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



 
    SCIENTIFIC EVALUATION OF BIOLOGICAL OPINIONS ON ENDANGERED AND 
             THREATENED FISHES IN THE KLAMATH RIVER BASIN
=======================================================================


                           OVERSIGHT HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             March 13, 2002

                               __________

                           Serial No. 107-93

                               __________

           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 March 13, 2002...................................     1

Statement of Members:
    Calvert, Hon. Ken, a Representative in Congress from the 
      State of California, Prepared statement of.................    23
    Gallegly, Hon. Elton, a Representative in Congress from the 
      State of California, Prepared statement of.................    32
    Hansen, Hon. James V., a Representative in Congress from the 
      State of Utah..............................................     1
        Prepared statement of....................................     3
    Herger, Hon. Wally, a Representative in Congress from the 
      State of California, Prepared statement of.................    32
    Rahall, Hon. Nick J. II, a Representative in Congress from 
      the State of West Virginia.................................     4
    Walden, Hon. Greg, a Representative in Congress from the 
      State of Oregon............................................     5

Statement of Witnesses:
    Hogarth, Dr. William T., Assistant Administrator for 
      Fisheries, National Marine Fisheries Service, U.S. 
      Department of Commerce.....................................    12
        Prepared statement of....................................    13
    Lewis, Dr. William M., Professor and Director, Center for 
      Limnology, Cooperative Institute for Research in 
      Environmental Sciences, University of Colorado.............    16
        Prepared statement of....................................    17
    Wooldridge, Sue Ellen, Deputy Chief of Staff, U.S. Department 
      of the Interior............................................     6
        Prepared statement of....................................     8











 OVERSIGHT HEARING ON "SCIENTIFIC EVALUATION OF BIOLOGICAL OPINIONS ON 
      ENDANGERED AND THREATENED FISHES IN THE KLAMATH RIVER BASIN"

                              ----------                              


                       Wednesday, March 13, 2002

                     U.S. House of Representatives

                         Committee on Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 10 a.m., in 
room 1334, Longworth House Office Building, Hon. James V. 
Hansen (Chairman of the Committee) presiding.

STATEMENT OF THE HONORABLE JAMES V. HANSEN, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF UTAH

    The Chairman. The Committee will come to order. This 
morning, we have a very important hearing on this problem we 
have in the Klamath area. We do not have too many members here 
as yet and we are going to have a vote, I am not sure when. It 
could be as far as 10:30, it may be sooner. So I would like to 
start, but it is very difficult to start without a member of 
the minority here. So, my friends over there, where are they?
    We appreciate our witnesses being here, and let me 
apologize to all of you because of this room. Normally on a 
Full Committee hearing, we hold them in 1324, which is a little 
larger, and the reason we are doing it here is they are 
rewiring that room and so we cannot use it. I really apologize 
to you folks standing. I wish we had a better room for you and 
we appreciate your patience and your understanding.
    Today's hearing is a follow-up of last year's oversight 
hearing on water management and endangered species issues in 
the Klamath Basin. We have a panel of experts with us today and 
I look forward to hearing and discussing their testimony. This 
Committee thanks them for participating in this hearing.
    We would also like to thank the National Academy of 
Sciences for the interim report we have before us today. We 
appreciate their quick and objective research and insight they 
have given us on this important matter. Their professionalism 
and commitment to excellence justifies the confidence that we 
have in this organization.
    Last week, this Committee held a hearing concerning the 
submission of false samples of Canadian lynx hair by scientists 
participating in an interagency survey. Prior to that, we 
conducted a field hearing that dealt with questionable policy 
decisions with regard to endangered species along the Platte 
River in Nebraska. These oversight hearings have strengthened 
my belief in the need for sound science. Unless policy 
decisions are based on sound science, good decisions are 
possibly only by chance.
    Hardly a better example exists of the need for sound 
science than the recent controversies at the Klamath Basin. In 
2001, the U.S. Fish and Wildlife Service and the National 
Marine Fisheries Service issued biological opinions stating 
that the series of dams and diversions known as the Klamath 
project was harming three endangered species of fish, the lost 
river sucker, the short nose sucker, and the coho salmon. These 
opinions called for higher lake and stream flows to protect 
these species.
    Based on these opinions, on April 7, 2001, the Secretary of 
Interior was forced to close the head gates that supplied the 
primary source of water to approximately 1,400 farmers and more 
than 200,000 acres of cropland in California and Oregon. The 
same government who promised full water rights to worthy 
veterans of the armed services in the Klamath Basin over a 
half-century ago was now taking them away.
    The canals ran dry until July 24, when the Secretary 
released a small amount of irrigation water, but it was a 
little too late. More than 3 months without water had caused 
the fertile green basin that once supplied habitat to hundreds 
of thousands of waterfowl and thousands of bald eagles to 
become a scorched and unproductive area. Farmers, unable to 
harvest their crops, struggled to make mortgage payments. 
According to a study by Oregon State University and the 
University of California at Berkeley, direct losses in the 
Klamath Basin exceeded $135 million. Estimates of long-term 
losses exceed $200 million. Although the agencies had filled 
the lake, the farmers' pockets ran dry.
    Upon the request of Secretary Norton, the National Academy 
of Sciences conducted an independent review of this data used 
by the Fish and Wildlife and National Marine Fisheries Service 
in their biological opinions. The report concluded that there 
was no substantial scientific foundation for changing the 
operation of the Klamath project to maintain higher water 
levels. The report also found that higher water levels could 
actually be lethal to the coho salmon in the Klamath River by 
increasing the water temperature to equal or exceed lethal 
temperatures during the warmest months of the year.
    Some people say the agency used junk science or bad 
science. I am not here to debate that point, but this I do 
know. The science was incomplete and incomplete science leads 
to poor decisions. Sound science is independently verifiable. 
It is not policy disguised as science.
    Some groups argue that we should err on the side of caution 
and continue to maintain high water levels in the Upper Klamath 
Lake and the Klamath River. In this case, however, the study 
shows us two important things. First, the year with the highest 
fish recruitment level was a year when the lake levels were 
low. Second, that if we do as these groups wish and maintain 
high water levels, more warm water would be released from the 
lake into the river. These releases would be harmful to the 
coho salmon because of the high water temperatures. By erring 
on the side of caution, we would be killing the same species we 
are trying to protect.
    My point is not that lake and river levels should be high 
or low. My point is that the decisions made regarding these 
levels must be made based on science. Without such a 
foundation, we are merely guessing and blindly implementing 
policy in response to threatened or impending lawsuits. We can 
do better than that. We must do better than that. I will look 
forward to hearing from the panel.
    [The prepared statement of Mr. Hansen follows:]

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

    Today's hearing is a follow-up of last year's oversight hearing on 
Water Management and Endangered Species Issues in the Klamath Basin. We 
have a panel of experts with us today, and I look forward to hearing 
and discussing their testimony. This Committee thanks them for 
participating in this hearing.
    We would also like to thank the National Academy of Sciences for 
the interim report we have before us today. We appreciate their quick 
and objective research, and the insight they have given us on this 
important matter. Their professionalism and commitment to excellence 
justifies the confidence that we have in this organization.
    Last week, this Committee held a hearing concerning the submission 
of false samples of Canadian Lynx hair by scientists participating in 
an interagency survey. Prior to that, we conducted a field hearing that 
dealt with questionable policy decisions with regard to endangered 
species along the Platte River in Nebraska. These oversight hearings 
have strengthened my belief in the need for sound science. Unless 
policy decisions are based on sound science, good decisions are 
possible only by chance.
    Hardly a better example exists of the need for sound science than 
the recent controversies at the Klamath Basin. In 2001, the U.S. Fish 
and Wildlife Service and the National Marine Fisheries Service issued 
biological opinions stating that the series of dams and diversions 
known as the Klamath Project was harming three endangered species of 
fish--the Lost River Sucker, Shortnose Sucker, and Coho Salmon. These 
opinions called for higher lake and stream flows to protect these 
species. Based on these opinions, on April 7, 2001, the Secretary of 
Interior was forced to close the headgates that supplied the primary 
source of water to approximately 1,400 farmers and more than 200,000 
acres of cropland in California and Oregon. The same government who had 
promised full water rights to worthy veterans of the Armed Services in 
the Klamath Basin over a half-century before, was now taking them away.
    The canals ran dry until July 24th when the Secretary released a 
small amount of irrigation water. But it was too little, too late. More 
than three months without water had caused the fertile green basin--
that once supplied habitat to hundreds of thousands of waterfowl and 
thousands of bald eagles--to become scorched and unproductive. Farmers, 
unable to harvest their crops, struggled to make mortgage payments. 
According to a study by Oregon State University and the University of 
California at Berkeley, direct losses in the Klamath Basin exceed $135 
million dollars. Estimates of long-term losses exceed $200 million. 
Although the agencies had filled the lake, the farmers' pockets ran 
dry.
    Upon the request of Secretary Norton, the National Academy of 
Sciences conducted an independent review of the data used by the Fish 
and Wildlife and National Marine Fisheries Service in their biological 
opinions. The report concluded that there was no substantial scientific 
foundation for changing the operation of the Klamath Project to 
maintain higher water levels. The NAS report also found that higher 
water levels could actually be lethal to the Coho Salmon in the Klamath 
River by increasing the water temperature to equal or exceed lethal 
temperatures during the warmest months of the year.
    Some people say the agencies used junk science or bad science. I am 
not here to debate that point. But this I do know--the science was 
incomplete, and incomplete science leads to poor decisions. Sound 
science is independently verifiable--it is not policy disguised as 
science.
    Some groups argue that we should ``err on the side of caution'' and 
continue to maintain high water levels in the Upper Klamath Lake and 
the Klamath River. In this case, however, the NAS study shows us two 
important things. First, the year with the highest fish recruitment 
level was a year when the lake levels were low. Second, that if we do 
as these groups wish and maintain high water levels, more warm water 
would be released from the lake into the river. These releases would be 
harmful to the Coho Salmon because of the high water temperatures. By 
``erring on the side of caution,'' we would be killing the same species 
we are trying to protect.
    My point is not that lake and river levels should be high or low. 
My point is that the decisions made regarding these levels must be made 
based on sound science. Without such a foundation, we are merely 
guessing and blindly implementing policy in response to threatened or 
impending lawsuits. We can do better than that. We must do better than 
that.
    I look forward to hearing from our panel.
                                 ______
                                 
    The Chairman. I would normally turn to one of our members 
on the minority side. I ask unanimous consent that the 
statement of the Honorable Nick Rahall be included in the 
record. Is there objection?
    [No response.]
    The Chairman. Hearing none, so ordered.
    [The prepared statement of Mr. Rahall follows:]

Statement of The Honorable Nick Rahall, Ranking Democrat, Committee on 
                               Resources

    I do not envy the National Academy for the task it was presented 
with. In a two month period, in the midst of their daily 
responsibilities, the NAS Committee members had to review more than 10 
years of data and a very complex ecosystem. Then, without being able to 
review all the evidence, they were forced to issue a preliminary report 
that was less than favorable to the decisions chosen by the Federal 
agencies charged with protecting our endangered species.
    When their report was released, the predictable firestorm erupted, 
with claims that the Federal biologists who prepared the biological 
opinions for 2001 had based their conclusions on ``junk science'' and 
political agendas. If such statements and interpretations of the report 
are not reflective of a political agenda, I do not know what is.
    The panel did not find that the Fish and Wildlife Service and 
National Marine Fisheries Service based their decisions on bad science, 
but instead that they did not have enough science. In the case of the 
Endangered Species Act, however, as is the case with any environmental 
law, the agencies do not have the luxury of waiting until they have all 
the science, but instead must rely on the science available to them and 
then err on the side of protecting the species.
    Moreover, many of the panel members have clearly emphasized the 
preliminary nature of this report and discouraged the rush to 
judgement. More than one panel member has been quoted as saying that 
opportunity to review all the science and the system may well reveal 
that more water for fish, and less for the farmers, was in fact a 
justifiable requirement.
    Those who argue that this NAS report is clear evidence of a need to 
amend the ESA to ensure all science is considered before policy 
decision can be made should heed their own call. Let the NAS finish its 
complete review of the science in the Klamath Basin before rushing to 
judgement and proposing dramatic changes to the law. The very real 
needs of irrigators, Indian tribes, and the fishery resources will not 
be served if we allow ``junk policy'' to be implemented on the basis of 
a single interim report.
    In the meantime, the Klamath Basin Federal Working Group can begin 
to tackle the problems in that ecosystem that stretch far beyond the 
confines of the ESA to the fundamental operation of the system itself.
                                 ______
                                 
    The Chairman. On our side, the majority side, it seems to 
be well represented. The gentleman from Oregon has a distinct 
and personal interest in this. We would like to turn to him for 
just a moment.

  STATEMENT OF THE HONORABLE GREG WALDEN, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF OREGON

    Mr. Walden. Thank you very much, Mr. Chairman. I appreciate 
your willingness to hold this hearing, and as importantly, your 
willingness to allow the Resources Committee to meet out in 
Klamath Falls last spring, or early summer, I guess. That 
hearing had a few more people in attendance. As some of you may 
know, there were about 1,500, I think, in the fairgrounds where 
we held it.
    I want to thank the Department of Interior and Sue Ellen 
Wooldridge especially for moving forward with this independent 
scientific review and asking for it. I think it was really 
important to do that.
    Mr. Chairman, you have clearly outlined the problems that 
the people in this basin that I represent have faced, economic 
devastation, untold losses. It has really been tragic and it 
has not been good for the environment, either, because as the 
NAS study reports, the actions taken by the agencies could not 
be backed up by the data that they had, and in some cases, the 
agency's actions could actually harm the very fish that they 
were trying to protect.
    So I am glad we have this new data. I am glad that we are 
going to hear from the National Academy of Sciences and I 
appreciate their rapid look at the data involved and I am glad 
that we have gotten those data before the biological opinion 
has been issued for this year. We were able to incorporate the 
NAS data into the biological assessment that has been done. 
That assessment is now out before the U.S. Fish and Wildlife 
Service and the National Marine Fisheries Service and I 
certainly hope they are cognizant of the findings of the NAS as 
they reach for their decisions on the biological opinion.
    So great damage has been done. What we need to do, Mr. 
Chairman, is look forward now and actually do the projects and 
complete the studies that will improve water quality, that will 
improve fish habitat, that will improve water quantity, that 
will guarantee we will have water for farmers. There are all 
kinds of very intriguing and creative proposals out there right 
now that this Congress and this administration is looking at 
carefully to see how we can implement so we can once and for 
all get this one behind us and actually improve water quality, 
quantity, and fish habitat. It can be done, Mr. Chairman.
    With that, again, I thank our panelists for being here and 
the hard work they have all put into this and I appreciate your 
leadership on this issue. Thank you, Mr. Chairman.
    The Chairman. I thank the gentleman.
    I shall now ask consent that the gentleman from California, 
Mr. Herger, be allowed to sit on the dais of this Committee. Is 
there objection?
    [No response.]
    The Chairman. Hearing none, thank you for being with us, 
Mr. Herger. We appreciate having you with us.
    Let me just say that this has brought to a head a lot of 
the things we have been working on and I have never seen a time 
when it is more interesting to this Committee. The gentleman 
from Nebraska recently held a field hearing and had a very good 
turnout and a very good response. The gentleman from 
California, Mr. Pombo, has been working on this and has 
introduced some legislation. The gentleman from Oregon, Mr. 
Walden, has also introduced legislation and we are going to 
start going through that hard process of hearings in a very 
short time on some very interesting things regarding endangered 
species, which somehow America has got to get their hands 
around this one.
    The Chairman. I again thank the witnesses for being here. 
We have three witnesses today, Sue Ellen Wooldridge, Deputy 
Chief of Staff, Department of the Interior; Dr. William T. 
Hogarth, Director of the National Marine Fisheries Service; and 
Dr. William M. Lewis, Junior, Chairman of the Committee on 
Endangered and Threatened Fishes in the Klamath River Basin, of 
the National Research Council of the National Academy of 
Sciences, that distinguished group.
    We will start with the Department of the Interior. The 
rules kind of run this way. You see that little stop sign in 
front of you there? It is just like you see when you come up to 
a light. Green, you go; yellow, you wrap up; and red, I gavel 
you down. But if you have something that is extremely 
important, we may let you sneak by for an additional 15 to 30 
seconds, OK? The floor is yours, ma'am.

STATEMENT OF SUE ELLEN WOOLDRIDGE, DEPUTY CHIEF OF STAFF, U.S. 
                   DEPARTMENT OF THE INTERIOR

    Ms. Wooldridge. I actually did a very poor job on the time 
that I was given out in Klamath Falls, so I have deliberately 
kept my remarks short today. I want to thank you for the 
invitation to appear before you today and I appreciate the fact 
that you all have hung in on this issue because it is a very 
important issue to all of us, no matter which side of the 
issues you take. It is one that I think deserves all of the 
attention that it has been given.
    On April 6, the Bureau of Reclamation announced that, due 
to drought conditions, ESA, and tribal obligations, no water 
would be delivered to the farmers in the Klamath project out of 
Upper Klamath Lake. This was necessary to operate consistently 
with the biological opinions which we received from the 
National Marine Fisheries Service and from the Fish and 
Wildlife Service. The water was to remain in Upper Klamath Lake 
for the protection of the endangered sucker and to be sent 
downriver for the protection of the threatened coho.
    On July 24, long after the irrigation season began and 
based on revised estimates of the amount of inflow to Upper 
Klamath Lake, we were able to deliver finally about 75,000 acre 
feet of water to the farmers in the project. The water was 
delivered and to the extent that it could be used by the 
farmers at that late date, we did deliver it.
    During the decisionmaking process and at the time of my 
testimony before this Committee last June, we had heard 
numerous complaints about the science underlying the biological 
opinions and it was clear that public confidence in our 
decisions had been shaken. Our desire to instill confidence, 
our questions about the adequacy of the peer review that had 
been given, and based on our fundamental obligation to make 
decisions based on the best scientific and commercial data 
available led us to announce that we would solicit external 
review for the biological assessments prepared by the Bureau of 
Reclamation and on the biological opinions prepared by the 
Fisheries Services.
    Our choice of the National Research Council as the 
scientific body to conduct the independent review was due in 
part to the fact that the independent review would, in fact, be 
a hindsight test. They were going to be conducting their study 
on assessments and opinions already given, on decisions that we 
already had made, and, therefore, on impacts which already had 
occurred. We did not have an opportunity to make people 
confident in the process which led to the opinions, but we did 
have an opportunity to make people, or at least attempt to 
instill some confidence in the judgments that we had made in 
that process. Thus, it was imperative to us that we get the 
very best scientific review agency to look at the assessments 
in the opinions to determine whether they would concur in our 
scientific judgments and the decisions that flowed from those 
judgments or not.
    The NRC concluded there was no substantial scientific 
foundation for requiring higher water levels in Upper Klamath 
Lake or higher water levels in the Klamath River. The NRC also 
concluded that there was no scientific basis for operating the 
lake at mean minimum levels below the recent historical ones, 
as has been proposed by the Bureau of Reclamation.
    The report was funded by all three agencies, the Fish and 
Wildlife Service, Bureau of Reclamation, National Marine 
Service. It should be noted that NRC's conclusions are subject 
to modification as they continue their studies and they will be 
coming out with their final report next--I believe at the end 
of March 2003.
    As for how the Department is utilizing the interim draft 
report, the Bureau of Reclamation in its final 2002 BA, as 
referenced by Mr. Walden, contemplates the lake levels and 
river flows that are consistent with the conclusions that are 
found in the draft report. Additionally, the Fish and Wildlife 
Service and NMFS, and he can speak for himself, but I believe 
they will be taking into account and considering those 
conclusions as they go forward in our Section 7 consultation 
and look at the conclusions that were in the NRC study.
    We believe the NRC was accurate in its statement that 
independent external review increases confidence in scientific 
and technical judgments, and this is especially important when 
judgments underlie important policy decisions. It is equally 
true that for people who have confidence in decisions made on 
the basis of scientific judgment, we need to have scientific 
processes which warrant that confidence.
    We are in the midst of reviewing these processes internally 
in the Department, but in general, a few things are clear. We 
need to ensure that our decisions are based on accurate and 
reliable science, and toward that end, we must have high 
ethical and professional standards, appropriate training and 
allocation of staff resources--I am seeing a red. Does that 
mean I have to stop?
    The Chairman. You are on your 30 seconds. Keep going.
    Ms. Wooldridge. --independent review of science, when 
appropriate, and, if time permits, active participation with 
our State partners, fish and game agencies, or fish and 
wildlife agencies, depending on which State you are in, and 
effective communication with OMB, Congress, and the public.
    If asked, I would tell you about what we are doing on the 
going-forward basis with our new working group.
    [Laughter.]
    Ms. Wooldridge. Thank you.
    The Chairman. I am sure you will be. Thank you very much.
    [The prepared statement of Ms. Wooldridge follows:]

    Statement of Sue Ellen Wooldridge, Deputy Chief of Staff, U.S. 
                       Department of the Interior

    Thank you for the invitation to participate today in this oversight 
hearing on the Draft Interim Report of the National Academy of 
Sciences' National Research Council (NRC), a ``Scientific Evaluation of 
Biological Opinions on Endangered and Threatened Fishes in the Klamath 
River Basin.'' I appreciate the opportunity to be here today on behalf 
of the Department of the Interior. I will make some brief oral 
comments, but I request that my entire written statement be included in 
the record of this hearing.
    As you know, on March 1, the President announced the establishment 
of the Klamath Basin Federal Working Group, composed of the Secretaries 
of the Interior, Commerce, and Agriculture, and the Chairman of the 
Council on Environmental Quality, in order to advise him of the 
immediate and long-term actions necessary to enhance water quality and 
quantity and to address the complex economic and natural resource 
issues in the Basin. The President has encouraged the Working Group to 
seek input from stakeholders, including members of the farming and 
fishing communities, residents of the Basin, representatives of 
conservation, environmental and water use organizations, and existing 
coordinating entities, the States of Oregon and California, local 
governments, and representatives of Klamath River Basin Tribal 
governments.
    At the first meeting of the working group on March 8, the group 
announced measures to assist farmers and ranchers and to conserve fish. 
The measures include:
     The Agriculture Department will provide more than $1.6 
million to accelerate the delivery of conservation, technical and 
financial assistance for irrigation water management filter strips and 
creation of wildlife habitat to improve water quality and result in a 
water savings of up to 30 percent in some cases.
     In addition, USDA will extend the sign&8209;up period for 
the Emergency Conservation Program through September 2002, to give 
farmers and ranchers additional opportunities for financial assistance 
to assist in obtaining an adequate water supply for livestock.
     In direct relief, USDA will work with farmers and 
ranchers to explore opportunities for delaying loan repayments, 
rescheduling or consolidating loans or even writing down of some 
indebtedness.
     The U.S. Forest Service will begin 22 special projects in 
the Wimena&8209;Fremont National Forest to provide more than 20 miles 
of stream improvement, decommission nearly 45 miles of roads and 
provide for meadow enhancement and spring protection.
     The Commerce Department will make producing the 
biological opinion for operation of the Klamath Project its highest 
priority.
     The Bureau of Reclamation will accelerate the 
construction of proposed fish screens on A Canal, the major water 
diversion point out of Upper Klamath Lake, once the design phase is 
completed. The Fish and Wildlife Service has identified screening as an 
important step to avoid loss of endangered fish. The screens will be 
completed by the beginning of the irrigation season on April 1, 2003, a 
growing season ahead of the original schedule. The screens will divert 
the fish that are larger than the openings on the screens and pumps 
will return them to the lake. The total cost of the project is 
estimated to be close to $14 million.
    The Bureau of Reclamation's Klamath Project has historically 
provided water to about 1400 farm families on approximately 230,000 
acres of irrigated agriculture in the Klamath Basin, and to two major 
portions of the Klamath Basin National Wildlife Refuge complex. In 
2001, for the first time in the history of the project, farmers in the 
Project served from Upper Klamath Lake received only about one-fifth of 
their contracted Project water due to a serious drought in the Basin 
and the need to fulfill tribal trust and Endangered Species Act (ESA) 
obligations.
    The U.S. Fish and Wildlife Service (FWS) has responsibility under 
the ESA for the Lost River and shortnose suckers, which occur only in 
the upper Klamath Basin and are listed as endangered. The National 
Marine Fisheries Service (NMFS) has the lead ESA responsibility for 
consultation on the coho salmon, which is listed as threatened. Prior 
to their designation as endangered and threatened under the ESA, these 
fish supported tribal fisheries and a large commercial fishery, which 
have been greatly diminished in recent years. The decline in these fish 
has been attributed to a number of factors, as noted in the NRC 
report,\1\ including degradation of spawning habitat, deterioration in 
water quality, overexploitation by commercial and non-commercial 
fishing, introduction of exotic species, blockage of migration routes, 
entrainment of fish in water management structures, and reduced access 
to spawning areas.
---------------------------------------------------------------------------
    \1\ Draft Interim Report, Summary, p.1.
---------------------------------------------------------------------------
    Prior to the 2001 planting season, on February 13, 2001, the Bureau 
of Reclamation prepared a biological assessment that proposed operating 
the Klamath Project consistent with historical operations (from 1961-
1997). On April 5 and 6, 2001, the FWS and NMFS issued biological 
opinions that established lake levels and river flows higher than those 
resulting from historical operations in order to avoid jeopardizing the 
three listed species.
    On April 6, 2001, the Bureau of Reclamation announced that given 
the serious drought conditions in the Basin and in order for the Bureau 
to operate the Project consistent with its ESA and tribal trust 
obligations, no water would be made available for delivery from Upper 
Klamath Lake to Project contractors or to refuges. The Bureau believed 
this was necessary to comply with the biological opinions issued by the 
FWS and NMFS. Water was to remain in Upper Klamath Lake for the 
protection of endangered suckers or be sent down the river for the 
protection of the threatened coho salmon.
    Reclamation provided only minimal amounts of water for irrigation, 
including about 70,000 acre-feet of Project water to areas served from 
Clear Lake and Gerber Reservoir (the full entitlement for those areas). 
No water was delivered to areas served by Upper Klamath Lake from April 
to July for irrigation or refuges. On July 24, the Secretary announced, 
following mid-season reassessment of available water resources, that 
70,000 to 75,000 acre-feet would be released for Project farmers from 
Upper Klamath Lake. This water was delivered. Subsequently, the 
Secretary purchased an additional 3,700 acre-feet of water for the 
refuges to help wintering threatened bald eagles and migratory 
waterfowl.
    The decision made in April of 2001 not to provide water to project 
contractors had devastating impacts on many people in the Klamath 
Basin. While we were deeply concerned about the possible social and 
economic consequences of these decisions, we believed we had to execute 
our ESA and tribal trust responsibilities.
    It is inarguable that, for people to have confidence in decisions 
made on the basis of scientific judgments, we should have scientific 
processes that warrant such confidence. In this case, persistent 
charges that the decisions were not supported by the existing data made 
it clear that public confidence was shaken. Because of this, and 
because of our concerns over lack of independent scientific review, we 
announced in June that we would solicit an external review of the 
science used in the Klamath River biological assessments and biological 
opinions.
    The Secretary of the Interior and the Secretary of Commerce 
arranged for the National Research Council of the National Academy of 
Sciences to conduct an independent review of the scientific basis for 
the 2001 FWS and NMFS biological opinions and the Bureau of 
Reclamation's 2001 biological assessment. We asked that an interim 
report be issued by January 31, 2002, so that preliminary findings 
would be available when the Departments were preparing new assessments 
and opinions for the upcoming Klamath Project operating year.
    The National Research Council Committee on Endangered and 
Threatened Fishes in the Klamath River Basin, formed specifically for 
this review, issued a Draft Interim Report on February 6, 2002. (The 
final interim report will be available in April, the final report in 
March of 2003.)
    Among its most significant preliminary findings, the NRC Draft 
Interim Report found ``strong scientific support'' for all of the 
determinations and recommendations included in the biological opinions, 
except for what in this case were the most crucial determinations 
related to lake water levels and minimum stream flows.\2\ The Report 
then concludes that ``...there is no substantial scientific foundation 
at this time for changing the operation of the Klamath Project to 
maintain higher water levels in Upper Klamath Lake for the endangered 
sucker populations or higher minimum flows in the Klamath River main 
stem for the threatened coho population.''\3\
---------------------------------------------------------------------------
    \2\ Draft Interim Report, p. 2.
    \3\ Draft Interim Report, p. 3.
---------------------------------------------------------------------------
    Further, the Draft Interim Report also states, ``At the same time, 
the committee concludes that there is no scientific basis for operating 
the lake at mean minimum levels below the recent historical ones (1990-
2000) as would be allowed under the USBR proposal. Operations leading 
to lower lake levels would require acceptance of undocumented risk to 
suckers.''\4\
---------------------------------------------------------------------------
    \4\ Draft Interim Report, p. 3.
---------------------------------------------------------------------------
    The NRC committee makes it clear that the conclusions in the Draft 
Interim Report are not final. It states, ``The committee's conclusions 
are subject to modification in the future if scientific evidence 
becomes available to show that modification of flows or water levels 
would promote the welfare of the threatened and endangered species 
under consideration by the committee. The committee will make a more 
comprehensive and detailed consideration...over the next year, during 
which time it will develop final conclusions.''\5\
---------------------------------------------------------------------------
    \5\ Draft Interim Report, p. 4.
---------------------------------------------------------------------------
    Upon receipt of the Draft Interim Report, Secretary Norton 
instructed Dr. Steve Williams, the newly confirmed Director of the Fish 
and Wildlife Service, and John Keys, Commissioner of the Bureau of 
Reclamation, to evaluate the NRC findings.
    Thus, the Bureau of Reclamation, in its recent final 2002 
Biological Assessment, contemplates lake levels and river flows that 
are consistent with the conclusions in the Draft Interim Report.
    The Fish and Wildlife Service and the National Marine Fisheries 
Service will consider the conclusions of the Draft Interim Report 
during the section 7 consultation with the Bureau, which was formally 
initiated by the Bureau on February 27, 2002, and during preparation of 
their biological opinions.
    In light of the NRC comments, we need to that ensure our decisions 
are based on accurate and reliable science and that our science is 
consistent with the Secretary's general goals for science within the 
Department. These goals are: high ethical and professional standards, 
appropriate training and allocation of staff resources, independent 
review of science when appropriate and time permits, active 
participation with our state partners, fish and game agencies and 
others, and effective communication with OMB, Congress, and the public.
    Research continues in the Klamath Basin to improve the science 
base. Public Law 106-498 directed the Secretary to complete ongoing 
hydrologic surveys in the Klamath Basin conducted by the U.S. 
Geological Survey. The study has four phases and is scheduled to be 
completed in Fiscal Year 2005. The Act also authorized the Secretary to 
compile information on native fish species in the Upper Klamath River 
Basin, upstream of Upper Klamath Lake. A compilation of existing 
information is currently underway, and will be used to determine the 
necessity of further studies.
    We will see that these studies are given very high priority. We 
fully appreciate the necessity of these and other projects to work 
toward a sustainable future within the basin, both for those who live 
and work there and for the wildlife we are pledged to conserve.
    In this first year of the Administration, Klamath has occupied a 
great deal of our time and effort. Among other things, it has brought 
into sharp focus our need to assess the development and application of 
science by the Department in addressing the goals of providing 
sufficient water supply while complying with Federal environmental laws 
and meeting tribal trust obligations.
    This concludes my prepared testimony. I am pleased to answer any 
questions you may have.
                                 ______


                      [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
                                 
    The Chairman. Dr. Hogarth?

  STATEMENT OF WILLIAM T. HOGARTH, DIRECTOR, NATIONAL MARINE 
                       FISHERIES SERVICE

    Mr. Hogarth. Good morning, Chairman Hansen and 
distinguished members of the Committee. I am Bill Hogarth, the 
Assistant Administrator for NOAA Fisheries. Maybe my Southern 
accent and fast way of speaking will get me through in 5 
minutes, but I hope you understand.
    I want to thank you for the opportunity to participate in 
this important hearing. I have a few opening comments and 
request that my written statement be included in the record.
    First, I would like to advise you of what we are already 
doing to address the Klamath situation. On March 1, the 
President announced the establishment of the Klamath River 
Basin Federal Working Group, which is comprised of the 
Secretaries of Commerce, Interior, Agriculture, and the 
Chairman of the CEQ. The primary mission of this group is to 
advise the President on immediate and long-term solutions to 
the complex issues in the Klamath Basin and will include input 
from the stakeholders. The Department of Commerce and NOAA 
under Admiral Laudenbacher will work closely with our Federal 
partners to yield productive results.
    Second, on February 28, NMFS received the Bureau of 
Reclamation's biological assessment for operations for 2002 
through 2012. Our review of the document is underway and our 
immediate goal is to conduct a prompt, thorough review and 
provide a biological opinion regarding plans to deliver water 
to Klamath farmers in a timely fashion.
    Third, NMFS will continue to work with the Department of 
the Interior and other interests to identify measures to 
improve conditions for threatened coho salmon, not just in 
2002, but for the long term. I would also like to commend 
Representative Walden and others for supporting legislation to 
conserve water, enhance water storage, and improve water 
quality in the Klamath River and its tributaries.
    Fourth, NMFS scientists will seek to update, expand, and 
incorporate new data to improve the understanding of threatened 
coho and their habitat. In doing so, NMFS will produce better 
science to guide actions affecting project operations, water 
quality, flows and habitat conditions for coho salmon over the 
long term.
    As you know, coho salmon in the Klamath Basin were listed 
as threatened under the ESA in 1997. Since 1997, we have been 
working diligently to understand and incorporate new 
information as it relates to the annual Klamath project 
planning process and consultation.
    As you know, the drought last year, one of the worst ever, 
intensified the competition among the water needs in the 
region. It resulted in very contentious operating planning in 
the Klamath. The 2001 biological opinion included alternative 
river flow recommendations for the period April to September. 
Based on the spawning habitat modeling results, NMFS concluded 
that the increased flows would aid the passage and spawning of 
coho habitat. The Bureau of Reclamation and PacifiCorp acted in 
accordance with NMFS' recommended flows to avoid jeopardy as 
set out in the biological opinion. These actions contributed to 
irrigation water shortages for Klamath farmers.
    Last year, the administration sought an independent 
scientific review of the information used in the 2001 
biological opinion. As you are aware, we contracted with the 
National Academy of Sciences. We have their interim report and 
now we are awaiting their final report within 18 months. I am 
grateful for the Academy's interest to ensure that NMFS and 
U.S. Fish and Wildlife use the best peer-reviewed science. The 
report reinforces that there is still much to be learned, but 
NMFS is committed to working with the U.S. Fish and Wildlife 
Service, the Bureau of Reclamation, and other entities to 
address these issues that were raised by the Academy so that 
improved management decisions will be made in the future.
    We have, however, requested clarification of certain 
technical issues regarding the effect of increased flows and 
the NRC's analysis on young coho salmon. As the NRC completes 
its final report, we will seek to address these technical 
issues in order to support and implement the NRC's 
recommendations.
    I want to emphasize that we must act together. I am 
committed to exploring all options with all interests to find 
long-lasting and satisfactory solutions to the difficult 
challenge of meeting the water needs for all interests in the 
Klamath Basin.
    Thank you, Mr. Chairman, and I will be happy to address any 
questions.
    The Chairman. Thank you.
    [The prepared statement of Mr. Hogarth follows:]

    Statement of Dr. William T. Hogarth, Director, National Marine 
  Fisheries Service, National Oceanic and Atmospheric Administration, 
                      U.S. Department of Commerce

    Good morning, Chairman Hansen, Ranking Member Rahall, and 
distinguished members of the Committee. I am Bill Hogarth, Assistant 
Administrator for Fisheries at the National Oceanic and Atmospheric 
Administration. On behalf of the Department of Commerce and the 
National Marine Fisheries Service (NMFS), I want to thank the Committee 
for the opportunity to participate in this important hearing on the 
National Academy of Sciences= Draft Interim Report on Endangered and 
Threatened Species in the Klamath Basin. I have a few opening comments 
and request that my written statement be included in the record.
    Before I comment on the National Academy of Sciences report, I want 
to advise the Committee about a few key things we are already doing to 
address the Klamath situation.
    As you know, over the past year the Administration has devoted 
substantial, senior level attention to finding solutions to the complex 
Klamath Basin issues. Most recently, on March 1st, the President 
announced the establishment of the ``Klamath River Basin Federal 
Working Group''--comprised of the Secretaries of Commerce, Interior, 
Agriculture and the Chairman of the Council on Environmental Quality. 
The primary mission of this group is to advise the President on 
immediate and long-term solutions to enhance water quality and quantity 
and other complex issues in the Klamath Basin. The Working Group will 
solicit and include input from all stakeholders in its recommendations 
to the President. The Department of Commerce and NOAA, under the 
direction of Admiral Lautenbacher, will work closely with our other 
Federal partners to yield productive results.
    Second, NMFS recently received the U.S. Bureau of Reclamation's 
(BOR) biological assessment for operations during the period of 2002 to 
2012. Our review of this document is underway, and we have been working 
through the issues. Our immediate goal is to conduct a prompt, thorough 
review, and to provide a biological opinion regarding plans to deliver 
water to Klamath farmers in a timely fashion. I can assure the 
Committee that we will work hard to get the work completed as soon as 
possible, and I will be monitoring the progress of our efforts very 
closely.
    Third, NMFS will continue to work with BOR, the U.S. Fish and 
Wildlife Service (USFWS), and other Federal, state, and tribal 
interests to identify what measures can be taken to improve conditions 
in the Klamath River and its tributaries for threatened coho salmon--
not just in 2002, but for the long-term. We must develop long-term 
management actions to provide certainty for farming, wildlife, fishing, 
and cultural interests, while also providing a sound basis for 
protecting and conserving fish populations. I commend Representative 
Walden and Herger, Senators Gordon Smith and Wyden and others for their 
support for legislation to conserve water, enhance water storage, and 
improve water quality in the Klamath River and its tributaries.
    Fourth, NMFS scientists, in conjunction with others, will seek to 
update, expand, and incorporate new data to improve the understanding 
of threatened coho and their habitat, and in doing so, will produce 
better science that will guide actions affecting project operations, 
water quality, flows, and habitat conditions for coho salmon in the 
Southern Oregon and Northern California regions over the long-term.
    I will now briefly describe the chronology of NMFS' involvement in 
the Klamath issue and its development of the 2001 Klamath Biological 
Opinion for coho.
Water Quantity and Quality Demands for Coho Salmon in the Klamath
    Long-term planning efforts for Klamath Project operations began 
following a drought in 1994, which focused attention on competing needs 
for water in the Klamath Basin. Interest faded somewhat in the mid- to 
late 1990s, when the upper Klamath River Basin experienced normal to 
above-normal water supply conditions.
    In 1997, NMFS listed Southern Oregon/Northern California Coast coho 
salmon as threatened under the Endangered Species Act. Critical habitat 
was designated shortly after that. Prior to 1997, little information 
was available regarding the relationship between Klamath River flows 
and the biological requirements of salmon and steelhead. This was 
particularly true for coho salmon, as this species is inherently 
difficult to study both because of its life history and because the 
populations of coho salmon are depressed.
    Since 1997, a number of groups have gathered data and have 
developed analyses regarding the relationship between Project 
operations and other activities in the Basin, river flows, fish 
habitat, and water quality. Over the past few years, NMFS has worked 
diligently to understand and incorporate this new information, almost 
on a real time basis, as the new information relates to the annual 
planning process and consultations that have occurred.
    As you may know, in the fall and winter, adult coho salmon enter 
the Klamath River and tributaries and spawn between October and 
February. Sufficient flows provide upstream passage and tributary 
access and allow for spawning in the mainstem river. In the spring, 
coho salmon hatch, emerge as small fish called ``fry'' and migrate to 
the river's edge between February and early June. Fry require 
appropriate habitat in order to grow and avoid predation. Current 
information shows that this type of habitat is generally found at the 
edges of a river.
    Throughout the summer, juvenile coho salmon require appropriate 
habitat including acceptable water temperatures and quality. Water 
temperatures in the mainstem of the Klamath River regularly exceed 
optimum levels for salmon during summer months. Accordingly, juvenile 
salmon are believed to seek cooler water in available ``thermal 
refugia'' near springs and in tributaries featuring better habitat.
    For the next six months, juvenile salmon continue to grow and 
remain in fresh water habitat. Between April and June, coho salmon 
juveniles from the previous year's cohort transition to the ``smolt'' 
life stage, and migrate to the ocean. During this period, flows need to 
be sufficient to provide adequate forage, predator avoidance, and 
passage conditions.
    As you know, the drought last year--one of the worst ever--again 
focused the intense competition amongst water needs in the region and 
resulted in rushed and contentious operation planning for the Project.
NMFS and the 2001 Biological Opinion
    In January 2001, BOR submitted a biological assessment to NMFS on 
its proposed project operation. BOR's proposed action was to operate 
the Klamath Project in the same manner as it had historically done over 
the years. During the development of the 2001 biological opinion, NMFS 
first considered all known minimum Klamath River flow recommendations 
developed by biologists over the past 50 years, including: (1) 1950s 
recommendations based on limited physical measurements and the 
professional judgment of California Department of Fish and Game 
biologists; (2) recommendations previously prepared for the Yurok 
Tribe; and (3) recommendations based on a number of available methods, 
outlined in the Phase I Flow Study by the Institute for Natural Systems 
Engineering (also known as the ``Hardy Study'' from Utah State 
University). NMFS also considered other temperature and habitat 
modeling results that were available at the time the 2001 biological 
opinion was developed.
    Based upon these sources, in April 2001, NMFS determined that 
Reclamation's proposed operation of the Project was likely to 
jeopardize the continued existence of Klamath Basin coho salmon. The 
Biological Opinion provided alternative river flow recommendations for 
the period of April to September 2001. Based on spawning habitat 
modeling results, NMFS concluded that mainstem passage and spawning 
habitat, and tributary access, would be adequate with a flow of 1,300 
cubic feet per second--the minimum flow for this time period that was 
previously established by FERC. Habitat modeling for young-of-the-year 
coho salmon in the mainstem Klamath River indicated that under BOR's 
proposed 2001 action, habitat would be severely restricted. BOR and 
PacifiCorp, the manager of several dams on the Klamath River, acted in 
accordance with NMFS' recommended flows to avoid jeopardy as set out in 
the Biological Opinion. These actions contributed to irrigation water 
shortages that Project farmers suffered in 2001.
    Beginning in late June, water temperatures in the mainstem Klamath 
River generally become too warm for salmon and steelhead. Most juvenile 
salmon in the mainstem likely make periodic use of ``cool water 
refuges,'' areas in the river that are cooler than ambient conditions. 
While NMFS generally believes that water should be managed in the 
mainstem to optimize cool water refuges and, to the extent possible, 
optimize water temperatures and quality for salmon, little is known 
about how to specifically accomplish these goals in the Klamath River. 
As a result of the uncertainties and because tributaries would 
contribute very little water to the mainstem during the dry 2001 
summer, NMFS, in its 2001 Biological Opinion, recommended the flows be 
set at 1,000 cubic feet per second, consistent with available biologist 
recommendations to date. This level of summer flow lies between FERC's 
minimum flows and the Phase I Flow Study Report recommended flows.
National Academy of Sciences Report
    Last year, Secretary Evans and Secretary Norton called for an 
independent scientific review of the NMFS, USFWS and BOR's use of 
information in the 2001 Biological Opinions for Klamath Project 
operations. NMFS, USFWS, and BOR contracted with the National Academy 
of Sciences to provide an interim report within a few months, and a 
final report within about 18 months of the request.
    I am grateful for the Academy's National Research Council's (NRC) 
dedication of time and analysis to ensure that NMFS and USFWS use the 
best peer-reviewed science. I have carefully reviewed the NRC's 
recently released interim report. The report points out four main 
conclusions: (1) there was strong scientific support for all Reasonable 
and Prudent Alternative requirements in the two Biological Opinions 
except for the alternative water management recommendations; (2) the 
proposed operation of the 2001 Klamath Project operation in the Bureau 
of Reclamation's Biological Assessment was not supported by available 
scientific information; (3) the flow recommendations included in the 
2001 Biological Opinions prepared by NMFS and USFWS were not supported 
by available scientific information; and (4) there is no convincing 
scientific justification at the present time for deviating from the 
operational practices in place between 1990 and 2000.
    The NRC's analysis reinforces that there is still much to be 
learned, and that policy decisions affecting the Klamath Basin need to 
be based on complete data, analyses, and modeling. NMFS is committed to 
working with USFWS, BOR, and other entities toward more informed and 
better water and fish management decisions in the future. I recently 
sent a letter to Dr. William Lewis, chairman of the NRC committee that 
drafted the report, requesting clarification of certain technical 
issues regarding the effect of increased flows in the NRC's analysis on 
young coho salmon. As the NRC completes its final report, we will seek 
to address these technical issues in order to develop a robust opinion 
to support and implement the NRC's recommendations.
    As the NRC's findings highlight, additional information is needed 
in order to develop better, longer-lasting water management solutions. 
Development of appropriate strategies may require a high level of 
scientific effort supported by sufficient funding. The proactive 
involvement of all interested parties will also be required to ensure 
that the scientific basis for providing for the needs of fish--as well 
as the needs of farmers, tribes, recreational fishermen and other users 
in the Basin--are understood and supported by all who are affected by 
Federal management decisions.
    I want to restate that we must act together to resolve these 
issues. I am committed to exploring all options with all interests to 
find long-lasting and satisfactory solutions to the difficult challenge 
of meeting the water needs for all interests in the Klamath Basin.
    Thank you, Mr. Chairman, for the opportunity to address this 
Committee. I would be happy to address any questions that you or other 
members of the Committee may have.
                                 ______
                                 
    The Chairman. Dr. Lewis?

  STATEMENT OF WILLIAM M. LEWIS, JR., CHAIRMAN, COMMITTEE ON 
 ENDANGERED AND THREATENED FISHES IN THE KLAMATH RIVER BASIN, 
     NATIONAL RESEARCH COUNCIL/NATIONAL ACADEMY OF SCIENCES

    Mr. Lewis. My name is William Lewis. I am a faculty member 
at the University of Colorado in Boulder. I am currently 
serving as Chair of the National Research Council's Committee 
on Endangered and Threatened Fishes in the Klamath River Basin. 
I have made a written statement that I hope can be accepted by 
the Committee as part of my testimony.
    The Chairman. All of your written statements will be 
included in the record.
    Mr. Lewis. Thank you. The Committee, as you know, has 
completed part of its work and has presented that work in the 
form of an interim report and will complete the rest of its 
work over the next year, at which time it will file a final 
report. I am here to report on the content of the interim 
report.
    As you said, Mr. Chairman, the considerable water resources 
of the Klamath River Basin are used extensively for irrigation. 
They are managed partly by private interests and partly by the 
Federal Government. The Federal Government's role is in 
managing the Klamath River project, which is about 90 years old 
now and involves contracts for delivery of water for irrigation 
purposes to about 200,000 acres of irrigated land in the upper 
part of the basin, for the most part. These water rights are 
very senior and they have provided water steadily.
    In 2001, there was a severe drought. Because of the 
seniority of the water rights, normally, we would have expected 
water to go to farmers despite the drought. However, in 2001, 
two jeopardy opinions were issued on three species of fish, 
threatened and endangered fish, in the Klamath River Basin. The 
U.S. Fish and Wildlife Service issued a jeopardy opinion on two 
species of sucker that are limited in their distribution to the 
Klamath Basin, the lost river sucker and the short nosed 
sucker. The National Marine Fisheries Service, at the same time 
virtually, issued a jeopardy opinion on coho salmon in the 
Klamath River Basin.
    Both of these opinions contained elements relating to water 
management, Mr. Chairman, as you mentioned. These opinions 
called for, among other things, which I will mention in a 
moment, higher water levels in Klamath Lake than had 
historically been maintained and higher flows in the lower part 
of Klamath main stem than had normally been maintained.
    The Department of the Interior and other government 
agencies realized, of course, that the opinions were overriding 
to the contracts for water delivery. Consequently, there was 
virtually no delivery of water for agriculture because of the 
conflicting need to provide water for environmental purposes 
pursuant to these opinions.
    The government, through the Department of the Interior, 
Department of Commerce, perceived that it would be good to have 
a review of the scientific basis for all elements of the 
opinion, including those related to water deliveries, and that 
was why the Committee was formed in the National Research 
Council to address that issue. The issue delivered to us for 
interim work was to evaluate the scientific validity or 
scientific basis for the elements of the opinion, particularly 
the prudent action components of the opinion.
    The Committee met and considered a bushel full of documents 
and heard commentary and testimony and deliberated and reached 
a consensus opinion, which it delivered in its written report 
and has discussed since with all interested parties.
    For the endangered suckers, through the U.S. Fish and 
Wildlife Service, the Committee found that components of the 
opinion, for the most part, were valid. For example, the U.S. 
Fish and Wildlife Service recommended that water diversion 
structures be screened because it has been known for 10 years 
that hundreds of thousands of these endangered suckers are 
entrained and killed in these management structures. They are 
not screened at present, none of them, and so forth. Other 
recommendations were endorsed by the Committee based on 
evidence presented in the opinion. However, the Committee could 
not endorse a recommendation on higher mean water levels 
because the evidence at hand, which is considerable, was not 
supportive of that recommendation.
    For the National Marine Fisheries Service, likewise, the 
Committee supported two out of three components of the 
recommended alternative, but it could not support a 
recommendation on higher flows in the main stem because it did 
not feel that the evidence for that recommendation was whole 
and complete and convincing. In particular, the Committee was 
concerned that the National Marine Fisheries Service had not 
yet had the opportunity to analyze, model, predict the effect 
of releasing additional water that might be excessively warm on 
the welfare of the salmon in the main stem.
    The Committee will now proceed with additional studies and 
with a wider-ranging inquiry into the requirements of these 
fish for the long-term future. Thank you, Mr. Chairman.
    The Chairman. Thank you, Dr. Lewis.
    [The prepared statement of Mr. Lewis follows:]

Statement of William M. Lewis, Jr., Ph.D., Chairman of the Committee on 
 Endangered and Threatened Fishes in the Klamath River Basin, National 
   Research Council, National Academy of Sciences, and Professor of 
  Environmental Science, Director, Center for Limnology, Cooperative 
    Institute for Research in Environmental Sciences, University of 
                      Colorado, Boulder, Colorado

    Good morning, Mr. Chairman and members of the Committee. My name is 
William M. Lewis, Jr. I am professor of Environmental Science and 
Director of the Center for Limnology at the University of Colorado's 
Cooperative Institute for Research in Environmental Sciences. Presently 
I am serving as chair of the National Research Council's Committee on 
Endangered and Threatened Fishes in the Klamath River Basin. The 
National Research Council (NRC) is the operating arm of the National 
Academy of Sciences, National Academy of Engineering, and the Institute 
of Medicine; it was chartered by Congress in 1863 to advise the 
government on matters of science and technology. The work of the NRC 
committee that I now chair is sponsored by the Bureau of Reclamation 
and the U.S. Fish and Wildlife Service of the Department of Interior 
and the National Marine Fisheries Service of the Department of 
Commerce.
    My purpose before the House Committee on Resources today is to 
describe the content of the NRC committee's Interim Report, which was 
issued in February 2002, and the means by which the NRC committee 
reached the conclusions given in this report.
    The Klamath River Basin has an abundance of aquatic environments, 
including perennial streams and rivers, shallow lakes, and wetlands. 
Among the great diversity of organisms that can be found in these 
environments are the Lost River and shortnose suckers and coho salmon 
belonging to the Southern Oregon/Northern California Coasts (SONCC) 
evolutionarily significant unit (ESU) of this species. The Lost River 
and shortnose suckers are restricted in distribution to the Klamath 
River Basin, while the SONCC coho salmon is found in the Klamath River 
Basin and in adjoining river basins. Because of low abundance and 
restricted distribution, the Lost River and shortnose suckers were 
listed Federally as endangered under the Endangered Species Act (ESA) 
in 1988. For similar reasons, the Klamath Basin coho salmon was listed 
as threatened under the ESA in 1997.
    The Lost River and shortnose suckers are large, long-lived species 
that once reached great abundances in the Klamath River Basin. By the 
1960s, it became clear that these species had decreased greatly in 
abundance. Because excessive harvesting was considered a contributor to 
decline in the populations, fishing was restricted and presently is 
essentially prohibited. The populations remain small, however, as 
compared with their very high abundances in the early part of the 20th 
century. Factors that may explain the failure of these species to 
increase in abundance in the absence of harvest include pollution of 
Upper Klamath Lake with nutrients that cause harmful changes in its 
water quality, introduction of non-native species leading to increased 
predation and competition, blockage of tributaries used by some 
portions of the population for spawning, destruction of habitat, and 
entrainment of fish into water management structures.
    The Klamath Basin coho also has shown great declines in abundance 
since the middle of the 20th century. Although no reliable population 
estimates are available, direct observation of spawning runs indicates 
that the native coho now is present only in small numbers, whereas it 
was earlier a major component of the total salmonid population in the 
Klamath Basin. Factors contributing to the decline of the coho may 
include excessive harvest, which is now largely curtailed, loss of 
tributary habitat, blockage of migration pathways, warming of waters in 
reservoirs and in tributaries where riparian vegetation has been 
removed and flows have been reduced, physical degradation of tributary 
habitat, introduction of large numbers of hatchery-reared coho on an 
annual basis, and manipulation of the hydrologic regime for water 
management purposes.
    The extensive water resources of the Klamath River Basin are 
managed in large part by the U.S. Bureau of Reclamation (USBR) through 
its Klamath Project. The Klamath Project, which was initiated in 1908 
and reached its present operating configuration in 1960, consists of an 
extensive system of canals, pumps, diversion structures, and dams 
capable of routing water to approximately 220,000 acres of irrigated 
farmlands in the Klamath Basin. At and below points of diversion and 
impoundment, the Klamath Project may be harmful to the welfare of the 
two endangered sucker species. Potential mechanisms of harm to the 
species that have been identified by Federal fisheries biologists and 
others include blockage of migration routes, entrainment of fish of all 
ages in canals and other management structures, and alteration of flows 
and water levels either with respect either to quantity or seasonal 
timing. These factors related to the Klamath Project are primarily of 
concern in Upper Klamath Lake and its outlet, the Lost River drainage 
including Clear Lake, and the Tule Lake sumps, which are hydrologically 
connected to the Lost River. Downstream, on the main stem of the 
Klamath River and its tributaries, the Klamath Project also potentially 
has adverse effects on the threatened coho salmon. The salmon, which 
presently cannot access portions of the Klamath River Basin above Iron 
Gate Dam, could be affected in a variety of ways by depletion of flows 
and alteration of seasonality of flows in the main stem through 
operation of the Klamath Project.
    Because of the potential for connections between operation of the 
Klamath Project and adverse influences on the welfare of the two 
endangered sucker species and the threatened coho salmon population, 
the USBR prepared a biological assessment of the effects of Klamath 
Project operations for the two endangered sucker species (2001) and a 
separate, similar assessment for the coho salmon (2001). These 
assessments contain recommendations on lake levels and main-stem flows 
in the Klamath River that the USBR judged adequate for protection of 
the threatened and endangered species. The assessments were submitted 
to the USFWS for evaluation with respect to the two sucker species and 
to the National Marine Fisheries Service for evaluation with respect to 
the coho salmon.
    The USFWS and the NMFS both issued biological opinions and 
accompanying reasonable and prudent alternatives during 2001. In a 
detailed review of information on fish, water quality, and habitat as 
well as background information from the literature on the requirements 
of the species, the USFWS found that the proposals of the USBR would 
leave the two sucker species in jeopardy. As a reasonable and prudent 
alternative, the USFWS proposed screening of water management 
structures to prevent entrainment of suckers, establishment of adequate 
dam passage facilities, restoration of habitat, adaptive management of 
water quality, interagency coordination for operations during dry 
years, further studies of sucker populations, and a schedule of lake 
levels higher than those recommended by USBR in its assessment. 
Similarly, the NMFS found the proposals of USBR inadequate to avoid 
jeopardy of the threatened coho and proposed a reasonable and prudent 
alternative involving reduced rates of change in flow (ramping rates) 
below main-stem dams to prevent stranding of coho, interagency 
coordination, and minimum flows in the Klamath River higher than those 
proposed by the USBR.
    During year 2001, a severe drought occurred in the Klamath River 
Basin. Having received the two biological opinions relevant to 
operation of the Klamath Project, the U.S. Department of the Interior 
(DOI) determined that it could not authorize delivery of water from the 
Klamath Project for agricultural use without first meeting the 
requirements for minimum lake levels in Upper Klamath Lake and for 
minimum flows in the main stem of the Klamath River below Iron Gate 
Dam. Thus, the availability of water through the Klamath Project to 
irrigators was severely restricted, and substantial loss of 
agricultural production occurred in the farmed areas normally served by 
the Klamath Project.
    Following the irrigation season of 2001, the DOI requested that the 
National Academy of Sciences form a committee through the National 
Research Council to undertake a two-part study of the endangered and 
threatened species in the Klamath River Basin. The purpose of the first 
part of the study, which was completed in February 2002, was to analyze 
and reach conclusions about the scientific support for the biological 
opinions issued by the USFWS and the NMFS. The second part of the work, 
which will be in progress until May of 2003, involves a broader 
examination of the overall requirements for maintenance and welfare of 
the threatened and endangered fishes over the long term. The NRC 
committee met during November 2001 in Sacramento after reading the 
assessments, biological opinions, and related literature and data 
summaries relevant to the threatened and endangered fishes. At its 
meeting, the committee heard presentations from scientists involved in 
studying the fishes and their environment and took public testimony. 
The committee then began deliberations and came to consensus opinions 
that it refined over the next two months. The committee's interim 
report was peer reviewed and released by the NRC on January 31, 2002.
    The NRC committee concluded that all components of the biological 
opinion issued by USFWS on the endangered suckers have substantial 
scientific support except for the recommendations concerning minimum 
water levels for Upper Klamath Lake. Despite the availability of a 
substantial amount of data collected by Federal scientists and others, 
no clear connection has been documented between low water level in 
Upper Klamath Lake and conditions that are adverse to the welfare to 
the suckers. For example, incidents of adult mortality (fish kills) 
have not been associated with years of low water level. Extremes of 
chemical conditions considered threatening to the welfare of the fish 
have not coincided with years of low water level, and the highest 
recorded recruitment of new individuals into the population occurred 
through reproduction in a year of low water level. Thus, the committee 
concluded that there was as of February 2002 no sound scientific basis 
for recommending an operating regime for the Klamath Project that seeks 
to ensure lake levels higher on average than those occurring between 
1990 and 2000. At the same time, the committee could not find a sound 
scientific basis for operating the lake at mean minimum levels below 
the recent historical ones (1990-2000), as would be allowed under the 
USBR proposal. Operations leading to lower lake levels would require 
acceptance of undocumented risks to the suckers.
    The NRC committee found a sound scientific basis for 
recommendations in the NMFS biological opinion involving coordination 
of operations and reduction of ramping rates for flows below the main 
stem dams. The committee did not, however, find sound scientific basis 
for NMFS recommendations on increased minimum flows in the Klamath 
River main stem. Tributary conditions appear to be the critical factor 
for the coho population, and are not addressed through operations of 
the Klamath Project. Increases in habitat associated with increased 
flows in the main stem were projected entirely through computer 
modelling and are subject to considerable uncertainty. Even if 
additional habitat is achieved in the main stem through increased 
flows, benefits to the fish are very uncertain in view of the poor 
condition of tributary waters. Finally, the committee found that water 
needed to sustain higher flows in the main stem during dry years would 
likely be originating from reservoirs, and could during summer months 
result in additional warming of waters in the main stem, thus 
potentially having a negative effect on coho. The committee also 
concluded, however, that the proposals of the USBR are without 
significant scientific support insofar as they would allow operation of 
the river at lower mean water levels in the main stem than have 
historically been the case. Reduction of flows in the main stem to an 
additional degree would produce undocumented risks to the species.
    The committee's conclusions are subject to modification in the 
future if scientific evidence becomes available to show that 
modification of flows or water levels would promote the welfare of the 
threatened and endangered species under consideration by the committee. 
The committee will make a more comprehensive and detailed consideration 
of the environmental requirements of the endangered suckers and 
threatened coho in the Klamath River Basin over the next year, during 
which time it will develop final conclusions.
    Thank you for inviting me to testify. I would be happy to answer 
any questions the Committee might have.
    References:
    NMFS (National Marine Fisheries Service). 2001. Biological Opinion. 
Ongoing Klamath Project Operations. National Marine Fisheries Service, 
Southwest Region, National Oceanic and Atmospheric Administration, Long 
Beach, CA. April 6, 2001. [Online]. Available: http://swr.ucsd.edu/psd/
kbo.pdf. [January 28, 2002]. Also available through the NRC Public 
Access File.
    USBR (U.S. Bureau of Reclamation). 2001a. Biological Assessment of 
Klamath Project's Continuing Operations on the Endangered Lost River 
Sucker and Shortnose Sucker. U.S. Bureau of Reclamation, Mid-Pacific 
Region, Klamath Basin Area Office, Klamath Falls, OR. February 13, 
2001. [Online]. Available: http://www.mp.usbr.gov/kbao/esa/34--final--
sucker--bo--4--06--01.pdf. Also available through the NRC Public Access 
File.
    USBR (U.S. Bureau of Reclamation). 2001b. Biological Assessment of 
the Klamath Project's Continuing Operations on Southern Oregon/Northern 
California ESU Coho Salmon and Critical Habitat for Southern Oregon/
Northern California ESU Coho Salmon. U.S. Bureau of Reclamation, Mid-
Pacific Region, Klamath Basin Area Office, Klamath Falls, OR. January 
22, 2001. [Online]. Available: http://www.mp.usbr.gov/kbao. Also 
available through the NRC Public Access File.
    USFWS (U.S. Fish and Wildlife Service). 2001. Biological/Conference 
Opinion Regarding the Effects of Operation of the Bureau of 
Reclamation's Klamath Project on the Endangered Lost River Sucker 
(Deltistes luxatus), Endangered Shortnose Sucker (Chasmistes 
brevirostris), Threatened Bald Eagle (Haliaeetus leucocephalus), and 
Proposed Critical Habitat for the Lost River/Shortnose suckers. Klamath 
Falls, OR: Klamath Falls Fish and Wildlife Office.
                                summary
    The Klamath River Basin, which drains directly to the Pacific Ocean 
from parts of southern Oregon and northern California, contains endemic 
freshwater fishes and genetically distinctive stocks of anadromous 
fishes. Endemic freshwater fishes include the shortnose sucker 
(Chasmistes brevirostris) and the Lost River sucker (Deltistes 
luxatus). These long-lived and relatively large species, which live 
primarily in lakes but enter flowing waters or springs for spawning, 
were sufficiently abundant during the nineteenth and early twentieth 
centuries to support commercial fisheries. During the last half of the 
twentieth century, these species declined so much in abundance that 
they were listed in 1988 as endangered under the Federal Endangered 
Species Act (ESA). In addition, the genetically distinctive Southern 
Oregon/Northern California Coast (SONCC) coho salmon (Oncorhynchus 
kisutch), an evolutionary significant unit (ESU) of the coho salmon, 
depends on the Klamath River main stem for migration and on tributary 
waters for spawning and growth before entering the Pacific for 
maturation. The Klamath Basin coho has declined substantially over the 
last several decades and was listed as threatened under the ESA in 
1997.
    Factors contributing to the decline in abundance of the endangered 
suckers and threatened coho in the Klamath River Basin are diverse and, 
in some cases, incompletely documented. Factors thought to have 
contributed to the decline of the endangered suckers include 
degradation of spawning habitat, deterioration in the quality of water 
in Upper Klamath Lake, overexploitation by commercial and noncommercial 
fishing (now regulated), introduction of competitive or predaceous 
exotic species, blockage of migration routes, and entrainment of fish 
of all ages in water-management structures. Factors contributing to the 
decline of coho salmon are thought to include earlier overexploitation 
by fishing as well as continuing degradation of tributary habitat and 
reduced access to spawning areas. The threatened coho salmon also may 
be affected by changes in hydrologic regime, substantial warming of the 
main stem and tributaries, and continuing introduction of large numbers 
of hatchery-reared coho, which are derived only partly from native 
stock.
    The U.S. Bureau of Reclamation's (USBR) Klamath Basin Project 
(Klamath Project) is a system of main-stem and tributary dams and 
diversion structures that store and deliver water for agricultural 
water users in the Upper Klamath Basin under contract with the USBR. 
After the listing of suckers in 1988 and coho in 1997, the USBR was 
required to assess the potential impairment of these fishes in the 
Klamath River Basin by operations of the Klamath Project. In the 
assessments, which were completed in 2001, the USBR concluded that 
operations of the project would be harmful to the welfare of the listed 
species without specific constraints on water levels in the lakes to 
protect the endangered suckers and on flows in the Klamath River main 
stem to protect the threatened coho salmon.
    After release of the USBR assessment on the endangered suckers 
(February 2001) and following procedures required by the ESA, the U.S. 
Fish and Wildlife Service (USFWS) in April 2001 issued a biological 
opinion based on an extensive analysis of the relevant literature and 
field data. The biological opinion states that the endangered suckers 
would be in jeopardy under USBR's proposed Klamath Project operations. 
The USFWS proposed a reasonable and prudent alternative (RPA) for 
operation of the Klamath Project. The RPA requires screening of water-
management structures to prevent entrainment of suckers, adequate dam 
passage facilities, habitat restoration, adaptive management of water 
quality, interagency coordination in the development plans for 
operating the Klamath Project during dry years, further studies of the 
sucker populations, and a schedule of lake levels higher than those 
recommended by the USBR in its assessment.
    The National Marine Fisheries Service (NMFS), which assumes 
responsibility for the coho because it is anadromous, issued a 
biological opinion in April 2001 indicating that the operation of the 
Klamath Project as proposed by the USBR assessment of January 2001 
would leave the coho population in jeopardy. The NMFS formulated an RPA 
incorporating reduced rates of change in flow (ramping rates) below 
main-stem dams to prevent stranding of coho, interagency coordination 
intended to optimize use of water for multiple purposes, and minimum 
flows in the Klamath River main stem higher than those proposed by 
USBR.
    During 2001, a severe drought occurred in the Klamath River Basin. 
The U.S. Department of the Interior (DOI) determined that the newly 
issued biological opinions and their RPAs must prevail; thus, water 
that would have gone to irrigators was directed almost entirely to 
attempts to maintain minimum lake levels and minimum flows as 
prescribed in the two RPAs. The severe economic consequences of this 
change in water management led DOI to request that the National 
Research Council (NRC) independently review the scientific and 
technical validity of the government's biological opinions and their 
RPAs. The NRC Committee on Endangered and Threatened Fishes in the 
Klamath River Basin was formed in response to this request. The 
committee was charged with filing an interim report after approximately 
less than 3 months of study and a final report after about 18 months of 
study (see statement of task, Appendix). The interim report, which is 
summarized here, focuses on the biological assessments of the USBR 
(2001) and the USFWS and NMFS biological opinions of 2001 regarding the 
effects of Klamath Project operations on the three listed fish species. 
The committee conducted a preliminary assessment of the scientific 
information used by the agencies and other relevant scientific 
information, and has considered the degree to which the biological 
opinions are supported by this information. During November and early 
December 2001, the committee studied written documentation, heard 
briefings from experts, and received oral and written testimony from 
the public, and used this information as the basis for its interim 
report.
                   the committee's principal findings
    The NRC committee concludes that all components of the biological 
opinion issued by the USFWS on the endangered suckers have substantial 
scientific support except for the recommendations concerning minimum 
water levels for Upper Klamath Lake. A substantial data-collection and 
analytical effort by multiple agencies, tribes, and other parties has 
not shown a clear connection between water level in Upper Klamath Lake 
and conditions that are adverse to the welfare of the suckers. 
Incidents of adult mortality (fish kills), for example, have not been 
associated with years of low water level. Also, extremes of chemical 
conditions considered threatening to the welfare of the fish have not 
coincided with years of low water level, and the highest recorded 
recruitment of new individuals into the adult populations occurred 
through reproduction in a year of low water level. Thus, the committee 
concludes that there is presently no sound scientific basis for 
recommending an operating regime for the Klamath Project that seeks to 
ensure lake levels higher on average than those occurring between 1990 
and 2000. At the same time, the committee concludes that there is no 
scientific basis for operating the lake at mean minimum levels below 
the recent historical ones (1990-2000), as would be allowed under the 
USBR proposal. Operations leading to lower lake levels would require 
acceptance of undocumented risk to the suckers.
    For the Klamath Basin coho, the NMFS RPA involves coordination of 
operations as well as reduction of ramping rates for flows below the 
main-stem dams and increased flows in the Klamath River main stem. 
Coordination and reduced ramping rates are well justified. However, the 
committee did not find clear scientific or technical support for 
increased minimum flows in the Klamath River main stem. Although the 
proposed higher flows are intended to increase the amount of habitat in 
the main stem, the increase in habitat space that can occur through 
adjustments in water management in dry years is small (a few percent) 
and possibly insignificant. Furthermore, tributary conditions appear to 
be the critical factor for this population; these conditions are not 
affected by operations of the Klamath Project and therefore are not 
addressed in the RPA. Finally, and most important, water added as 
necessary to sustain higher flows in the main stem during dry years 
would need to come from reservoirs, and this water could equal or 
exceed the lethal temperatures for coho salmon during the warmest 
months. The main stem already is excessively warm. Juvenile fish living 
there probably tolerate its temperature only because of the presence of 
groundwater seepage or small tributary flows that provide pockets of 
cool water. Addition of substantial amounts of warm water could be 
detrimental to coho salmon by reducing the size of these thermal 
refuges. At the same time, reduction in main-stem flows, as might occur 
if the USBR proposal were implemented, cannot be justified. Reduction 
of flows in the main stem would result in habitat conditions that are 
not documented, and thus present an unknown risk to the population.
                               conclusion
    On the basis of its interim study, the committee concludes that 
there is no substantial scientific foundation at this time for changing 
the operation of the Klamath Project to maintain higher water levels in 
Upper Klamath Lake for the endangered sucker populations or higher 
minimum flows in the Klamath River main stem for the threatened coho 
population. The committee concludes that the USBR proposals also are 
unjustified, however, because they would leave open the possibility 
that water levels in Upper Klamath Lake and minimum flows in the 
Klamath River main stem could be lower than those occurring over the 
past 10 years for specific kinds of climatic conditions. Thus, the 
committee finds no substantial scientific evidence supporting changes 
in the operating practices that have produced the observed levels in 
Upper Klamath Lake and the observed main-stem flows over the past 10 
years.
    The committee's conclusions are subject to modification in the 
future if scientific evidence becomes available to show that alteration 
of flows or water levels would promote the welfare of the threatened 
and endangered species under consideration by the committee. The 
committee will make a more comprehensive and detailed assessment of the 
environmental requirements of the endangered suckers and threatened 
coho in the Klamath River Basin over the next year, during which time 
it will develop final conclusions.
                                 ______
                                 
    The Chairman. We thank the testimony of our witnesses here 
at this time. This is an extremely important issue we have in 
front of us.
    You folks notice on that back wall there is a clock and it 
has got two white lights on. That means that members of this 
Committee are going to jump up and leave, so we are going to 
recess for a moment and go over and vote on whatever this vote 
is and then we will be back. Do not go away. We need you here 
because we fully intend to ask you a number of questions.
    We will be recessed for just a short time.
    [Recess.]
    The Chairman. We again thank the witnesses for their very 
interesting and excellent testimony. I really kind of get the 
feeling we cut you off a little short on that, is that right? 
If you want to take another couple minutes and get in something 
else, we will do that and then go to questions.
    Ms. Wooldridge. No, I am fine.
    The Chairman. OK.
    Ms. Wooldridge. Thank you.
    The Chairman. We will turn to the gentleman from 
California, Mr. Calvert, for any questions he may have.
    Mr. Calvert. I thank the Chairman.
    Mr. Chairman, before I chaired the Water and Power 
Subcommittee, I had the privilege of chairing the Energy and 
Environment Subcommittee on the Science Committee and we were 
involved with various studies that, unfortunately, came out 
questionable, and I am somewhat troubled that science sometimes 
now is perceived sometimes as being predetermined outcomes, or 
worse, the politicization of science that some universities and 
possibly researchers in their search for government grants and 
awards may again perceive to change the outcome of good science 
in order to have the science of the day.
    In particular, when I chaired that Committee, we had issues 
with a product called MTBE, which was put into the formulation 
of gasoline as an oxygenate, which at the time, I think the 
science, the EPA was moving too fast in order to understand the 
long-term consequence of what MTBE would do to water throughout 
California and certainly wherever MTBE was used. Also, in 
particulate studies that were done on small particulates that I 
think when we got into the issue of asthma and asthmatics for 
children, whether or not the issue of indoor air pollution was 
adequately understood in relation to outside air.
    Now, here we are today, again, and this is very troubling, 
where science is again questioned because potentially people 
may have used anecdotal information rather than good science to 
make decisions that have a real effect on people and their 
lives and their quality of life and their entire property 
rights and et cetera.
    [The prepared statement of Mr. Calvert follows:]

 Statement of The Honorable Ken Calvert, a Representative in Congress 
                      from the State of California

    I would like to commend the National Academy of Science for their 
quick action in reviewing the information used to recommended 
operations for the Klamath Project last year. This open peer review is 
welcomed and will help to ensure that policy decisions are based on 
defensible data and not from other influencing factors. The desired 
outcome is to provide recommended actions supported by sound scientific 
data that will allow the project to be operated for the benefit of the 
water users while also supporting the continued existence of the 
endangered species.
    Last year about this same time, Reclamation had prepared their 
Biological Assessment for the Klamath Project Operations; the Fish and 
Wildlife Service and the National Marine Fisheries Service were 
preparing their Biological Opinions; and the Klamath Project Water 
Users were preparing their plans for a dry year.
    Based on the Reasonable and Prudent Measures of the Biological 
Opinions of the Fish and Wildlife Service and the National Marine 
Fisheries Service, the Project was operated to avoid jeopardizing the 
shortnose sucker, the Lost River sucker and the coho salmon. As a 
result, little of the Project water was left for the water users crops. 
According to recent studies, the economic impacts exceeded 135 million 
dollars. This burden was shouldered by approximately 1,400 farmers 
managing more than 200,000 acres of farmlands in California and Oregon.
    This action led to questions regarding the need to operate the 
Klamath Project solely for the benefit of the endangered species. 
Several members of this committee requested the independent scientific 
review of the data used to make the recommendations for the Klamath 
Project Operations; to determine if the action was justified to ensure 
the continued existence of these endangered species. I want to thank 
Secretary Norton for requesting this National Academy of Science 
independent review.
    In light of other issues that have come before this committee in 
recent weeks, the Canadian Lynx in northern Washington, and the 
endangered species critical habitat decisions on the Platte River in 
Nebraska, it is very important that sound science and the best 
information available be used in making resource management decisions. 
Whether it be the designation of critical habitat or the operations of 
a water project, the decisions have a significant impact not only on 
the endangered species, but also on the people that use these 
resources. Therefore, a solid foundation of sound science is imperative 
to make good decisions.
                                 ______
                                 
    Mr. Calvert. So I guess my question to the panel to start 
off with, do you see that in recent times that science is not 
adequate enough to be making some of these decisions that have 
a real effect on people throughout this country? We can start 
off with Sue Ellen Wooldridge.
    Ms. Wooldridge. Thank you. I think what I can say is that I 
agree wholeheartedly with you that we have to have a perception 
of objectivity, and to that extent, the processes that we go 
through to put together our studies is critical for engendering 
confidence and objectivity in our decisions.
    Mr. Calvert. Mr. Hogarth?
    Mr. Hogarth. I think, yes, we agree that sometimes the 
science is not what we would like to have to make these 
decisions, but we do not have that option under the Endangered 
Species Act. The courts have ruled in most every case we have 
had that we have to say yes or no. I think if you go back and 
look back in the history, we used to say in biological opinions 
that there was insufficient data to make a decision, and that 
is what the biological opinion would say. We have lost every 
one of those in court. We have to make a determination based on 
the best science we have.
    For example, in coho, I think if you look at the review 
that has been done by the National Academy, it states very 
clearly there is a lack of data and I think the lack of data is 
a real problem we have in managing our fisheries in the U.S. 
today. If you look at 900 species that we are responsible for 
managing, we basically have information on about 300 to 400 of 
those species.
    Mr. Calvert. Dr. Lewis?
    Mr. Lewis. I think the Committee could easily see that the 
agencies were in a difficult position in certain cases where 
there was not a sufficient amount of information to fully 
support a component of the opinion that the agencies felt was 
important. We were charged with evaluating the scientific 
support or scientific validity of each component of the 
opinion, but at the same time, we realized they had to give an 
opinion based on professional judgment if they did not have a 
complete suite of scientific information to support that 
opinion.
    Mr. Calvert. Mr. Chairman, in closing, the comment I would 
make, and I think not just with Fish and Wildlife, but EPA and 
other regulatory agencies, I think there is an inherent 
conflict of interest when the research and the science is being 
done by the regulators themselves. We have brought this up 
before in EPA, and I think this is also the case in other 
regulatory agencies, that we ought to look at separating the 
science from the regulatory function in the future and I hope 
we can, as a Committee, look into that. Thank you.
    The Chairman. I thank the gentleman.
    The gentleman from California, Mr. Miller.
    Mr. Miller. Mr. Lewis, if I might, Mr. Hogarth just said 
that under the Endangered Species Act, which I think the 
standard was the best scientific information available, they 
really did not have much of an option here in terms of making 
this determination. When you reviewed the science here, your 
test was what? It was not that standard, is that--
    Mr. Lewis. My test and the test of the Committee is, as 
given by the contract between the National Academy of Sciences 
and the agencies--
    Mr. Miller. Right.
    Mr. Lewis. --and it was a test of scientific validity.
    Mr. Miller. Where does the phrase ``substantial 
scientific'' come from? Where is that?
    Mr. Lewis. I cannot quote the task verbatim, but it is 
available to you at the end of the interim report as an 
appendix.
    Mr. Miller. But the threshold for you was different than 
the threshold for the agencies in their opinion?
    Mr. Lewis. We do not know what threshold the agencies use. 
We only know--
    Mr. Miller. You know the law.
    Mr. Lewis. --what was assigned to us.
    Mr. Miller. You know what the law requires, right?
    Mr. Lewis. Yes.
    Mr. Miller. Mr. Hogarth, does the law not dictate to use 
the best scientific information available?
    Mr. Hogarth. Yes. We have to make a jeopardy determining 
using the best science that we have before us.
    Mr. Miller. And in your view, the science was valid, as I 
understand in your statement, was valid for those jeopardy 
opinions and the other works. Yours was simply on the level of 
the lake, is that right?
    Mr. Lewis. We evaluated each component of the reasonable 
and prudent alternative for each of these opinions one by one 
because each one had separate scientific justification or 
basis, and we found in the case of each of the agencies, the 
recommendations related to water, not well enough supported 
scientifically that we could vouch for its scientific validity.
    Mr. Miller. Which means what?
    Mr. Lewis. Which means they did not have enough evidence to 
prove their point, in our judgment.
    Mr. Miller. So then the conclusion was that there was no 
scientific basis?
    Mr. Lewis. That is right.
    Mr. Miller. That is the conclusion of not enough evidence?
    Mr. Lewis. That is right.
    Mr. Miller. So there could be a basis for this 
determination under further study, could there not be?
    Mr. Lewis. Oh, yes. We have not precluded the possibility 
that someone could prove by any reasonable scientific standard 
or technical criterion that these water levels are needed.
    Mr. Miller. And that determination could be effective. This 
is an unadjudicated basin, if I understand, is that correct?
    Mr. Lewis. I think the Oregon adjudication is in progress 
and there is not any California adjudication.
    Mr. Miller. So the question of the lake level is not 
settled by any means.
    Mr. Lewis. No. I do not think any scientific matter of this 
type is ever finally settled for good.
    Mr. Miller. Yes, but there is also outside action, as I 
understand it, in the little involvement that I have had. I 
mean, you have treaty rights to be adjudicated, you have 
further findings under the Endangered Species Act in terms of 
what is going to happen here. You have preexisting rights to 
some of the farm water claims, if I understand it correctly, 
all of which can impact on whether or not water has to be held 
in this lake or not held in this lake to meet those needs or 
not meet those needs in different water years.
    Mr. Lewis. That is correct.
    Mr. Miller. So the suggestion has been here, and I am not 
saying this is your characterization, but that there is no 
scientific evidence for doing that, so now the farmers can have 
all the water they want. That is not a proper conclusion, if I 
understand all of the undone or the yet-to-be-resolved issues 
resolving this basin.
    Mr. Lewis. The Committee did not make any judgment about 
the availability of water to anyone. It only made a judgment as 
to the validity of the biological opinion and its components. 
So the disposition of water, of course, is a legal matter that 
we did not deal with.
    Mr. Miller. So as I understand it, the jeopardy decision on 
the coho or on the suckers, you left in place. The question is 
whether or not the maintenance of the lake level for that 
purpose is valid or not.
    Mr. Lewis. Yes, I think that is correct.
    Mr. Miller. And that has not been resolved because there is 
further review that has to take place in that final 
determination.
    Mr. Lewis. Well, let me clarify one thing. The Committee 
was not asked to evaluate the validity of the listing of the 
species or of their jeopardy. It was asked to evaluate the 
validity of the components of the opinion, which it did, and it 
separated them into two groups, those that it felt were well 
supported, and that is those that seemed to be in line with the 
maintenance of welfare for these fish, and those that did not 
meet that standard.
    Mr. Miller. So your difference, if I might, Mr. Chairman, 
your difference is on the, I guess the mechanism that was in 
place to meet the requirements of those jeopardy opinions, that 
the lake level was, for the moment, you determined was 
improper?
    Mr. Lewis. Well, it just was not supported sufficiently and 
there is quite a bit of information, so we were able to weigh 
the information, the field information, if you wish, against 
that component of the opinion and found out that the two were 
not mutually supportive.
    Mr. Miller. Since your finding, there have been a couple of 
scientists whose work was used or reviewed by your panel and my 
understanding is they have differed with your interpretation or 
said that it has been misused or misconstrued, and I do not 
want to put words in people's mouths, but essentially, they 
think the wrong conclusions were drawn or the finding of their 
conclusion was wrongly interpreted. Would that be reviewed 
before the final report?
    Mr. Lewis. We have had many responses to the report from 
people who were involved in producing the information. A number 
of those people are in disagreement with us or upset with us, 
have voiced their opinion that we need to reconsider and so 
forth. We have taken all of those opinions, oral and written, 
and put them in our file of reading to be done for the next 
phase of this report.
    The Chairman. The time--one more.
    Mr. Miller. If I just might, Mr. Chairman, here, we are 
determining whether this is good science or bad science or 
sufficient science. It would seem to me that as you issue a 
final report, you must look at the comments of the people on 
whose work you have relied and made a determination as to the 
results of that work and to a conclusion about that work that 
may differ. Otherwise, you are somewhat engaging in the process 
that people are accusing others of doing, it would seem to me.
    Mr. Lewis. Yes. As I said, we had--
    Mr. Miller. But you consider the body of evidence, then the 
other side gets, gee, that is a misinterpretation of that.
    The Chairman. The gentleman will answer, and then we will 
go on.
    Mr. Lewis. Yes. We have, as I say, assembled all this 
commentary in both written and oral commentary and we will read 
it and take it into consideration as we work further.
    The Chairman. The time of the gentleman from California has 
expired.
    Mr. Miller. Thank you, Mr. Chairman.
    The Chairman. An interesting line of questioning.
    The gentleman from Oregon?
    Mr. Walden. Thank you very much, Mr. Chairman.
    I want to ask Dr. Lewis, were people able to submit 
information to you at the beginning of your analysis, in 
addition to the science, the BA and the BO that were used?
    Mr. Lewis. Yes.
    Mr. Walden. And did you take that information that was 
submitted into consideration before you issued your interim 
report?
    Mr. Lewis. Yes.
    Mr. Walden. So people who may have had issues with the 
process had an opportunity to comment?
    Mr. Lewis. Yes, although they had not read our conclusion, 
so--
    Mr. Walden. Correct.
    Mr. Lewis. --it is fair that some people who read our 
conclusions would differ from our conclusions. That is not too 
surprising.
    Mr. Walden. Certainly. I want to read from the study, 
because I think this is really important. A substantial data 
collection and analytical effort has not shown a connection 
between water level in Upper Klamath Lake and conditions that 
are adverse to the welfare of the suckers. Incidents of adult 
mortality, fish kills, for example, have not been associated 
with years of low water level. Also, extremes of chemical 
conditions considered threatening to the welfare of the fish 
have not coincided with years of low water level and the 
highest recorded recruitment of new individuals into the adult 
populations occurred through reproduction in a low water year. 
Thus, the Committee concludes there is no sound scientific 
basis for recommending an operating regimen for the Klamath 
project that seeks to ensure lake levels higher on average than 
those occurring between 1990 and 2000.
    But then you went on to say, at the same time, the 
Committee concludes there is no scientific basis for operating 
the lake at mean minimum levels below recent historical ones, 
as would be allowed under the USBR proposal. Operations leading 
to lower lake levels would require acceptance of undocumented 
risk to the suckers.
    Is it not fair to say, then, based on this, that, in 
essence, they did not have the science to make the decision how 
to operate the lake?
    Mr. Lewis. Well, they quite properly collected relevant 
information on the environmental characteristics of the lake, 
and this was not just the Federal agencies, but also the tribes 
and others, and they quite properly collected information on 
the fish. That information, when taken as a package, did not 
support the notion that higher lake levels work to the welfare 
of the fish.
    There is some pretty good theoretical basis for expecting 
that higher lake levels would be beneficial, but the data 
contradict that sort of theory, and--
    Mr. Walden. So the data that they had contradicted the 
theory of higher lake levels?
    Mr. Lewis. That is right. That is right.
    Mr. Walden. And that is what your Committee found?
    Mr. Lewis. Yes.
    Mr. Walden. Obviously, there are lots of issues involved in 
this basin. We have tribal rights, certainly water rights, and 
certainly their heritage to respect, water for the farmers, 
water for the fish. Can we talk about what you found in the 
data that has led to the decline of the sucker populations in 
the lake, and further, did you find any data that indicated 
what historical counts were for suckers? Have you ever run 
across anything that shows how many suckers there were at any 
given time and how many there were when they were listed and 
how many were trying to--
    Mr. Lewis. The U.S. Fish and Wildlife Service has done an 
excellent job of compiling all the historical information on 
suckers. We do not have any accurate population estimates for 
the suckers either earlier or now, but we know that the runs of 
these suckers into tributary waters were so great that it is 
said that a farmer with a pitch fork could load a pick-up truck 
with these fish in an afternoon. So obviously, there was a huge 
population of these fish originally.
    There was a large commercial fishery during the early part 
of the 20th century and it was instrumental in depleting the 
numbers of these--these fish are very vulnerable when they 
migrate to spawn--followed by a very popular snag fishery for 
recreation, and the snag fishery polished off a number of the 
breeding groups of these fish and, thus, some of the breeding 
areas are not used simply because the genetic stocks are not 
available.
    So over-fishing was the first cause of decline of these 
fish, but fishing was stopped in 1987 and since then, the fish 
have not recovered.
    Mr. Walden. Right.
    Mr. Lewis. They have persisted, but they have not 
recovered, and that is the concern.
    Mr. Walden. My understanding is that some 85 percent of 
their original habitat is blocked by an irrigation dam.
    Mr. Lewis. There are some serious, long-recognized problems 
with these fish that do not have to do with water level in the 
lake. These fish are blocked from entering their largest 
spawning area, that is the Sprague and Williamson Rivers, by a 
dam, the Chiloquin dam, that can only be passed by a very few 
fish.
    In addition, the water management structures that are 
operated by Bureau of Reclamation and others involve as many 
as--well, throughout the whole basin, there are 200-and-some 
diversion points for water. One of them, the ``A'' canal, can 
take as much as 1,000 cubic feet per second. It is already 
known that these structures kill hundreds of thousands of young 
suckers every year right now and they could be screened, at 
least the biggest ones, but they have not been.
    Mr. Walden. So screening would be important. Unblocking the 
traditional habitat would be important. There are a number of 
steps that have been recommended over the years, have there not 
been, that have not been implemented?
    Mr. Lewis. Yes. For 10 years, the U.S. Fish and Wildlife 
Service has been saying that we need to provide better passage 
for these fish and we need to screen these water management 
structures so they do not kill the fish.
    Mr. Walden. Mr. Chairman, could I ask one more question? I 
know I have gone over.
    The Chairman. One more.
    Mr. Walden. On the coho side, down the river, could you 
describe for me the process in terms of habitat and water 
quality that occurs as Scottish Power keeps or releases water 
to produce electricity, because my understanding is that there 
are some 1,300 CFS that has to be maintained going down the 
river, but yet some of that comes and goes. It sort of 
oscillates. What does that do to the habitat? What does that do 
to the water quality?
    Mr. Lewis. I think you are addressing the question of the 
so-called ramping rate--
    Mr. Walden. OK.
    Mr. Lewis. --which is the rate at which flow fluctuates 
below a point of control. In this case, the point of control is 
Iron Gate Dam.
    Mr. Walden. Right.
    Mr. Lewis. And the National Marine Fisheries Service found 
that the ramping rate is probably excessively high now and 
recommended that the rate be reduced, i.e., that the power 
company be required to be more gradual in adjusting flow. The 
Committee found that that recommendation was well supported.
    Mr. Walden. OK. So do we end up with fish that get 
stranded?
    Mr. Lewis. Yes. Stranding has been observed and documented.
    Mr. Walden. All right. Thank you, Mr. Chairman. Thank you.
    The Chairman. I thank the gentleman.
    Mr. Udall?
    Mr. Udall of New Mexico. Thank you, Mr. Chairman.
    New Mexico, I think, is in a similar situation to what you 
are experiencing in the Klamath Basin. We have an arid State 
which has seen rapid population increases and a proliferation 
of listing of endangered species in its rivers. For example, 
the Rio Grande silvery minnow and the Peco Spontano shiner and 
the Arkansas River shiner, and so I am very interested in the 
way that we are approaching this.
    It seems to me that to jump to conclusions early on science 
is really not the way to go, and so I want to explore with you 
a few questions on specifics and recovery of species.
    First of all, in the recovery of species, particularly 
aquatic species, it is often necessary and sensible to spawn 
fish in captivity and release them into the wild at a stage 
where their survival rates increase. Some take the position 
that only fish spawned in the wild should count under the ESA, 
though the fish are genetically identical. What is the position 
of Interior or the National Marine Fisheries Service or anybody 
here on the panel on the issue of wild versus hatchery spawned 
fish in recovery programs or for listing?
    Ms. Wooldridge. Why do you not go?
    [Laughter.]
    Mr. Hogarth. I think we in National Marine Fisheries 
Service have always tried to look at the hatchery influence on 
the populations and whether they were true genetically the 
same. As you are well aware, or may not be aware, right now, we 
are evaluating the hatchery policy for all the salmon species 
on the West Coast to look at the genetic integrity and what 
should be the role of hatcheries in the recovery.
    That process will not be completed until later this year, 
but it came about as the result of a court case, so we are 
evaluating that issue right now. But in the past, we have 
always sort of looked at the hatchery fish and how these 
hatchery fish could be marked and could you take the hatchery 
fish while you were letting the wild fish remain in the 
population to increase the wild population? We used markings to 
do that and let the hatchery fish be the ones that were taken 
commercially and recreationally.
    But we have not formalized what will be our policy. We are 
working on it right now, as to what it will be. We have to 
report back to the court later this year, and as a result, we 
will be looking at about 23 out of the 25 ESUs that we have 
listed for salmon.
    Mr. Udall of New Mexico. So you do not have a position as 
of yet on that?
    Mr. Hogarth. No. We do not think, basically, that you can 
rely on hatchery fish totally for recovery, but we are trying 
to determine the role we think that they can, what percentage 
and how do you operate the hatcheries to make sure that you 
maintain the genetic integrity of the wild stocks, and that is 
the key question.
    Ms. Wooldridge. With respect to Interior, on the Klamath 
Basin itself and on these particular species, there was a 
tribal hatchery at one time for trying to rear hatchery sucker, 
which apparently did not pan out too well. I am told 
differently that the species were just not able or that there 
just was not enough money put in to make it work well.
    With respect to the coho, during the last relicensing, when 
PacifiCorp went through its last relicensing, the predecessor 
to Scottish Power, they established a hatchery at the base of 
Iron Gate Dam where coho are reared. My understanding, however, 
is--and I learned this actually in the NRC report, that those 
coho are a mix of breeding stock from Southern Oregon, Northern 
Coastal, and apparently another Columbia coho.
    Mr. Udall of New Mexico. Does Interior take a position now 
on whether or not what percentage is wild versus hatchery as 
far as the spawned fish in recovery programs?
    Ms. Wooldridge. No, I would rather not, and I am happy to 
provide an answer. I am simply not prepared to talk about that 
today.
    Mr. Udall of New Mexico. Mr. Chairman, if I might, one of 
the issues here is State and local scientists that are a part 
of this process. I mean, we have many in New Mexico that are 
studying these issues that I have just talked about and I am 
wondering how you use, the Federal agencies use that detailed 
experience of the local river, the biology of the species 
listed as endangered, how do Federal programs effectively use 
the knowledge of these local scientists and agencies as a part 
of this process?
    Mr. Hogarth. From our perspective, they are a part of--if 
we get a petition to list or things like that, we use the 
States as part of the team that looks at whether they should be 
listed, and then when we do the recovery, teams in status and 
recovery, we use the State as a part of that process.
    In California right now, we are working with California to 
utilize some of the salmon money they have for habitat 
restoration, particularly in the Scott and Shasta Rivers where 
we think there are some real habitat problems that need to be 
addressed to help this overall coho question.
    So we use the States quite a bit. We consider them our 
partners as we go through this process.
    Ms. Wooldridge. That is the same for Interior. We think it 
is very important that we are taking into account not just the 
local academics, but also the State Fish and Wildlife folks and 
others who have been working on these issues.
    In this particular instance, we used both Oregon and UC-
Davis in looking at the studies that have been done and the 
conclusions that have been drawn quite a bit.
    Mr. Udall of New Mexico. Thank you, Mr. Chairman.
    Mr. Calvert. [Presiding.] I thank the gentleman.
    Mr. Elton Gallegly has asked unanimous consent to submit 
his opening remarks. If there is no objection, so done.
    [The prepared statement of Mr. Gallegly follows:]

Statement of The Honorable Elton Gallegly, a Representative in Congress 
                      from the State of California

    Mr. Chairman, I believe we should do everything prudently possible 
to protect the environment. But when given a choice between making 
people suffer and protecting a fish habitat, I have always believed the 
people come first. But when you make people suffer based on faulty 
science that also harms the fish'that is unconscionable.
    According to a National Academy of Science interim report, that is 
what happened in Klamath, Oregon. The National Marine Fisheries Service 
and the U.S. Fish and Wildlife Service withheld vital water from more 
than 1,200 farmers and their families last year, resulting in more than 
$200 million in lost revenue to the Klamath community. This was done 
supposedly to protect two species of sucker fish in Klamath Lake and 
the coho salmon in the Klamath River.
    But, the NAS reports, withholding water from the farmers probably 
did nothing to help the fish and in fact may have harmed them. Based on 
faulty science, the Federal Government wrongly caused immense 
suffering. This is unacceptable.
    Efforts are underway to protect Klamath farmers in the future. The 
Klamath River Basin Federal Working Group is proposing short- and long-
term solutions to get water to competing interests. In April, the 
Commerce Department will release its plan on operating the Klamath 
irrigation project during the next growing season. Secretary Evans has 
made it a top priority to prevent a repeat of last year's events.
    But what about other communities? Mr. Chairman, it is my sincere 
hope that this oversight hearing will lead to agencies being held to a 
high scientific standard, so we are not here next year discussing the 
financial collapse of another farming community.
                                 ______
                                 
    Mr. Calvert. With that, Mr. Flake, you are recognized.
    Mr. Flake. No questions.
    Mr. Calvert. OK. Mr. Radanovich?
    Mr. Radanovich. I yield my time to the gentleman from 
California, Mr. Herger.
    Mr. Calvert. Mr. Herger is recognized.
    Mr. Herger. Thank you very much, Mr. Chairman, and thank 
you, Mr. Radanovich. I do appreciate the opportunity to be able 
to sit on your Committee, with your Committee today on this 
incredibly important issue. Of course, the Klamath Basin, I 
share with my good friend, the distinguished member from 
Oregon, Mr. Walden, and represent the California side, so 
again, I thank you very much.
    Also, I request that I have my full statement included in 
the record.
    Mr. Calvert. Without objection, so ordered.
    Mr. Herger. Thank you very much.
    [The prepared statement of Mr. Herger follows:]

 Statement of The Honorable Wally Herger, a Representative in Congress 
                      from the State of California

    Thank you, Chairman Hansen and Members of the Resources Committee, 
for the time and for the opportunity to be here today. I represent the 
area that comprises the California side of the Klamath Basin. As such, 
I very much appreciate the opportunity to be here today on their behalf 
on this critically important issue.
    This situation is the ``poster child'' for the need to update the 
Endangered Species Act! Almost 100% of the water was taken from 1,500 
family farmers based only on the speculation of a few Federal 
scientists. A community of 70,000 people was brought to the brink of 
economic collapse at the stroke of a scientist's pen. Thousands of 
people's lives may never be the same.
    The National Academy of Sciences (NAS) study proves suspicions that 
this was political! People on the ground knew that the science was 
wrong and that the decision to take water away was not grounded in fact 
or science. We said it was nothing more than a parting gift by Clinton-
era political appointees to the radical environmentalists, who want to 
run these hard working farmers and war veterans off this land! The NAS 
study proves it!
    Farmers must get water this year! Sue Ellen, let me say that we 
must get these farmers water this year. What happened can never be 
rectified, but this Interior Department can make certain it NEVER 
happens again. And we must have an Operations Plan in place by April 1! 
I am VERY concerned about reports that the regulatory agencies have 
already indicated that they might not have enough time for 
consultation. Please pass along the message that we want a plan in 
place by April 1!
    The responsible decision-makers should be here to be accountable 
for their actions! I am very disappointed that they are not here to 
answer to Congress and to the American people for what happened.
    Again, thank you, Mr. Chairman, for the time.
                                 ______
                                 
    Mr. Herger. Mr. Chairman and members, this situation is the 
poster child for the need to update the Endangered Species Act. 
One hundred percent of the water was taken from 1,500 family 
farmers based on the speculation of a few, a handful of 
biologists, of Federal biologists. A community of some 70,000 
people was brought to the brink of economic collapse at the 
stroke of a scientist's pen. Thousands of people's lives may 
never be the same.
    Farmers must get water this year. Ms. Wooldridge, let me 
say that again, that we must get these farmers water this year. 
What happened can never be rectified. This Interior Department 
can make certain it never happens again, and we must have a 
decision by April 1.
    I want to say that there is urgency here. I am very 
concerned about the reports that the regulatory agencies have 
already indicated that they might not have enough time for 
consultation. Ms. Wooldridge, please pass along the message 
that we want a plan in place by April 1.
    My serious concern here, Sue Ellen, is that the National 
Academy of Sciences report is hard evidence that the science 
that formed the basis of this decision was bogus. It confirmed 
what many of us have suspected all along. So then it begs the 
question, how much water is enough for the fish? Seventy 
percent of the water is already dedicated for fish. How much is 
enough?
    My strong concern is that the same people who did this to 
us would be the ones who are making this determination again, 
and my question to you is, what is being done to prevent this?
    Ms. Wooldridge. The answer to that is answered if I can 
kind of go back and respond to some of the other things you 
said. With respect to--we are doing everything we can to make 
sure that we, by April 1, have measures in place that would 
allow the operation of the project. Having said that, however, 
we are not going to cram down scientific conclusions. We are 
going to let the process work.
    But our new Director of the Fish and Wildlife Service, who 
is sitting right behind me, has added some steps in his process 
to make sure that the review of the biological opinions and the 
creation of the biological opinions are going as quickly as 
possible, that they are given the highest priority, that the 
people working on it have others that they can look to to test 
their thinking on it and have other additional input from other 
biologists within the Fish and Wildlife Service so that we have 
sort of augmented the staff that are looking at this.
    Under the Endangered Species Act, if the agency that is the 
action agency--in this case, it is the Bureau of Reclamation--
needs to begin operations or needs to begin the act that they 
are seeking consultation on, they can do so so long as there is 
not an irretrievable or irreversible commitment of resources to 
the detriment of the species while they begin operations, and 
it is called a 7(d) option.
    Regardless of whether we have final opinions by April 1, we 
intend to begin operations on April 1 and it is our belief that 
we should at least have draft opinions by that point in time, 
and that plus the 7(d), we think, is sufficient to allow us to 
let the farmers on the ground know what they can expect in 
terms of operations, at least until those final opinions are 
given and then banks can loan money and other things can happen 
and they can buy seed or do those things which they need to do 
to plan their economic lives.
    Mr. Herger. I thank you very much, and I thank you, Mr. 
Chairman and members.
    Mr. Calvert. I thank the gentleman.
    Ms. Solis?
    Ms. Solis. Thank you, Mr. Chairman.
    Just briefly, for any of the panelists, if you could 
comment on whether the interim report argues for any 
amendments, and if so, for ESEA, can you spell those out or 
give us some idea of what recommendations you see?
    Ms. Wooldridge. I am sorry, let me ask again. Your question 
is whether the NRC does give us, is supportive of changes to 
the Endangered Species Act that we are supporting or you are 
prepared to talk about? We are not prepared to talk about that 
here at this hearing and I think it would be better that I do 
not speak to that. We have been looking at the entire range of 
our regulatory options as we implement the Endangered Species 
Act. There are a lot of people--as you know, I know that there 
are some bills that are pending and we have not spoken to those 
and we are just in the process of putting together our thinking 
about that.
    Ms. Solis. Also, then, given the nature of the interim NAS 
report and the uncertain nature of the science in the Klamath 
Basin, why is it that the Department is proposing a 10-year 
operating plan for the Klamath project instead of a 1-year 
plan?
    Ms. Wooldridge. A 10-year plan gives you more flexibility. 
If you know that you are going to run the project a certain way 
over a longer course of time, it gives the biologists more 
flexibility to look at what may be shortages in 1 year might be 
acceptable if you know that you are going to be operating in a 
different way if you have a different type of hydrologic year. 
So the idea was that over a 10-year span, we would look at the 
various hydrologic years that we might encounter and have them 
tell us how we can operate in those hydrologic years.
    If, as my colleague, Mr. Williams, says, the new Director 
of the Fish and Wildlife Service, if you only have 1 year, you 
are absolutely forced to get it right, and if you do not have 
the data and you do not necessarily have the supporting things 
that you are confident in your judgments, it makes it very 
difficult for the biologists. So we went to a 10-year plan and 
we are sticking with that.
    And I should point out, when you have a 10-year plan, just 
like last year, we had biological opinions. We are reconsulting 
on those opinions so that we will have new opinions. If, in the 
event we come out with the 10-year biological opinions, as we 
will for both the coho and sucker this year, if there is new 
data that comes in that suggests that we need to redo the 
consultation, we will do it, and that is something that is 
routinely done.
    Ms. Solis. I guess my concern would be the opportunity for 
new science to come into play and that those factors be 
measured, as well, and so that 10 years, while it sounds like a 
long time, things do change. I just would caution that extent 
of time.
    Ms. Wooldridge. Right. The history, as I understand it, 
there was a long-term opinion prepared by the Fish and Wildlife 
Service for the Bureau in 1992 and they operated under that, 
and then new data came in and they went to a series of 1-year 
opinions, and it is the collective wisdom of the agencies that 
that has forced some very difficult decisions because there was 
a lack of flexibility.
    I also want to make sure that I am clear that this does not 
mean that the science is going to stop simply because we have a 
10-year opinion. It is a way so that people can look at the 
operations over a larger, extended period of time so they can 
understand the flex in the system for the species.
    Ms. Solis. Last, I would just be concerned that all 
interested parties have the availability to provide that 
necessary input to you, as well. I was a bit concerned to hear 
that there were some individuals that were also invited to come 
and speak here and were not allowed to, so I am concerned about 
that, about hearing from all sides.
    Ms. Wooldridge. Thank you.
    Ms. Solis. Thank you.
    Mr. Calvert. Mr. Osborne?
    Mr. Osborne. Thank you, Mr. Chairman.
    I appreciate you folks being here today very much. I would 
like to applaud the Secretary for authorizing the National 
Academy of Sciences study and reviewing the data.
    I have a situation that may be a little bit similar to the 
Klamath Basin. We have a 56-mile designation of the Central 
Platte River in Nebraska that has been designated as critical 
habitat for the whooping crane. This was done in 1978. We have 
subsequently studied this and 11 out of those 24 years, there 
was no whooping crane that ever was even in the Platte Valley. 
The average number has been between one and two. There are now 
175 cranes. So there is no research to validate that they even 
use the river, and it is all critical habitat.
    In the meantime, we have had 140,000 acre feet of water 
designated per year for the endangered species, which goes down 
the river, which is lost to irrigation. We also have no new 
depletions, so since 1997, there have been no new wells 
drilled. You had to offset water. And this, again, is for the 
endangered species which does not seem to be there.
    And then the height of, I guess, ridiculousness, was 
because of the higher flows in the river, they are losing 
sediment, so they now propose bringing in 100 dump truck loads 
per day for maybe 100 years to put sediment back in the river. 
Now they have backed off on that and now they are just going to 
bulldoze some islands in the river to replace sediment.
    So where I am going with this is that it seems that the 
designation got out ahead of the facts and we are now stuck 
with the designation. Maybe to some degree, that happened in 
the Klamath Basin. The question I have is, where do you go from 
here and what do you do to prevent this type of thing from 
happening, because, obviously, the data does not indicate that 
this is critical habitat for the whooping crane, and, 
obviously, there was some data that was contradictory regarding 
the coho salmon and the suckers in the Klamath Lake, and so any 
thoughts you would have, I would appreciate, any one of you.
    Ms. Wooldridge. Well, we have a Federal working group that 
began its work last Friday and its task is to look at both 
immediate and long-term solutions for augmenting water supply 
and looking at water quality improvements for the basin in 
dealing with the complex issues, some of which were raised by 
Mr. Miller with respect to tribal claims.
    We would absolutely need more and better science out there. 
I do not think there is any question about that. We have to 
fund the studies that have been proposed, those that have been 
passed that we are in the midst of. We have USGS is out looking 
at groundwater studies. The Fish and Wildlife Service, both for 
the sucker and down on the downstream, are continuing their 
studies. The tribal scientists that are funded through the 
Bureau of Indian Affairs are also performing their studies.
    In the Klamath Basin, we have a problem and that is that 
over the course of many years, to sort of point the fingers at 
ourselves here, the Federal Government has promised water to 
the tribes through their treaty rights. They promised them the 
right to hunt, fish, trap and gather in that upper basin and 
the courts have said that that treaty right has an attendant 
water right. We have promised these farmers, who we said, come 
to the basin and we will give you all the water you need and we 
will have you do agriculture, irrigated agriculture.
    And then for the third time, and apparently with no respect 
to any of the previous promises, we have passed the Endangered 
Species Act so that now we have water for fish, and we are just 
really thrilled in the Department of Interior because we get to 
do all three of those and we have got to find water for 
farmers, we have got to find water for fish, and we have got to 
invoke and protect those treaty rights.
    So our goal is to try to find some way, if you can fix the 
ecosystem, that helps the fish, that also vindicates the tribal 
right, and that will help bring more water to farmers, because 
as the water quality is improved, you do not need so much water 
for those other two things, but it is going to take time and 
patience and our task is to figure out the immediate things 
that we can do that is going to let the farming community out 
there thrive while we are doing everything we can not to harm 
the species and not violate our tribal trust obligations.
    That is a long answer, sir, and I am sorry I took so long, 
but I have been waiting to give that little speech.
    Mr. Osborne. Thank you. I guess my question is, once the 
critical habitat has been designated, you have got a problem, 
and if the facts warrant it, how do you undo it? What is the 
best procedure?
    Ms. Wooldridge. I know I have people sitting behind me who 
know that answer very well, and all I can tell you is turn to 
my colleague here for just a moment, because they have just 
undone a bunch of critical habitat designations and he might be 
the one more appropriately to speak to that, if I may.
    Mr. Hogarth. There are several mechanisms. One is petitions 
that it is no longer a critical habitat, and we can review 
those and remove it. There are lots of ways to go about it.
    The one we just removed was based on the fact that the 
Tenth Circuit Court has said we have not done a sufficient 
economic evaluation, analysis of the impact of the critical 
habitat. So there are ways to do it that are pretty simple, and 
sometimes they are not simple. When you get into the court 
system, you may get something you do not really want out of 
that. But they can be looked at by the agency if additional 
data becomes available that the habitat is less, you know, you 
do not need as much habitat or if the whooping cranes, for 
example, are not present or conditions have changed, so there 
are ways to do it. It is just which is the best way to do it.
    Mr. Osborne. We will be in touch with you and see if we can 
figure something out.
    Mr. Hogarth. Whooping cranes, by the way, is them, not us.
    Mr. Osborne. Thank you. I yield back, Mr. Chairman.
    Mr. Calvert. I thank the gentleman.
    Mr. Dooley?
    Mr. Dooley. Thank you, Mr. Chairman, and I apologize for 
not being here at the beginning, so I might be repetitive, but 
we had a hearing on the CalFed bill a couple of weeks ago where 
we had a number of witnesses, and it was coming on the heels of 
the NAS study on Klamath being released. At that time, I 
inquired of all the panelists whether or not they would support 
an NAS study that would be similar in nature to the Klamath on 
issues related to water allocations in the delta. We also have 
sent a letter to Secretary Norton requesting that she request 
an NAS study that can provide us similar information that was 
generated by the work of the NAS on the Klamath. I was just 
wondering if there has been any decision or what is the status 
of this request at the Department.
    Ms. Wooldridge. The status is that we do not have an answer 
for you yet. I have spoken several times with Mr. Polachansky, 
who is in the audience here today. I have spoken with Assistant 
Secretary Raley, who is out actually in California this week 
doing CalFed business, about your request, and what I am trying 
to do is put the two of them together and get them to talk 
about that.
    The one issue that was our immediate thought when we came 
up here, the difference, if I may just point out, between the 
Klamath situation is we do not have a science board in place 
there, whereas in the CalFed process, we have a science board 
in place whose purpose is to take a sort of collective look at 
the science. I do not think that is a difference necessarily 
that makes a difference, but that was sort of my immediate 
thinking in looking at your request. Here, we had a real kind 
of absence of a cohesive effort to look at the science, whereas 
there are at least some steps taken in the CalFed process to 
help with that.
    But that is not the answer to your actual question because 
we just do not have an answer at this point.
    Mr. Dooley. I would just add how difficult it is to bring a 
greater consensus within California on what is the appropriate 
policy to implement to address all of our water needs, whether 
they be environmental or consumptive use by municipal and 
agriculture. Anything that we can do to enhance the confidence 
in the science and the decisions that are being made is so 
important, and I feel very, very strongly, as did--we had 
panelists representing Metropolitan Water District, 
representing the State water districts, representing the San 
Luis contractors, and also the Contra Costa Water District, who 
all supported an NAS study because I think they all understood 
that it would help build, I think, a greater confidence in the 
measures that were being implemented. So I hope that the 
administration will continue to move forward, and obviously, I 
hope that they would request that they work with the NAS to do 
a similar analysis.
    Ms. Wooldridge. Thank you.
    Mr. Calvert. I thank the gentleman.
    Mr. Radanovich?
    Mr. Radanovich. Thank you, Mr. Chairman.
    I really do not have a question, I think it is just kind of 
more of a statement that I wanted to use to weigh in on this 
argument. I kind of echo the need that was pointed out by my 
colleague, Mr. Herger, for Endangered Species Act reform, 
because I really think that this is the best evidence that we 
have for the need for that.
    Ms. Wooldridge, I appreciate you had a good assessment of 
what the problem was in Klamath. However, I think at one point 
you had mentioned that, of course, we passed the Endangered 
Species Act to protect the fish, and you are exactly right in 
that circumstance. However, there are some fish that are 
apparently worth saving more than others and both can be listed 
as endangered species in the Endangered Species Act and the way 
the Endangered Species Act is written, it is so poorly written 
that it allows for agencies like NMFS to be arbitrary and 
capricious in which endangered species they want to protect.
    I want to highlight another problem that we have on the 
East Coast and that is with the Washington aqueduct and the 
Wilson Bridge, there where we have an endangered species, which 
is the endangered sturgeon who, when developing the 
environmental assessment for the Wilson Bridge, it was said 
that they would take care of the habitat, or protect the 
endangered sturgeon by wiping out its habitat in and near the 
bridge so that the sturgeon would not be there. In the 
Washington aqueduct there, where they take the water out of the 
Potomac to purify the water for us here in Washington, D.C., 
they shoot it back in a collected form laced with alum and 
chlorine back onto the spawning grounds of the endangered 
sturgeon.
    There you have--I think it is one of the most blatant 
abuses of the Endangered Species Act in urban areas, and here 
in the Klamath Valley, you have the most blatant abuse of the 
Endangered Species Act in rural America, and it is very easy to 
do this because rural America does not have the votes in 
Congress to change the law right now.
    So a poorly written Endangered Species Act can allow 
special interest groups and those within the administration who 
have a very extreme agenda to really wreak havoc on people in 
rural America, where the law is just blatantly ignored in urban 
America.
    I think that we all ought to strive for an Endangered 
Species Act that works for everybody, that can be applied both 
in rural America with some common sense, but also in urban 
America with some common sense. So I would really, if I had my 
way, everybody would walk out of here after the example of the 
Klamath River Basin and the disaster that was imposed on 1,200 
farmers' lives with the real sense that the Endangered Species 
Act needs to be reformed, because on the walls of the Supreme 
Court is the term ``equal justice under the law,'' and this law 
is so bad that it can allow such catastrophic abuses to people 
in the Klamath River Basin and yet just be completely ignored 
because some people do not want to be caught up in traffic for 
a period of time, some people do not want dump trucks traveling 
through their Georgetown neighborhoods, but we can certainly 
blow away 1,200 farmers in a place and it would not bother the 
rest of the people.
    So the problem here is the Endangered Species Act and this 
kind of abuse is just going to keep going on until I think that 
we all realize that this law needs to be changed and the 
lawmakers here really need to get together and put something 
that works for every American. Thank you.
    Mr. Calvert. I thank the gentleman. Mr. DeFazio?
    Mr. Hogarth. I just want to respond real quickly to his 
point about the sturgeon.
    Mr. Calvert. The gentleman is recognized.
    Mr. Hogarth. When I came to the job as Assistant 
Administrator, I met with your staff and that was the first 
time I was aware of it. We are now in the process of 
reevaluating that. We met with the Potomac River Commission, 
the Fish Commission, the Washington, D.C. Commission, and we 
are implementing studies to document the presence of sturgeon, 
a critical habitat and all. I was not aware until I met with 
your staff and they pointed out some things that seem to be 
inconsistent, and--
    Mr. Radanovich. I am not blaming you, Mr. Hogarth, but this 
has been going on for 30 years. Everybody knew what was going 
on here. It is just convenient to ignore. And some people in 
Georgetown do not want dump trucks hauling sediment through 
their neighborhoods. They just ignore the law. You know, this 
is how it works.
    Mr. Calvert. I thank the gentleman.
    Mr. DeFazio?
    Mr. DeFazio. No questions.
    Mr. Calvert. Any other questions on this side? Mr. Miller?
    Mr. Miller. Thank you, Mr. Chairman.
    On the minority side of the Committee, we had asked for a 
number of people to be invited to this hearing and they were 
not. We were not allowed to have that happen. So if I might, 
Mr. Lewis, what is the process going to be for correcting or at 
least looking at what have been alleged as factual errors in 
your report? I appreciate that apparently somebody said that 
the Academy does not make mistakes, it does not have factual 
errors, but let us assume that you might for one time out of 
100. What is going to be the process for dealing with that?
    Mr. Lewis. The interim report is in final form except for 
very minor editorial matters, such as punctuation and spelling 
and removing the odd word here and there. The interim report is 
final and the Committee is working on--
    Mr. Miller. So there are no errors in the interim report?
    Mr. Lewis. I did not say that. The interim report is final 
and the Committee stands behind it fully.
    The final report is the task of the Committee now. It is 
focusing very strongly on the final report and is on schedule 
to produce that report in the spring of this coming year.
    Mr. Miller. Can I forward to you the questions that people 
would have raised here with respect to the use of the evidence 
and what are alleged--I do not know whether they are, I do not 
have the capability to know whether they are--alleged factual 
errors contained in the report?
    Mr. Lewis. Yes, by all means, do.
    Mr. Miller. Will they get consideration?
    Mr. Lewis. Absolutely.
    Mr. Miller. Thank you.
    Mr. Walden. Would the gentleman yield for just a second?
    Mr. Miller. Sure.
    Mr. Walden. I believe that you also held a public hearing 
in Medford and then went to Klamath Falls, did you not, to also 
collect data?
    Mr. Miller. I understand that.
    Mr. Walden. OK.
    Mr. Miller. I am not passing judgment on whether that was 
done, and if this is redundant, tell me it is redundant. We 
wanted people to come and testify that have raised some 
concerns who are heavily impacted by this action and I just 
want to make sure that they have an avenue to have those given 
full consideration.
    Mr. Lewis. I probably should add something, Mr. Chairman, 
if I could.
    Mr. Calvert. It is the gentleman's time, but if it is fine 
with him, you are recognized.
    Mr. Lewis. Oh, OK. Mr. Miller?
    Mr. Miller. Go ahead.
    Mr. Lewis. I should, in fairness to the Academy, point out 
that reports of this type are very extensively reviewed. They 
pass through a peer review process. Anonymous reviewers who are 
selected by the Academy staff for their expertise in the 
subject are asked to give written reviews. We had very 
extensive written reviews that we were required to respond, 
point by point, to every item in each of these reviews and to 
make any changes necessary to either make a case that the 
reviewer's comment was irrelevant or incorrect or to change the 
report.
    This document went through that process and that process 
was monitored by a report coordinator and a report monitor 
working for the NAS report review Committee.
    Mr. Miller. I understand that. I understand that and I am 
not challenging that.
    Mr. Lewis. Right.
    Mr. Miller. I am just challenging whether or not there was 
due consideration to these points. Your answer may be the 
answer that I am going to get back. But, you know, once you 
start down this process where you decide you are going to use 
science also as a battering ram, you ought to understand that 
what is good for the goose is going to have to be good for the 
gander. It would be interesting if the NAS now becomes the 
vehicle that is the battering ram against the Endangered 
Species Act. We will wait and see what happens there.
    I also want to just, if I might, take issue a little bit 
with Mr. Herger. The impacts of this decision are not combined 
to his Congressional district or Mr. Walden's Congressional 
district. I appreciate they want to take ownership of it, but 
obviously, the Pacific flyway, which runs from the Yukon to 
Mexico, is impacted in this. The commercial fishermen on the 
coast are impacted by this. The recreational people who have 
huge investments in their business along the Klamath or along 
the Trinity where we have other disputes on these water basins.
    You cannot make a decision in the West and think it is 
confined to that basin or that river or that reservoir. The 
fact of the matter is, this is a huge quilt. You can pull on 
any part of it. You can send more water down the Trinity and 
Mr. Dooley's people are going to be upset. Give more water to 
Mr. Dooley's people and Ms. Solis's people are going to be 
upset.
    So that is the game you signed up to play here, but at some 
point, there have got to be some rules of the road here that 
have got to work on both sides of the issue. You can argue, and 
the left and the right can both argue that this is not the best 
science available, and that can go on forever. But people like 
Mr. Hogarth and others have to make decisions about the 
jeopardy and what is going to take place.
    We have seen the other decision. We lived under it for 150 
years in this country and we inherited a decimated environment. 
What we are trying to do now is recover good portions of that 
environment--
    Mr. Herger. Would the gentleman yield?
    Mr. Miller. I will use my time, and if I am given more 
time, I would be happy to yield.
    Mr. Herger. My name was brought up. I would hope at some 
point you would yield.
    Mr. Miller. I will be happy to, Wally. You get more time. 
We all get another round of questions.
    Mr. Herger. Thank you.
    Mr. Miller. The point is this, is that that recovery has to 
happen, and it is happening in urban areas, it is happening in 
rural areas. We have all had our concerns about the science. I 
think those are valid. Not every scientific finding is the best 
that can be done and we have a right to raise those objections.
    But I still think that you have to understand that you can 
put an awful lot of intense heat based upon one Congressional 
district or one set of farmers, but the fact is, every State in 
the union has gone through the same--I mean, in the West. The 
Central Arizona project has gone through this. The Central Utah 
project is going through this. The Central Valley project is 
going through this. It is happening over and over again as we 
get competing uses for this water, and one of the competing 
uses is whether the people are from the rural area who rely on 
them or the people from the urban area that like to think they 
can go see them or benefit from them, is the preservation of 
the fish, both in-stream, in the coast, and the migration of 
those.
    And so the constituency here is quite large. You can con 
yourself into believing that it is just about these people 
right here. It is not. The competing values and the competing 
water rights are very real under the law, so I would hope that 
we do not get forced into thinking that, somehow, this little 
piece can be micromanaged to the benefit just of these farmers. 
They are one voice, a very legitimate voice, a very important 
voice in their area. But they are one voice among many voices 
who have a competing interest and concern about the outcome of 
these decisions.
    So when Mr. Herger demands that somehow you implement a 
decision that will result in the way he wants it by April, he 
is asking for the same kind of bad science that he is railing 
against in this decision. There is a process in place for how 
the Bureau will make this decision, how Fish and Wildlife, how 
NMFS will make this decision, and unless you change the law, 
that process ought to be honored, and it ought not to be 
honored in the breach. It ought to be honored on both sides of 
the equation all the time.
    Mr. Herger. Mr. Chairman--
    Mr. Calvert. The gentleman's time is expired.
    Mr. Miller. I would be happy to yield.
    Mr. Calvert. Mr. Herger, I am going to recognize you next.
    Mr. Miller. I wanted to yield to him.
    Mr. Calvert. I would be happy to recognize--
    Mr. Herger. I would like to be yielded to under his time, 
since he mentioned my name--
    Mr. Calvert. One point--
    Mr. Herger. --not under my time.
    Mr. Calvert. And I am going to recognize Mr. Herger. In the 
hearing in June, all the parties of interest were represented 
in Klamath River Valley itself.
    Mr. Herger, you are recognized.
    Mr. Herger. Mr. Chairman, and I appreciate the fact that 
you gave quite a bit of extra time to my fellow Californian, 
and I would hope that I would have a little--
    Mr. Calvert. Use what time. Go ahead.
    Mr. Herger. --and he mentioned my name and I would like to 
respond. Hopefully, that would not be used under my time. But I 
would like to just mention or ask the question, how many jobs, 
how many people, residents of yours, constituents, were 
bankrupt in your district as in mine? What I am asking for is 
not that we consider all the interests. That is not what we are 
asking.
    I am asking that we be put into the balance, and I ask how 
much balance have my 1,500 farmers that are being forced to go 
bankrupt, or a community of 70,000 is forced to go bankrupt, 
how much balance when they get zero water, not 5 percent of the 
water or half of the water, but zero percent of the water? How 
much balance is there there?
    Now, we hear from your constituency, the radical 
environmentalists, over and over and over again. How often do 
we hear from my constituency, the ones that are going broke, 
or, as was brought up by my colleague over here from 
California, as well, the fact of the imbalance that we have, 
that we have people in Georgetown that do not have trucks 
running through their district. We can build a freeway so that 
you can get to work on time, but those who live in my district 
are going bankrupt. Where is the balance?
    We put men on the moon three decades ago, but yet we have a 
radical environmental community from the big cities that are 
not put out of work that insist on my people going broke and I 
just think that that balance and that point needs to be heard 
with the same indignation that you have expressed, Mr. Miller.
    Now, with that, I would like to continue with my time, if I 
could.
    Mr. Miller. Would the gentleman yield?
    Mr. Herger. Well, Mr. Miller, we--these affect my 
constituents who are going broke while your constituents are 
flourishing and feel very good about what they are doing.
    Mr. Miller. That is not on the impact of the Endangered 
Species Act. All families in my area--
    Mr. Calvert. Mr. Miller--
    Mr. Miller. --millions of dollars to comply with--
    Mr. Calvert. It is Mr. Herger's time.
    Mr. Miller. --all over the country.
    Mr. Calvert. It is Mr. Herger's time. Mr. Herger, you are 
recognized.
    Mr. Herger. Thank you very much, Mr. Chairman.
    Ms. Wooldridge, again, we have very serious concerns with 
the Hardy flow study. The National Academy of Sciences clearly 
tells us that it is clearly not based on sound science, but we 
also have strong concerns about the process by which it has 
been undertaken.
    My constituents have been given information that Dr. Hardy 
was under contract to the Department of Justice, apparently 
including as an expert witness for the Bureau of Indian Affairs 
in the Klamath River adjudication. It appears to us that the 
work was directed, to a great degree, by the branch of the 
Solicitor's Office representing the Bureau of Indian Affairs, 
thus advocating the position of one group in the basin. In 
short, it appears that the Hardy study was done under the 
auspices of an expert witness contract. Therefore, it appears 
it lacks any objectivity.
    Does there not appear to be some serious conflict of 
interest, and has the Department looked into this matter? If 
so, what conclusions have been reached?
    Ms. Wooldridge. Questions about Professor Hardy's work came 
to us really actually from the moment we came into Interior 
last February. There is no question at all that because you 
have an adjudication of rights in that basin, you have 
constituencies with very serious personal interests in the 
outcome of that adjudication, whether it is the Bureau of 
Reclamation--I mean, the Federal Government alone has 400 of 
the 700 claims out there, and part of that is from the Bureau 
of Land Management, to the Park Service, to the BIA, Bureau of 
Reclamation, you name it, we have got claims out there in this 
adjudication.
    Dr. Hardy, I believe, was working as you described it and 
that was the genesis of a lot of complaints about the nature of 
this science, that it had not been peer reviewed because it is 
part of the adjudication, it had been done as work product, it 
had not been put out for public review. When it was given to 
the Fish and Wildlife Service, it did then go through a public 
review process and I know, because I read the objections to it, 
that the water users' scientists critiqued those studies.
    What we have done with respect to Hardy 2, which is not yet 
done--Hardy 1 was a literature study. It is now a larger study. 
It is coming out. It is out for public comment right now. We 
should be done very soon with that portion of it and then it 
will be peer reviewed--
    Mr. Herger. Ms. Wooldridge--
    Ms. Wooldridge. and the Bureau of Indian Affairs has 
committed to it.
    Mr. Herger. --I understand my constituents have requested 
information about these concerns but that they have never been 
able to secure the information. I would like to request your 
commitment to providing us the requested information and 
documentation.
    Ms. Wooldridge. I do not think there would be any problem 
in providing information. I am not aware of what those requests 
are. I do know that there was a period of time that people were 
invited to sit in with the technical review team with Mr. 
Hardy, and then at some point, people were disinvited, and that 
caused us great concern. So since then, we have tried to make 
sure it is an open process. I would be happy to make sure that 
we respond to whatever questions are out there.
    Mr. Herger. And then, in conclusion, it is not just that 
the Endangered Species Act is not balanced or not fair, it is 
not being implemented fairly. We see incredibly unfair studies 
like this with clear conflict of interest taking place that 
seems to be ignored. We have biologists who are planting lynx 
hair in areas to make it appear that we have endangered species 
in areas that they do not even exist, and yet that seems to be 
ignored, while at the same time we have the Woodrow Wilson 
Bridge that is going full steam ahead with endangered species 
that are being completely ignored, just because one is in a 
populated area where the radical environmentalists seem to 
dominate and another area is in the West. This is not fair and 
it has to be corrected.
    Ms. Wooldridge. To respond, I was not able to be here last 
week, but I do know that in the lynx study hearing that was 
held that Dr. Williams did point out the steps that he was 
trying to take to respond to that study and looking at the 
Inspector General's report on the results of that study and I 
am aware that those are being taken very seriously within the 
Department.
    Mr. Herger. If the shoe were on the other foot, I suspect 
Congressman Miller would be demanding that these people be 
thrown in jail and in prison, where we do not hear anything 
coming out when we see it happening the other way around.
    Thank you again for being generous with your time, Mr. 
Chairman.
    Mr. Calvert. I thank the gentleman.
    Mr. Udall, you are recognized.
    Mr. Udall of New Mexico. Thank you, Mr. Chairman.
    Dr. Lewis, you can see your report has stirred up a 
hornet's nest here.
    Mr. Lewis. Not just here, but several other places, too.
    Mr. Udall of New Mexico. You talked about peer review a 
little bit. I am wondering how you define that, first of all.
    Mr. Lewis. Yes. A peer review process usually involves an 
intermediary, which would be an editor or a sponsor of some 
kind who is on neutral ground or is in some way not terribly 
committed to the content of a report or a document, sending 
that document then to someone who has qualifications that are 
similar to the qualifications of the people who wrote the 
document, and asking those people to make an objective review 
of the content of the report or document.
    Mr. Udall of New Mexico. And that has already been done 
with this report?
    Mr. Lewis. Yes.
    Mr. Udall of New Mexico. Is that a part of the report, who 
peer reviewed it?
    Mr. Lewis. Yes, it is written into the report.
    Mr. Udall of New Mexico. And are any critiques, are they 
subject to review at this point?
    Mr. Lewis. No.
    Mr. Udall of New Mexico. So the comments they made, the 
full comments are not out there?
    Mr. Lewis. No, they are not released.
    Mr. Udall of New Mexico. They are not released. Is there a 
reason for that in the peer review process? I mean, we have 
scientists that are outside of this process. This is clearly 
now a big public process. We have very capable people that 
could look at some of these comments and maybe help move this 
scientific process along.
    Mr. Lewis. The Academy does not--the Academy follows 
strictly prescribed procedures in all of its reports, and one 
of these procedures is to get all of these comments and have a 
monitor and a coordinator from the Academy and from the NRC go 
over the comments and make sure, hold the Committee's feet to 
the fire in responding to the comments in a valid way, and that 
is the effect of the comments, of the review comments.
    Mr. Udall of New Mexico. Is it fair to say in the peer 
review process that there are probably scientific comments from 
scientists that disagreed with the conclusions you have come 
to?
    Mr. Lewis. Yes, there were.
    Mr. Udall of New Mexico. And is there going to be further 
peer review of this? You talked about a final report in, I 
think, March or April or something. Is there going to be 
further peer review in that process?
    Mr. Lewis. We will go through the exact same process that 
we did for the interim report. We will have lots of meetings, 
opportunities for people to send things to us that we must 
consider, for people to make objections to our previous report, 
and we will write a report that goes out for peer review, and 
we do not select the reviewers. The NRC does. We will receive 
those reviews. We will have to respond to them and either put 
an individual item to rest or amend the report if there is 
something missing in the report or if we cannot defend it to 
the satisfaction of the people who are monitoring this process.
    Mr. Udall of New Mexico. And the individuals that do the 
peer review, they are expected to be unbiased third parties?
    Mr. Lewis. Yes. Say that again, sir?
    Mr. Udall of New Mexico. I said, the people that are doing 
the peer review, are they expected to be unbiased third 
parties?
    Mr. Lewis. No. They may have a bias, but they are qualified 
technically to do the review. They may have a known bias, but 
they are qualified technically to do the review.
    Mr. Udall of New Mexico. And how do you deal with the bias? 
Do you disclose that publicly--
    Mr. Lewis. No.
    Mr. Udall of New Mexico. --so that individuals--
    Mr. Lewis. No, we do not.
    Mr. Udall of New Mexico. You do not disclose it?
    Mr. Lewis. It is not possible to quantify a bias. I can 
just tell you from experience that when you read a review 
sometimes, you realize it is biased. But the content of the 
review has an objective part and that part, regardless of the 
bias of the individual who wrote it, has to be dealt with by 
the Committee before the report can be released.
    Mr. Udall of New Mexico. But when you are dealing with a 
public process, would it not be fair to tell what the bias is 
of that third party so that the public can know that?
    Mr. Lewis. Well, you are getting into the traditions and 
conventions of the National Academy of Sciences and National 
Research Council. The reviewers' comments, I understand from a 
note a staff member passed me here, are not made public because 
that might inhibit reviewers from giving candid or unpopular 
comments, and some of them are quite candid.
    Mr. DeFazio. Would the gentleman yield?
    Mr. Udall of New Mexico. I certainly would yield. I 
certainly would yield.
    Mr. DeFazio. If I could just--I did not take a round 
before.
    Mr. Udall of New Mexico. Please, go ahead.
    Mr. DeFazio. But could you not make those comments 
available without identifying the reviewer?
    Mr. Lewis. I cannot answer questions related to NRC or NAS 
policy because I do not control that policy.
    Mr. DeFazio. But, I mean, what you just said, they would 
not be candid because they might be subject to some peer 
sanction or whatever. But if you just took the comments and 
said, OK, here are the critical comments, but you did not 
identify to whom they were attributable--
    Mr. Lewis. Well, if you--
    Mr. DeFazio. --would that not remove that--
    Mr. Lewis. In most cases--
    Mr. DeFazio. --that slender reed on which we are balancing 
this withholding of critical information?
    Mr. Lewis. If you gave me a review comment, I, in a lot of 
cases, could tell you who wrote it, even if you took your name 
off of it.
    Mr. DeFazio. Well--
    Mr. Calvert. The gentleman's time is expired.
    Mr. Walden?
    Mr. Walden. Thank you very much, Mr. Chairman.
    Dr. Lewis, is there anything about the process that the 
Research Council used to evaluate the Klamath data that is 
different from the process the Research Council and the NAS use 
to evaluate any data?
    Mr. Lewis. No. This is--
    Mr. Walden. There is nothing unique here?
    Mr. Lewis. No. This is a prescribed process. It has been in 
place for a very long time. It has been used in service of this 
nation's government for a very long time, since the 1860's.
    Mr. Walden. All right. Have you heard anything yet from 
people who testified before the Committee out in Medford and 
elsewhere that would cause you to have serious questions about 
your initial findings?
    Mr. Lewis. No. The Committee stands behind its report, 
notwithstanding the fact that a number of people, some with 
good qualifications, would have us rewrite parts of it. We 
stand behind it anyway.
    Mr. Walden. All right. How important is peer review in all 
this discussion? Was the data that the Service, the Fisheries 
Service relied upon, had it been peer reviewed before their BO?
    Mr. Lewis. Well, most of the information we used was not 
externally peer reviewed. The agencies are constantly reviewing 
their writing because they pass it around internally and they 
want to make sure they do not make correctable mistakes. They 
do not have the leisure of going through an external review 
usually because an external review is very time consuming. In 
this case, many things were happening in a great rush. You have 
to realize that. We had the drought. We had the question about 
the water management. We had the studies coming on. We had 
agencies on both sides all happening at once.
    Mr. Walden. I know, and I understand that, but on the other 
hand, the result of the decisions that were made in a rush, not 
based on adequate science, which I think is what your report 
said, caused enormous hardship out there. There were at least 
five bankruptcies I am aware of and eight others who liquidated 
everything they had at auction to avoid bankruptcy.
    So that is why I am pleased the administration is looking 
at a 10-year plan, so we get a little flexibility here. The 
astonishing thing to me today is how roiled up the other side 
is when you have a report that says maybe the agency has made a 
mistake and the farmers were right all along. So when I would 
go to those meetings in Klamath Falls and around the farmers, 
they would say, you know, there were these years of great 
mortality in fish when you had high lake levels, and you had 
years of great new fish counts when you had low lake levels. If 
you dump hot water down the Klamath River, you are going to 
basically parboil the coho. I kept hearing that over and over. 
I do not know. It is very frustrating.
    Sue Ellen, if I could ask you, did the agencies involved in 
management of Klamath, the fishery services, did they collect 
any new data in this water year where we held the lake at its 
highest level? Did they do any analysis on the effect that had 
on the suckers?
    Ms. Wooldridge. They have raw data. I have not seen any 
conclusory reports from that. They continued their data 
collection. Particularly, the USGS has ongoing studies on the 
lake.
    Mr. Walden. Let me ask a question on the ESA, and I know 
you do not want to address the big ones, but is it not accurate 
that the Endangered Species Act allows for captive breeding, if 
you will, hatcheries, other forms of captive breeding, to meet 
the goals of ESA?
    Ms. Wooldridge. Yes.
    Mr. Walden. That is allowed, right?
    Ms. Wooldridge. Yes.
    Mr. Walden. Under the current law?
    Ms. Wooldridge. Yes.
    Mr. Walden. So if we could improve the habitat and the 
water quality and fish passage and fish screening, all those 
things that should have been done 10 years ago, 20 years ago, 
whatever, we need to get them done, if we could get those 
things done, would there be anything that would stop us from 
trying to take another look at a sucker hatchery?
    Ms. Wooldridge. No.
    Mr. Walden. And are there not organizations out there that 
do that already in lakes and rivers, that do, what is the term, 
in-refuge them, is that correct?
    Ms. Wooldridge. Yes. There is some word like that, yes.
    Mr. Walden. Where they actually raise them in the existing 
water, with the existing food supply, introduce predators so 
they grow up as naturally as possible, and then they pull out 
the nets or--
    Ms. Wooldridge. Yes. I am not aware of a lot of the 
details, but I--
    Mr. Walden. That is what I have been told. It just seems to 
me like in the biological assessment, there are at least three 
pages of projects and studies that, if accomplished, could 
probably resolve 99 percent of the problems in this basin. 
Would that--and Mr. Hogarth, you can comment. If those things 
were done that are in the BA, in the appendix of the BA, would 
that solve our problems down there?
    Mr. Hogarth. I think it would come a long way to doing it, 
yes, sir.
    Mr. Walden. Sue Ellen, do you agree?
    Ms. Wooldridge. Yes.
    Mr. Walden. Dr. Lewis, do you have any comment on that? 
Have you looked at the appendix in the biological assessment, 
the three or four pages of action items?
    Mr. Lewis. Well, I--
    Mr. Walden. Or is that outside of your review?
    Mr. Lewis. Yes. I am confident that we must do some of the 
things that all parties have agreed to do but have not been 
done. The canals have to be screened. We are killing hundreds 
of thousands of individuals in this population we know to be 
endangered. The fish have to get to their spawning grounds. You 
do not have to take them to a hatchery. They are eager to 
spawn. They line up to get there.
    Mr. Walden. Let us not go too far on that one.
    [Laughter.]
    Ms. Wooldridge. Let us keep this at PG.
    [Laughter.]
    Mr. Lewis. So my argument would be, we are definitely hung 
up on issues related to water management and we cannot avoid 
dealing with that question.
    Mr. Walden. Right.
    Mr. Lewis. But in the meantime, we can deal with a lot of 
other things.
    Mr. Walden. Exactly. And, in fact, Mr. Chairman, on a final 
note, this Committee and this House passed legislation that I 
sponsored to require a study of fish passage at Chiloquin Dam, 
and if we could just get the other body to act, maybe we could 
get moving on that.
    Mr. Calvert. We have got a whole bunch of things we would 
like them to act on, Mr. Walden.
    Mr. Walden. Thank you, Mr. Chairman.
    Mr. Calvert. In closing, I want to thank this panel. 
Obviously, passions run deep when it comes to water and I would 
warm the administration this is a warm-up act. A couple of 
years ago in San Diego, we had a canary in the mine with energy 
prices. I would suspect that this in the Klamath River Valley 
is a warm-up with what is going to occur in the Central Valley 
and Imperial County and the Colorado River and the Rio Grande 
and the rest of it. So I think we ought to pay a little more 
attention to water and its impact on our society.
    With that, this hearing is adjourned.
    [Whereupon, at 12:04 p.m., the Committee was adjourned.]

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