a business standpoint, I understood that farmers 
needed the flows that Kingsley provided, to grow the corn that 
fed the cattle that our company processed and sold nationwide. 
I was keenly aware of all the families that depended upon that 
chain of events from the sandhills ranchers to my own. In 
addition, the river provided power, recreation and drinking 
water for millions of people throughout the basin. Clearly, 
there were human uses that needed to be preserved.
    From a conservation perspective, the case was also 
compelling. The Platte River is a world-class wildlife resource 
that annually attracts millions of waterfowl, the largest 
gathering of cranes on earth and regular visits from some of 
the rarest cranes on earth. Habitat for these birds has 
steadily declined over the past century due to a substantial 
reduction in the river's flows and new projects threatened the 
flows that were left. Above all, the Endangered Species Act now 
required any project in the basin with a Federal connection to 
address these concerns, and Kingsley Dam was at the front of 
the line.
    Given these facts, I recognized the obvious. The Platte 
River is so important for both agriculture and wildlife, that 
we cannot afford to harm either one. For this reason, I told 
our national office that I would jump into the Platte issues on 
two conditions. One condition, that we base our positions on 
the best science available and the second condition, that we 
would never advocate for the taking of water from an existing 
irrigator. Audubon agreed and we have been working toward that 
end ever since.
    At Audubon Nebraska, this philosophy is not confined to the 
Platte River, as the organization actively pursues 
collaboration over confrontation, especially when it comes to 
the ESA. In a state were 97 percent of the land is in private 
hands, meeting the concerns of landowners is vital, or a 
recovery program will not work for the species or the people 
who live on the land. On private lands, incentives and 
involvement make a lot more sense than regulations and 
resentment.
    Others in the state share this view. This was demonstrated 
several years ago when we participated in a diverse group of 
Nebraskans convened by Senator Bob Kerrey to find common ground 
on reauthorization of the ESA. There was more consensus than 
some might imagine, and all agreed that the ESA could be 
improved with:
     Greater stakeholder and public involvement in the 
process;
     Decisions based on good science and peer review;
     Emphasis on recovery planning crafted to reduce 
conflict with economic activities;
     Financial incentives for landowners;
     An educational and technical assistance program 
for the public and landowners; and
     Increased appropriations for impacted Federal 
agencies.
    These ESA improvements that were envisioned 5 years ago 
could be used to describe the goals of the Platte River 
Cooperative Agreement today.
    Stakeholder involvement should be at the top of any 
conservation agenda, and it has certainly been a priority of 
the Cooperative Agreement. This involvement is formally 
recognized on the agreement's Governance Committee, which 
includes state, Federal, water and conservation interests on a 
10-member board that requires nine votes to act. Involvement is 
further magnified through Governance Committee meetings, 
subcommittees, state advisory groups, education and 
communication among the various participants and their peers. 
The Cooperative Agreement may be lacking in some things, but 
stakeholders and their opinions are not among them.
    This is a strength because the outcome can only be a 
program with a solid scientific foundation that is crafted to 
reduce economic conflicts. There is recognition that the 
Platte's loss of habitat and flows must be reversed, but any 
program should be voluntary, with financial incentives for the 
conservation of water and land. Any action under the program 
will be measured for its benefit to the species, and as better 
science becomes available, management will adopt accordingly to 
maximize the results for each dollar spent.
    This is the way the ESA should work and it is worth 
pursuing because the stakes are so high. To understand what is 
at stake, I would remind you that it took over 13 years and 
more than $30 million to relicense Kingsley Dam. If the 
Cooperative Agreement fails, not only would Kingsley's license 
be subject to further review, every project in the basin could 
be subjected to proportional scrutiny and costs, which means 
that lawyers would do very well at the expense of water users 
and wildlife.
    While there is much to lose if this effort fails, the 
payoff from success would be equally dramatic. ESA conflicts 
that have persisted on the Platte for 20 years would finally be 
resolved throughout the entire basin, bringing some much needed 
regulatory certainty to those involved. In addition to 
enhancing habitat for endangered species, habitat would be 
protected for many other valuable species as well, including a 
half million sandhill cranes that provide a $25 million to $50 
million boost to the area economy each year through tourism. 
More water in the river would benefit drinking water supplies 
by recharging municipal wells in the valley. Moreover, this 
would all be accomplished without significant changes in the 
existing irrigation or power generation. A successful 
Cooperative Agreement could even serve as a national model that 
is used to resolve other ESA conflicts that may come down the 
road, both here and elsewhere.
    One of those issues may already be in sight with the 
designation of critical habitat for the piping plover. 
Certainly the identification of critical habitat is an 
important part of the Endangered Species Act because the 
decline of a species is often linked to the loss of habitat. 
There are other people here today who can better speak to the 
science behind the designation, but in our view, the uproar 
over the designation again points to the need for a more 
collaborative, incentive-based effort on private lands.
    For example, suppose for a moment that there was something 
like a CRP program for endangered species habitat on private 
lands that paid landowners to continue the same sound 
stewardship that protected that habitat in the first place. 
Under this program, the designation of critical habitat would 
be akin to the designation of highly erodible land under the 
CRP program, and give one a better chance of getting their land 
into the program. This could create a very different view of 
the designation and spur private conservation instead of fear 
in the affected area.
    These are the kinds of innovative solutions that are needed 
to increase the effectiveness of the ESA, and the Platte River 
Cooperative Agreement is a huge step in the right direction. 
With a resolve to work together, along with sufficient funding 
and support from Congress, we can preserve both water use and 
wildlife in the Platte River Valley. The truth is, we cannot 
afford to do anything less.
    Mr. Osborne. Thank you very much, Mr. Sands.
    [The prepared statement of Mr. Sands follows:]

     Statement of Dave Sands, Executive Director, Audubon Nebraska

    Up until five years ago, I enjoyed a very different career, as my 
brother and I ran a third-generation meat business that produced steaks 
from Nebraska Beef. I was raised with an appreciation for the cattle 
industry in our state, and my father also instilled a deep appreciation 
for Nebraska's rivers, prairies, and wildlife.
    My love of the outdoors eventually led to a membership in Audubon, 
and on occasion, I would volunteer to represent Nebraska Audubon's 
positions in the state Legislature. About a decade ago, I was 
approached by Audubon's national office to become involved in a federal 
process'the FERC relicensing of Kingsley Dam.
    From a business standpoint, I understood that farmers needed the 
flows that Kingsley provided, to grow the corn that fed the cattle that 
our company processed and sold nationwide. I was keenly aware of all 
the families that depended upon that chain of events, from the 
sandhills rancher's to my own. In addition, the river provided power, 
recreation, and drinking water for millions of people throughout the 
basin. Clearly, there were human uses that needed to be preserved.
    From a conservation perspective, the case was also compelling. The 
Platte River is a world-class wildlife resource that annually attracts 
millions of waterfowl, the largest gathering of cranes on earth, and 
regular visits from some of the rarest cranes on earth. Habitat for 
these birds had steadily declined over the past century due to a 
substantial reduction in the river's flows, and new projects threatened 
the flows that were left. Above all, the Endangered Species Act (ESA) 
now required any water project in the basin with a federal connection 
to address these concerns, and Kingsley Dam was at the front of the 
line.
    Given these facts, I recognized the obvious. The Platte River is so 
important for both agriculture and wildlife that we can not afford to 
harm either one. For this reason, I told our national office that I 
would jump into Platte issues on two conditions: that we base our 
positions on the best science available, and never advocate for the 
taking of water from an existing irrigator. Audubon agreed, and we have 
been working toward that end ever since.
    At Audubon Nebraska, this philosophy is not confined to the Platte 
River, as the organization actively pursues collaboration over 
confrontation, especially when it comes to the ESA. In a state where 97 
percent of the land is in private hands, meeting the concerns of 
landowners is vital, or a recovery program won't work for the species 
or the people who live on the land. On private lands, incentives and 
involvement makes a lot more sense than regulations and resentment.
    Others in the state share this view. This was demonstrated several 
years ago when we participated in a diverse group of Nebraskans 
convened by Senator Bob Kerrey to find common ground on reauthorization 
of the ESA. There was more consensus than some might imagine, and all 
agreed that the ESA could be improved with:
     Greater stakeholder and public involvement in the 
process;
     Decisions based on good science and peer review;
     Emphasis on recovery planning crafted to reduce conflict 
with economic activities;
     Financial incentives for landowners;
     An educational and technical assistance program for the 
public and landowners; and
     Increased appropriations for impacted federal agencies.
    These ESA improvements that were envisioned five years ago could be 
used to describe the goals of the Platte River Cooperative Agreement 
today.
    Stakeholder involvement should be at the top of any conservation 
agenda, and it has certainly been a priority of the Cooperative 
Agreement. This involvement is formally recognized on the agreement's 
Governance Committee, which includes state, federal, water, and 
conservation interests on a ten-member board that requires nine votes 
to act. Involvement is further magnified through Governance Committee 
meetings, sub-committees, state advisory groups, education, and 
communication among the various participants and their peers. The 
Cooperative Agreement may be lacking in some things, but stakeholders 
and their opinions are not among them!
    This is a strength because the outcome can only be a program with a 
solid scientific foundation that is crafted to reduce economic 
conflicts. There is recognition that the Platte's loss of habitat and 
flows must be reversed, but any program should be voluntary, with 
financial incentives for the conservation of water and land. There is 
also an agreement to minimize adverse third-party impacts that can be 
readily identified. Any action under the program will be measured for 
its benefits to the species, and as better science becomes available, 
management will adapt accordingly to maximize the results for each 
dollar spent.
    This is the way the ESA should work, and it is worth pursuing 
because the stakes are so high. To understand what is at stake, I would 
remind you that it took over 13 years and more than $30 million to 
relicense Kingsley Dam. If the Cooperative Agreement fails, not only 
would Kingsley's license be subject to further review, every project in 
the basin could be subjected to proportional scrutiny and costs, which 
means that lawyers would do very well at the expense of the water users 
and wildlife.
    While there is much to lose if this effort fails, the payoff from 
success will be equally dramatic. ESA conflicts that have persisted on 
the Platte for 20 years would finally be resolved throughout the entire 
basin, bringing some much needed regulatory certainty to those 
involved. In addition to enhancing habitat for endangered species, 
habitat would be protected for many other valuable species as well, 
including a half-million sandhill cranes that provide a $25 to $50 
million boost to the area economy each year through tourism. More water 
in the river would benefit drinking water supplies, by recharging 
municipal well fields in the valley. Moreover, all of this would be 
accomplished without significant changes in existing irrigation or 
power generation. A successful Cooperative Agreement could even serve 
as a national model that is used to resolve other ESA conflicts that 
may come down the road, both here and elsewhere.
    One of those issues may already be in sight with the designation of 
critical habitat for the piping plover, although I suspect that it will 
be far less complex than the central Platte. Certainly, the 
identification of critical habitat is an important part of the 
Endangered Species Act, because the decline of a species is often 
linked to its loss of habitat. However, the fact that so many people 
are concerned by this recent designation probably says more about 
people's perceptions of the law, than it does about its actual impact 
on landowners. There are other people here today who can better speak 
to those impacts and the science behind the designation. In our view, 
the uproar over the piping plover again points to the need for a more 
collaborative, incentive-based effort on private lands.
    For example, suppose for a moment that there was something like a 
CRP program for endangered species habitat on private lands, that paid 
landowners to continue the same sound stewardship that protected the 
habitat in the first place. Under this program, the designation of 
critical habitat would be akin to the designation of highly erodable 
land under the CRP Program, and give one a better chance of getting 
their land in the program. This could create a very different view of 
the designation and spur private conservation instead of fear in the 
affected area.
    These are the kinds of innovative solutions that are needed to 
increase the effectiveness of the ESA, and the Platte River Cooperative 
Agreement is a huge step in the right direction. With a resolve to work 
together, along with sufficient funding and support from Congress, we 
can preserve both water use and wildlife in the Platte River Valley. 
The truth is, we can not afford to do anything less.
                                 ______
                                 
    [An attachment to Mr. Sands' statement follows:]
    
[GRAPHIC] [TIFF OMITTED] T7750.004
    
    Mr. Osborne. Mr. Bishop, I see that you have submitted 
three documents for the record.
    Mr. Bishop. Yes, I have, Congressman.
    Mr. Osborne. And in order to maintain proper form, I have 
got to announce what they are. Comments on proposed designation 
of critical habitat submitted by Central Platte NRD, August 10, 
2001; comments on proposed designation of critical habitat 
submitted by Bud Falen law office on behalf of Nebraska Habitat 
Conservation Coalition January 25, 2002; comments on proposed 
designation critical habitat submitted by Central Platte NRD, 
January 28, 2002.
    Having said that, please proceed.

   STATEMENT OF RON BISHOP, GENERAL MANAGER, CENTRAL PLATTE 
                   NATURAL RESOURCE DISTRICT

    Thank you, Congressman, and thanks to both of you 
Congressmen for taking the time to come out to Grand Island and 
hold this hearing. I appreciate the opportunity to speak before 
you today. My name is Ron Bishop and I am General Manager of 
the Central Platte Natural Resources District located here in 
Grand Island.
    We have been long involved in Endangered Species Act 
issues, including the Platte River Cooperative Agreement in-
stream flows and critical habitat. We are in fact the holder of 
an in-stream flow water right on the Platte River for piping 
plover, least tern and whooping crane. I want to visit with you 
just a little bit about some of our concerns regarding the 
Platte River Cooperative Agreement. We have been an active 
participant trying to keep track of what is going on here, and 
our long-term involvement has been not only by attending 
meetings, but also serving on numerous committees that they 
have had, and that has provided us with insight into the 
process and has given us some real reason for concern.
    Some of our principal concerns deal with things such as the 
U.S. Fish and Wildlife Service target flows. The states do not 
believe, we do not believe, nor do they accept as accurate the 
target flows demanded by U.S. Fish and Wildlife Service on the 
Platte River. We, here in Nebraska, have good reason not to 
believe the Fish and Wildlife target flow numbers. Some of 
those same flows were used by the Nebraska Game and Parks 
Commission in-stream flow water right application before the 
state and their Department of Water Resources. And Fish and 
Wildlife Service employees were brought in to provide the 
evidence to support those numbers. The water right hearing was 
conducted like a district court trial, so we had the 
opportunity, utilizing the rules of evidence and courtroom 
procedures to determine the science behind Fish and Wildlife 
Service numbers through depositions, examination and cross 
examination. And that science did not hold up for the State of 
Nebraska.
    As one example of how Fish and Wildlife numbers held up, 
after reviewing all the evidence and testimony, including the 
testimony of a Fish and Wildlife Service expert, the State of 
Nebraska rejected their target flow of 2400 cubic feet per 
second for whooping crane, and instead, established a flow of 
1350, some 45 percent less, as the flow needed to provide 
optimum habitat for migrating whooping cranes, but 
nevertheless, Fish and Wildlife Service is still holding to 
that 2400 cfs for whooping crane and it is being demanded as 
part of the Platte River Cooperative Agreement.
    We are also concerned about direct and third party costs. 
We are very concerned about the risk of an extension of a 
Federal nexus to groundwater in Nebraska. Fish and Wildlife 
Service has indicated that pumping groundwater that is 
conjunctively tied to the surface water of the Platte is 
adversely affecting those target flows that we talked about as 
being too high earlier for endangered species and, therefore, 
affecting or taking or harming the species. They are, 
therefore, demanding as part of the Cooperative Agreement that 
there be no new uses of surface water or groundwater that would 
reduce or deplete in any way their demanded target flows. So we 
are talking about no new uses for agriculture, no new uses for 
municipal, no new uses for industry unless an equal amount of 
water is provided back to the river from some other source.
    They have gone on to say that if such a program is not 
developed, that they have the authority, through the Endangered 
Species Act, to come after water users through other Federal 
programs such as--and these are quotes from them--crop 
commodity payments, conservation reserve programs, wetland 
reserve programs, wildlife habitat incentives program, wetland 
conservation, rural electric programs and several others. And 
since there may be some question about that, I am going to 
provide both of you documentation of their stating those at 
different times at different places.
    We are also concerned about the fair share components of 
the program requiring Nebraska to contribute far more in land 
and water and control of its natural resources.
    There are several other things that we are concerned about, 
one of them is quite a little bit of what we call obstinance on 
the part of the Federal Government.
    We are also concerned about the proposed designation of 
critical habitat for piping plover and that is why we submitted 
the other three documents that we did. Rather than go over it 
in detail, because we do not have the time to summarize the 25 
to 35 pages of material and shortcomings that we found in Fish 
and Wildlife's designation, we will just ask you to please look 
over those documents.
    All of these things that we are talking about really point 
to a need for a more effective Endangered Species Act. 
Unfortunately, the present Endangered Species Act, regardless 
of its intent, has failed at recovering the listed species and 
has instead endangered the economic wellbeing of thousands of 
farmers and thousands of communities all across the west. 
Particularly troubling is some of the Federal abuse that has 
recently come to light under the present Act, the problems with 
the Canada lynx, as well as the shortcomings of the current 
law, as has become evident through the Klamath Falls.
    We think that there needs to be a revised Endangered 
Species Act and one of the keystones of that revision needs to 
be utilizing good, sound science and to assure that it, it 
needs to be sound, scientific, independently reviewed science 
that is utilized for the Endangered Species Act.
    I see I have run over by about a minute. I think for the 
opportunity and I will see that both of you get forwarded the 
material regarding the impacts from other Federal programs.
    Mr. Osborne. Thank you, Mr. Bishop. I know that Congressman 
Rehberg may have to leave. We will go ahead with Mr. Kraus and 
then I will defer to Mr. Rehberg if he does want to ask one 
round of questions and then he can leave and I will proceed.
    [The prepared statement of Mr. Bishop follows:]

   Statement of Ron Bishop, General Manager, Central Platte Natural 
                           Resources District

    Committee Members,
    My name is Ron Bishop. I am the General Manager of the Central 
Platte Natural Resources District headquartered here in Grand Island. I 
am here today not only because of my personal interest in and 
commitment to the conservation of our natural resources, but am here at 
the specific direction of Central Platte NRD's Board of Directors who 
share my commitment to conserve these valuable resources.
    Central Platte NRD is a Nebraska political subdivision responsible 
for, among other things, the development and execution of plans, 
facilities, works and programs relating to the development and 
management of fish and wildlife habitat. We have long been involved in 
ESA issues including the Platte River Cooperative Agreement (CA), 
instream flows, and critical habitat. Central Platte NRD is the holder 
of instream flow water rights on the central Platte River, including 
instream flows for the endangered and threatened piping plover, 
interior least tern and whooping crane. We are involved in a variety of 
endangered species matters in the Platte River basin including the 
Pallid Sturgeon/Sturgeon Chub Task Force (a coalition of entities 
involved in the study and management of these two endangered fishes), 
the Platte River Cooperative Agreement, and the Nebraska Habitat 
Conservation Coalition.

Platte River Cooperative Agreement
    Central Platte NRD is an active participant in the efforts of the 
``Cooperative Agreement for Platte River Research and Other Efforts 
Relating to Endangered Species Habitats on the Central Platte River in 
Nebraska (July 1997)''. Under the terms of the CA, signatories are 
undertaking activities to plan, acquire, restore and manage land and 
interests in land to provide habitat for the designated target species. 
Our long-term involvement in this effort, through not only attending 
meetings but also serving on numerous committees, has provided us with 
insight into the process and has also given us reason for concern. We 
are committed to staying involved in the effort in order to keep up to 
speed on the process; evaluate what's going on and how it could affect 
Central Platte NRD and our constituents; and guide the direction of the 
process and influence decisions because this Program could dictate the 
future of Platte Valley resources.
    Our principle concerns include the following:
    USFWS Target flows--The states do not believe, nor do they accept 
as accurate, the target flows demanded by U.S. Fish and Wildlife 
Service (FWS) for the Platte River.
    We here in Nebraska have good reason not to believe the FWS target 
flow numbers. Some of those same flow numbers were used by the Nebraska 
Game and Parks Commission in an instream flow water rights application 
before the State's Department of Water Resources and FWS employees were 
brought in to provide the evidence to support those numbers. The water 
rights hearing was conducted like a district court trial, utilizing the 
rules of evidence and other courtroom procedures. This process allowed 
us and the other parties, through depositions, examination, and cross 
examination, to explore the ``science'' behind the FWS numbers. As one 
example of how FWS numbers held up, after reviewing all the evidence 
and testimony including the testimony of a FWS ``expert'', the State of 
Nebraska rejected the FWS target flow of 2400 cfs for Whooping Cranes 
and instead established a flow of 1350 cfs (44% less) as the flow 
needed to provide optimum habitat for migrating Whooping Crane. 
Nevertheless the original 2400 cfs for Whooping Crane flows is still 
being demanded by FWS in the Platte River Cooperative Agreement.
    Nebraska's obligations as part of the CA, and those of all 
involved, must be based on independently peer reviewed and 
scientifically sound determinations of actual species needs for each of 
the FWS's target flows. Just as Central Platte NRD's and Nebraska Game 
and Parks' applications for instream flow water rights on the central 
Platte River underwent extensive scrutiny before the Nebraska 
Department of Water Resources, the FWS must submit it's target flows 
for independent scrutiny and independent, scientific peer review.
    Direct and third party costs--The CA and proposed Program documents 
originally estimated first Increment Program costs at $75 million. 
Current estimates have risen to in excess of $146,000,000.00. Who will 
be burdened with paying this amount is still unresolved.
    These costs are only the ``program'' costs and do not include all 
the costs associated with the restriction and limitation of Nebraska's 
right to use ground and surface water. These direct and third party 
costs must be analyzed to determine the impacts and costs of such 
regulatory control upon potential water users. Such actions could 
substantially curtail or eliminate economic development opportunities 
in our NRD and across central and western Nebraska. The increased costs 
attributable to changes required in water use and Nebraska law, to 
changes required in the operation and activities on Nebraska political 
subdivisions, and the cost of lost economic development opportunities 
must be determined and weighed against the real benefits of the 
proposed Program.
    Risk of extension of federal nexus--The framers of the ESA 
envisioned a law that would protect species believed to be on the brink 
of extinction, rare species like the bald eagle and whooping crane. I 
believe it's fair to assume that they never imagined a law that could 
potentially reach out to affect the lives and operations of 
agricultural producers and communities who pump groundwater from wells 
5 miles north of the Platte River.
    The FWS has indicated that pumping groundwater that is 
conjunctively tied to the surface waters of the Platte is adversely 
affecting target flows for endangered species and therefore affecting 
or ``taking'' or ``harming'' the species.
    They are therefore demanding that there be no new uses of surface 
water or groundwater that would reduce or deplete in any way their 
demanded ``target flows''. They have gone on to say that if such a 
program isn't developed that they have the authority, through the 
Endangered Species Act, to come after water users through other federal 
programs.
    Other projects and programs with a federal connection that, 
according to FWS, could be used by them to regulate irrigation and 
other water uses include such things as:
     Crop Commodity payments
     EQIP--Environmental Quality Incentive Program
     CRP--Conservation Reserve Program
     RC&D's--Resource Conservation and Development
     PL-566
     WRP--Wetland Reserve Program
     WHIP--Wildlife Habitat Incentives Program
     Swampbuster-Wetland Conservation
     Rural Electric Program
     Conservation Technical Assistance from Department of 
Agriculture.
    Fair share--The CA is founded on the principle that a basin wide 
solution for endangered species concerns in the Platte River watershed 
is required. This principle is in turn grounded on each of the three 
states and the federal government equitably sharing the costs of 
actions required to comply with ESA. The determination of the fair 
share to be contributed by each state has yet to be made. Components of 
the proposed Program require Nebraska to contribute far more in water 
and control of its natural resources and to receive less credit for 
resource management. The fair share concept must be applied to properly 
apportion ESA compliance between the states and the federal government 
in a manner which proportionately reflects the actual impacts of state 
activities on endangered species and which reflects actual water 
consumption.
    Obstinate federal government--Cooperation and mutual trust are 
cornerstones of the CA process. However despite words to the contrary, 
federal actions to date fall far short of full and good faith 
cooperation. Federal representatives involved in the various CA 
committees have adhered to pre-compromise opinions and courses of 
action, in spite of reason, arguments and persuasion to the contrary by 
the three states and their representatives. They have failed to meet 
deadlines, failed to pursue courses of actions, which would avoid 
obstructions and, if it required compromise on the part of the DOI, 
failed to meaningfully respond to genuine proposals, which would have 
led to a Program. The FWS position was often cloaked in concerns about 
abdicating authority for the protection of endangered species under the 
ESA or veiled in oblique suggestions of the lack of any prevailing 
federal authority requiring a change in position.
    A proposed Program is sought because the FWS have rendered opinions 
concerning ``potential'' effects on certain target species. Such 
opinions are based on the collective exercise of personal judgments by 
a small group of FWS biologists. For FWS to maintain that within this 
amalgamation of human judgment, there is no basis for compromise is 
incredible and displays a lack of good faith. As a result of these 
opinions, many currently regulated and even unregulated entities, 
including governmental, private and commercial entities will be 
required to cut back, curtail or forego water use with little or no 
consideration of: 1) the costs to Nebraskans, 2) the impacts on vested 
rights, 3) the equities of such infringements, or 4) compensation for 
such takings and infringements.
    The CA and proposed Program must require the FWS and other federal 
participants to sincerely pursue new methods and integrate the 
professional judgment of independent experts, using sound and peer 
reviewed science, to identify the actual water and other habitat needs 
of the target species.
    A recent example of the FWS's obstinate and uncoordinated approach 
in working on the CA is the way they have dealt with the Habitat 
Protection Plan (HPP). Despite the efforts of a wide range of area 
landowners, resource specialists and habitat experts and literally 
years of work on the document with ample opportunity for incorporation 
of input, the local office of the FWS frustrated the process as it 
neared completion. They apparently snubbed the direction of their 
Regional Office in Denver and that of the Governance Committee and 
insisted on incorporation of their own approach. This flies in the face 
of the ``cooperative'' spirit of the effort. As a matter of policy, 
Program documents such as the HPP must be approved by the Governance 
Committee and once approved become an accepted part of the proposed 
Program. That is, they represent the consensus position, not solely 
that of the FWS or a few of its employees.

Proposed Designation of Critical Habitat for the Piping Plover
    Another timely example of the effects of ESA in the central Platte 
Valley involves the FWS's proposal to designate critical habitat for 
the piping plover. The Central Platte NRD is troubled by the FWS's 
approach to propose critical habitat for the piping plover and their 
associated supporting documents including their draft Economic Analysis 
and draft Environmental Assessment. We have twice submitted comments 
and have requested an extension of time to address these concerns. Not 
because the species isn't in need of reasonable conservation and 
management efforts, but because of the FWS's legal and factual 
deficiencies in the designation process. As a result of these 
significant shortcomings, we have formally requested the FWS withdraw 
the proposed critical habitat designation and redesignate critical 
habitat in accordance with the statutory and regulatory requirements. 
Our comments, and more extensive comments submitted on behalf of the 
Nebraska Habitat Conservation Coalition (of which Central Platte NRD is 
a member), can readily be made available if desired.
    Our comments submitted on January 28, 2002, pointed out several key 
points. For example, the proposed critical habitat designation fails to 
comply with the mandates of the ESA. The FWS's designation of 
unsuitable habitat as critical habitat is arbitrary and capricious. As 
in the southwestern willow flycatcher case (New Mexico Cattle Growers 
Association et al v. U.S. Fish and Wildlife Service), the FWS is 
claiming that entire river reaches in Nebraska must be designated based 
solely on their potential for suitability. This directly flies in the 
face of the recent decision in the 10th Circuit U.S. Court of Appeals.
    When the FWS listed the species, it got out of designating critical 
habitat by claiming that the nesting of the species is ``ephemeral,'' 
i.e. the birds are always moving around and the habitat is always 
changing, thus, it is not possible to designate critical habitat. Now, 
the FWS wants to designate critical habitat on the exact same basis. 
The record does not square FWS's about-face. It is arbitrary and 
capricious.
    The FWS's draft Economic Analysis of the affects of critical 
habitat designation also fails to comply with the mandates of the ESA. 
The piping plover critical habitat designation documentation claims to 
analyze both the incremental impact of designation and the impacts co-
extensive to listing and critical habitat designation, but it 
accomplishes neither.
    The proposed critical habitat designation constitutes a significant 
threat to the present and future economic well being of many central 
Platte River valley communities. The FWS's proposal notes a variety of 
activities (both public and private) which may adversely modify 
critical habitat. The FWS notes that these activities include such 
common and necessary practices as road and bridge construction and 
maintenance, operation and maintenance of dams, bank stabilization 
projects, dredging operations, and construction of dwellings. Most 
disturbing, the FWS specifically note that ``water development projects 
such as ground water withdrawal for water supply and other river 
depletions'' could comprise an adverse modification of critical habitat 
and taking under ESA. Central Platte River regional economies are 
critically tied to municipal, agricultural, industrial and domestic 
water supplies provided by and associated with groundwater and with the 
Platte River. The designation of critical habitat will adversely affect 
the economic and social health of the region and must be fully 
evaluated.
    The FWS's environmental assessment fails to comply with the 
mandates of the National Environmental Policy Act. The FWS claims to 
analyze the environmental, economic, social, historical and ``custom 
and culture'' impacts of the proposed critical habitat designation 
through a draft environmental assessment. In short, this document finds 
no environmental impact resulting from the designation of critical 
habitat for the piping plover. The FWS's analysis in this document is 
clearly erroneous and fails to comply with federal law.
    Given the inappropriately short time for evaluation and comment set 
by the FWS and the critical importance of the economic issues related 
to any designation of critical habitat, the Central Platte NRD formally 
requested an extension of the period for review and comment for an 
additional 30 days. The Service's establishment of a January 28, 2002, 
deadline for public comment was utterly insufficient.
    In comments submitted on August 10, 2001, Central Platte NRD 
requested copies of all necessary documents required by the NEPA and 
ESA. These documents include the FWS's complete alternatives analysis, 
detailed maps and descriptions of the bounds of the proposed critical 
habitat sufficient to allow the public to determine precisely the lands 
to be designated. The FWS has yet to correct its use of inaccurate and 
non-qualifying maps or provide any of the other information requested 
other than the draft Economic Analysis. Given the magnitude of the 
enforcement powers that come to the FWS with the designation of 
critical habitat to curtail or cease ``adverse modification of critical 
habitat'' it is essential that the critical habitat be particularly and 
accurately described. Based on these comments and the FWS's absence of 
scientific support for the proposed designation, its lack of legal 
support for the designation, lack of consideration of alternative 
habitat management and conservation efforts and lack of appropriate 
evaluation of social impacts, the FWS should withdraw its critical 
habitat designation for the piping plover and re-issue a proposed 
designation, draft economic analysis and draft EA/EIS in compliance 
with federal law.

Need For a More Effective ESA
    Unfortunately, the ESA has failed at recovering and delisting 
species. Only 31 species have been delisted since 1973--seven due to 
extinction and twelve due to ``data error'' (never should have been 
listed in the first place). The remaining species are either located 
outside of the United States (and therefore receive no protection from 
ESA) or were beneficiaries of other activities such as the banning of 
DDT.
    Particularly troubling is federal abuse of the Act that has 
recently come to light. The Wall Street Journal (January 24, 2002) 
reported on a scandal over a high-profile December 2001 survey to count 
threatened Canada lynx. Seven employees from the FWS, Forest Service 
and a state agency submitted hair samples from captive lynx and tried 
to pass them off as wild. When caught, the employees claimed they were 
testing the DNA identification process being utilized. Another 
explanation is that they were trying to establish lynx use in places 
where they don't exist, potentially blocking national forests to human 
use. I understand Rep. Scott McInnis (R., Colorado) has scheduled 
hearings into the matter, while several agencies are investigating how 
far the fraud extended.
    A more effective ESA should incorporate the following concepts:
    Respect the Primacy of State Water Law--State water law is a 
complex matrix that often establishes property rights to water. The ESA 
must be clarified to ensure that the Act is in harmony with and clearly 
recognizes the primacy of state water law.
    Utilize Good Science--The law requires that every ESA action must 
be based on scientific information on a species or its habitat. To 
ensure fair and sensible decision-making, this information must be 
accurate and as thorough as possible. Scientific information can be 
improved by requiring minimum scientific standards and fair, 
independent, and impartial peer review.
    Support Equitably Shared Burdens--The ESA itself calls for 
``encouraging'' states and private parties through a system of 
incentives to implement a program to conserve species ``for the 
benefits of all citizens''. Contrary to this statement, ESA 
implementation often has been heavy-handed and inflexible, and the 
burdens of conservation have been placed disproportionately on private 
landowners and small and rural communities. If all citizens benefit 
from species conservation, then all citizens should help bear the costs 
even handedly!
    Be Fair to Property Owners--Some ESA mandates have severely 
restricted the use and value of private property. When severe 
restrictions occur without compensation by the federal government, the 
Act shifts costs and burdens to individuals and businesses that should 
be shared by all citizens. The ESA must be modified to prevent these 
inequities and encourage landowners to welcome protection of these 
species. Specifically, when private property is preserved in habitat 
conservation plans, the landowner must be compensated in a timely 
fashion.
    Establish Cost Effective Recovery Plans--Recovery plans are 
expensive to implement. Many of the costs are the direct expenses and 
lost opportunities of private parties and state and local governments. 
Costs to non-federal parties should be minimized by requiring 
implementation of the least costly recovery plan that would achieve the 
recovery of the species.
    Provide Incentives to Conserve Habitat--ESA restrictions apply when 
land or water serves as habitat for endangered species. To avoid ESA 
regulation, some property owners have destroyed habitat to discourage 
the entry of protected species. The Act should be amended to provide 
incentives for property owners to conserve, rather than destroy, 
habitat and to provide regulatory certainty to property owners who 
voluntarily participate in conservation plans.
    Encourage Public Participation--Private citizens, businesses and 
communities, especially those directly affected by conservation 
decisions, should have a prominent role in the ESA decision-making 
process. The Act should provide for earlier and more meaningful 
opportunities for citizens to participate, more citizen involvement in 
recovery plans, critical habitat designations and a more prominent role 
in the consultations process for applicants for federal permits.
    I believe our experiences here in the Platte Valley with regards to 
ESA clearly point out the need for these modifications in the ESA. An 
ESA amended to incorporate these concepts would better aid the Nation 
in the resolution of complex endangered species issues and help avoid 
the train wrecks that have plagued the implementation of the existing 
law. In the process we, here in Nebraska, can better protect the 
habitats of the central Platte River and the species that rely on them.
    NOTE: Letters dated August 10, 2001, January 25, 2002 and January 
28, 2002 concerning critical habitat for the piping plover have been 
retained in the Committee's official files.
                                 ______
                                 

STATEMENT OF DONALD D. KRAUS, GENERAL MANAGER, CENTRAL NEBRASKA 
              PUBLIC POWER AND IRRIGATION DISTRICT

    Mr. Kraus. Good afternoon. My name is Don Kraus, I am the 
General Manager of the Central Nebraska Public Power and 
Irrigation District. We provide surface water to approximately 
220,000 acres and benefit over 300,000 additional acres by 
maintaining reliable groundwater tables. The project also 
produces hydropower, which is sold at wholesale.
    I am primarily testifying today about the Cooperative 
Agreement, but I also have some comments on the proposed 
critical habitat designation for piping plover.
    Mr. Osborne. Excuse me, Don, would you move a little closer 
to your microphone--pull it toward you. Thank you.
    Mr. Kraus. In the mid-1980's, Central and Nebraska Public 
Power District began proceedings to renew the FERC licenses for 
both our systems. This provided a Federal nexus and invoked the 
consultation requirements of the Endangered Species Act. In 
consultation, the Fish and Wildlife Service asked for far more 
than our fair share of mitigation. The proposed water measures 
would have been devastating to Central and its customers and 
the financial impacts of all measures were estimated to be over 
$150 million. Central's total annual budget is about $10 
million.
    The projects needed approval in each basin state. The 
states and the Interior signed the Cooperative Agreement of 
1997. It outlines a basin-wide program for endangered species. 
The program will provide habitat and environmental flows to 
mitigate existing water activities and include plans to 
mitigate new depletions and a collaborative process for 
research monitoring and change. We are now in the final phase 
of filling in program details.
    The Cooperative Agreement allowed the districts to settle 
their FERC proceedings based on a program. This would not have 
been possible without the leadership of the Denver office of 
the Fish and Wildlife Service. Under the settlement, the 
districts provide to the program water and storage in an 
environmental account, habitat and monitoring. Central's costs 
for environmental measures are about $20 million plus lost 
hydropower revenue.
    Central supports the program because it beats the 
alternative. Without a program, the FERC proceedings could be 
reopened and further measures imposed on us. Other Federal 
nexus water projects such as irrigation projects in the 
Nebraska panhandle using water from Federal reservoirs in 
Wyoming are in the same situation.
    It is also important that the proposed program address our 
technical disagreements with the Service on issues like year-
round flow requirements. Everyone agrees that we should use the 
best science, but it is not so easy to agree on what science is 
best. The program is phased, collaborative and we use adaptive 
management and peer review to change direction as we learn. As 
we incorporate these concepts into detailed planning, however, 
we struggle to balance certainty with the need for flexibility 
and change.
    Our biggest problem is money. When the Cooperative 
Agreement was signed, we estimated the first 10 to 13 years 
would cost $75 million plus the new depletions programs. Our 
estimate is now $150 million and the cost of the new depletions 
plans have also risen. A program must be in the interest of 
each state as a whole.
    For new water users without a clear Federal nexus, a new 
depletions plan is difficult to swallow. The program benefits 
to those water users are limited and mitigation water will be 
costly. Each state must handle its own new depletions and in 
Nebraska, state funding will likely be needed. The states are 
also contributing water to the program, it was discussed 
earlier, estimated at 80,000 acre-feet yield with a value that 
is not well represented by the cost figures.
    For these reasons we have to anticipate coming to you for 
help. Federal environmental law and policy are established on 
behalf of the entire nation. Here they apply to migratory birds 
that visit in our area for a few days or weeks. If it is in the 
nation's interest to offer these birds special protections when 
visiting Nebraska, the Federal Government should bear a 
majority of the cost. Without a program, the cost of Federal 
policy is piecemeal litigation, risks regarding outcome, lack 
of coordination and delay. When we come to you for Federal 
appropriations, I urge you to give us your support.
    Very briefly, the proposed piping plover critical habitat 
designation plays into fears up and down the Platte Valley 
about the Federal Government program. Critical habitat 
designation is intended for areas with substantial current 
species use, not areas where species use is rare or expected in 
the future with habitat management.
    Areas that are already protected do not need to be 
designated. The Service applies these standards to other rivers 
in the proposed designation, excluding areas used by only a few 
piping plovers. In contrast, the Service proposes to designate 
200 miles of the Platte River, even though very few piping 
plovers nest in the Central Platte River region. Those that do 
nest here use management habitat or off-river sandpits. The 
Service needs to be consistent in designated habitat and much 
more complete in its economic analysis or it risks losing 
public credibility in developing a program.
    I thank you for this opportunity to testify.
    [The prepared statement of Mr. Kraus follows:]

  Statement of Donald D. Kraus, General Manager, The Central Nebraska 
                  Public Power and Irrigation District

    Good afternoon. My name is Don Kraus. I am the General Manager of 
The Central Nebraska Public Power and Irrigation District (Central). 
Central is a not-for-profit political subdivision, governed by a board 
of elected representatives, established under the laws of Nebraska to 
provide surface water irrigation and hydropower. Our Kingsley Dam 
Project stores water in Lake McConaughy in western Nebraska for an 
irrigation distribution system 150 miles downstream in the central 
Platte River area. We provide surface water for approximately 220,000 
acres of farmland, and indirectly serve over 300,000 additional acres 
irrigated from wells by maintaining a reliable elevated groundwater 
table. The project also produces hydropower, which we sell in the 
wholesale market.
    I am primarily testifying today about the Cooperative Agreement, 
but I also have some comments on the proposed critical habitat 
designation for piping plover.
    Central's hydroelectric plants are licensed by the Federal Energy 
Regulatory Commission. In the mid-1980s Central and the Nebraska Public 
Power District (NPPD) (collectively the Districts) began proceedings to 
renew our long-term licenses for the Kingsley Dam project and a 
smaller, interrelated project operated by NPPD. This provided the 
``federal nexus'' needed to invoke the consultation requirements of the 
Endangered Species Act. The Fish and Wildlife Service (Service) 
proposed that substantial environmental conditions be placed in our 
licenses. The water release conditions implicated the water rights of 
thousands of Nebraska farmers, and would have substantially reduced 
their protection against drought. By our estimate, the Service's final 
proposed conditions would have cost over $150 million. Central expected 
to bear about 80% of that burden. Our total annual budget is about $10 
million.
    To put this in perspective, the Districts' projects are two among 
hundreds on the North or South Platte Rivers. The Service did not 
apportion mitigation among those projects, but instead tried to get as 
much as possible from each project as it needed a federal permit. This 
approach was not efficient or equitable. After ten years, the Districts 
had spent over $35 million on legal fees and technical studies with no 
reasonable end in sight.
    Water projects needed federal approvals in each basin state, 
including federal dams on the North Platte River that serve Wyoming and 
western Nebraska and municipal water projects in Colorado. The states 
and the Department of the Interior agreed in 1994 to try to develop a 
basin-wide cooperative approach. This led to the Cooperative Agreement 
of 1997 and the bare bones of a basin-wide Program. The process to fill 
in Program details is now in its final phase. If adopted, the proposed 
Program will provide habitat land and water to benefit three threatened 
or endangered species: the whooping crane, the interior least tern and 
the piping plover. It will also test whether actions taken for these 
species might benefit the endangered pallid sturgeon, which 
occasionally enters the lower Platte.
    The proposed Program is phased. During the first thirteen-year 
increment, it will acquire and protect 10,000 acres of habitat, working 
toward a long-term goal of 29,000 acres. The proposed Program also 
provides for environmental flows in the river. Flows now fall short of 
Fish and Wildlife Service ``target flows'' by an average of 417,000 
acre-feet in an average year. The Districts and others believe that the 
target flows are not justified, but we have agreed that during the 
first increment, the Program will reduce shortages to target flows by 
130-150,000 acre-feet. The long-term Program water goal is undefined--
'sufficient'' flows for species needs.
    These measures provide ESA compliance for all water-related 
activities that existed as of July 1, 1997, the date the Cooperative 
Agreement was signed. The proposed Program also has new depletions 
programs to be administered by the individual basin states. They 
mitigate the impacts on target flows of any water use added later.
    The Cooperative Agreement allowed the Districts to settle their 
FERC licensing proceedings based on our participation in the 
anticipated Program to address the entire basin together. This 
settlement would not have been possible without the leadership of the 
Denver office of the Fish and Wildlife Service. Under the settlement, 
the Districts provide storage in an ``environmental account'' for water 
we contribute and for Program water from upstream projects, 2650 acres 
of habitat and annual species and habitat monitoring. Additional 
license requirement include a further 4700 acres of non-Program 
habitat. The measures in our license will cost about $20 million. I 
want to note that we could offer a significant amount of water in a 
proposed Program because the Program will mitigate the impacts of new 
development on our project.
    The relicensing proceeding was long and contentious because 
decisions had to be made up front, leaving no way to accommodate our 
sharp technical disagreements. It is easy to agree that we should use 
the ``best science'', but when scientists disagree, it is not so easy 
to agree on whose science is best, or what is a conservative approach 
and what is mere speculation. Substantial technical disagreement 
remains today, but we have looked for ways to go beyond that 
disagreement. First, the proposed Program is phased, so that long-term 
goals and commitments are periodically revisited. Second, the proposed 
Program is committed to an ``adaptive management'' approach. We agreed 
to disagree, and to use the Fish and Wildlife Service's approach to 
land and water as a starting point. But we are also actively exploring 
alternatives, carrying out extensive monitoring and research, arranging 
for peer review, and changing our approach as experience or research 
warrants. Third, decisions are to be collaborative. The Program gives 
both our state and the water users voting seats and prevents unilateral 
changes of direction. The Program is also committed to involving local 
land and water users in Nebraska, to working with only willing 
participants, to paying taxes on Program lands and to acting as a good 
neighbor.
    These aspects of the proposed Program were critical to reaching 
agreement but are also the most difficult to analyze and to carry into 
specific planning. As a result, they have been revisited over and over 
again. I want to commend Ralph Morgenweck, the Director of the Denver 
office of the Fish and Wildlife Service on adopting this innovative 
approach in lieu of command and control, and on his hard work to find 
and keep a difficult balance between certainty and flexibility. It has 
clearly been a struggle both within his organization and with 
stakeholders to find the right balance, and that struggle is not yet 
over. But Ralph's willingness to use creativity has been essential and 
will continue to be needed for the Program to succeed.
    Central supports the proposed Program because it beats the 
alternative. Bluntly, if the Cooperative Agreement does not lead to a 
Program, or the Program fails, the FERC proceedings could be reopened 
and further measures imposed on the Districts. Other ``federal nexus'' 
water related activities, such as the irrigation projects in the 
Nebraska panhandle that receive water from federal reservoirs in 
Wyoming, also have strong incentives to participate.
    But for new water users without a clear federal nexus, the 
Program's new depletions plan is difficult to swallow. Program benefits 
to these water users are limited and mitigation water will be costly--
probably beyond their willingness to pay. In Nebraska, development of a 
new depletions plan may involved statutory changes, and addressing 
surface vs. ground water issues that have not fully matured. In 
addition, some Nebraskans are very disturbed at inviting the federal 
government into decisions about private property. For a Program to be 
adopted, it must be in the interests of the state as a whole. The state 
has and will continue to need to commit substantial resources to 
address the new depletions issues.
    Unfortunately, a greater commitment of resources is needed 
elsewhere as well. When the Cooperative Agreement was signed, total 
costs of the first ten- to thirteen-year increment were estimated to be 
$75 million, not including the costs of new depletions programs. At 
this point, estimates have risen to $150 million, and are not final. 
There are several reasons for the increase. Land prices have risen 
sharply as groups began buying river lands for hunting. Experience has 
shown that some land restoration costs were not correct. A study of 
water supply and conservation options showed that water will be more 
difficult and expensive to obtain than anticipated. In addition, about 
a year and a half ago, the Department of the Interior raised issues 
about sediment transport and vegetation control based on preliminary 
studies for the environmental impact statement. After coordination with 
outside consultants, we agreed to expand our research in this area, 
including small-scale exploration of potential sediment and vegetation 
control measures on Program lands, and then to apply successful 
measures as appropriate on other Program lands. These activities 
increased both research and restoration costs. The sediment and 
vegetation issues and efforts to define Program success also made us 
look hard at the research and monitoring program, to be sure it will 
give us the data and experience to ``adaptively manage'' the Program as 
we intended. In addition, we naively expected administrative costs of a 
Program to be minimal, with Program participants donating needed 
support. Experience has shown we will need a small staff. While efforts 
are always made to keep costs as low as possible, we need the tools for 
success and they will cost more than we first thought.
    Our biggest problem is where to get the money and water to carry 
out a Program. If and when we agree on Program details, we anticipate 
coming to you with our hats in our hands. Federal environmental law and 
policy are established on behalf of the entire nation. Here, they are 
applied to migratory species that simply visit in our area, to our 
great expense. Typically two to six whooping cranes visit in the spring 
for a few days. Longer visits, and fall stopovers are more rare. The 
interior least tern and piping plover arrive in June, nest, fledge 
their young, and are gone by mid-August.
    If it is in the nation's interest to offer these birds special 
protections during their stays in Nebraska, I would respectfully submit 
that the nation needs to help pay for those protections. Nebraska has a 
limited population to tax and its ability to support a more costly 
Program is limited. This is particularly true since the costs of a new 
depletions program are also much more than anticipated. Opportunity 
costs of foregone development could also be substantial and affect the 
tax base. It should also be recognized that the states are contributing 
water to the Program with value that is not well represented by the 
cost figures. The three major state water projects have an estimated 
yield of 80 thousand acre-feet in reduction of flow shortages. The 
Cooperative Agreement assigns these projects a negotiated ``cost'' of 
under $17 million over the first thirteen years, but replacing that 
water could cost five times that amount. For these reasons, I believe 
that the Federal Government should and will need to bear the majority 
of costs of a Program. If not, the cost to federal policy is piecemeal 
litigation, risk regarding outcome, lack of coordination through the 
basin, and delay. When we come to you in Congress to ask for federal 
appropriations, and I urge you give us your support.
    I would like to comment briefly on the proposed piping plover 
critical habitat designation. Frankly, it plays into all of the fears 
of farmers up and down the Platte River Valley about letting the 
federal government in the door through a Program.
    The proposed designation for the Platte River is not well grounded 
in science or law. Critical habitat designation is intended for areas 
with substantial current species use--not areas where species use is 
rare or hoped for or expected in the future if management changes are 
made. Areas that are already protected by other programs or plans do 
not need to be designated.
    These standards were applied to other rivers in the notice, but 
contrast sharply with the proposal to designate the entire 200-mile 
Platte River from Cozad to the mouth. Very few piping plover nest in 
the central Platte River region. Those that do nest in the area use 
managed, protected areas or sandpits near the river. Bird-use data from 
sandpits are the only justification for including many reaches of the 
central Platte River, but the sandpit areas themselves are excluded. On 
other rivers, the Fish and Wildlife Service specifically excluded areas 
of similar limited and ephemeral use. The Service should be consistent 
in its approach to the Platte River.
    Perhaps portions of the Platte River, particularly the lower 
Platte, are appropriate to designate. But in proposing to designate the 
entire central Platte River, the Fish and Wildlife Service contradicts 
itself. Throughout our relicensing proceeding we were told that the 
central Platte River had little or no suitable habitat for piping 
plovers. That was why the Service needed large-scale mitigation, and 
ultimately a Cooperative Agreement and a Program. Now we are told the 
entire river's habitat is already in a condition that must be preserved 
for the species to survive. This does not make sense, and it undermines 
the credibility of the collaborative efforts in the Cooperative 
Agreement.
    Perhaps the Service is looking ahead to conditions that may exist 
under the proposed Program or after individual water user mitigation. 
If so, the law is clear that critical habitat designation is not 
available until the habitat actually exists. Perhaps there is a fear 
that we will no longer be willing to address piping plovers in the 
central Platte River area if it is not designated critical habitat. 
Certainly the ESA doesn't recognize this justification. I want to be 
clear that Central, under its license and through the Program, will be 
actively working toward achieving habitat for piping plovers whether or 
not there is a designation of critical habitat in the area. The 
Cooperative Agreement and proposed Program were developed without such 
a designation and will also continue regardless.
    After desirable habitat for piping plover has been created in the 
central Platte area, the Service can consider critical habitat 
designation. I would expect, however, that designation would then be 
unnecessary because the lands will already be protected by a Program or 
by whatever agency ordered the habitat restoration. Piping plover 
habitat on the shores of Central's Lake McConaughy was excluded from 
the proposed designation because these lands are already protected 
under the terms of our FERC shoreline management plan. Managed riverine 
piping plover habitat should be treated similarly.
    The Program is written so that the proposed critical habitat 
designation should not impact covered water-related activities. But in 
my view, the economic report provided by the Service is completely 
inadequate in addressing impacts if the Program is not adopted, and on 
water users not covered by the Program. Our experience with critical 
habitat has been high expense for studies, high expense for litigation, 
high expense for mitigation measures, lengthy delays in federal and 
state approvals, and lost opportunity costs.
    I thank you for you for this opportunity to offer testimony for 
your consideration, and for your time.
                                 ______
                                 
    Mr. Osborne. Thank you, Mr. Kraus. Mr. Rehberg.
    Mr. Rehberg. Thank you, Congressman Osborne, and let me 
once again thank you for calling this hearing in Nebraska and 
inviting me to be a part of it. It is a very important process 
that we find ourselves in as Congressmen and one of the things 
I am struck with as I listen to your constituents and 
colleagues, and I admire you for the ability to bring these 
people together to testify today, you have done a good job in 
bringing the appropriate people and I have found them very 
helpful.
    The thing that strikes you and I hope it strikes a number 
of people throughout the Midwest, the west and hopefully we can 
finally get the folks back east to understand, as many of these 
decisions nowadays in the environmental arena are so combative 
and controversial that they are being decided by the courts, 
which is not the place to have them decided or oftentimes being 
done in an Executive Order by the President and that is not 
particularly the best arena as well.
    And so if Congress is not going to lose its opportunity to 
include the public and make the rational, right decisions, we 
are cooked. Essentially the things that you talk about, I am 
not sure we have an answer right now.
    Mr Kraus and Mr. Bishop, you talk about sound science, but 
we have to come to a conclusion who best could decide which of 
the science is most sound. Mr. Sands, I do not disagree with 
your idea that perhaps creating habitat through financial 
incentives of increasing CRP might seem like a good idea, but 
for those of us who actually deal in cycles, mineral cycles and 
water cycles, and have to deal with grass, I can tell you that 
we are loving our environment to death because as we add 
acreage in CRP, while we may create additional habitat, if you 
go in and you take your finger and start playing with some of 
those plants, you will find that we are actually in fact 
killing those plants with kindness because of under-use. You 
can under-graze grass every bit as dead as you can create a 
dead plant by over-grazing it. So it is good to have this 
healthy dialog and I thank you for being a part of it.
    I am not going to ask you the esoteric questions of who 
would decide sound science, but I would like to go back to you, 
Mr. Kraus, real quickly if I could and ask you the costs. You 
feel the Federal Government ought to pick up the difference in 
cost.
    Mr. Kraus. Yes. We have a program, the costs have increased 
but it is really looking at value and I think there is a huge 
value to be received by the Federal Government to develop a 
collaborative, develop a cooperative process. I think that is 
important. You are going to avoid litigation, you are going to 
have a coordinated effort.
    I think it was mentioned earlier the 80,000 acre-feet 
supplied by the three states. Value in the fair share document 
is less than $17 million. If we were to look at fair market 
value of that water, five or six times that amount. So I am 
saying there are equity issues here that I think need to be 
discussed. I think there are a number of reasons why the 
Federal Government would find it in the best interest of 
everyone to assume a greater share.
    Mr. Rehberg. Mr. Schwarz, we have all talked a little bit 
about consensus. Do you have a consensus-building process 
within the state of Nebraska, an official entity that does 
that? The only reason I ask that, when I was Lieutenant 
Governor in Montana, I created a consensus council for natural 
resource purposes. These issues are so similar to what we have 
only we get a little more emotional, we throw buffalo guts at 
people and things like that.
    [Laughter.]
    Mr. Rehberg. I have not seen any of that yet today. So we 
created a consensus council, we started out calling it the 
Office of Dispute Resolution, and it is where everybody is an 
equal, there is no U.S. Fish and Wildlife Service that oversees 
the process, everybody is an equal when they come to the 
table--you and the Fish and Game and our own Department of 
Natural Resources and the Bureau of Rec. Do you have anything 
similar to that in the State of Nebraska?
    Mr. Schwarz. Not really. Of course, in issues like this, 
you know, ESA is always the trump card. As a rule, it seems 
like when we work with Fish and Wildlife, you know, it is our 
way or the highway.
    Mr. Rehberg. Mr. Sands, we have the advantage in Montana of 
hearing from Lewis and Clark, they actually kept pretty good 
journals and they talk about some of the over-grazing the 
buffalo caused. You in your statement mentioned the fact that 
dewatering of water is creating a habitat problem. I would 
suspect, is that not a historical problem, that if you went 
back 100 years, you would find reference to the fact that water 
had been depleted within the Platte over the course of the last 
100 years? And how can that be the problem that has created the 
habitat shortage for the endangered species that we are now 
discussing?
    Mr. Sands. Well, the habitat needed by cranes is a wide 
treeless channel essentially. And historically, you get a huge 
spring melt in the Rockies that comes roaring down the Platte 
and if there are any seedlings on the banks or on the sand 
bars, it would wash those seedlings away with ice scourings and 
other things. And so that is essentially what kept the Platte 
from becoming a narrow tree-lined river like you would see back 
east. And parts of the Platte have become that, they have 
become narrow and tree-lined and have little use by cranes and 
plovers and so forth. So you know, certainly development in the 
basin, throughout the basin, has removed that natural 
hydrologic cycle and that is why trees have started to encroach 
on the river, grow on the banks, grow on the sand bars and 
reduce the habitat that is found in the Platte Valley.
    Mr. Rehberg. Thank you, Mr. Osborne, I have no further 
questions, and once again let me thank you.
    Mr. Osborne. Thank you, Denny, for being here.
    Mr. Rehberg. Thank you all.
    [Applause.]
    Mr. Osborne. I will proceed and ask maybe a round of 
questions here of you gentlemen and I appreciate very much your 
being here.
    First of all, Mr. Bishop, in your written testimony, you 
cite an example of a local Fish and Wildlife Service office 
apparently ignoring the direction of the regional office in 
Denver; is that correct?
    Mr. Bishop. Yes, that had to do with the habitat plan.
    Mr. Osborne. It was concerning the habitat protection plan.
    Mr. Bishop. There was a considerable amount of work done on 
that and if you are interested, I would be happy to detail in 
more detail the circumstances there, but basically after 
working on it by a number of local landowners as well as a lot 
of the agency people involved in the Cooperative Agreement, the 
work was more or less overridden by the local office and it 
almost set aside a great deal of work that had been done by 
everyone and it is still unresolved totally at this point. I 
will be glad to outline for you--
    Mr. Osborne. That is not the way things normally work where 
you have the lower rung on the ladder overruling the next 
higher rung. It does not work that way in the military, does 
not work that way in football--
    [Laughter.]
    Mr. Osborne. --so we might want to look into that a little 
bit, because it is frustrating I am sure when you go to a lot 
of work and all of a sudden have it overturned without much 
reason or at least much apparent reason. And I do not know all 
the details.
    Second, how would you characterize your organization's 
involvement in the process for establishing in-stream flow 
requirements and the pulse flow requirements for the Platte 
River? In other words, do you feel like you were adequately 
involved? Do you feel like you had adequate input?
    Mr. Bishop. We attempted to make input, Congressman, but we 
are still living with the numbers that U.S. Fish and Wildlife 
Service proposed seven or 8 years ago when we got into this 
Cooperative Agreement and we have made no real progress at 
changing the numbers in spite of a great deal of evidence that 
has been submitted through--starting back with the FERC 
relicensing, the evidence that is available through the State 
of Nebraska Department of Water Resources hearing process that 
addressed many of those flows. We are still living with those, 
what we think are excessively high flows and in fact, Nebraska 
is going to have to offset any new depletions to those flows. 
So that just increases the amount of impact to the state of 
Nebraska, trying to offset those high flow numbers.
    Mr. Osborne. Well, I have not been at this a long time, but 
I have heard from a number of people that it seemed like there 
was reasonably good science behind the 1300 cubic feet per 
second at Grand Island in late May and early June and to have 
that ramped up to 2400 cubic feet per second is a significant 
difference and some people might say well it really is not a 
cost to anybody, but that is water that could be used for 
irrigation purposes.
    Mr. Bishop. Absolutely.
    Mr. Osborne. In our current situation with Lake McConaughy, 
at one time it was strictly for irrigation, now there is 
significant recreational value, there is also hydroelectric 
power starting in 1988 and now we have an endangered species 
account. So we have got a four-way stretch and we have got dry 
years, so sending a lot of water down the river, if it is 
unnecessary, is certainly a concern. It would seem that we need 
to have some further investigation of that.
    Mr. Schwarz, I want to just touch on the sediment issue and 
I would like to underscore what you said earlier and that is 
the idea that--apparently there is some attempt to try to make 
the river look like it looked several years ago, maybe 80 or 
100 years ago. And in doing that, we have to have more sediment 
in the river, I have heard using 100 dump trucks a day, I have 
heard pushing an island into the river and now lately kind of 
an unclear plan. But my understanding also is that, as you 
mentioned, one of the reasons we need the increased sediment is 
because the increased target flows will scour the river and 
create the need for more sediment, which seems like a circular 
argument. Do you have anything further--or have I restated your 
case?
    Mr. Schwarz. Well, that is the problem. I mean as you add 
more water, you need more sediment and it is just kind of a 
never-ending cycle to that extent.
    The core of the problem is that, you know, we cannot really 
have a designer river here. I think the comments of Mr. Sands 
were very accurate regarding the historical basis of the river. 
And I think at some point, we have to accept the fact that we 
are not going to be able to go back to that. Those dams are in 
place and the bridges are in place and I do not think we are 
going to see a major move in this state at least to remove 
those bridges and dams. I think we need to take the water we 
have available and use it to the best extent we can to help 
these species. And I think there are ways we can recover these 
species without just taking 400,000 acre-foot of water and 
running it down the river to do some of the things that are 
being proposed. I think with lesser amounts of water, we can 
develop wetlands along the river and I honestly believe we have 
the ability to recover these species. That is something that is 
within our grasp, particularly with respect to the term and 
plover. Now the whooping crane, of course, we have got some 
issues there that are outside of our control.
    Mr. Osborne. I notice that in the target flow issues, the 
No. 1 priority was a pulse flow, a very high pulse flow, during 
wet years, which got up to maybe as much as 12,000 cubic feet 
per second, which undoubtedly would cause some flooding and I 
think that is the intent, to flood some of the pasture lands 
which in turn creates some insect life and some food for some 
of the species. But I believe in another conversation I had 
with you, you indicated that there might be the possibility of 
creating wetlands through some flooding procedures without 
having to run all that water down the river in order to flood 
those wetlands. It is certainly an idea that I think should be 
explored. It would make some sense to me at any rate.
    Mr. Sands, do you have any comments? We are not trying to 
pick on you, because I know that your heart is in the right 
place and I think you want to do the right thing. And I 
certainly agree with your idea of financial incentives. One of 
the problems I see is that in the Platte Valley, you are often 
talking about $1500 to $2000 an acre land and to do something 
in CRP or to have people set that aside, you are getting into a 
pretty high-priced program and I am assuming that would be 
government money you would be talking about here; is that 
correct?
    Mr. Sands. Yes, I am talking about a government program. 
But let me I guess clarify what I was suggesting, that 
something like the CRP program, not necessarily keeping land in 
grass to protect endangered species, but if you have endangered 
species habitat, you protect that habitat whatever it is, but 
on the Platte, I think we can do a lot--we can spread our money 
by using a variety of tools. Conservation easements I think are 
a great way to protect land or leases are another way to 
protect land. Actually, I would be surprised if there is very 
much fee title acquisition of land through the Cooperative 
Agreement, I think these other tools would probably be 
preferable, which would spread the money a lot further.
    Mr. Osborne. And last, the last question, Mr. Kraus, I know 
that your organization has been really heavily involved in the 
Cooperative Agreement, maybe more so than any other 
organization that I know of, and I would just like a fairly 
frank appraisal of how you have seen that process. Do you feel 
like it has been a good smooth process or have there been some 
frustrations or anything that you would suggest that might be 
done to improve the situation?
    Mr. Kraus. Well, I think Tom mentioned the delay, a year 
and a half ago we kind of thought we knew where we were and 
there was a new issue raised with the sediment. The states then 
contracted to provide some additional assistance and really had 
to address the sediment issue, a brand new issue that came up. 
We hopefully have eliminated new issues, we have discussed 
problems we have had with getting people to agree upon a set 
of--really finding the flexibility in the ESA. I think it has 
been with the leadership or Ralph Morgenweck in the Denver 
office, when they get involved, they can help find that 
flexibility in the ESA and move past some of these tough 
issues.
    There are a number of equity issues that are still out 
there. I think we have made progress and it has taken longer 
than we all thought, but we have still got some tough issues to 
work through--fair share, one; money, how we work through that 
issue. And so I think we are making progress, but I think we 
are tight to get to June 30, 2003--it is going to be tight.
    We have tried to identify four major issues to work through 
over the next month and hopefully we can kick off an EIS 
activity. We are optimistic, but we are not there yet. But I 
think certainly from Central's perspective, we are going to 
keep working on this program. We think it is best, it is in 
everyone's best interest to try to develop a cooperative effort 
on this.
    Mr. Osborne. It is my understanding that Central is highly 
motivated to get the Cooperative Agreement to work because of 
your experience with FERC, is that correct?
    Mr. Kraus. That is correct. We would have the--if it does 
not work, if we have no cooperative agreement, we have the 
option of Fish and Wildlife Service trying to reopen our 
license, impose additional habitat upon us, additional water 
requirements upon our users and I think that would be a very 
disappointing conclusion and we hope it does not occur, and 
likely would lead to litigation and those kinds of things.
    Mr. Osborne. Thank you. I would like to thank the panel.
    If you would give me the license, I need to mention two or 
three things for the record and then I would like to maybe take 
three or 4 minutes just to summarize some of my thoughts and 
again, those of you who want to stay we would be glad to do so.
    For the record, we have to make notice of a letter from 
Ruth Warren of Hastings, Nebraska, which will be entered into 
the record.
    Mr. Osborne. A statement from Dave Burkholder from Cozad, 
Nebraska.
    Mr. Osborne. A statement from Paul Currier, the Executive 
Director of Platte River Whooping Crane Maintenance Trust, Inc.
    Mr. Osborne. And a statement by Don Adams representing 
Nebraskans First.
    [The letters referred to follow:]

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    Mr. Osborne. So we really appreciate those folks who have 
taken the time to write a statement. They will be entered into 
the record, they will be forwarded to the Resources Committee 
in Washington.
    And last, let me just say this, that after having listened 
today and talking to Chairman Hansen and others, there is a 
very strong feeling among many people that the Endangered 
Species Act needs to be reformed. Probably the main difficulty 
that I see is that part of the Endangered Species Act is 
intended to protect the species without any regard to economic 
impact. That is part of the law.
    More recently, the 10th Circuit Court of Appeals, which has 
been referred to several times, has somewhat overturned that 
and said you have to do an economic impact statement. So 
apparently that is now entering into the picture. But I think 
that it is really important to also understand the political 
reality. Most of the people in this room would probably, even 
if you are very much in favor of protecting species, would 
probably say we need to have some changes made, some of it has 
gotten a little unreasonable. But it is important to remember 
that there are an awful lot of people, largely in urban areas, 
largely on both coasts, who really like the idea of protecting 
species. Many of them may have not seen many of these species, 
they may not have been on the land, and many of them contribute 
to political parties. Therefore, the political reality of 
changing the Endangered Species Act is much more difficult in 
Washington than it is here and I think it is important to know 
that.
    Third, I would mention that the administration, Gale 
Norton, is really interested in maybe changing the mindset of 
those who administer the Endangered Species Act and I am 
putting words in her mouth but I know that she is very 
interested in having a really clear-cut, independent peer 
review, and accurate data. And as we can tell today, there have 
been some times when that may be a little shaky as to really 
how independent it has been, how adequate the data has been. 
And that is where she is coming from, but that has to filter 
down through all the levels and percolate, and that takes some 
time.
    I think I agree with Mr. Kraus that the Cooperative 
Agreement is certainly good in principle. There may be some 
concerns as to who is carrying the burden, is Nebraska really 
disproportionately affected. And those are things that other 
wiser people than I will have to decide.
    I think that there is considerable argument that the 
critical habitat designation for the whooping crane, the least 
tern and the piping plover on that 56-mile stretch of the 
Platte River, if all of the facts are laid on the table, may be 
in question whether that is really appropriate, and I think 
that is something that should be reviewed. We did hear some 
assurance from Fish and Wildlife that they would be open to 
having that happen and so we are going to push for that.
    And then last, I would just mention that Nebraska needs a 
comprehensive water plan. I think that this is something that 
Mr. Schrock mentioned, I think that everybody can begin to 
sense that water is getting tighter--the demands of 
municipalities, the demands for irrigation, electricity, and so 
we need to have a plan, we need to have a systematic water law, 
which most western states have, which we do not have. And so I 
think his committee is going to be very, very important.
    And then last, of course, Nebraska is in a uniquely 
favorable position in terms of water. As I sit on the Resources 
Committee and listen to other people from western states, we 
have a tremendous asset that they do not have. Most of them 
have very, very sparse water supplies and many of them have way 
more people. And so we have a very good situation, but we do 
need to protect it and we do need to be very proactive.
    Having said that, we will close the hearing. I want to 
thank everyone for coming, I want to thank the panelists, and 
as I said, I will stay around for a little bit.
    I would also like to thank the people here at College Park. 
They obviously made this available, I think they moved some 
people around and we appreciate that. The Hall County Extension 
Service; Rich Bringelson, Susan Holstein, Kristin Young, Jackie 
Pessegrich-Gringelson at College Park; the court reporter Bill 
Warren, we appreciate you being here; and Jeff Johnson from 
Grand Island Senior High School.
    So thank you all for coming and we will stay as long as you 
want. I will listen--I have been beat on before and so I am 
ready to be beat on again if you want to do that.
    Thank you.
    [Whereupon, the Committee was adjourned at 3:52 p.m.]

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