[Senate Hearing 107-58]
[From the U.S. Government Printing Office]





                                                         S. Hrg. 107-58

                            KLAMATH PROJECT

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

                                HEARING

                               before the

                    SUBCOMMITTEE ON WATER AND POWER

                                 of the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

TO DISCUSS KLAMATH PROJECT OPERATIONS AND IMPLEMENTATION OF PUBLIC LAW 
                                106-498

                               __________

                             MARCH 21, 2001


                       Printed for the use of the
               Committee on Energy and Natural Resources

                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
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_______________________________________________________________________
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                                 20402




               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                  FRANK H. MURKOWSKI, Alaska, Chairman
PETE V. DOMENICI, New Mexico         JEFF BINGAMAN, New Mexico
DON NICKLES, Oklahoma                DANIEL K. AKAKA, Hawaii
LARRY E. CRAIG, Idaho                BYRON L. DORGAN, North Dakota
BEN NIGHTHORSE CAMPBELL, Colorado    BOB GRAHAM, Florida
CRAIG THOMAS, Wyoming                RON WYDEN, Oregon
RICHARD C. SHELBY, Alabama           TIM JOHNSON, South Dakota
CONRAD BURNS, Montana                MARY L. LANDRIEU, Louisiana
JON KYL, Arizona                     EVAN BAYH, Indiana
CHUCK HAGEL, Nebraska                DIANNE FEINSTEIN, California
GORDON SMITH, Oregon                 CHARLES E. SCHUMER, New York
                                     MARIA CANTWELL, Washington

                    Brian P. Malnak, Staff Director
                      David G. Dye, Chief Counsel
                 James P. Beirne, Deputy Chief Counsel
               Robert M. Simon, Democratic Staff Director
                Sam E. Fowler, Democratic Chief Counsel
                                 ------                                

                    Subcommittee on Water and Power

                     GORDON SMITH, Oregon, Chairman
                    JON KYL, Arizona, Vice Chairman
LARRY E. CRAIG, Idaho                BYRON H. DORGAN, North Dakota
BEN NIGHTHORSE CAMPBELL, Colorado    BOB GRAHAM, Florida
RICHARD C. SHELBY, Alabama           RON WYDEN, Oregon
CHUCK HAGEL, Nebraska                TIM JOHNSON, South Dakota
                                     DIANNE FEINSTEIN, California
                                     MARIA CANTWELL, Washington

  Frank H. Murkowski and Jeff Bingaman are Ex Officio Members of the 
                              Subcommittee

                        Colleen Deegan, Counsel
                David Brooks, Democratic Senior Counsel




                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Craig, Hon. Larry E., U.S. Senator from Idaho....................     3
Crawford, John, Farmer, on behalf of Klamath Water Users 
  Association, Klamath Falls, OR.................................    51
Foreman, Allen, Chairman, Klamath Indian Tribes, Chiloquin, OR...    23
Horne, Alex J., Ph.D., Professor, Department of Civil and 
  Environmental Engineering, University of California, Berkeley..    55
Marbut, Reed, Intergovernmental Coordinator, Oregon Water 
  Resources Department, Salem, OR................................    31
McDonald, J. William, Acting Commissioner, Bureau of Reclamation, 
  Department of the Interior.....................................     7
Nicholson, Roger, President, Resource Conservancy, Fort Klamath, 
  OR.............................................................    39
Smith, Hon. Gordon, U.S. Senator from Oregon.....................     1
Spain, Glen H., Northwest Regional Director, Pacific Coast 
  Federation of Fishermen's Associations, Eugene, OR.............    40
Walden, Hon. Greg, U.S. Representative from Oregon...............     3
Wyden, Hon. Ron, U.S. Senator from Oregon........................     2

 
                            KLAMATH PROJECT

                              ----------                              


                       WEDNESDAY, MARCH 21, 2001

                               U.S. Senate,
                   Subcommittee on Water and Power,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:08 p.m., in 
room SD-628, Dirksen Senate Office Building, Hon. Gordon Smith 
presiding.

            OPENING STATEMENT OF HON. GORDON SMITH, 
                    U.S. SENATOR FROM OREGON

    Senator Smith. I would like to welcome you all to this very 
important hearing on the Klamath Basin. We particularly welcome 
our colleague, Greg Walden, my Congressman. And when you are 
done, you are welcome to come up here and participate on the 
stand with us. We welcome all of the witnesses who have 
traveled here today to discuss the critical water issues of the 
Upper Klamath River Basin and the operations of the Federal 
Reclamation Project for this year.
    Last November, at a forum in Klamath Falls, I made a 
commitment with Congressman Walden that the first hearing of 
the Water and Power Subcommittee for the 107th Congress would 
be on this issue.
    The events of last November have made the committee system 
a little more challenging, but I am confident that this 
subcommittee will be able to successfully address the issues in 
a bipartisan manner.
    In the interest of time, my statement will be brief, but my 
message clear. It is not a reasonable and prudent alternative 
to provide no water to irrigators this year. Period.
    Our human stewardship cannot be rejected as we attempt to 
improve our environmental stewardship. We cannot escape the 
fact that we are experiencing a serious drought in the Klamath 
Basin. Weather cycles are inevitable.
    One of the purposes of our legislation last year was to 
minimize the impacts of drought. At the present time, however, 
there is a crisis beyond urgent.
    We have heard from literally hundreds of people in the 
Klamath Basin, particularly in the Klamath Project area, whose 
very livelihoods are at stake. The family farmers and ranchers 
of the Klamath Project have devoted a century of their labors 
to a noble activity that serves their communities and our 
country.
    Recently, they have endured bad markets. They have been 
told, also, that they may experience newly devastating impacts 
due to lack of water. In fact, I understand that even now 
impacts have begun to occur, due to the incredible uncertainty 
that has existed for some weeks.
    The Government must do everything in its power to avoid 
serious impacts to these communities. Certainly, the law must 
be obeyed, but it is critical that agencies exercise the 
greatest flexibility possible and manage through this drought, 
as we have in the past, so that no interest bears the entire 
consequence of a dry year.
    I hope to learn today exactly when there will be some 
reliable information about the availability of water, since 
every passing moment has consequences. As conflicts for water 
have increased in the past several years, so has our attention 
to the Upper Klamath Basin.
    Last year, we enacted the Klamath Basin Water Supply 
Enhancement Act of 2000, which Senator Wyden and I sponsored in 
the Senate. The purpose of that law is to increase water supply 
and quality for the benefit of all interested parties; however, 
if this year is not handled properly, long-term solutions 
present a false hope for irrigators in the basin.
    Today, I hope to hear the specific progress and plans of 
the Bureau of Reclamation for completing the studies authorized 
last year.
    Last November, also, we found a great willingness of the 
Klamath Basin residents to deal constructively with these 
complicated issues that confront them. The time and effort put 
forward by many individuals and organizations, much of it 
voluntary, is genuinely impressive.
    At the same time, we heard of obstacles to local solutions 
and frustrations with them, and how these efforts would pay 
dividends. I hope to promote the continued effort of citizens 
to shape their future and urge Federal agencies to embrace this 
goal.
    And I look forward to hearing from the witnesses, but now 
we will turn to my colleague, Senator Wyden, and then to 
Senator Craig.

           STATEMENT OF HON. RON WYDEN, U.S. SENATOR 
                          FROM OREGON

    Senator Wyden. Thank you very much, Mr. Chairman. I think 
you have framed the issue very well. I think we understand that 
there is an immediate crisis in our part of the country with 
respect to this issue.
    As you know, you and I wrote legislation with Congressman 
Walden that looks to the long-term issue, the Klamath Basin 
Water Supply Enhancement Act, but what really counts now is 
bringing these parties together--and they are certainly going 
to have all the information on April 1st--and coming up with an 
effective response to an immediate crisis.
    The fact is, it can be done. I see our friend, Senator 
Craig here. The County Payments legislation that we teamed up 
on was recently described as the most important bill for the 
Forest Service in three decades. People did not think that 
could be done. People did not think the Steens legislation 
could not be done.
    So, it is critically important that we look to an immediate 
response from these Federal agencies. We have agencies that 
deal with refuges. We have agencies that deal with salmon and 
suckers. But at the end of the day, they have to deal with all 
of the parties in a responsible kind of fashion.
    When you bring the stakeholders together, the Federal 
agencies have to be partners who are responsive, partners who 
are flexible, and partners who are trying to come up with 
effective solutions.
    The fact of the matter is that in low water years, emotions 
always run high, but the Klamath Basin is a particularly 
serious problem because it is not going to be just fish against 
farmers if there is no action here. There is going to be just 
chaos that is community-wide.
    We are glad that Congressman Walden is here today. We are 
going to work, as we have again and again, in a bipartisan 
fashion.
    I am very pleased that Senator Craig is here to join us, as 
well.
    Senator Smith. Thank you, Senator Wyden.
    Senator Craig.

        STATEMENT OF HON. LARRY E. CRAIG, U.S. SENATOR 
                           FROM IDAHO

    Senator Craig. Mr. Chairman, let me show us something. Look 
at this. This is Oregon, Washington, and Idaho. And of course, 
the Klamath Basin is right in the middle of all of that. That 
is project stream flow, March 1, 2000, for spring and summer. 
Light orange is 70 to 90 percent of average. Bright orange is 
70 percent or below.
    That is all of us. That is the crisis that is not 
projected. That is the crisis that will be. And that is why I 
am here.
    Not only have you got to solve your problems, we are going 
to have many of them to solve in Idaho and a lot to solve in 
the Pacific Northwest. Whether it is fish and irrigation or 
hydro and energy production, we are all going to have to come 
together this year, as we have never before, to get us through 
the summer and into the fall.
    With the initiatives that you are taking, Mr. Chairman, in 
a variety of areas, I have asked the FERC to come into the 
region. They will be in the region on April 27 with system-wide 
hearings in Boise for all of us to look at the reality of what 
we can get done with the power of the Federal Energy Regulatory 
Commission. And that, along with this, is very important.
    So, you are building a valuable record on how we get these 
problems solved.
    Thank you.
    Senator Smith. Thank you, Senator Craig.
    Congressman Walden, welcome. And the mic is yours.

                STATEMENT OF HON. GREG WALDEN, 
                U.S. REPRESENTATIVE FROM OREGON

    Congressman Walden. Thank you, Mr. Chairman, Senator Wyden, 
Senator Craig. Thank you for letting me come and share some 
comments with you.
    It is a pleasure to come before your committee today. I 
only wish it were under better circumstances.
    Mr. Chairman, I know that all of you are aware that the 
situation facing the Klamath Basin this spring and summer is, 
indeed, a crisis.
    An entire community, an entire species, and a way of life 
are threatened, due to the lack of water and, I believe, 
mistaken Federal policy. As a crisis, the situation in the 
basin requires immediate and bold action. And that is why we 
are here today.
    The Klamath Basin, which sits in my congressional district 
in southern Oregon, and in Congressman Wally Herger's district 
in northern California, is a microcosm of the most complex 
water, agricultural, natural resource issues in the west.
    Water in the basin is a multi-State resource. And there are 
many competing demands for water that includes farmers, fish, 
tribes, and wildlife, among others.
    The families who farm on the Klamath Project do so at the 
request of, this, our Federal Government. They were invited. 
They were asked. They were requested to come here. They built a 
community out of once fallow ground. And their contribution to 
the economy of Klamath County has become invaluable.
    It is estimated that agriculture in the basin contributes 
$250 million to that region's economy. Its activity provides 
the bedrock upon which the economy of Klamath County is based.
    Until recent years, water supplies, especially to farming 
in the basin, were considered adequate. When there was 
shortage, farmers and other interests in the basin tightened 
their belts and made do.
    Now the same Federal Government that invited these farmers 
to grow a crop and make a life and settle the West on projects 
like this, has, in effect, turned against them.
    The Government is telling farmers that there can no longer 
be any compromise. The shortnose and Lost River sucker species, 
as well as the coho salmon, now trump their water needs at 
every turn. And, in fact, just Monday, the National Marine 
Fisheries Service called farming on the Klamath Project an 
unacceptable risk to coho salmon.
    One can assume that the farmers now think the same of the 
coho. This is no way to save a specie. We need cooperative 
efforts.
    It has been extremely frustrating the last few years to try 
to understand the basis for the Federal agencies' actions. I 
was dismayed when, on January 19 of this year, the staffs of 
Federal agencies signaled that they might require reservoir 
elevations and river flows to be maintained at levels that 
would devastate the Klamath Project.
    These requirements nearly exceed the total amount of water 
that has existed in the entire Upper Klamath Basin in most, if 
not all, years, even without Klamath Project irrigation or use 
of water by wildlife refuges.
    No one can say that it is reasonable to assume that we are 
going to store more water than in most water years we are able 
to store, let alone without cutting off all the irrigation in 
the refuge.
    The agencies are seeking to place, I believe, a grossly 
disproportionate burden on the farmers of the Klamath Project. 
No matter how much water is used by others, no matter what the 
source of impacts to fisheries throughout the entire Klamath 
Basin, the Klamath Project alone is asked to guarantee specific 
instream water levels to try to mitigate for the problems. In a 
basin with many competing water interests, it is ludicrous to 
require just one of the interests to guarantee basin-wide flow 
level.
    Legislators from Oregon have pointed out that the State of 
Oregon, in 1905, authorized the use of the bed of Upper Klamath 
Lake to store water for irrigation and for that purpose only. 
They wonder, how is it that agencies at the Federal level can 
now demand this water be sent downstream to try and resolve 
problems in the Klamath River in California, when, apparently, 
there is no equivalent regulation of activities in California 
that contribute to the problem. Farmers alone cannot be 
expected to carry the burden of increasing flows to 
unreasonably high levels.
    As I alluded to earlier, water shortages are not new to the 
basin. Last year, Congressman Herger and I sponsored the 
companion bill in the House to that of yours, Chairman Smith 
and Senator Wyden, here in the Senate.
    It would move us toward increased supplies for fish and 
farmers alike. I look forward to learning what the Bureau of 
Reclamation, represented here today, has done with that 
authority Congress granted them to increase water supply in the 
basin.
    We cannot stick our heads in the ground and allow the 
devastation in this community to go forward. We need more 
water. We need more water storage. There are steps I believe we 
can take to meet the needs of fish and farmers.
    Water is currently flowing down the Klamath River at a rate 
of 1,300 cubic feet per second. That is water that could be 
saved and stored for use during this summer.
    The Bureau of Reclamation continues to steadfastly adhere 
to the rigid regime, despite what I believe is convincing 
empirical evidence that shows previous drought year river flows 
have been as low as 450 CFS, without adverse impact to fish.
    Indeed, it appears that it is only the Bureau's ``best 
guess'' that more water from the Klamath Project will mean more 
vibrant salmon populations at the mouth of the river, because 
there is no evidence that links flows at Irongate Dam to 
adverse impacts to salmon populations. And if there is, I hope 
to see it.
    Federal Government cannot continue its pattern of taking 
water away, based on guesswork, especially when those decisions 
will have such incredibly negative impacts to real people in 
that basin.
    Fortunately, the Bureau of Reclamation has the authority to 
revisit this flow regime under the auspices of the 2000 
Operations Plan to account for and adequately address changed 
circumstances, such as the drier than normal conditions that we 
are now experiencing. To date, the Bureau has not acted.
    I, along with Congressman Herger and you, Mr. Chairman, 
have requested the Department of the Interior intervene 
immediately to reduce Klamath River flows at Irongate Dam to 
allow Upper Klamath Lake to fill to capacity.
    In addition, in the upcoming 2001 Project Operations Plan 
for the upcoming season, flow schedules must afford the flow 
level flexibility that has existed in the past.
    As you know, the California-Nevada Operations Office of the 
U.S. Fish and Wildlife Service released its draft biological 
opinion on the status of the endangered suckers in Upper 
Klamath Lake. There is, however new information that casts 
serious doubt on the Service's hypothesis that higher than 
historic lake levels equate to improved sucker populations.
    Dr. Alex Horne from the University of California, Berkeley, 
who is here with us today, I hope, will be sharing this 
information with your subcommittee.
    While the serious ramifications of the Service's lake level 
recommendations would seem to warrant extreme caution and a 
close look at alternatives, including Dr. Horne's study, I am 
concerned that the Service's California-Nevada Operations 
Office has not taken this information into full consideration.
    Dr. Horne's study presents significant new information and 
poses new and unanswered questions about lake level science.
    I believe the draft bi-ops, both for the sucker fish and 
for the coho, must be put on hold until adequate time is 
available for the new Administration and the public, at large, 
to review those studies.
    Moreover, in the interim, the only information that can be 
reasonably and legally relied upon as the basis for project 
operations is the 1992 bi-op, under which farmers, fish, and 
refuges were all able to get by in low water years of 1992 and 
1994.
    The agencies and Congress should also offer strong support 
for the constructive on-the-ground recovery efforts that have 
been proposed by the Klamath Project water users. These 
efforts, developed by the men and women who know the land best, 
are innovative, and they deserve our attention as a new water 
plan for the basin takes shape.
    Furthermore, I do not believe anything in this approach 
precludes completion, if necessary, of the new Endangered 
Species Act Consultation in an orderly manner and on a 
reasonable schedule with full participation by the effected 
parties.
    In conclusion, Mr. Chairman, I believe it is irresponsible 
to suggest a lake level of 4,140 acre feet, and do not believe, 
for a moment, that such an alternative is either reasonable or 
prudent. If accepted, this opinion will cause grave damage to 
the waterfowl that call the refuge home, to the family farmers 
who are drawn to the basin by the very project water the 
Federal Government now seeks to take away.
    I will continue to stand up for a reasonable plan for this 
year, and will--that will allow adequate water supplies for our 
farmers and for our refuge. It is time for the Federal 
Government to understand the people who farm here have a right 
to exist, too.
    Thank you, Mr. Chairman. Thank you, committee members.
    Senator Smith. Thank you, Congressman Walden.
    Greg, we would invite you to come up here and pre-warn you 
that we may have a vote at--sometime between 2:30 and 3 
o'clock. So, we will turn the gavel over to you when we do 
that. We want to keep this hearing going, because we have this 
room until 4 o'clock.
    So, we will invite our first panel up: J. William McDonald, 
the Acting Commissioner, Bureau of Reclamation, Department of 
the Interior. He will be accompanied by Mike Spear, Manager of 
California-Nevada Operations Office, U.S. Fish and Wildlife; 
and Mike Connor, Director, Secretary's Indian Water Rights 
Office, Department of the Interior.
    And obviously, we want to hear everything you have to say. 
And as efficiently as you can say it, is great, given the 
constraint we are under.
    So, thank you for being here, Bill. We will start with you.

 STATEMENT OF J. WILLIAM McDONALD, ACTING COMMISSIONER, BUREAU 
           OF RECLAMATION, DEPARTMENT OF THE INTERIOR

    Mr. McDonald. Thank you very much, Senator. I appreciate 
the opportunity. Likewise, Senator Wyden, we appreciate the 
opportunity.
    My name is Bill McDonald. I am the Regional Director of 
Reclamation's Pacific Northwest Region, appearing today in my 
capacity as Acting Commissioner of the Bureau of Reclamation, 
pending the appointment by the President of a new commissioner.
    We certainly appreciate the invitation to participate in 
today's hearing on Klamath Project Operations and 
Implementation of Public Law 106-498. Particularly, I 
appreciate the opportunity to appear on behalf of the 
Department.
    Accompanying me, Senator, as you have indicated, are Mr. 
Mike Spear, who is Manager of the California-Nevada Operations 
Office for the Fish and Wildlife Service, and Mr. Mike Connor, 
who is the Director of the Secretary's Indian Water Rights 
Office.
    With your permission, we have submitted my prepared 
statement in advance.
    Senator Smith. Without objection, we will be glad to take 
it.
    Mr. McDonald. We would be glad to enter it and summarize 
it.
    Senator Smith. Thank you, Mr. McDonald.
    Mr. McDonald. As you well know, Interior has been working 
with constituents in the Klamath Basin for several years to 
develop a long-term management plan for the Klamath Project 
resources.
    This effort will certainly be enhanced by the enactment, 
last November, of the Klamath Basin Water Supply Enhancement 
Act. The Act authorized and directed, as you well know, the 
Secretary to study the feasibility of three projects and 
programs.
    And while monies were not appropriated for those studies, 
we are using funding appropriated for Reclamation's water 
resources initiative, which is within the operating budget for 
the Klamath Project. And that will enable us to initiate 
implementation of all of the authorized items this year.
    With respect to each of the those three, very quickly, in 
terms of the feasibility study of increasing Klamath Project 
storage capacity and yield, in December 2000, we released an 
appraisal level report, which examined the desirability of 
raising the Upper Klamath Lake by as much as two feet.
    We are taking steps required to initiate this study this 
year, by preparing the plan of study and the budget estimate 
and all the other things that are the initial steps in a 
feasibility study.
    We have also completed a cursory review of existing 
information to determine if it would be feasible to raise 
Gerber Dam an additional three feet. And likewise, with 
available funding, we are proceeding to prepare the plan of 
study and move down the road on that.
    A second item authorized by the new law was development of 
groundwater supplies. Several things are being done there. I 
will highlight just two.
    In fiscal year 1999, Reclamation had already entered into a 
cooperative agreement with your Oregon Department of Water 
Resources to study the potential of obtaining supplemental 
groundwater supplies in the Klamath and Lost River Basins in 
Oregon.
    I am pleased to report that in this current irrigation 
season, we will be pump-testing an existing well to determine 
yield and aquifer capacity characteristics. And if long-term 
pumping appears to be feasible, we will have the money 
available this year to prepare the plan of study and be ready 
to move into a full feasibility study next year.
    The second major activity is that we had--pardon me--
entered into a cooperative agreement in 1999 with the 
California Department of Water Resources to examine groundwater 
in that State's portion of the Klamath and the Lost River 
Basins. And data is being collected over a 3-year period to 
assess the potential for groundwater augmentation. And again, 
funds are available. And we are moving forward, as scheduled.
    The final thing the law authorized was something called 
Innovative Solutions. The main thing we are doing this year is 
we are initiating, in the face of the drought, a 1-year pilot 
program that we call the Irrigation Demand Reduction Program to 
determine irrigators' interest in receiving payments in lieu of 
applying their surface water to irrigated lands.
    We have received approximately 550 proposals from 
irrigators willing to forego water on their irrigated lands in 
exchange for a total payment of about $20 million.
    Reclamation, however, in this fiscal year, is budgeted only 
for about $2.8 million. If we are able to make those 
arrangements, that $2.8 million would translate into about 
30,000 acre feet of water.
    In addition, we have initiated a groundwater acquisition 
program this year to, again, purchase from willing sellers--all 
of this is based on willing sellers. We have evaluated 15 
proposals. Ten have been selected at a combined cost of 
approximately $1.2 million. And that water, if in fact 
acquired, would provide about 37,000 acre feet.
    The act, of course, directed the Secretary to compile a 
variety of information and to complete some ongoing hydrologic 
surveys in the Klamath Basin. And I can report to you that, 
again, out of available funds for fiscal year 2001, all of that 
is continuing.
    Let me--I will turn my attention to this year's water 
supply situation and the operation of Reclamation's Klamath 
Project. As you well know, Reclamation is in consultation with 
the Fish and Wildlife Service and the National Marine Fisheries 
Service over project operations.
    Reclamation received the Fish and Wildlife Service's draft 
biological opinion, or BO, last week. We received the National 
Marine Fisheries Service's draft BO just this Monday; 2 days 
ago.
    Both draft BOs conclude that the historic operation of 
Reclamation's Klamath Project would jeopardize the continued 
existence of the pertinent listed species. The coho, downstream 
from the project; the suckers in the project.
    Thus, in accordance with the Endangered Species Act, both 
draft biological opinions propose reasonable and prudent 
alternatives.
    Both of those draft opinions have been made available by 
Reclamation, in the last several days, to the Tribes, to water 
users and to others. They are publicly available.
    Reclamation is, of course, in the process of reviewing the 
drafts right now. And both Reclamation and the Fish and 
Wildlife Service are also reviewing the report prepared by the 
consultants for the Klamath Water Users Association concerning 
Lost River and shortnose suckers, which report we received 
about a week ago.
    Reclamation and the two fishery agencies have scheduled a 
meeting with the Tribes and the Bureau of Indian Affairs next 
week to review and discuss the draft biological opinions. I 
can, likewise, assure you that we would be more than glad to 
make ourselves available at any time this week or next to meet 
with water users and others about those draft biological 
opinions.
    Reclamation has made preliminary analyses of the impacts 
which the draft opinions would have on project water supplies 
this year, given that it appears that we are headed toward a 
near record drought.
    Our computer modeling run suggests that the draft opinions 
could result in no water being available from Upper Klamath 
Lake for project irrigation or the National Wildlife refuges, 
which are associated with the Klamath Project.
    Furthermore, it appears to us that in this year's drought 
situation, the flows proposed by the National Marine Fisheries 
Service in their draft opinion cannot be met without violating 
the lake levels proposed by the Fish and Wildlife Service for 
Upper Klamath Lake in their draft opinion or vice versa. If 
lake levels--if lake elevations were to be maintained--pardon 
me--in accordance with the Fish and Wildlife Service's draft 
opinion, then the river flows proposed by NMFS below Irongate 
Dam could not be maintained.
    The Department is acutely aware of the exceedingly 
difficult situation faced in the Klamath Basin this summer, 
relative to tribal trust assets, the conservation of listed 
species, the economic well-being of the local community, and 
the water supplies for the National Wildlife refuges.
    I can assure you that the involved agencies will be working 
together--are working together over the next 2 weeks to look 
for solutions which are consistent with our legal obligations, 
while considering the interests of all others.
    It remains our intent to reach and announce decisions 
regarding project water supplies by the first week in April, 
and to finalize and issue the biological opinions, and our 
associated final decisions by then or very shortly thereafter.
    I can assure you, on behalf of the Department, that we are 
doing our very level best to address the problems which we 
understand all of us confront.
    Mr. Chairman, that concludes my oral remarks. I and the 
panel would be glad to trade or respond to questions.
    [The prepared statement of Mr. McDonald follows:]
Prepared Statement of J. William McDonald, Acting Commissioner, Bureau 
               of Reclamation, Department of the Interior
    Thank you for the invitation to participate in today's oversight 
hearing on Klamath Project operations and implementation of Public Law 
106-498. I appreciate the opportunity to be here today on behalf of the 
Department of the Interior (Interior).
                       klamath project operations
    Interior has been working with the constituents in the Klamath 
Basin for several years to develop a long-term management plan for 
Klamath Project (Project) resources. While this plan is being prepared, 
the Bureau of Reclamation (Reclamation) has prepared annual operating 
plans explaining how competing project demands will be met. As part of 
the long-term project operation planning process, Reclamation is 
consulting with the Fish and Wildlife Service (FWS) and National Marine 
Fisheries Service (NMFS) regarding impacts of the project operations on 
endangered suckers and threatened coho salmon. FWS and NMFS recently 
provided Reclamation with draft biological opinions, an important step 
forward in developing the long term plan. Reclamation will continue to 
work with FWS, NMFS, project beneficiaries, Indian Tribes and others 
regarding completion of the biological opinions. The management 
alternatives in the biological opinions will help Reclamation develop 
alternatives to consider in the long-term project operation 
environmental impact statement.
    The 2001 Operations Plan is scheduled to be issued in early April. 
The operation of the Project includes delivery of water to irrigation 
contractors and waterfowl refuges and providing water consistent with 
trust obligations to Klamath, Hoopa Valley, Yurok and Karuk Indian 
Tribes and the requirements of the Endangered Species Act (ESA). To 
assure that project operation is consistent with requirements of the 
Endangered Species Act, Reclamation is engaged in Section 7 ESA 
consultations with the Fish and Wildlife and National Marine Fisheries 
Services regarding effects to endangered Lost River and shortnose 
suckers, threatened coho salmon, and steelhead salmon that have been 
proposed for listing.. Interior is committed to continue working 
closely with the irrigators, Klamath Basin Indian Tribes, and other 
stakeholders in developing the 2001 Operations Plan. While final 
decisions have not yet been made, it will be very difficult to fully 
meet the competing demands for water this year.
    Facing such limited water supply, Reclamation is using important 
new tools in an effort to enhance the water supply. A pilot water 
acquisition program is adding flexibility to the planning process and 
should help Reclamation achieve the goal of reasonable, though limited, 
allocations to non-ESA and non-tribal uses. It is important to note 
that Reclamation has received considerable assistance from the Klamath 
Water Users Association and has coordinated closely with state and 
local government agencies in implementing this water acquisition 
program.
                  implementation of public law 106-498
    Now I would like to report Interior's progress in Implementation of 
Public Law 106-498, the Klamath Basin Water Supply Enhancement Act 
(Act).
    Recognizing the importance of enhancing water resources in 
resolving the difficult Klamath water conflicts, Reclamation in 1997 
entered into a partnership with the States of Oregon and California and 
the Klamath River Compact Commission to begin a Water Supply 
Initiative. Based on information collected through sustained public 
outreach efforts, Reclamation has identified 95 potential projects.
    Reclamation has subsequently requested and received funding to 
begin appraisal level studies to identify projects meriting further 
feasibility investigation. Expanding availability of groundwater, and 
increasing storage in existing project reservoirs were given priority 
under this program. An appraisal study was completed for raising Upper 
Klamath Lake. In addition, Reclamation initiated groundwater 
investigations in partnership with Oregon and California, and began a 
water marketing study in cooperation with the Klamath Water Users 
Association.
    Public Law 106-498 provides Interior important authority and 
direction to advance efforts begun under the Initiative, and authorizes 
additional important feasibility studies. Representatives of Oregon and 
California are very interested in expanding the partnerships initiated 
with the Water Supply Acquisition Program by participating in the 
feasibility studies authorized in Public Law 106-498. Reclamation will 
be working closely with the States over the next few months to develop 
a comprehensive strategy for full implementation of the Act.
    The Act authorized and directed the Secretary of the Interior to 
study the feasibility of:

   Increasing the storage capacity and/or yield of the Klamath 
        Project facilities while improving water quality, consistent 
        with the protection of fish and wildlife;
   Developing additional Klamath Basin groundwater supplies; 
        and,
   Finding innovative solutions in the use of existing 
        resources, or market-based approaches, consistent with state 
        law.

    Using funding previously provided for the Water Resources 
Initiative, Reclamation has been able to initiate partial 
implementation of the Act as follows:
    Increasing Klamath Project Storage Capacity/Yield: In December 
2000, Reclamation released an appraisal level report examining the 
desirability of raising the Upper Klamath Lake as much as two feet to 
elevation 4145.3 feet. The report considered two alternatives: 1) 
construction of new dikes and sea walls, and modification of existing 
dikes to contain the lake within its current boundaries, and 2) 
acquisition of lands inundated by raising the lake without structural 
construction or modification to contain the lake within its current 
boundaries. Option 1 is estimated to cost $125 million and option 2 is 
estimated at $129 million; the cost of either option is approximately 
$800 an acre-foot. A feasibility study would consider environmental 
impacts and costs and benefits of raising the lake. The study is 
expected to begin on a limited basis during Fiscal Year 2001, using 
existing funding from the Water Resources Initiative.
    Reclamation also has completed a cursory review of existing 
information to determine if it is feasible to increase the storage 
capacity by raising Gerber Dam an additional three feet. Feasibility of 
this project is considered likely, and collection of engineering data 
has begun. A plan of study is in preparation during Fiscal Year 2001, 
using existing funding from the Water Resources Initiative.
    Developing Groundwater Supplies: In Fiscal Year 1999, Reclamation 
entered into a cooperative agreement with the Oregon Water Resources 
Department to study the potential of obtaining supplemental groundwater 
supplies in the Klamath and Lost River Basins in Oregon. Preliminary 
results indicate good potential for high production wells in the 
aquifer underlying lands irrigated by Shasta View Irrigation District. 
These wells should have a low impact on other wells in the area. In the 
2001 irrigation season, an existing well will be pump-tested. If long 
term pumping appears feasible, a plan of study will be prepared 
regarding the potential to drill additional test and production wells.
    Reclamation also entered into a cooperative agreement in Fiscal 
Year 1999 with the California Department of Water Resources (CDWR) to 
examine groundwater in the California portion of the Klamath and Lost 
River Basins. Since the Fall 1999, CDWR has performed semiannual water 
level measurements on 35 wells. Data will be collected over a three 
year period to assess the potential for groundwater augmentation.
    In addition, Reclamation provided funding for a cooperative study 
by the Oregon Department of Geology and Mineral Industries and the U.S. 
Geological Survey (USGS) to determine the geologic potential for 
additional groundwater availability in the Wood, Sprague and Williamson 
River valleys. Information gained from that study could be used to 
initiate a full feasibility study.
    Innovative Solutions: Reclamation recently initiated a one-year 
pilot Klamath Basin Irrigation Demand Reduction Program to determine 
irrigators' interest in receiving a payment in lieu of applying surface 
water to their irrigated lands. Results of the program will aid in 
development of a long-term demand reduction program. Reclamation 
received approximately 550 proposals from irrigators willing to forgo 
surface water on their irrigated lands in exchange for a combined total 
exceeding $20 million. Reclamation's Fiscal Year 2001 budget for 
implementation of this program is approximately $4 million.
    Reclamation also initiated a groundwater acquisition program to 
purchase well water from willing sellers. Of 15 proposals received, 10 
were selected at a combined cost of approximately $1.2 million. The 
acquired water will provide up to 37,000 acre feet for use in meeting 
Klamath Project needs in 2001.
    Public Law 106-498 directed the Secretary to complete ongoing 
hydrologic surveys in the Klamath Basin conducted by the USGS. The 
study 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.
    Interior is committed to continuing implementation of the Act in 
partnership with the States. As soon as feasibility reports are 
completed, Reclamation will forward them to the Congress.
                              legal issues
    The legal obligations associated with Klamath Project operations, 
including the need to operate the Project consistent with the 
Endangered Species Act (ESA) and the federal trust responsibility to 
the Basin's tribes prior to diverting water for irrigation, have been 
confirmed by the courts in Klamath Water Users Protective Association 
v. Patterson, cert. denied.
    The Department currently faces various legal challenges asserting 
that Project operations violate ESA standards. Commercial fishermen and 
environmental plaintiffs have sued Reclamation regarding instream flows 
for the threatened coho salmon in the Klamath River in Pacific Coast 
Federation of Fishermen's Ass'n. v. U.S. Bureau of Reclamation, 
asserting Reclamation violated section 7 of the ESA because it operated 
the Project without a biological opinion from the National Marine 
Fisheries Service (NMFS). In the midst of another lawsuit, NMFS must 
make a final decision whether to list Klamath Mountains Province 
steelhead as threatened under the ESA by April 1 pursuant to a federal 
district court order in Federation of Fly Fishers v. Daley. Finally, 
the Department recently received separate 60-day notices of intent to 
sue from Klamath Tribes and environmental groups for asserted 
violations of the ESA regarding the endangered sucker species in Upper 
Klamath Lake, and the threatened bald eagle. All of these legal actions 
could affect Project operations significantly.
    This concludes my prepared testimony. I am pleased to answer any 
questions you may have.

    Senator Wyden [presiding]. Mr. McDonald, our apologies, 
because we are going to have some votes. And Senator Smith has 
to run----
    Mr. McDonald. I understand.
    Senator Wyden [continuing]. To catch the vote. And as soon 
as I ask questions, I am going to run and get a vote. We are 
anxious to hear from Congressman Walden, as well. And there are 
a variety of committee rules that are going to make this 
something of a logistics kind of feat.
    I guess what has troubled me about all of this is that if 
you are a farmer in this predicament, you have got to see that 
the Government has a sense of urgency. And when I hear about 
feasibility studies and all of the various terms that are being 
thrown around, that does not convey what Congressman Walden, 
Senator Smith, and I are hoping to convey. And that is, we have 
got to have some immediate answers between now and the next 
couple of weeks. And again and again, what the Government does 
just seems disconnected from the real world that we are facing.
    I was just in rural Oregon this past weekend for town 
meetings. And it gave me a variety of other examples, as well. 
The deadline for crop insurance for the farmers in the Klamath 
Basin was March 15, for example. The biological, you know, plan 
comes out April 1. And what farmers want to know is why could 
those have not been coordinated? Why could those have not, at 
minimum, been brought together? NMFS has one set of water 
levels and Fish and Wildlife has another set of water levels.
    I guess the one question that I would like to ask before I 
go and run off here for a few minutes is, what will you do now, 
immediately, for the next two weeks, to help us turn this 
situation around?
    Mr. McDonald. What all the agencies, Senator, are doing in 
the next 2 weeks is giving their undevoted attention to 
reaching a final decision, so that we can indicate to people 
what that decision is. And we certainly understand the urgency 
of dealing with the concerns that you have.
    Senator Wyden. With all due respect, that does not mean a 
whole lot to me and, I think, farmers and folks in rural 
Oregon. I mean, what I think is critical is that everybody has 
got to get some water, (a). And (b), everybody is going to have 
to give a bit. Nobody is going to be able to get everything on 
their wish list.
    And I am going to run and catch this vote. I wish that 
Congressman Walden was allowed to keep this going, but Senator 
Smith will be back here in just a minute. And maybe that gives 
you a few minutes to flush out the answer, because what we want 
to know is exactly what these agencies are going to do to try 
to come together in the next couple of weeks to respond to what 
all three of us have outlined is the problem.
    All right. I guess we have reached a procedural interim 
solution. And counsel will ask some questions at this point.
    [Pause.]
    Senator Wyden. We are not in an interim procedural solution 
yet.
    [Laughter.]
    Senator Wyden. Very, very good. We have counsel here to 
keep the hearing open. Congressman Walden will ask some 
questions. And a couple of Senators will be back in a few 
minutes.
    Mr. McDonald. Thank you, Senator.
    Congressman Walden. Thank you, Senator.
    See, if I took the gavel, that would mean I would be a 
Senator. And since both Oregon Senators are already here, one 
of them would have to give it up, and I----
    [Laughter.]
    Congressman Walden. I work for me.
    Mr. McDonald, one of the big concerns of the draft Fish and 
Wildlife bi-op is the Bureau of Reclamation's failure to screen 
the Aid Canal diversion. What is the status of this project?
    Mr. McDonald. I am sorry. I do not know. Mr. Spear, do you 
know, for some reason?
    Mr. Spear. Our opinion went back and required the 
screening. It is my understanding there has been lots of 
discussions and studies up to the time. And there is a team of 
people working on it. And there are some--I think there is an 
expectation it will be done in 2002. 2002 is the time when it 
is expected to be completed.
    Congressman Walden. You said you went back and looked at a 
record of this. How long has this been pending or----
    Mr. Spear. Well, it was in our 1996 opinion, I believe. And 
it went back and asked that the screening be done. It has not 
been done. And so, we reemphasized it again. But meanwhile, 
there has been a group of people working, between ourselves and 
the Bureau and others. And right now, the plan is to have it 
completed in 2002.
    Congressman Walden. Do you have the funding, Mr. McDonald, 
to do that?
    Mr. McDonald. Unfortunately, I cannot comment on the 
President's budget request for 2002, of course. Let me offer, 
Congressman, to confirm an answer for the record, and follow up 
after the budget request comes out and answer that part, 
specifically.
    Congressman Walden. Given that Fish and Wildlife requested 
this back in 1996, has the Bureau put in a request for funding 
in any of the years since that was in the 1996 bi-op?
    Mr. McDonald. I do not know. I will be glad to respond for 
the record. I am sorry I do not have that information at my 
fingertips.
    Congressman Walden. Mr. Spear, do you know? Has anybody 
ever asked for the money?
    Mr. Spear. I do not know whether it is in the budget--was 
in the budgets or not. Actually, I need to correct something. 
It was in the original 1992 opinion, not the 1996.
    Congressman Walden. So, this is 9 years. Nobody can tell me 
whether anybody has even asked for funding.
    Mr. McDonald. I will get you the answer, sir.
    Congressman Walden. Okay. Mr. McDonald, can we talk for a 
moment about the Hardy study? I hear more about this study from 
people I represent than--well, there is a long list of issues I 
hear a lot about, but can you explain to me why other technical 
staff are excluded from being able to participate or observe 
or--you know, this came up in our Klamath Falls hearing we had. 
What is the rationale there? Why can others not participate?
    Ms. McDonald. I understand the concerns. Mr. Connor is 
prepared to respond.
    Mr. Connor. Thank you. With respect to the Hardy report, 
there has been a process in developing the report, particularly 
the phase II Hardy report, that has involved a number of 
Federal, State and tribal representatives.
    As you indicate, though, there has been some concern about 
the participation of specifically, as I know it, the irrigation 
districts' representatives is part of that process.
    That determination was made that there was concern over 
their participation, due to concerns about violations of the 
Federal Advisory Committee Act, FACA. And that is not of a 
concern if just Federal, State and tribal governments 
participate in the process.
    Now, there is even some concern with the perspective that 
FACA is at issue. And I think what we are doing and what the 
Department is doing, at this point in time, is saying, based on 
the process, where it is now, and the Hardy II report is not 
complete at this time, it is still being developed, there is an 
opportunity to have the irrigation districts represented as 
other interested parties participate in that process.
    They can participate through the remaining meetings that 
will be available. I think that information has already been 
conveyed to those representatives. They will be able to 
participate in the meetings that are leading up to Dr. Hardy 
explaining his preliminary draft recommendations before it goes 
to the draft report, and also, through the peer review process.
    The Department has already established a peer review team 
to evaluate the Hardy phase II report. The Department is 
certainly open to recommendations on additional peer review 
experts to be involved in that process.
    And then, finally, even once the draft report is issued, 
there will be a public comment period, at which people can 
participate.
    Congressman Walden. Well, Mr. Connor, with all due respect, 
and my memory may fail me--I would have to go back and look at 
the actual testimony from the meeting we had in Klamath Falls--
but a similar question was asked then. And we were told they 
were open to including these other technical people, and then 
they were excluded.
    I hope you understand what we are getting a little 
frustrated with all of this. And I would be curious to know if 
there are other similar such studies going on in your 
agencies--any of you--where people are included that are not 
part of the group you have recognized.
    Are there? Are any of you aware of any similar sorts of 
studies where these outside technical people are allowed in, 
where FACA is not invoked?
    Mr. Connor. I think there is an ongoing process that 
involves the Klamath River Task Force. And that was a committee 
established pursuant to 1996 legislation, the Klamath River 
Fisheries Restoration Act, I believe.
    Congressman Walden. I do not mean just in the--do not limit 
yourself just to the Klamath Basin. I mean, across Federal 
agencies, here.
    Are you aware of others, where these sorts of technical 
people are allowed in the process?
    Mr. Connor. I am aware of specific processes in which there 
is a more diverse group of folks. And we do that as part of 
negotiations that are ongoing. For instance, Indian Water 
Rights matters.
    I think the issue that came up in the Klamath--for example, 
the Hardy phase II report is the attempts to build a 
collaborative--to get a consensus on an approach. And when you 
do that as part of a process, it invokes the concerns of the 
Federal Advisory Committee Act. And that was the basis for 
here; that concern being made.
    And the other processes, I am just not aware of. I know the 
ones that we deal with, it is part of just an open forum. It is 
not a consensus-building process. And so, there is not that 
same concern.
    Congressman Walden. So, is it fair to characterize what you 
said, then, that it is more important to have a consensus-
building process that excludes a major group here from 
involvement, than to come together with a report that everybody 
can agree on? And what good is the report, if you exclude these 
people?
    Mr. Connor. That is a concern, based on the limitations of 
Federal law. Now, I think what we are trying to do, in 
recognition of concerns, is see what can we do, given those 
concerns and the frustrations that have been expressed. And 
because we are kind of past--what we want to do is, before the 
recommendations come out, bring people into the process, so it 
is not purely a matter of commenting on a draft report, et 
cetera.
    There is a process now, because we are past, you know, 
basically, consensus on the methodology, et cetera. But there 
is still a basis for interpreting Dr. Hardy's results and 
recommendations as a result of those methodologies. And we 
think that is where it is proper to bring people into the 
process.
    Congressman Walden. Well, I think I would disagree with 
your decision on that, but I respect your point of view.
    Senator Smith [presiding]. Thank you, Congressman.
    Bill McDonald, can the Department provide, by this Friday, 
to this committee, the contracts and scope of work for the 
Hardy phase I and phase II studies?
    Mr. McDonald. Mr. Connor will respond, Senator.
    Mr. Connor. Senator and Congressman Walden, you all sent a 
letter to Secretary Norton regarding this specific issue. And 
the Department is preparing a response. And we anticipate 
including the scope of work as part of that response, as per 
your request in that letter.
    Senator Smith. Will we have it by Friday?
    Mr. Connor. I am not sure what the exact timing is. It is 
on a fast track to get that response out to you in writing.
    Senator Smith. Thank you.
    Mike, the draft biological opinion seems concerned that the 
project actions will take 1,000 bald eagles. But since the 
project's long-term plans include water delivery to the 
wildlife refuge, I am wondering where that service comes up 
with the taking of 1,000 eagles.
    Mr. Spear. I admit that is confusing. What we are required 
to do is to provide incidental take coverage. And the broad 
definition of ``take'' includes such things as harm and 
harassment. So, in a very literal sense, it may fit the 
definition.
    We do not expect 1,000 eagles to be killed or maybe even 
one. But the change and the lack of water, to the extent that 
eagles' behavior will be changed if there is less water, if 
there is less food available, it could fall in the category of.
    So, frankly, to be safe and to provide the protection, we 
just simply provided the incidental take coverage for whatever 
occurs as a result. We do not expect there to be any massive 
eagle die-offs. It is a non-jeopardy opinion.
    But rather than get involved in a situation where people 
are quibbling about whether or not they are affected, it gave 
very broad coverage.
    Senator Smith. You think it is unlikely that a court would 
look at that language and interpret that, even though we are 
getting water to the basin, to the refuge, that we are going to 
be killing 1,000, and they would use that against farmers.
    Mr. Spear. To the extent that we have heard that comment a 
few times in the last week or so, since our opinion has been 
out, we are going to be looking very carefully in how we write 
it in the final, so that we do not run into that problem.
    Senator Smith. That would be appreciated, because I think 
that presents a very--it gives a very different impression than 
the one you have just described. And I think it can be more 
artfully described.
    In the draft bi-op, Mike, let me read you something that 
concerns me. It is on page 171. ``Implementation of RPA''--
reasonable and prudent alternative; that is what those initials 
mean--``allows the project to meet its intended purpose in most 
years, once demand is decreased, to provide water for 
irrigation and refuge use.''
    I am focusing on the phrase, ``once demand is decreased''. 
I read that to mean that farmers are going to be put out of 
business. Is that what that is that a pre-determined objective?
    Mr. Spear. Not in those terms of putting farmers out of 
business, but I believe that most people who have looked at 
this situation in the Klamath Basin needs--think that we need a 
combination of supply increases, supply augmentation, 
conservation, changes in demand patterns, et cetera, and 
probably some change in demand.
    And so, I would say that that is shorthand for the sense we 
have to--there will be a new balance in the future that I think 
we have to find as a result of the legislation you put in.
    Senator Smith. Because of the water storage.
    Mr. Spear. And that we will have to take a hard look at the 
whole basin. And there are lots of different factors. And one 
of those factors will likely be some demand reduction as a 
result of conservation or changes in the total number of acres 
irrigated.
    Senator Smith. Well, since this is just a draft bi-op, I 
hope the final draft will take that out, or at least make 
clear, in explicit terms, that farmers are a part of the 
equation, because I think that tells them they are the reason 
there is going to be a decrease in demand.
    Does the Fish and Wildlife Service actually consider it 
reasonable and prudent to have no water deliveries to 
agriculture in any one particular year?
    Mr. Spear. I guess that is difficult to answer in those 
sort of stark terms. And unfortunately, that is the kind of 
stark situation we are in.
    I think that when you look at the project operations, it 
would be argued that within the project operations you could 
have a situation in an extreme drought that that would be a 
reasonable and prudent activity in order to avoid a jeopardy 
situation for either the suckers or the downstream salmon.
    Senator Smith. If that is the case, I am wondering if you 
can think back with me to years like 1992, 1994. The Upper 
Klamath Lake elevations were well below those in the current 
year. And the lowest ever was, in fact, 1994. The Klamath River 
flow at Irongate Dam was much lower than average, according to 
the records I have seen.
    Do we have any evidence that adverse effects to fisheries 
occurred in those years, compared to any other year? And if so, 
what were they?
    My recollection is, the farmers got water, and what was the 
damage? Those were severe drought years.
    Mr. Spear. Well, we have had--the situation has gotten 
steadily worse since that period of time. And what we have done 
in this opinion is bring the science and the biology up to date 
with where we are.
    And fundamentally, we believe the sucker situation is--we 
are in a position that we cannot afford a significant 
probability of a large die-off. The sucker population, as a 
result of three big die-offs in the nineties--1995, 1996, 
1997--losing a great percentage of the adult suckers is in a 
position where another large die-off could potentially put it 
in a position where it would be very hard to recover the 
species.
    Senator Smith. And what----
    Mr. Spear. And that is what this opinion is about. It is 
basically saying we are in a very precarious situation. We must 
take actions to try to minimize the probably for a large die-
off.
    And even there are situations where we have seen in the 
past, in drought years--some drought years did not have big 
die-offs. On the other hand, you did not get recruitment in 
some of those years.
    Senator Smith. Do you have any--to what do you ascribe the 
big die-off?
    Mr. Spear. The big die-offs in 1995 and 1996, we believe 
that, fundamentally, it is this--the problem of low dissolved 
oxygen, as a result of the low water quality, temperature----
    Senator Smith. Low water levels----
    Mr. Spear [continuing]. Lake levels, et cetera. A 
combination of many things. It can be affected by wind, 
temperatures, nutrient loadings. The situation is simply 
getting worse.
    Senator Smith. What I am understanding, though--I believe 
to understand is that the lake levels, now, are much higher 
than in those years, but it did not--those years did not 
warrant a total cutoff of farmers, but somehow it does now.
    Mr. Spear. Since 1997, the lake levels have been kept at 39 
or above. And we are now calling for 40. We are going up one 
foot higher as a result of this opinion.
    And you know, very simply put, during periods of holding 
the lake levels at 39, we have seen die-offs. We feel that we 
need two things.
    First of all, keep from having die-offs, but also provide 
cover--spawning habitat and cover for juvenile fish that will 
be provided by the higher lake levels in the spring and early 
summer.
    So, we are trying, both, to keep the older fish from dying 
off and get some strong age classes of young fish. We need a 
few years in a row to get some strong cohorts that will carry 
on for the future. We are relying very heavily on a 1991 cohort 
at this stage. It is our only strong year class that we have.
    Senator Smith. Okay. Michael Connor, can you tell me who is 
making the selection for peer reviews? Who is making that 
decision? And my guess, is this--can this be characterized as 
an independent peer review that is being selected?
    Mr. Connor. My understanding that the selection of the peer 
review was done by a recommendation of Dr. Hardy discussed as 
part of the technical review committee that exists, that has 
been participating in this Hardy phase II report process. And 
they have developed this group of internationally known experts 
to sit on the peer review team and provide some feedback on the 
preliminary report. And that is how it stands at this point in 
time.
    Congressman Walden. Mr. Chairman, if I could follow up on 
this issue.
    So, did I hear you correctly, then, it is the people who 
have been doing the technical advising now in the Hardy study 
are picking the people who will do the peer review? Is that 
what you said?
    Mr. Connor. I think that is how the process is evolving.
    I am sorry. I guess I should not guess at answers, 
Congressman Walden. It was Dr. Hardy, actually, in consultation 
with the Justice Department, who has the contract, and the 
Bureau of Indian Affairs, who selected the present make up of 
the peer review team.
    Congressman Walden. Who selected the present make up of 
the--whatever it is--the technical advisory committee to the 
Hardy study, then?
    Mr. Connor. That was, I guess, an invite to the interested 
agencies that could participate in the part of that process. 
And that review team that has been participating in this 
process is made up of representatives of the Bureau of Indian 
Affairs, Bureau of Reclamation, the Fish and Wildlife Service, 
National Marine Fisheries Service, California Department of 
Fish and Game, the Hoopa Valley Tribes, the Yurok Tribes, and 
the Karuk Tribes--I think I have got them all--and the U.S. 
Geological Survey.
    Congressman Walden. Any farm tribes in there? Well, I guess 
that is the concern I keep hearing, the one I share is, do we 
have the fox guarding the chicken house here? I mean, is it the 
same people are going to look--in effect, it seems like, pretty 
much, an inside game.
    Now, on the Bay Delta study in Cal-Fed, was FACA involved--
was invoked there?
    Mr. Connor. I am not sure if it was or not.
    Congressman Walden. It was involved. It was invoked. I am 
seeing somebody in the audience say that. I was under the 
impression it was not.
    Mr. Spear. Mr. Walden, I have been involved in Cal-Fed and 
we do have a FACA charter committee, and we also have a science 
team provided for on the Cal-Fed committee. And they are in--
they have been involved now for about the last 9 months. And 
they have been bringing together various peer review efforts on 
various matters.
    We go to the science advisor, who then, you know, selects a 
board to review issues.
    Congressman Walden. So, FACA--you have had these involved 
under the FACA for the last 9 months. Is that what I heard you 
say?
    Mr. Spear. I am saying the overall Cal-Fed has a FACA 
chartered committee, but we have also provided, you know, a 
science advisor to the Cal-Fed, which is a State-Federal team--
--
    Congressman Walden. Right.
    Mr. Spear [continuing]. That then provides appropriate peer 
review on the topics as they come up.
    Congressman Walden. Are you familiar with the Bay Delta 
study, that preceded Cal-Fed?
    Mr. Spear. Yes. I am involved in that.
    Congressman Walden. Was FACA involved--invoked there?
    Mr. Spear. Yes.
    Congressman Walden. From the beginning?
    Mr. Spear. Yes. It was set up very early on to have the 
public advisory committee.
    Congressman Walden. So, are there outside technical people 
looking at this? I mean----
    Mr. Spear. Daily.
    Congressman Walden. Why are they not in the one I am 
talking about, then, the Hardy study? What is the hang-up here? 
Why can they not be included?
    Mr. Connor. My understanding is that the concerns were FACA 
related. And be that as it may, and I am certainly no expert in 
FACA, I think, right now, we understand the frustration and 
want to involve other parties, and believe that for whatever--
there is a point in the process, now, where we are at, where we 
can open up the process to other parties.
    And too, I think--and this is going to be part of the 
Department's communication--we are very open to having 
additional recommendations on who should sit on the peer review 
team. And if that comes through, the Water Users Association 
representative participate in that process, we are willing to 
look at that. If they are qualified to do the peer review, then 
we are open to those recommendations.
    Senator Smith. I think that needs to happen. And I think 
the unfortunate thing in all of this is that it looks, to this 
person, to this Senator, that there is already a pre-ordained 
conclusion. And the farmers have not been part of this 
equation.
    They have already been notified there is no water for the 
year. And that frankly means there is no farm community in 
Klamath Falls next year. I just do not think that that ought to 
be the policy of this government. And so, whatever you can do, 
within the law, within the bounds of equity and fairness that 
are a part of that law, give them some water.
    Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman.
    I want to come back to the question that I asked right 
before we broke.
    Everybody that I talked to on this issue understands that 
the best and most valid solution is that everybody gets some 
water and everybody gives some water. That is what it really 
takes to get, you know, this done.
    We have two of the three major players here, in terms of 
Federal agencies--Mr. McDonald and Mr. Spear. NMFS is not here, 
but I would like you to take us through the nuts and bolts of 
what is going to happen when you leave here, over the next 2 
weeks, to try to come up with something resembling the 
solution, you get some water and you give some water.
    I mean, who are you going to talk to at NMFS? And how are 
we going to go about, over the next two weeks, dealing with 
this crisis?
    Mr. McDonald? Mr. Spear.
    Let me try to respond first, Senator.
    It seems to me, the focus among the agencies is going to be 
two-fold. First and foremost, we obviously need to put our 
collective wisdom together and see if reasonable and prudent 
alternatives can be shaped in a way consistent with the 
requirements of the law and tribal trust assets that achieve a 
result that yields some project water at the same time. And 
that will be, I think, what we devote ourselves to.
    Senator Wyden. Give us an example of a reasonable and 
prudent alternative, so that we can ask our constituents, 
people who give us an election certificate, whether it is 
reasonable and prudent. What would be an example?
    Mr. McDonald. I am not prepared, having, myself, not read 
the biological opinion still in process to comment on that. We 
have got our staff busy with it.
    As we indicated, we are having meetings next week. That is 
the issue that will be in front of all of us; the two fishery 
services, from their perspective, trying to judge if the legal 
requirements of the ESA can be met; from a Reclamation 
perspective, trying to look for what is technically and 
economically feasible that meets that jeopardy standard at the 
same time.
    And then, between the two fishery services, obviously, 
there have to be discussions about the requirements of one set 
of species versus the other set of species, and the problem I 
alluded to, based on our initial modeling run, that it appears 
we cannot simultaneously achieve the end results of both draft 
biological opinions at the same time.
    Senator Smith. Especially this year, right?
    Mr. McDonald. In this water year.
    Senator Wyden. Mr. Spear, what is going to happen when you 
all leave here today?
    Mr. Spear. Well, I think what happens between this draft 
and final stage--and of course, this is extremely compressed 
when we get these out versus when they have to be completed.
    If the first thing that people look at--and we have 
received the report from the ag community about the science on 
the lake levels that is under review, but it really is a matter 
of sitting down--and usually this is under the aegis of the 
action agency, in this case the Bureau of Reclamation, pulling 
the parties together in some form, you know, whether it is a 
group here or a there, but somehow getting the parties 
together.
    You know, first, you have got to look at the science. What 
are the other views about the science? And we have another 
viewpoint put in front of us. We have just now gotten the NMFS 
report and reactions to that. What are the views of the 
science?
    There will be discussions required between ourselves and 
National Marine Fisheries Service. We were aware, when we wrote 
our opinions, and you will find similar language in each, that 
this year was so bad there is even a competition between our 
opinions.
    So, we will have to work with National Marine Fisheries 
Service to set up rules; most likely, some sort of parameters 
that says if this happens, then a precedence will be given to 
salmon; if this happens, then a precedence will be given to the 
suckers, to try to balance out on a real-time basis as the year 
goes along, how do we make decisions from that point of view.
    But then the tribes, the fishery community, the 
irrigators--you know, sort of, some brainstorming. What are all 
the places you can get water? To what extent can--you know, 
Reclamations--purchase of water or demand reduction.
    From our refuge point of view, one of the things that we 
are already doing and that we have approached the--most 
appropriations committees last week to allow us to get moving 
on our pumping. We hope to be able to provide some wells. And 
we have done some studies and--where we have completed the 
studies to allow us to drill some wells to bring on about 
20,000 acre feet of water for this fall to help us alleviate 
about one-third to a half of our crisis problem on the refuges.
    So, we have some action underway there. Obviously, it will 
be a very intense time. I will go back over a couple of key 
factors.
    Exploring the science. What are the other viewpoints out 
there? Can you find a way through this with credible science?
    Secondly, looking at the options for water supply, and to 
what extent there is demand reduction capabilities for this 
year.
    Putting all that together and hopefully then coming out 
with something that is ``an RPA'' that provides some for 
everybody. As we stated in the beginning, by Mr. McDonald, we 
cannot overemphasize the fact that this is not just a drought 
year; this is a minimum, a worst case situation; not a good 
time for anybody to be having to deal with the new information.
    Senator Wyden. Gentlemen, again, I am just not clear what 
the nuts and bolts are going to be all about over the next 
couple of weeks. There is no question in my mind that your 
agencies do intend well. That is not what is in question. But I 
think, if you are the community, you want to know who is going 
to meet with whom. And you want to know when the meeting is 
going to take place.
    For example, just as I listened to the answers--for 
example, it was not clear to me whether there were going to be 
immediate meetings between you and the stakeholders, which is 
what I think is important. I think that is what Senator Smith 
and Congressman Walden were saying, is that we think that given 
how urgent the situation is, we need you two and NMFS to meet 
immediately with the stakeholders. And so, that is, sort of, my 
version, nuts and bolts, of who is meeting with whom.
    Mr. McDonald. I am confident we can commit to that as early 
as tomorrow, if the stakeholders are available and wish to do 
it, as many of them are here or back in Klamath or probably a 
combination of all of those.
    Senator Wyden. Great. The stakeholders have told Senator 
Smith, Congressman Walden, and myself that they are ready, 
willing, and able to meet immediately.
    So, now, we have determined that you are going to meet with 
them; that your agencies--and you will get the NMFS people, you 
know, there, and the other----
    Mr. McDonald. We will certainly ask them. And I cannot 
imagine that they will not be available.
    Senator Wyden. And then you just answered the when 
question; that that can be tomorrow.
    Mr. McDonald. If they are in town and they would like to do 
it, we will do it tomorrow, or the area manager can head for 
Klamath and do it there Friday.
    Senator Wyden. That sounds like a bit of progress.
    Thank you, Senator.
    Senator Smith. Okay. Well, thank you, gentlemen, for being 
here. Your testimony is appreciated. And your efforts, in the 
next 2 weeks, are doubly appreciated. We really do hope that 
you can find a resolution to a very difficult problem. We 
recognize that.
    Our next panel will consist of six gentlemen. There will be 
two others sitting behind them, if they wish, for consultation 
or support.
    These next witnesses are Allen Foreman, chairman of the 
Klamath Indian Tribes; Reed Marbut, intergovernmental 
coordinator, Oregon Water Resources Department; Roger 
Nicholson, president, Resource Conservancy; Glen Spain, 
Northwest regional director of the Pacific Coast Federation of 
Fishermen's Associations; John Crawford, who is a farmer; Dr. 
Alex Horne, professor, Department of Civil and Environmental 
Engineering, U.C., Berkeley. Accompanying John Crawford will be 
David Solem. And accompanying Alex Horne will be David Vogel.
    We welcome you all. And we are glad you are here. We will 
start at this end. Allen, nice to have you here, nice to see 
you. Welcome. We will start with you.

 STATEMENT OF ALLEN FOREMAN, CHAIRMAN, KLAMATH INDIAN TRIBES, 
                         CHILOQUIN, OR

    Mr. Foreman. Thank you, Mr. Chairman, Congressman Walden. I 
see Senator Wyden is out right now. So, thank him, also.
    The Klamath Tribes appreciate the opportunity to present 
our views on the water problems in the basin. In order to 
understand the problem appropriately, it is important to 
understand the historical roots.
    In the Treaty of 1964, the Tribes were guaranteed the water 
needed to support our fisheries and other resources. As I 
listen today, I am not sure that that is a component in a 
solution. And as I understand it, the treaties are the 
universal law of the land. And they are very important here.
    Later, when the Government invited the farmers into the 
basin and suggested that water would be available, the 
Government did not tell the farmers about the Tribes' water 
rights. They suggested there is water available for all and 
they did not tell them.
    And then, for nearly a century, the State of Oregon has 
been issuing permits without regard to tribal water rights, and 
until recently, without regard for the natural health of the 
rivers, lakes, and marshes.
    It would be incorrect and unfair to blame the Klamath 
Tribes or any of the Tribes for the current water shortage. The 
real problem is that demand for the water in the Klamath Basin 
has been allowed to exceed the supply. There is just no other 
way to put it.
    I hope that everyone can understand why the Tribes continue 
to defend their water rights, in the same way all other users 
and everyone else in the basin seeks to reinforce their own 
rights and claims.
    It is hard, this year in particular, for anyone to think 
about a future, when the present looks hopeless; particularly 
in agriculture. We know--we at the Tribes know that livelihoods 
are at risk, but we would like to remind you--all of you--that 
overuse of water has severely damaged the livelihoods of our 
own families. We have suffered for years. We are in the same 
situation. And I am not sure that there was any hearings 
concerning that at the time.
    We no longer have the salmon runs that nourished us. They 
were extinguished in one heartbreaking act. No one seemed to 
care at that time. Our sucker fisheries have been closed for a 
decade.
    Now, people are suggesting that the fish may be dying 
because of too much water. This is nonsense and based on the 
false assumption about the depth and chemistry of the Upper 
Klamath Lake. It is also based on a failure to understand the 
physical habitat needs of the fish. The amount of water 
available for the fish today in Upper Klamath Lake is much less 
than what nature provided when the fish thrived. There is much 
less water available.
    Harvesting fish is our heritage and our legal right. It is 
important to our livelihood, as any other crops grown in the 
basin. An artificial scheme to support just enough fish to keep 
them from extinction can neither satisfy the commitments of the 
Treaty nor the Endangered Species Act.
    It certainly will not allow the Klamath Tribes a 
livelihood. The Federal Government's responsibility to our 
people will not be met until the fish populations are restored 
to harvestable levels, not just maintain their existence.
    I want to emphasize that while there are serious errors of 
fact in the fish recovery plan offered by the Water Users 
Association, we are very pleased to see that the Water Users 
are joining the Tribes in recognizing that the fish are, in 
fact, in trouble, and that a comprehensive plan must be 
developed to restore the Klamath Lake and its tributaries.
    Most important, it is a good faith and good sense, shown by 
the Water Users, in recognizing, as the Tribes do, that the 
fish are in trouble because the health and productivity of our 
waters have been decimated.
    We also believe, very strongly, that the Federal Government 
has a responsibility to the farm families, who, like the 
Klamath Tribes, now depend on a water system that is simply not 
capable of meeting the current demands.
    We, as a people, who, for years, have felt the pain of 
being unable to meet the demands of our families and 
subsistence needs of our families and communities. We do not 
want to see our friends and neighbors in the agricultural 
communities suffer. That is not what we are about. Sharing the 
benefits of nature's bounty is one thing, but now we must also 
share the adversity caused by decades of ineffective resource 
management.
    Today, we all need to focus on the present problem. The 
Tribes have been a leader in a search for an effective solution 
to the water problems. The goal must be in restoring and 
sustaining a healthy and functioning system to support multiple 
uses. That has to be the long-term goal.
    This is the stewardship for which we believe that the 
creator expects of us all. Solutions need to involve all 
parties, including the downstream users and the downstream 
Tribes.
    We have put forth a framework for a comprehensive 
settlement proposal that will really work. We need to repair 
damage so water quality and habitat can improve for fisheries.
    We need to restore the Tribes' ownership of our homelands, 
which contains a significant portion of the watershed so that 
our people can restore the health of the forests, the streams, 
the springs that nurture our water supply, and so that we will 
be able to restore a much needed subsistence base.
    We need to reduce the demand on the system to a program 
that fairly rewards the agricultural community for retiring 
land, so that the remaining lands can be sustainably farmed. It 
is not our intention to cut agriculture back--I mean, to cut 
out agriculture completely, but we want to make sure that those 
that are in business can maintain and stay in business 
effectively.
    The basin will not regain its health by trading symptoms 
while avoiding the causes of our water shortage. We will not 
recover healthy fisheries by trying to put the fish in Klamath 
Lake on a life-support system or treating them as if they were 
in an aquarium.
    We need to restore nature's productive capacity in Klamath 
Basin. Otherwise--this is an important point--we will be back 
here at hearings like this next year and the year after, and 
every water-short year to come, unless we get a long-term 
solution.
    So long as it is consistent with the recovery of our 
fisheries from the lake, the Klamath Tribes will be as flexible 
as possible regarding the delivery of irrigation water from the 
lake.
    We have outlined a comprehensive restoration proposal, 
based on extensive discussions with the Water Users 
Association, other ranchers and farmers in the State of Oregon 
and their own people. Not surprisingly, the current crisis is a 
predictable result of the Federal Government making more 
promises than it can keep.
    Those of us who face the consequences of those empty 
promises cannot build a future by turning on each other. The 
fisheries, the farming communities, the Klamath Tribes culture, 
and the economy, they are all at risk.
    I would like to ask this committee to provide the 
leadership, so that all of us who live in the Klamath Basin can 
work together for a lasting solution, not an inadequate quick 
fix.
    Senator Smith, we all need real help. Congressman Walden, 
we need real help, so that--we need real leadership from you, 
from the Congress, from President Bush, and these agencies. 
Please help our great Nation see that for all our people and 
cultures, for all the extraordinary wildlife and natural beauty 
of southern Oregon and northern California, the Federal 
Government that created these conflicts can and must take 
responsibility for helping us restore the sustainable Klamath 
Basin.
    [The prepared statement of Mr. Foreman follows:]
    Prepared Statement of Allen Foreman, Chairman, Klamath Tribes, 
                             Chiloquin, OR
    Good afternoon, Mr. Chairman and members of the Subcommittee. My 
name is Allen Foreman and I am the Chairman of the Klamath Tribes of 
Oregon. I appreciate my opportunity to offer testimony before this 
Subcommittee on behalf of the Klamath Tribes. It is timely to have an 
oversight hearing which focuses on the Klamath Project in Oregon, 
including implementation of P.L. 106-498 and how the Project might 
operate in this water short year. There is a drought in the Upper 
Klamath Basin which stands to adversely affect the Klamath Tribes' 
treaty protected fishery, waterfowl populations of international 
importance, and local farming interests.
    Mr. Chairman, thank you for your attention to these issues. The 
present water crisis dramatically underscores the paramount natural 
resource problems in Southern Oregon that have been brewing for a 
century: all beneficial uses are threatened because of terrible water 
quality conditions combined with serious over-appropriation of the 
water supply by the federal and state governments. The crisis faced 
this year by farmers, by the natural system and its fisheries, and by 
the Klamath Tribes is the predictable, inevitable result of careless 
land and water management by the federal government. Until we restore 
the productive function of the Upper Klamath Basin watershed, short-
term fixes will simply leave us poorer, and no better prepared for the 
next crisis. This will be true whether we pay for quick fixes in 
dollars or in damage to Upper Klamath Lake and its fisheries. 
Policymakers must clearly understand that demand for water must be 
reduced to levels that can support sustainable agriculture and that 
uses of land must contribute to, not retard, the restoration of decent 
water quality to our rivers and lakes.
    The federal and state governments have overtaxed water supply by 
promising too much water to too many people. First, the United States 
acknowledged in the Treaty of 1864, the legal and property rights of 
the Klamath Indians to water sufficient to meet the Tribes' hunting, 
fishing and gathering needs. Later, the United States encouraged non-
Indian settlement in the semi-arid area of the Klamath Project by 
suggesting that this same water could be used for agriculture. Finally, 
since 1909 the State of Oregon issued water permits in over 
appropriated streams and water bodies without regard to pre-existing 
federal commitments.
    The Klamath Tribes stand ready to work with you and your staff to 
rectify the problems which vitally affect the United States' Indian 
treaty and fiduciary obligations, the environmental integrity of the 
Basin, and the well-being of Indian and non-Indian farmers. We are 
pleased to see the Klamath Water Users joining us in recognizing that 
the fish are in trouble and that a comprehensive plan must be developed 
to restore Klamath Lake and its tributaries. While their proposal is, 
as we explain below, in many ways flawed, it nonetheless suggests to me 
that we will somehow find a way to come together to restore the Klamath 
Basin we all care for so deeply.
    Before proceeding further, I would like to remind you that over-use 
of the water has already severely diminished the livelihoods of our 
Tribes' families.

   We no longer have the salmon runs that nourished us. They 
        were extinguished in one heart-breaking act.
   Our sucker fisheries have been closed for over a decade. 
        Some people try to claim the fish are dying because of too much 
        water. This is nonsense. Well intended nonsense, perhaps, but 
        nonsense none the less. The amount of water available to fish 
        in Upper Klamath Lake is today much less than Nature provided 
        when the fisheries thrived, as the federal government's own 
        scientists will tell you.
   Waterfowl populations are severely reduced due in part to 
        inadequate water supplies at lakes and marshes in the Basin.
   Mule deer populations are at all time lows, below even the 
        modest goals of state wildlife managers.
   Important plants like wocus, sedges, and tules are in 
        limited supply due to fluctuating water management decisions.

    Harvesting fish is our heritage and our legal right, as important 
to our livelihood as harvesting any other crop grown in the Basin. An 
artificial scheme to support just enough fish to keep them from 
extinction might satisfy the Endangered Species Act. But that will not 
allow us a livelihood and will not fulfill the commitments of the 
Treaty. The federal government's responsibilities to our people will 
not be met until fish populations are restored to harvestable levels.
    We also believe the federal government has a responsibility to the 
farm families who, like the Klamath Tribes, now depend on a water 
system that is simply not capable of meeting current demands. In that 
light, my testimony will provide:
    1) an overview of existing federal laws and legal obligations 
relating to federal water management in the Klamath Basin, including 
obligations to protect the property rights of the Klamath Tribes;
    2) summary comments on the Klamath Water Users Association's 
proposal to lower water levels in Upper Klamath Lake during this 
drought year to meet agricultural needs;
    3) recommendations on drought relief measures that can be taken 
this year; and
    4) a concrete proposal for a long-term solution that addresses 
underlying water-related problems through a comprehensive Indian water 
settlement proposal being advocated by the Klamath Tribes in Oregon's 
Klamath Basin water rights adjudication.
    My testimony makes three general conclusions: First, the Klamath 
Project must operate according to existing federal statutes, legal 
obligations and priorities imposed by Congress and federal courts. 
Regardless of the weather, federal water management is governed by the 
rule of law. That legal framework must guide Project water operations 
during this year. Second, while the Tribes share the goal of obtaining 
for all Basin water interests any useful federal assistance during 
times of drought, excessive lowering of Upper Klamath Lake in the face 
of substantial scientific studies counseling against such a step will 
only exacerbate long term Basin water problems. It is not appropriate 
to consider exposing the Lake's fisheries to even greater risk when the 
provisions that might make such a risk acceptable are not yet in place. 
There are other effective means of drought relief which this 
Subcommittee can and should be provide consistent with existing federal 
laws and legal obligations by:
    a) continuing and increasing existing agriculture drought relief to 
Project farmers;
    b) providing technical assistance to Reclamation and Basin farmers 
to develop a basin-wide agriculture water conservation plan that can be 
implemented with federal funding assistance;
    c) ensuring that the Klamath Basin water supply augmentation 
feasibility studies mandated in P.L. 106-498 are completed by the 
Bureau of Reclamation in consultation with the Klamath Tribes, State of 
Oregon and agriculture community; and
    d) facilitating prompt, high-level state and federal policy 
consideration of the proposed Klamath Indian water rights settlement, 
discussed below, which is the only comprehensive means yet identified 
to provide a long-term solution to the underlying water problems being 
addressed by the Subcommittee.
    Third, to facilitate policy consideration of the Basin water rights 
settlement as the key to long-term solution of Basin water problems, 
the Klamath Tribes request the Chairman's leadership in bringing the 
Secretary of the Interior, Governor of the State of Oregon and other 
diverse parties together to expedite consideration and further 
development of the Tribes' settlement proposal. Principles for the 
proposed settlement have been submitted by the Klamath Tribes in the 
Alternative Dispute Resolution process established in Oregon's Klamath 
Basin Adjudication. (See Attachment A,* copies are available upon 
request, due to legal requirements compelling its treatment as a 
confidential settlement document.) It is important to remove barriers 
to speedy consideration of that settlement by federal and state 
policymakers. A Basin water rights settlement is the only vehicle 
having real potential to comprehensively solve the acute water supply, 
demand, quality and allocation problems which, together with related 
endangered species and tribal trust and property right issues, fuel the 
present crisis.
---------------------------------------------------------------------------
    * The attachments have been retained in subcommittee files.

1. The Klamath Tribes have property rights that are a vital interest in 
the water issues presently before the Subcommittee and the Tribes are 
---------------------------------------------------------------------------
an indispensable party to Basin water solutions.

    Because the Klamath Tribes have clearly established property rights 
associated with the water and fisheries of Upper Klamath Lake--which is 
the major water storage facility for the Klamath Project--the Tribes 
are a major stakeholder in Klamath Basin water matters. The Tribes are 
indispensable to resolving the short-term and long-term underlying 
water issues raised in this hearing on a government-to-government basis 
in partnership with this Subcommittee, state and federal governments.
    By way of background, in United States v. Adair, 723 F.2d 1394 (9th 
Cir. 1984), the court held that the Klamath Tribes own a federally 
reserved water right, with a time immemorial priority date, to Klamath 
Basin waters in a sufficient quantity to support treaty hunting, 
fishing and gathering activities. Adair left quantification of that 
right to the State of Oregon's pending Klamath Basin water rights 
adjudication. As trustee for the Tribes, the United States filed 
extensive water rights claims in that proceeding which include 
significant water claims in Upper Klamath Lake which can conflict 
with--and could preclude--Project water use. Federal protection of the 
Klamaths' property right to this water is part of the United States' 
trust obligation owed to the Klamath Tribes. See, Department of the 
Interior and Bureau of Indian Affairs v. Klamath Water Users Protective 
Association, ---- U.S. ---- (U.S. Sup. Ct., No. 99-1871, Mar. 5, 2001).
    The federal government's trust obligation to protect the Tribes' 
property interests in Upper Klamath Lake--which include two treaty-
protected fish species listed under the Endangered Species Act, as well 
as water rights in the Lake--is not subject to debate. In Klamath Water 
Users Association v. Patterson, 204 F.3d 1206, 1213 (9th Cir. 2000), 
the court examined the respective water rights of Project irrigators 
and the Klamath Tribes and held that the Klamaths' water rights are 
superior, stating:

        The irrigators aver that the existence of the Tribes' senior 
        water rights are irrelevant to the current dispute, and that 
        the district court's conclusion that the Tribes have senior 
        water rights should be vacated. The district court found that 
        the irrigators' water rights were subservient to senior tribal 
        water rights. See, Klamath, 15 F. Supp. 2d at 996.
        Similar to its duties under the ESA, the United States, as a 
        trustee for the Tribes, has a responsibility to protect their 
        rights and resources. See, e.g., United States v. Adair, 723 
        F.2d 1394, 1408-11 (9th Cir. 1983)
        *    *    *
        We have held that water rights for the Klamath Basin Tribes 
        ``carry a priority date of time immemorial.'' Adair, 723 F.2d 
        at 1414. Because Reclamation maintains control of the Dam, it 
        has a responsibility to divert water and resources needed to 
        fulfill the Tribes' rights, rights that take precedence over 
        any alleged rights of the Irrigators. Accordingly, we hold that 
        the district court did not err in concluding that Reclamation 
        has the authority to direct operation of the Dam to comply with 
        Tribal water requirements.

See also, Department of the Interior and Bureau of Indian Affairs v. 
Klamath Water Users Protective Association, supra.

    The Klamath Tribes are sensitive to the fact that quantification of 
their water rights has the potential to disrupt junior water uses in 
the Basin, including Project water use. Accordingly, several years ago 
the Tribes approached the State of Oregon, the Department of the 
Interior and Project water users to explore interest in developing a 
comprehensive Indian water rights settlement that addresses the 
underlying Basin water problems on a comprehensive ``win-win'' basis.
    Since then, significant progress has been made in fashioning a 
water settlement negotiation framework and in developing principles for 
a comprehensive Basin water rights settlement. Congress often enacts 
federal legislation approving and implementing Indian water rights 
settlements that protect both existing water use and newly quantified 
Indian water use through a variety of means. Such an approach must be 
used in the Klamath Basin where water shortage, poor water quality, 
endangered species issues, and habitat restoration must be addressed so 
that existing water uses can be protected while Indian water needs are 
provided for. Such a result would place all of us, including the 
Subcommittee, on a path to resolving all of the water issues presently 
before us. As discussed below, no other forum exists which can provide 
this relief in one package. The present water crisis should prompt all 
parties to address the water settlement as an extremely high priority.

2. The legal framework for federal water management must be adhered to, 
even in drought years.

    The legal guidelines for Klamath Project water management have been 
clearly set forth by the federal courts and the solicitor for the 
Department of the Interior. See, Klamath Basin Water Users Protective 
Association v. Patterson, supra. See also, United States Department of 
the Interior Regional Solicitor Memorandums, dated July 25, 1995 
(Attachment B hereto) \1\ and January 9, 1997 (Attachment C hereto).\2\ 
Under federal law, Klamath Project water must be managed--in order of 
legal priority--for Endangered Species Act, federal Indian trust 
(including senior water rights), agriculture and wildlife refuge 
purposes.
---------------------------------------------------------------------------
    \1\ ``Reclamation must exercise its statutory and contractual 
authority to the fullest extent to protect the tribal fisheries and 
tribal water rights. Reclamation must also, consistent with its 
statutory, contractual and trust obligations, fulfill the rights of the 
project water users and the refuges.' Id. at 10.
    \2\ ``Pending completion of *the [State of Oregon] adjudication, 
Reclamation is authorized and obligated to manage and operate the 
Klamath Project consistent with all of Reclamation's responsibilities 
and obligations concerning senior water rights, tribal trust resources, 
Project users' contractual rights, the Endangered Species Act and other 
requirements mandated by law and within the authority of the 
Secretary.'' Id at 11.
---------------------------------------------------------------------------
    Accordingly, Reclamation is not free to manage the Klamath Project 
in derogation of the property rights of, or the fiduciary duty owed to, 
the Klamath Tribes; the United States must protect the endangered, 
treaty-protected fish species resident in Upper Klamath Lake.
    In order to comply with the Endangered Species Act, it will be 
necessary for Reclamation to secure an updated Biological Opinion this 
year to incorporate almost ten years of intensive scientific studies. 
These studies were mandated by a Biological Opinion in 1992 and were 
demanded by people who doubted the water needs of the fish. The studies 
show quite clearly that those needs are real. See, Klamath Tribers' 
Letter to Secretary Norton, dated March 2, 2001 (Attachment D hereto); 
Environmental Organizations' letter to Secretary Norton (Attachment E 
hereto).
    As explained in those letters, the law requires that where, as 
here, significant new knowledge bearing on protection of endangered 
species is acquired, that knowledge must be incorporated into a 
Biological Opinion to inform Project operations in order to protect 
survival of endangered species and to respect tribal property rights in 
the Lake fisheries. That science must guide the operation of the 
Klamath Project according to the legal priority described by the 
federal courts.

3. The proposal to lower Upper Klamath Lake during the drought year in 
order to meet agricultural needs is scientifically flawed.

    There is no doubt that all appropriate and legal steps should be 
taken to help farmers adversely affected by the lack of water this 
year. The Tribes are in full support of such relief. However, a 
proposal recently put forth to lower Upper Klamath Lake in order to 
free up water for irrigation use is neither scientifically nor 
biologically sound. It will subject endangered fish to enormous risk of 
a sliding nearer to extinction and will only exacerbate the water 
problems of the Basin.
    The recent proposal ignores the rigorous analysis of fifteen years 
of data provided by a variety of agencies, institutions, and 
individuals. The Lake and its fisheries have been studied closely by 
scientists from the U.S. Fish & Wildlife Service, the Bureau of Indian 
Affairs, Oregon State University, the University of California at 
Davis, the United States Geological Survey, the Klamath Tribes, and 
private consultants. This work is exceedingly well documented, 
incorporating voluminous data sets collected over many years and 
carefully analyzed and presented. This work clearly indicates that both 
fish habitat and water quality will improve if Lake levels are 
maintained above those implied by the recent proposal.
    The proposal stands alone against the great weight of these 
authorities and, unlike these authorities, does not provide a rigorous 
analysis of the enormous amount of information available regarding the 
Lake. Instead, it relies on what it puts forth as general limnological 
principles. Similarly, the proposal's assertion that fish will not 
thrive in deeper water simply flies in the face of reality and history. 
The Lake elevations recommended by the many authorities listed above 
are the levels actually experienced in the Lake for decades--indeed, 
for centuries--during which the fish are known to have thrived.
    The proposal is also flawed in its heavy dependence on highly 
artificial techniques to provide habitat and survival for the fish. 
Creation of artificial spawning beds watered by pumped water, 
biomanipulation of Lake organisms, artificial aeration of water, and 
similar proposals all treat only the symptoms of the Lake's problems. 
We will not recover healthy fisheries by trying to put the fish in 
Klamath Lake on life support systems or treating them as if they were 
living in an aquarium. Until the real underlying issues are directly 
acknowledged and dealt with, Lake fisheries will continue their decline 
toward extinction.
    Finally, it should be noted that the proposal will, over time, 
create the appearance that maintenance of the fishery not maintenance 
of agricultural water deliveries is unnatural and inordinately 
expensive. The proposal will require large amounts of funding forever. 
Once the artificial systems are in place it will begin to be said that 
they are being required by the fish, and it will be forgotten that they 
were put in place to service the demands of agriculture. While this 
problem in itself may not be a fatal flaw, it is indicative of the 
shortsightedness and poor foundation of the proposal.

4. Recommendations for agriculture drought relief measures for this 
water year.

    While the Lake lowering proposal should not be implemented for the 
above reasons, there are other effective ways to provide agricultural 
stakeholders with effective drought relief which the Klamath Tribes 
fully support. First and foremost, federal monetary support can keep 
Project Irrigators whole during the drought period. These are the 
traditional means by which our Nation addresses agricultural problems 
brought on by drought. Even in an average water year like 2000, the 
Department of Agriculture invested billions of dollars into the 
agricultural economy to support farming that was unable otherwise to 
survive. See, Klamath Falls Herald and News (Nov. 29, 2000) article 
entitled ``Farms harvest millions of federal dollars'' (Attachment F 
hereto). These funds should be made available to Basin farmers this 
year, too, to ease the problems caused by drought. Similarly, funds 
associated with ``buy-out'' programs (see, Klamath Falls Herald and 
News, ``Growers to discuss buy-out,'' Nov. 15, 2000 (Attachment G 
hereto)) should also be made available. Given that scale of federal 
financial support for Klamath Project agriculture, protecting the 
government's original investment through more financial aid to keep the 
farms going during this drought makes sense. Spending a relatively 
small additional number of federal dollars certainly makes a lot more 
sense than trying to save the irrigators by destroying what is left of 
the Klamath Lake fisheries and the Tribes' treaty rights.
    And the Demand Reduction Program (see, Klamath Fall Herald and 
News, ``Bureau of Reclamation Announces Pilot Irrigation Demand 
Reduction Program,'' January 1, 2001 (Attachment H hereto)) should be 
supported by the Subcommittee and additional funds secured as 
necessary. In these ways Project agriculture can stay whole while 
Reclamation meets its other legal obligations with superior priorities 
during the water short year.
    Another necessary step includes P.L. 106-498 whose promise is yet 
to be fulfilled. Last year Congress began addressing some of the 
underlying imbalance of water supply and demand by enacting that law. 
The Klamath Tribes supported this legislation as a starting point in 
restoring the balance. Unless all potential water supply augmentation 
possibilities are carefully studied and feasible projects identified 
and implemented, the promised progress will be unavailable. The 
Subcommittee should encourage the Bureau of Reclamation to follow 
through on this work and should provide the necessary funding.
    All of these are interim steps and temporary solutions. The long-
term solution to the water problems that are the subject of today's 
hearing lies in hammering out an equitable and workable Basin water 
rights settlement agreement. The Klamath Tribes have advanced a set of 
principles we believe are integral to such a settlement to: 1) protect 
existing water uses; 2) protect important fishery resources that have 
been brought to the brink of extinction, which includes resolution of 
Endangered Species Act issues; 3) address tribal trust and land 
recovery needs, and quantify tribal water rights; 4) address water 
quality and habitat problems that are some of the underlying causes of 
the water crisis; 5) facilitate water demand reduction, water 
conservation and supply augmentation; and 6) help ensure that the 
parties' water rights are put to the intended beneficial uses.
    The urgent need for prompt action is highlighted by this year's 
drought. The settlement proposal should be taken up at policy levels by 
the state and federal governments. The Tribes will put in as much time 
and energy as the task requires. We call on the Subcommittee to do all 
in its power to remove all barriers to speedy development of the 
proposed Basin water rights settlement.
                               conclusion
    In conclusion, the Klamath Tribes are here because we are committed 
to finding a lasting, effective solution to Klamath Basin water 
problems. That solution lies in recovering a healthy, sustainable Basin 
that can support the livelihoods of us all. We have put forward a 
settlement framework that so far is the only vehicle that can help us 
all reach that goal. We urge vigorous support of that framework and 
pursuit of an Indian water rights settlement in the Klamath Basin.
    Thank you.

    Senator Smith. Thank you, Allen. You mentioned, Allen, 
there was one event that extinguished the salmon. I am 
sincerely asking this. I do not know what that is. Can you 
identify that for me, and just for my own information?
    Mr. Foreman. Sure. The salmon once came up from the ocean 
into the Klamath Basin.
    Senator Smith. Into the Upper, as well.
    Mr. Foreman. Into the Upper Basin. Into the tributaries to 
the Klamath Lake in great abundance. I have an uncle, in 
particular, who fished salmon as a child. And the dams went in 
there and brought those off. So, that is----
    Senator Smith. That is what you are referring to.
    Mr. Foreman. Yes.
    Senator Smith. Do the Tribes fish the suckers, as well?
    Mr. Foreman. Not at this present time. We have closed off 
any fishing of the suckers, because they are--we saw, through 
several decades, that they were reducing in numbers.
    Senator Smith. I see.
    Mr. Foreman. And so, we closed off our fishing of them.
    Senator Smith. But there was a time that they were.
    Mr. Foreman. Definitely.
    Senator Smith. And that is what you were referring to the 
economic hardships, the subsistence culture that was there. 
This has been the part that is no longer a part of this. I do 
not want to mischaracterize what you are saying. I am just 
asking, for my own information.
    Mr. Foreman. Absolutely, Senator. They were--not only the 
fisheries have been lost to us as a food, which is, as I 
mentioned earlier, it is important to us than any other crop 
grown in the basin.
    The deer herds and waterfowl have been reduced to the point 
to where it is a struggle to be able to survive on the 
subsistence from them.
    Senator Smith. Do you have--I mean, I would love to find 
the Solomon-like solution, the long-term solution. And 
ultimately, that is the only thing that we can find that will 
work for everyone, but I think you have in mind some sort of 
contraction of the farm community. Do you have a sense of how 
much it must contract?
    Mr. Foreman. I think--obviously, I mentioned that we have a 
proposal out there, and basically, a long-term solution. In the 
short-term, I think it would not do anyone any good to 
additionally put the suckers at risk of the chance, as I heard 
mentioned here earlier, that they would be lost forever.
    I do not know that that would be any good, but we are 
willing to work with anyone for a solution. We really do not 
see much merit in the quick-term fixes that have been 
suggested, because they are going to institute a program of 
large amount of dollars coming in to set up the quick-term--
aeration, for example.
    And it is something that is going to have to be carried on 
forever. It is going to have to be done year after year after 
year. And we really do not advocate that type of solution. We 
want to restore the system to what the system originally was.
    And there is a tremendous need. I support any program, 
financially, to help the ranchers and farmers this year and in 
the short-term.
    Senator Smith. I do not know the specifics of the proposal 
you have out there. What has been the response of the 
Department of the Interior to it and the State of Oregon?
    Mr. Foreman. The State of Oregon--and of course, it was the 
subject of the last ADR meeting--in our Alternate Dispute 
Resolution meeting. And the State of Oregon presented it at 
that point.
    The proposal that we have out here is not set in stone, but 
it is all the items in there that we listed are important to 
us. And we want to sit down with the different groups and talk 
about these.
    Senator Smith. We will do that with you, Allen. Thank you 
for being here.
    Mr. Foreman. Thank you.
    Senator Smith. Reed Marbut, the mic is yours.

STATEMENT OF REED MARBUT, INTERGOVERNMENTAL COORDINATOR, OREGON 
             WATER RESOURCES DEPARTMENT, SALEM, OR

    Mr. Marbut. Thank you, Senator Smith, Congressman Walden, 
and members of the committee. My name is Reed Marbut. I am the 
intergovernmental coordinator for the Oregon Water Resources 
Department. I have submitted written testimony and would ask 
that that be included in the record.
    Senator Smith. Without objection.
    Mr. Marbut. I appear here on behalf of both Director Cleary 
and Governor Kitzhaber.
    I think the first comments should be that we have not--
Klamath County has not been officially declared a drought, but 
that is just because the paperwork has not moved. I was told 
today on the phone that Klamath County will be the first county 
enrolled for declaration of a drought.
    As a part of the declaration of drought, we are hoping that 
some Federal assistance can become available that might not 
otherwise be available. But it is my understanding that Klamath 
County has submitted a request to the Drought Council for 
declaration of a drought. The Drought Council is meeting this 
week. And we think that it will go forward to the Governor for 
a final declaration. That, as I say, may help; maybe not.
    This 2001 season may go down in history as way more than a 
drought. It is clearly a drought crisis. And we, in 
government--and I do not think any individual can do anything 
about the weather--but we certainly can do something about our 
reaction to the crisis.
    On page three--and this is a reiteration to some of the 
things that Allen has discussed. On page three of my written 
comments, I clearly describe that this is a federally 
engineered basin. And I give you a litany of--and just for the 
record--the Federal activities in the basin. It is classically 
over-commitment, as Allen has stated.
    We have treaties with Tribes that committed water. We have 
a national park--Oregon's only national park; a national 
wildlife--four national wildlife refuges. The basin was open to 
homestead. And those homesteaders are expected to be able to 
get water. And in fact, they filed applications with the State 
and received water rights.
    There is a Reclamation Project; again, more water. National 
forests--two--three national forests; more water. Wild and 
scenic water designation; more water. Wilderness areas; water. 
And six hydroelectric producing facilities in the Hydro 
Project.
    That follows up on Allen's position at the end of his 
discussion that with this over-commitment, we are now going to 
need a strong Federal commitment to get us by this year and 
future years.
    The Water Resources Department is involved in a number of 
forums with respect to the Klamath Basin. Obviously, the first 
and most obvious is the adjudication, but remind you that there 
is also the Compact Commission. And Director Cleary serves as a 
member of that commission.
    We have 700 claims filed in the adjudication, and 5,000 
contests. Ultimately, once this adjudication is completed, it 
will be the job of the State of Oregon to allocate and regulate 
the water in that basin.
    Let me point out, and it should be noted, that of the 700 
claims, over half are filed by the Federal Government, and no 
fees were contributed to the adjudication process for that. 
That entire burden is riding on the backs--excuse me--of the 
claimants who did pay fees and the taxpayers of the State of 
Oregon.
    The Department has initiated an Alternative Dispute 
Resolution, which we hope will prove fruitful as time goes by.
    I want to stop here and follow up on something Allen said, 
and that is the settlement offer. The Klamath Tribes have truly 
been a leader in the ADR. They deserve the greatest credit for 
coming forward with constructive approach to this process. The 
current settlement proposal that they have provided--and I 
encourage the Tribe to make a copy of that available to the 
committee and have it as a part of the record.
    It is presented in the greatest spirit of cooperation and 
progressive leadership. It provides some elements that could 
get us out of long-term repeated crisis. And we hope that the 
entire community respects it in the spirit in which it was 
offered.
    I think, probably, Senator Smith, you asked Allen how that 
has been received with the Federal agencies. We are concerned--
we, in the State of Oregon, are concerned that it is not 
perhaps receiving the respect from the Federal agencies that it 
should. We are hoping that the spirit of the new Bush 
administration for supporting locally-driven solutions will be 
reflected in a commitment by the Federal agencies to support 
the Tribes in their offer of settlement and not attempt to 
structure that settlement from Washington.
    We think we, in the community, with the Tribes' leadership 
and the leadership of the irrigation community, can achieve 
settlement. And that settlement cannot only include the 
adjudication, it can include Clean Water Act issues, basin 
restoration, wetlands restoration, and of course, the ESA.
    We hope that this community can express its support any way 
that gets the attention of the Federal agencies, so that they 
will support us, and we will not have to worry about sending it 
to the black hole called Washington.
    Senator Smith. Reed, I will do everything I can to get that 
kind support. I just think it is imperative. It is the only way 
this will last and be meaningful to everybody concerned. And I 
have talked to Secretary Norton last Friday about this very 
thing. And I think there is a lot of willingness on her part to 
get involved at a policy level to achieve that very thing.
    And obviously, we have to deal within the bounds of the 
law, but I think the spirit of this administration is to give 
effect to things like what is being proposed locally at the 
Oregon salmon plant. This is how it works. As opposed to just 
gridlock, we can actually make some real progress. So we will 
do that.
    Mr. Marbut. Thank you, Senator.
    Let me conclude, quickly, by indicating Oregon's 
perception--and I do not mean to point fingers, call names or 
anything--perception of some of the Federal processes that were 
discussed earlier when the former panel was here, and that is 
the perception that we see--and it may not be the intent, but 
it certainly comes forward as what we see--and that is there is 
two earmarks of the Federal process. It is pretty simple. 
Secrecy and inflexibility.
    There was discussion about the fact that the Hardy program, 
the States were involved. The State of Oregon has never, not 
once, received a request to participate in that, nor suggest 
peer review possibilities.
    We have not been involved. We are not even on the mailing 
list for the early biological information, BOs that have come 
down the pike. We receive these. We often find out about 
activities in the Klamath Basin by reading it in the Herald 
News, and then we go searching for copies, and we find copies. 
But we are not included, up-front, in these discussions. We are 
not asked our opinion as to expertise. There is a lot of that 
in the State of Oregon, as you well know.
    This is a bit different than it occurs in a number of other 
areas; the Deschutes Basin, the groundwater work, where we were 
involved early on; the Columbia River activity. And of course, 
the Governor has been a leader in that area.
    Again, this is a perception. I do not want to be saying I 
am telling how they do this, how they structure and how they do 
it, only what our perception is.
    The Governor has asked me to come here and ask the very--
take the same position that you expressed earlier, and Senator 
Wyden stated earlier, and that is what is needed here is 
flexibility. We requested that, and it was received in 1992. We 
requested that, and it was received in 1998. And we reiterate 
that request. And it is a part of our written testimony.
    We want flexibility. It appears that everybody is going to 
have to share the shortage. And we would hope that we can take 
advantage of every bit of technical information available to 
verify that flexibility and maintain the legal standards that 
we must.
    With that, I would like to conclude my remarks. Thank you, 
Senator.
    [The prepared statement of Mr. Marbut follows:]
   Prepared Statement of Reed Marbut, Intergovernmental Coordinator, 
              Oregon Water Resources Department, Salem, OR
                              introduction
    Mr. Chairman, members of the Subcommittee, I am Reed Marbut, 
Intergovernmental Coordinator for the Oregon Water Resources 
Department. I am pleased to provide this testimony on behalf of 
Governor John Kitzhaber and the Department in support of S. 2882, the 
Klamath Basin Water Supply Enhancement Act of 2000 (P.L. 106-498) and 
the water supply augmentation efforts authorized under that law. When 
fully implemented, P.L. 106-498 will benefit interests both within and 
beyond the Klamath Basin who depend upon and value the Basin's water 
for economic, tribal, and environmental purposes. We request that this 
testimony, along with the attached remarks we provided at the November 
Klamath Community Forum, be included in the Subcommittee's record.
    The Klamath River Basin, like many river basins in the arid, 
western United States, is chronically short of water for both its 
natural ecosystem and the ever increasing needs of a modern society. 
The Basin is home to a multitude of native fish, waterfowl and wildlife 
species that depend on an abundance of clean water in the Basin's 
lakes, streams, wetlands and refuges. In addition, the Basin supports a 
large, robust agriculture and recreation community. Finally, the 
Klamath is an interstate river with substantial tribal and federal 
interests, and is thus subject to all the complex issues related to 
multiple jurisdictional authority.
          klamath basin water rights and water administration
    The State, through its Water Resources Department, is involved in 
multiple forums seeking resolution of water resources issues in the 
Klamath Basin. The Director sits as a member of the Klamath River Basin 
Compact Commission, which administers the 1957 Klamath River Basin 
Compact. [Pub. L. 85-222, 71 Stat. 497 (1957)]. In recent years, the 
Compact Commission has become increasingly engaged in efforts to find 
solutions to conflicting demands for water throughout the Basin. The 
Department also is responsible for the administrative proceedings in 
the Klamath Basin Adjudication. This Adjudication will document rights 
to water established before 1909 under state law as well as federal and 
tribal reserved rights. The Klamath Adjudication was initiated in 1975 
as a McCarran Amendment general stream adjudication. There are over 700 
claims in the adjudication, 400 of which were filed by the United 
States and the Klamath Tribes.
    The Klamath Adjudication is the first in Oregon to involve complex 
federal and tribal reserved right claims. All adjudication claims were 
filed by April of 1997. Over 5000 contests have been filed in the 
Department's administrative process. Resolution of the contests and the 
final determination of these rights could be lengthy and costly for all 
participants. In addition to the private and federal adjudication 
claims, the Department has also issued permits for appropriations 
initiated after 1909. Ultimately, the Department will be responsible 
for the regulation of all water rights according to priority and 
entitlement. (It should be noted that no adjudication fees have been 
paid so far by the federal or tribal claimants, thus state taxpayers 
and the other claimants are absorbing all of the adjudication 
administrative costs.)
           klamath basin alternative dispute resolution (adr)
    In 1997, after all the claims had been filed in the Adjudication, 
the State, in consultation with other interests, initiated an 
Alternative Dispute Resolution Process (ADR) to seek resolution of 
conflicting claims for water. With hundreds of claims and water rights, 
and with heightened awareness of environmental issues, including water 
quality concerns and the listing of several threatened and endangered 
fish species in the Basin, water allocation is approaching crisis. 
Unless we can identify constructive and balanced alternatives, we will 
be faced with the impossible choice between protection of the Basin's 
nationally significant environment and continued existence of the 
equally significant agricultural industry of the Klamath valley 
community.
    Competition for water has become intense in the Klamath Basin, and 
is complicated by interstate issues, environmental statutes, and 
previously unrecognized tribal rights. The Department realized the 
adjudication could only address some of the conflict. When rights are 
decreed by quantity and priority date, there may be winners, but it is 
certain that there will be losers, including claimants whose needs are 
legitimate. The adjudication, by itself, cannot increase the amount of 
water available; nor will it address water quality issues. The ADR is 
intended to produce settlements that can address multiple interests and 
needs and thus avoid the need for lengthy, costly, and uncertain 
litigation.
                      2001 water supply emergency
    Recent snowpack, precipitation, streamflow and water availability 
analyses by state and federal agencies indicates we may face a water 
supply emergency for the 2001 season. Unless there is a complete turn-
around in the climatic conditions between now and summer, there is no 
question we will be facing a serious water supply shortage. Current 
forecasts indicate that there will not be enough water to meet even 
minimal irrigation needs and the various wildlife refuges may be denied 
water altogether. Local officials have expressed concern that all 
emergency measures be considered. On Monday, March 19, 2001, the 
Governor received a request for a drought declaration from the Klamath 
County Board of Commissioners. Pursuant to state law, the Governor will 
refer the Commissioner's request to the state drought council for 
consideration at their March 23 meeting.
    Governor Kitzhaber is supporting the Department in its efforts to 
work with local interests and the federal agencies to develop programs 
for both short-term emergency drought relief and long-term water supply 
options. In the near-term, we are working with the Bureau of 
Reclamation to find ways to provide some form of relief for Project 
irrigators who may not receive a full allocation of water. These 
efforts involve both demand reduction programs and supply augmentation, 
including development of groundwater sources to replace depleted 
surface water supplies. In the long-term, we are working with a number 
of interests in the Basin to develop dependable water supply and 
conservation concepts, along with watershed restoration initiatives.
    In addition to these efforts, we are committed to the ongoing 
Klamath Basin Alternative Dispute Resolution (ADR) process. 
Fortunately, almost all the various interests in the Basin are actively 
involved in the ADR and seem willing to bring not only problems but 
solutions to the table. Hopefully, our collective effort will produce 
solutions that will benefit all entities and interests.
    However, notwithstanding efforts of local participants and the 
State's commitment, it is the federal government that must provide the 
major building blocks and funding for a lasting solution to the Basin's 
water supply/demand imbalance. The Klamath is a classic example of a 
federally engineered Basin. The U.S. Government signed treaties with a 
number of tribes in the Basin, promising water in the process; it 
dedicated a national park and four national wildlife refuges which must 
have water to exist; it opened a substantial area of the Basin to 
homestead by irrigators many of whom also applied for and received 
water rights under state law; to provide water for a number of these 
homesteaders it established the Reclamation Project with state support; 
it created three national forests and designated several wild and 
scenic river corridors and wilderness areas, all with significant water 
needs; it licensed a major hydroelectric project with six generation 
facilities on the Klamath River in Oregon and California; it enacted 
the Endangered Species Act and declared a number of the Basin's aquatic 
species threatened or endangered; and it enacted the Clean Water Act 
and mandated that the Basin's water quality be improved.
    Clearly the U.S. Government has promised the Basin's water many 
times over while also imposing numerous requirements on the storage and 
use of this water. And just as clearly, the U.S. Government must 
address these resource conflicts. In our view, especially in this dry 
year, a just approach would spread the water burden among all the 
competing demands, rather than placing it all on one interest. The 
federal government did not cause the water shortage emergency of 2001, 
however, past federal actions and policies are clearly significant 
components in the Basin's drought vulnerability.
           endangered species act and 2001 project operations
    The U.S. Fish and Wildlife Service (USF&W) just released its 2001 
draft biological opinion for operation of the U.S. Bureau of 
Reclamation's Klamath Project. In this opinion, the USF&W asserts that 
the level of Upper Klamath Lake must not fall below certain minimum 
elevations, including a minimum elevation of 4140 feet above sea level 
in September of 2001. Without evaluating or questioning the biological 
soundness of this opinion's conclusions, including the minimum lake 
levels set out in the opinion, the State of Oregon recommends that the 
federal agencies seek opportunities for flexibility in its operation of 
the Project. This is the same recommendation that the State advanced in 
1998 in its comments on the Bureau of Reclamation's 1998 Klamath 
Project Operation Plan.
    It should be noted that, in addition to the USF&W biological 
opinion concerning the endangered species in Upper Klamath Lake, we 
expect that the U.S. National Marine Fisheries Service (NMFS) will soon 
publish its biological opinion concerning protection and recovery of 
the Klamath River coho salmon. It is anticipated that this opinion will 
call for significant releases of water from Upper Klamath Lake. It is 
important to ask whether the Upper Klamath Basin and the Klamath 
Project can or should be used as the sole or primary source of water to 
meet federal trust obligations or Endangered Species Act (ESA) 
responsibilities throughout the Basin. Under both the USF&W biological 
opinion and the expected NMFS opinion, project water users in the Upper 
Basin bear the full burden of meeting these federal responsibilities. 
Moreover, the alternatives presented in the USF&W biological opinion 
fail to adequately address the federal government's obligations to 
project water users, as reflected in the Reclamation Act of 1902, the 
Project's authorizing legislation and subsequent implementing measures.
    In our plea for flexibility in Klamath Project operations, the 
State of Oregon recommends that the burdens of the ESA, tribal trust 
obligations and the longstanding commitment to the irrigation 
community, be balanced equitably, with long-term sustainability of all 
interests as an overarching goal. We believe the USF&W, in its 1992 
biological opinion, adopted such a balance. The 1992 Opinion allowed 
for occasional deviation from the firm minimum lake levels in emergency 
water shortage years. Implementation of this sort of flexibility could 
save the Klamath irrigation community in this crisis environment, while 
still protecting other interests.
    We note that a new impact evaluation and plan for recovery of Upper 
Klamath Lake endangered fish prepared by a respected limnology expert 
is now available. This plan could help to verify the biological 
reasonableness of the lake level flexibility we urge. We believe it is 
possible to complete the USF&W and NMFS Section 7d consultations in a 
way that will allow implementation of a 2001 operation plan that will 
not irretrievably commit resources to the detriment of endangered 
species or tribal trust obligations nor deprive the Project irrigators 
of water for essential needs.
    The state is also concerned about the practical impacts of the new 
biological opinion on project water users. In this dry water year, it 
is clear the project water users will suffer significant financial 
losses. However, the message being delivered to project water users is 
that they will pay the full cost of a collective public and Basin 
responsibility, with no opportunity for collaborative discussions among 
affected interests to seek a more equitable approach to addressing the 
hardships of this dry year. Clearly this is the wrong message to be 
delivering at a time when the state is seeking good faith participation 
by all affected interests in its ADR process. We have also been advised 
that the potential impact of the new biological opinion has had an 
immediate effect on the availability of agricultural financing in the 
Basin. Understandably, few lenders are willing to underwrite cropping 
plans for this season without greater assurance concerning the risk of 
water curtailment. As such, it is essential that Project operations be 
given flexibility as soon as possible to stretch available water 
supplies and equitably spread the burden of shortages across all Basin 
interests.
                               conclusion
    We will do everything in our power to encourage the federal 
agencies to search for flexible, creative and balanced solutions and to 
participate in a collaborative processes in a meaningful way. We have 
gone to court to uphold the State's adjudication under the McCarran 
Amendment and we will use every bit of persuasion we can to encourage 
all parties continued participation in the ADR. We are optimistic that 
long-term solutions can be found; however, we recognize that the short-
term does not look optimistic. The Bureau of Reclamation has allocated 
some $4.0 million to help alleviate some of the critical shortage this 
year. We hope to find other short, and long-term options through the 
ADR, implementation of P.L. 106-498, and other ongoing efforts, and we 
ask for support from Congress in these ventures. Thank you for your 
interest and assistance.
              Meeting the Growing Needs of the Upper Basin
    remarks by paul r. cleary, director, water resources department
    Thank you for the opportunity to participate in this community 
roundtable discussion and deliver these remarks on behalf of Governor 
Kitzhaber and the Oregon Water Resources Department.
    The Klamath Basin has become a national focus for environmental 
issues, especially those issues related to water. It is essential that 
national policy makers respond to this focus in ways that recognize the 
local ramifications of their decisions and actions. The Basin's economy 
and culture are dependent on an abundant and balanced supply of water 
for agriculture, fish and wildlife. However, decisions made without 
involvement and support of the Basin's stakeholders can undermine 
efforts to develop an equitable, comprehensive approach to management 
of the resource. We cannot ignore the delicate balance between water 
use demands and protection of the environment as we attempt to plan for 
the future. We also cannot ignore the need to directly involve the 
Basin's stakeholders in the crafting of those plans.
    The Oregon Water Resources Department is currently engaged in the 
adjudication of water rights in the Klamath Basin. The adjudication 
will determine the priorities of private, federal and tribal water 
rights, and thus is key to future regulation of water uses in the 
Basin. To date the Department has dedicated some $2 million in funding 
to the adjudication proceeding in order to complete the administrative 
phase of the adjudication as soon as possible. However, it must be 
acknowledged that the effect of the adjudication is to create a list of 
senior and junior rights--those who can depend on receiving water and 
those who will not have a dependable supply.
    Given the finality of the adjudication process and the potential 
winner-loser result, Governor Kitzhaber and the Department believe an 
alternative process for resolution of water apportionment decisions is 
essential. With the Governor's active support, the Department initiated 
an alternative dispute resolution (ADR) process in the fall of 1997. At 
a minimum, the ADR has created a forum for exchange of information. It 
was also designed to produce settlements that address interested 
parties' water needs and avoid lengthy, costly, and uncertain 
litigation. Our monthly ADR meetings have been attended by 
representatives of most of the stakeholders, tribal governments and 
interest groups in the Basin, including those portions of the Basin 
located in California. Negotiating groups have been established, some 
of whom have made significant progress. We believe the ADR can be used, 
not only to settle adjudication claims, but to develop collaborative 
approaches to meet tribal trust, Endangered Species Act (ESA) and Clean 
Water Act requirements.
    Neither the ADR nor any of the other Basin problem solving ventures 
will succeed unless solutions are developed from the bottom up with all 
stakeholders are at the table. State, federal, tribal and local 
stakeholders must be fully engaged in the process. Those at the table 
must be authorized to negotiate and committed to the development of 
compromises and long-term settlements. Likewise, non-governmental 
stakeholders must have a voice in the governmental decision-making 
process, including decisions affecting operation of federal water 
storage and irrigation facilities and programs. The most obvious of 
these is the Bureau of Reclamation's Klamath Project. The Klamath Basin 
community generally, and the irrigation stakeholders in particular, 
must be involved in Project operation planning and decision-making.
    The State of Oregon is at the table, fully committed to help seek 
solutions, and supportive of all available approaches to solving the 
Basin's water issues. Solutions will likely include a broad range of 
efforts from watershed and wetland restoration to water supply 
augmentation and water demand management. In addition, we are confident 
that the Basin's stakeholders are committed to a constructive, solution 
oriented dialogue. We also urge the federal agency stakeholders to be 
full partners in that dialogue. This is not to say that the local 
federal representatives have not attempted to seek community input. 
However, it is critical for all governmental entities--state, tribal 
and federal--to be fully committed to engage local stakeholders in the 
decision-making process. Local stakeholders must be part of federal 
decisions concerning Project and refuge operations in order to be 
motivated to participate in the implementation of those decisions.
    Time is growing short to resolve the Klamath Basin water issues in 
a collaborative and comprehensive manner. We do not have time to re-
hash all the mistakes that have been made, nor should we allow those 
mistakes to be repeated. The State is encouraged by the Congressional 
delegation's interest in these matters. Federal commitments and 
resources are essential to resolving the many complex water issues in 
the Basin. We hope this heightened interest results in a renewed 
commitment by all parties to become part of the solution in the Basin.

    Senator Smith. Do you have a question?
    Congressman Walden. If I could, Mr. Chairman.
    Reed, I just want to follow up with--Hardy's study seems to 
be stuck in my mind. Have you requested of these agencies or 
has the governor, of the ability to participate in this 
process?
    Mr. Marbut. Oh, yes.
    Congressman Walden. And which ones have turned you down?
    Mr. Marbut. The requests are in the form of letters for 
information and oral requests. And it is not necessarily a turn 
down, as much as it is no action.
    Congressman Walden. No response?
    Mr. Marbut. No response. And in some cases, we were told 
the process we have set up has a--I do not want to improperly 
phrase this or in an accusation, but this is the way the 
process is designed. And you are not on that list.
    Congressman Walden. So, the State--what you are saying is 
the State of Oregon is not on the list.
    Mr. Marbut. That is right.
    Congressman Walden. I do not get it. I would love to, maybe 
at the end of this panel, have the Federal folks come back and 
explain. Do they say that is it because of this FACA ruling 
or----
    Mr. Marbut. We have not pursued the--the excuse is we are 
trying to maintain a--obviously, we are in a very delicate 
position. We are the adjudication. We are the independent 
decision-maker on the water rights. We are the facilitator on 
the ADR.
    We do not want to force our posture in any particular place 
where we--I do not want to say unwelcome--where we see other 
organizations carrying on a process that they feel they must 
carry on in their way, we are not attempting to force our way 
in the door, because we have, very frankly, bigger fish to fry, 
so to speak.
    I mean, we have got things we need to get done. And we have 
a forum. And we are hoping to encourage participation there, 
rather than create impediments to the participation by forcing 
our interests.
    We would hope that we would be welcomed into this process.
    Congressman Walden. Is there any representative from any of 
the State agencies that is welcome in this process?
    Mr. Marbut. Not that I know of.
    Congressman Walden. Thank you, Mr. Chairman.
    Senator Smith. Roger Nicholson.

STATEMENT OF ROGER NICHOLSON, PRESIDENT, RESOURCE CONSERVANCY, 
                        FORT KLAMATH, OR

    Mr. Nicholson. Thank you, Mr. Chairman and Congressman 
Walden.
    I appear before you today as a rancher and as president of 
Resource Conservancy, which represents non-project lands in the 
Klamath Basin. Non-project lands encompass over one-half of the 
irrigated land in the Klamath Basin. For the most part, these 
lands lay to the north of Klamath Lake and are a large part of 
the watershed of the project lands.
    I would like to say that we are--as non-project irrigators, 
we are very, very supportive of the project irrigators and 
their desire to have both short- and long-term water desires. 
We are an agricultural community. And we need water for both 
the project and the non-project clans.
    And with saying that, I will have to say that I am going to 
limit my comments today on Public Law 106-498, rather than on 
the other issues that have been described, even though they are 
very important issues to us.
    How Public Law 106-498 is implemented is very important to 
non-Federal irrigators. I know the majority of the comments 
today will be directed at the Federal project lands and 
operations, but water issues know no boundaries within a basin.
    Upper and Lower Basin water users face many of the same 
problems. And usually, any answer to these problems will 
require the cooperation of everyone.
    With that said, I would like to focus my remarks on what we 
feel were missed opportunities under Public Law 106-498, and 
what might be done to re-open these doors of opportunity.
    First, there was no real effort by the Bureau of 
Reclamation to reach out through the Oregon Department of Water 
Resources to work with non-Federal project users. A tremendous 
opportunity exists, working with the Upper Basin landowners, 
developing groundwater sources, water storage facilities, and 
improvement of the yield of the watershed through ecosystem 
enhancement.
    A specific example can be given on how these efforts can be 
used to develop a win-win situation. Crater Lake National 
Park's domestic water supply comes from Annie Creek, a 
tributary to Upper Klamath Lake. A good chance exists that in 
the near future this water supply will be denied due to earlier 
date calls on Annie Creek.
    A possible solution would be for Crater Lake National Park 
to have a well drilled on private lands. This would be in 
exchange for subordination to the National Park's use of Annie 
Creek water resources. Private landowners have indicated an 
interest in drilling a large well to augment irrigation water 
supplies. This type of project has never been done before, but 
we feel it should receive special consideration.
    If National Park Service funds were available, a large well 
could be drilled and an endowment upkeep and operating budget 
created. A large augmentation well would allow less surface 
diversions from Annie Creek. Less surface diversions would 
leave more water instream for fishery resources.
    Also, more water instream would mean more water flowing 
into the Upper Klamath Lake, thereby helping the lake fishery 
and helping supply the needs of project users. We are excited 
about the possibility of these win-win situations.
    We are told that no funds are available for these types of 
projects, which seems to fly in the face of the purposes of 
Public Law 106-498. All available funding seems to be dedicated 
to short-term retirement of water rights in project lands, 
because of water shortages.
    While this is a laudable program, we do not see the 
connection with Public Law 106-498. We thought funding under 
this law was to develop a long-term augmentation and not for a 
Band-Aid approach.
    Mr. Chairman and members of the subcommittee, there are 
many opportunities to augmenting water supplies in the Klamath 
Basin. We, in the Upper Basin, want to do our part. However, to 
do this we must try new methods; we must have strong 
management; and we have to develop solutions that make sense on 
the ground.
    We appreciate all the work that has been done to date by 
you and your staff, but we still have a long way to go, and we 
stand ready to help.
    Thank you, Mr. Chairman. Thank you, Congressman Walden.
    Senator Smith. Thank you, Roger.
    Glen Spain.

   STATEMENT OF GLEN H. SPAIN, NORTHWEST REGIONAL DIRECTOR, 
 PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, EUGENE, 
                               OR

    Mr. Spain. If I could have the staff bring that a little 
forward, so that we could see it, because I will--we will want 
to refer to it.
    [Chart.]
    Mr. Spain. Thank you, Senator Smith.
    Thank you, also, Congressman Walden.
    I am here as an Oregonian. And I am also here as the 
Northwest regional director of Pacific Coast Federation of 
Fishermen's Associations.
    PCFFA is the west coast's largest organization of 
commercial fishermen. We represent small and mid-size family 
fishermen in every port on the west coast, through either our 
associated members or individual members.
    One of the things that I base my premise on is that family 
fisherman who are, after all, family food providers, also have 
a right to survive in the Klamath Basin, and that family 
fishermen's jobs are just as important as family farmers' jobs. 
We are, in fact, family food producers, all. And we find 
ourselves, all too often, in the situation where the needs of 
Upper Basin water users are pitted against the needs of the 
Lower Basin water users, including the fishing industry, 
itself.
    This is very counterproductive. And it is a result of a 
crisis that is fundamentally an over-appropriation and 
misallocation crisis. It is--you know, Water Resources in 
Oregon will tell you that most every basin in Oregon is now 
over-appropriated at least part of the year.
    These kinds of crises are endemic, and they will get worse, 
unless we do one of two things; preferably both. We have to 
reduce demand in some way that is rational and equitable to the 
people involved. And we have to increase supply.
    As you know, Senator Smith, we were a strong supporter of 
S. 2882, which now is Public Law 106-498. We very much 
appreciate your leadership. I testified before this very same 
committee in 1994, when Senator Hatfield had field hearings in 
Klamath Falls, and made the same pitch, basically, that we need 
to augment the water supply and store more water, so we get 
away from the over-appropriation problem.
    The other problem is that--and I have to chide you both a 
little bit for fragmented thinking, insofar as we typically put 
great faith in political boundaries and not hydrological or 
ecological boundaries.
    Two-thirds of the Klamath Basin is in California. A great 
number of people depend on the water released from the Klamath 
Project through Irongate Dam, including our industry and many 
lower river communities. And the inriver communities of the 
Tribes, the Yurok and Karuk Tribes, we are all stakeholders.
    I am very much in favor, Congressman Walden, of a 
stakeholders' input process, but we are all stakeholders. We 
cannot have a resolution to these problems that involves only 
the Upper Basin and Upper Basin interests. We have to be 
everywhere.
    Many of the problems are not ESA driven. As you know, many 
farming problems are driven by global trade issues, by producer 
and processor capacity leaving the basin. Those are serious 
problems and cannot be attributed to either the ESA or 
ultimately to water use issues, although, those have 
exacerbated a lot of these issues.
    We have a lot of similar problems. We have a lot of 
solutions that we can work on with--and I am certainly happy on 
behalf of our constituency, which includes a great deal of 
coastal communities in Oregon.
    As you see from the table here, the majority of fish--
salmon, particularly, the fall chinook--coming out of the 
Klamath Basin go both north and south. Roughly, 30 percent of 
all salmon harvested in this region, from Coos Bay to--Coos 
Bay, Oregon, from Fort Bragg, California, come from the 
Klamath. Now, these are not ESA listed species. They are fish 
that require water. They require clear, clean, cold water in 
some abundance. Many of these are hatchery fish, originating at 
Irongate Hatchery, which is right below Irongate Dam. It is 100 
percent dependent on whatever flows are released from Irongate 
Dam.
    The other problem with this is, not only if we wind up with 
major fish kills because of lack of water or poor quality water 
downriver, we wind up with huge economic losses for coastal 
communities in Oregon, as well as in northern California.
    But another factor of fish management is that we are 
operating coast-wide on a weak fish management structure. That 
means the weakest fish is the limiting factor for harvests on 
all fish. However many fish there are, from however many 
hatcheries, we cannot catch them, if there are major fish die-
offs in the Klamath Basin.
    And those are impacts; economic losses in the tens--nearly 
$100 million in economic losses that cascade all the way from 
Monterey, California, up to the Canadian border.
    So, what happens in the Upper Basin, how much water is 
released from the Upper Basin, the quality and quantity of that 
water directly impacts jobs in every coastal community from 
Northern California all the way up to the Canadian border.
    We have a very strong interest. In addition to that, one of 
the problems is that the Karuk Tribes and the Yurok Tribes are 
not here. They have tribal treaty rights that amount to water 
rights in the lower river. They have a big stake in this game, 
just as much as the Klamath Tribes do, and for the same 
reasons. They need to be here at these kinds of hearings, as 
well. I understand they submitted some written comments for the 
record.
    Senator Smith. Just for the record, Glen, admittedly, this 
is Upper Tribes, because that is where Oregon is, but----
    Mr. Spain. I understand.
    Senator Smith [continuing]. Senator Feinstein is a member 
of this committee and she has offered to hold a hearing on the 
Lower Klamath issues, as well.
    Mr. Spain. That is a very good idea. I would suggest that 
should be in Eureka.
    Senator Smith. Yes.
    Mr. Spain. Total losses, right now--salmon--in the Lower 
Klamath have been about 89 percent. In other words, we are at 
89 percent of historical numbers. That is a huge loss. That 
translates to, roughly, 3,780 lost jobs in lower river 
communities. That translates to a net of economic drag--a net 
economic loss of over $75 million. And this is why I say this 
is a misallocation process. We need water in the lower river.
    The Upper Klamath system uses about 30 percent of the total 
volume of the river; not 2 percent. I have heard that figure. 
And that is a bogus figure. And I supplied some of the 
citations for you in my testimony--about 30 percent in dry 
water years. And that is a serious drain on the whole capacity 
of the river system; particularly important in the dry season, 
as the fish are coming up to spawn. And that is where it is 
crucial.
    Some of the solutions--I mean, Senator Wyden, rightfully 
so, challenged the agencies to come up with a nitty-gritty list 
of what they can do in the next few weeks, because we really 
need to do. One of the solutions, clearly, is get more money to 
take advantage of these 550 farmers who are willing to forego--
because of economic reasons and global trade issues and things 
like that, willing to forego the farming to provide the water.
    Right now, by my account, roughly, $27 million short in 
that program. I would suggest a special appropriations--
emergency appropriations for this drought emergency would be 
appropriate. The other thing, of course, is we need an 
immediate declaration of emergency, so we can focus some 
Federal funds that already exist; we do not have a big 
bureaucracy.
    There are programs where we could provide a win-win. There 
are inherent conflicts between row crop agriculture and the 
wildlife refuges, Tulelake agriculture. There are also well 
over 500 lots outside the Tulelake wildlife refuge for sale. 
Why do we not leverage those; give them over on leases, so that 
the people in the refuge have some replacement land that they 
can make living at, outside the refuge, then restore that to 
wetlands?
    Now, wetlands is an undervalued asset. Seventy-five percent 
of the wetlands in the basin have been lost, historically. And 
this is one reason we do not have a lot of water to buffer 
droughts.
    Now, my estimates--our little calculation, one acre of 
wetland with one acre foot of water will store 325,000 gallons 
of water. That is a lot of water for a lot of wetlands.
    In addition, those wetlands serve filtration functions to 
clarify the water; they serve fish and wildlife functions. 
There are a lot of things that we can do there, in terms of the 
wetlands. And the irrigation community has been really a leader 
in looking at wetlands restoration, because they know it means 
more overall water to get us through periods like this.
    Another thing that can be done is Link River is--there is a 
proposal on the table, being thoroughly looked at, to raise 
Upper Klamath Lake by a couple of feet. I think that makes 
excellent sense. And I certainly support that effort, assuming 
we can get an environmental analysis out of that, and that it 
is not going to damage any of the property ownership around the 
lake. And that can be taken care of.
    Those are some things--obviously, urgent emergency 
conservation measures, triggered by a declaration of drought, 
including recompense programs for farmers who will simply have 
to defer making a livelihood from that source, simply because 
there is not enough to go around.
    And my office and my organization, as the west coast's 
largest organization of commercial fishermen, coast-wide, 
stands ready to aid your offices at anytime for any of these 
programs, and to lobby with any of the irrigation community or 
any of the agencies on the Hill to get money, because I think 
that, of all things, getting some infusion of money through 
disaster relief programs, and through a willing seller, 
purchase some water rights, right now, is the best thing we can 
do for the next 4 weeks.
    [The prepared statement of Mr. Spain follows:]
   Prepared Statement of Glen H. Spain, Northwest Regional Director, 
    Pacific Coast Federation of Fishermen's Associations, Eugene, OR
    Good morning. I am the Northwest Regional Director of the Pacific 
Coast Federation of Fishermen's Associations (PCFFA), the west coast's 
largest organization of commercial fishing families. PCFFA represents 
thousands of working men and women of the west coast commercial fishing 
industry and has member fishermen's associations and individual members 
in ports from San Diego to Alaska.
    We are a major west coast industry, generating many billions of 
dollars annually to the region's economy, and supporting tens of 
thousands of jobs in coastal communities as well as providing high 
quality seafood for America's tables and for export. However, it is no 
exaggeration to say that many of those coastal fishing-dependent 
economies are now in economic crisis as fisheries have declined 
coastwide. This is particularly true for salmon fishermen, who have 
suffered enormously from the loss of salmon habitat and the de-watering 
of many of our most productive salmon-bearing rivers and streams. This 
impact has hit especially hard in the Klamath Basin. Now the Klamath 
River suffers from major fish kills as a result of low flows to such an 
extent that we now have several basin species listed under the federal 
Endangered Species Act (ESA), including once abundant coho salmon.
    The Klamath Basin (9,691 sq. miles) was once the third most 
important salmon producing river system in the nation, producing an 
estimated 660,000 to 1,100,000 million adult fish annually. Now river 
conditions are so bad that most of these runs are either gone or so 
reduced in numbers as to be nearing extinction. At present, the 
``recovery'' goal for this system is to return at least 97,500 natural 
spawners to the system each year, a very modest goal that has still 
never been met. Even if met, this still means a total reduction of 
Klamath salmon populations by 89%. As a result, commercial fishing is 
almost non-existent throughout the ocean area in which Klamath salmon 
most frequently travel, the ``Klamath Management Zone (KMZ).''
    A big part of the problem for downriver salmon is reduced water 
quality and quantity from upper river sources because of the Klamath 
Project. The Klamath Basin works as a hydrological whole, and what 
affects water quality in the upper basin has a huge impact downriver.
    Unfortunately, diversion of natural waterways and draining of 
wetlands has taken an enormous toll on the Klamath Basin's ecology and 
wildlife. More than 75 percent of the Basin's wetlands have been 
drained and converted to agriculture. As a result, fish and wildlife 
populations have declined dramatically. For example:

   Klamath River Coho salmon are now listed as a federally 
        threatened species and all species of salmon are now extinct 
        above Irongate Dam because that structure provides no passage 
        for fish;
   Waterfowl numbers in the Klamath Basin have declined 
        dramatically, from a peak of more than 6 million ducks and 
        geese to less than 2 million birds. These declines have 
        cascaded through the whole Pacific Flyway as well as affected 
        ESA listed species such as the bald eagle. 80 percent of all 
        migrating waterfowl on the west coast use the Klamath refuges 
        as a stopover on the Pacific Flyway.
   Since 1965, waterfowl use days on Tule Lake National 
        Wildlife Refuge have declined from 88 million to less than 25 
        million;
   C'wam and qadpo (i.e., the Lost River and short-nosed 
        suckers), once widely abundant and a mainstay in the diet of 
        the Klamath Tribes, are now also on the endangered species 
        list.

    The Klamath Irrigation Project and other development in the upper 
Klamath Basin has had three major impacts: 1) wildlife habitat has been 
destroyed; 2) water quality has been degraded; and 3) the natural water 
storage capacity of native wetlands and other habitats has been lost. 
The hydrology of the Klamath River has been greatly altered, both 
reducing the overall storage capacity of the system as well as 
compounding the competition for water that is the impetus for this 
hearing.
    A number of restoration projects are underway in the Klamath Basin, 
but without real change in overall water and land management, the 
current state of affairs is simply unsustainable. According to the U.S. 
Fish and Wildlife Service, for example, if water management proposals 
now under consideration by the Bureau of Reclamation are implemented, 
12,000 to 18,000 acres of the 23,000 acres of wetlands on the Lower 
Klamath National Wildlife Refuge will go dry during the fall waterbird 
migration in half of all future years. Smaller but still significant 
impacts would occur in an additional 28 percent of future years. This 
year, for instance, the refuges may go dry entirely, devastating 
protected bird populations from all over the west coast who use the 
Pacific Flyway.
    In recent years, water quality from the upper Klamath Basin has 
been so poor that massive salmon die-offs have resulted far downstream. 
Even the Iron Gate Hatchery cannot operate with water conditions so 
poor as they have been in many recent years.
    Ecological restoration in the Klamath Basin can help ensure a 
healthy economy and high quality of life in the region. The Klamath 
River Basin should support vibrant and economically valuable Native 
American, sport, and commercial fishing, and wildlife/wildland-oriented 
recreational opportunities. The Klamath Basin can also support a 
healthy agricultural economy that is ecologically sustainable. But most 
of this is not possible without a better division of existing water 
supplies between these interests. The restoration and augmentation of 
additional water storage through wetlands restoration and other means, 
as contemplated by P.L. 106-498, should also be our highest priority.
    crucial economic importance of the klamath basin to west coast 
                               fisheries
    Both Oregon and Northern California coastal communities are 
directly affected economically by the environmental degradation that 
has been allowed to occur within the upper Klamath Basin by the 
operations of the Klamath Project.
    First off, Iron Gate Dam in Northern California (just south of the 
Oregon border) is the end of the line for Pacific salmon, since it was 
originally built with absolutely no fish passage, and all salmon runs 
above that dam are now extinct. More important for this discussion, 
however, is the diminished water quality and quantity flowing through 
Iron Gate Dam, coming directly from the Klamath Irrigation Project. 
Water released by the Klamath Project has for many years been of such 
poor quality, and such minimal quantity, that Iron Gate Hatchery (the 
largest and most important salmon hatchery in the basin) functions only 
very poorly or not at all. Iron Gate Hatchery uses river water for its 
operations. Whenever river water is too hot, too polluted or just too 
little in flow, that hatchery fails! Even if some juvenile fish do 
emerge from that hatchery, in many years in-river hot water 
temperatures and pollutants are so bad that water conditions kill them 
quickly.\1\ Furthermore, declining water quality and nitrate pollution 
coming out of Iron Gate Dam \2\ lead to downriver water quality 
problems that extend for many miles downriver, which also disrupts 
natural production of wild salmonids.
---------------------------------------------------------------------------
    \1\ Salmon are cold-water fish and need cold water or their eggs 
will not hatch. Mortality of incubating salmonid eggs greatly increases 
as water temperatures rise from 56 F. (13.3 C.) to 60 F. (15.6 C.), 
which is usually considered the lethal limit. Water temperatures 
downstream from just below Iron Gate Dam downstream routinel exceed 
this. lethal limit through mid-October. Spring-run chinook spawn from 
mid-August to mid-October, and fall-run chinook spawn from mid-
September through early-December. High water temperatures at Iron Gate 
have thus greatly narrowed the spawning windows for both these 
subspecies and also greatly reduced the range of ESA-listed coho salmon 
by blocking access to cold water tributaries.
    \2\ Nitrate laden runoff from agricultural fertilizers creates 
algae blooms which steal dissolved oxygen from the water that fish need 
to breath. The fish die of suffocation.
---------------------------------------------------------------------------
    It is not just hatchery fish that suffer, but many wild runs as 
well. Salmon must have cool, clear and abundant water just to survive. 
The extremely high volume irrigation diversions managed by the Upper 
Klamath Irrigation Project have, as a disastrous side effect, literally 
de-watered several key salmon spawning grounds in the Klamath River 
below Iron Gate Dam for parts of most years. It is not uncommon to 
loose 25% or more of all salmon nests to dewatering, in spite of all 
efforts to save them, amounting to a huge economic loss to coastal 
salmon fisheries and triggering major fisheries closures.
    Even the water that is released from the Klamath Project is often 
filled with agricultural fertilizers, pesticide residues and waste from 
runoff in the fields. These pollutants in and of themselves can kill of 
much of the aquatic life below the dam. Young salmon and salmon eggs 
are much more sensitive to toxic chemicals than fully mature adults, 
and scientists have already documented many long-term and debilitating 
problems, including developmental deformaties, as a result of chronic 
pesticide exposures in even very small amounts well below current 
expose standards.\3\
---------------------------------------------------------------------------
    \3\ See for instance, Diminishing Returns: Salmon Decline and 
Pesticides, a publication co-sponsored by the Institute for Fisheries 
Resources, available on the Internet at: http://www.pond.net/-fish1ifr/
salpest.htm.
---------------------------------------------------------------------------
    In essence, the lower river system has been engineered to be, and 
is often treated as, nothing more than a huge drain for the Upper 
Klamath Basin. However, the Klamath is not a drain, it is a river, and 
its ecological needs must be respected. This means that adequate water 
quality and quantity must be released from the Klamath Project 
sufficient to support salmon spawning and rearing, which in turn 
supports coastal salmon-dependent economies and communities.
    Unfortunately, the way the Klamath Irrigation Project is currently 
managed has greatly changed both the amount and nature of natural river 
flows we get downriver. Prior to Project construction, the Upper 
Klamath contributed as much as 35% of the total flow of the whole 
Klamath River at its mouth in a typical August. Today that contribution 
is less than 5%, as well as being of very low water quality.\4\ In 
other words, the total impact of Project operations has been an order 
of magnitude reduction in total flows below Iron Gate Dam, a complete 
change away from natural seasonal flow characteristics, and highly 
degraded water conditions for what remains and is released. These 
highly degraded conditions are clearly major contributing factors in 
overall salmon declines in the lower Klamath Basin, often resulting in 
major fish kills.
---------------------------------------------------------------------------
    \4\ Figures from Initial Assessment of Pre- and Post-Klamath 
Project Hydrology on the Klamath River and Impacts of the Project on 
Instream Flows and Fishery Habitat, Balance Hydrologics, Inc. (4 March, 
1996) prepared for the Yurok Tribe. There is a fiction being espoused 
by upper river irrigation interests that the original flows above Iron 
Gate dam were only 2% of total Klamath river flows at its mouth, but 
this number is patently incorrect. The actual percentage varied 
seasonally, but peaked at about 35% in a typical August according to 
1911-1913 flow records and was above 25% from July-October when those 
flows were most important.
---------------------------------------------------------------------------
    Klamath River salmon, once they reach the ocean, swim both north 
and south where some portion of them are then available for harvest. In 
the past, roughly 30% of all fall chinook landed between Coos Bay, OR 
and Fort Bragg, CA, for instance, were Klamath River stocks in origin 
(See Table 1). Thus when these fish decline, as we have seen in recent 
years, major fishing ports from Ft. Bragg, CA to Coos Bay and Florence, 
OR are severely impacted economically. Currently, all ocean and 
recreational salmon harvests within this ``Klamath Management Zone 
(KMZ)'' is specially restricted by the Klamath Fisheries Management 
Council or by state agencies to promote recovery of these severely 
depressed fish. As a result, when stocks are low (as we have seen for 
many years) most commercial fishing in the KMZ area is either closed or 
severely restricted, resulting in tens of millions of dollars in 
losses.
    The Klamath stocks are also key indicator species for harvest 
levels all the way from central California to the Canadian border. All 
of our ocean salmon fisheries are now managed on a ``weak stock 
management'' basis. This means that the weakest stock becomes the 
limiting factor on ALL OTHER FISHERIES, regardless of how abundant 
those other stocks might be. The requirement to avoid catching any 
severely depressed Klamath chinook stocks, or any ESA-listed coho, 
therefore limits harvest opportunities on all the otherwise abundant 
(hatchery origin) fish populations from the California Central Valley 
well into areas above Oregon.
    In other words, it costs fishermen tens of millions of dollars in 
lost economic opportunities just in order to reduce fishing impacts to 
a minimum on all these severely depressed Klamath River stocks. 
Klamath-driven closures and restrictions thus result in lost fishing 
opportunities for ports as far south as Monterey Bay and as far north 
as to the Canadian border.
    Restoration of the Klamath Basin's salmon production is thus 
critical to the future of salmon fisheries over much of the west coast 
north of central California.
  over-allocation of klamath project irrigation water has devastated 
                  water dependent coastal communities
    To be blunt, the Klamath Project has simply over-allocated the 
available water. As a direct result, there is too little water for 
downriver salmon production (and ESA listings there), too little water 
to maintain fish in the upper Klamath lakes (and ESA listings there) 
and too little water provided to the national wildlife refuges (and 
major bird kills there). The Klamath Project is simply using more than 
its fair share, leaving far too little water to maintain overall 
aquatic health.
    The fact that there are several species of Klamath Basin fish 
already on the Endangered Species Act list, serious problems with Iron 
Gate Hatchery operations, and major downriver fish kills nearly every 
year now should tell us that something is seriously wrong. What has 
gone wrong is that there are too many acres now irrigated in what has 
historically always been a very dry and water-limited basin. We will 
face increasing water conflicts unless the Project either reallocates 
and conserves the water it now has, including making sure we have 
adequate instream flows for fish and wildlife and to the refuges, or 
more water storage is developed quickly. Frankly, things are so bad now 
that we must do both.
    The fate of downriver and ocean salmon fisheries are directly tied 
to the quality and quantity of water released by the Bureau or 
Reclamation through Iron Gate Dam. In spite of our arbitrary political 
boundaries, the whole basin is hydrologically interconnected. Thus, as 
we have seen, whatever happens in the Upper Klamath Basin dramatically 
impacts downriver fishing-dependent communities and their allied 
businesses. In past years, as water released past Iron Gate Dam has 
been reduced in total flow and become more and more saturated with 
nitrate-laced runoff, sediment and agricultural chemicals, these 
downriver impacts, particularly on fishing-dependent communities, have 
accumulated to the level of an economic disaster.
    Downriver economic losses have already been staggering. Roughly 
3,780 family wage jobs have already been lost in these downriver 
fishing-based economies (representing a net loss of economic impacts of 
$75.6 million/year) by the failure to protect and restore salmon within 
the Klamath Basin, and several thousand remaining jobs are now at 
risk.\5\ While Klamath Project operations have not been the sole factor 
leading to recent major in-river fish kills, poor water quality, 
nitrate pollutants and too little in-river flows directly related to 
over-appropriation of water by the Klamath Project for agriculture have 
certainly been a major factor.
---------------------------------------------------------------------------
    \5\ These are estimates done by the Institute for Fisheries 
Resources (IFR) for an as yet unpublished report, The Cost of Doing 
Nothing: The Economic Burden of Salmon Declines in the Klamath Basin, 
based on reconstructions of historic salmon runs and using standard, 
well accepted economic analysis.
---------------------------------------------------------------------------
    Every dead salmon in the lower river is another fish that can never 
be harvested, and will never provide income to hard-working downriver 
salmon fishermen. Right now very little fishing is allowed in the 
Klamath Management Zone for just that reason, because the fish are 
simply not surviving increasingly hostile river conditions.
    We support the right of upper Klamath farmers to a fair share of 
the water, but the irrigators are not entitled to take it all. 
Sufficient water must be reserved for salmon production for our 
industries and our families as well, both for sound biological as well 
as sound economic reasons.
    Water left in the river has just as much economic value to coastal 
Oregon and Northern California ports as it does used on the ground for 
Klamath Falls agriculture. A fishermen's job is no less valuable than a 
farmers, a fishermen's family no less deserving.
    Millions in federal funding is now going toward salmon restoration 
in the Klamath. It does no good to pour millions of dollars into 
ecosystem restoration when federal funds are also simultaneously used 
to de-water rivers we are trying to save. It is much cheaper to prevent 
disasters than to fix them once they have occurred.
  water planning must be on a basin-wide basis, including both states 
                           and all interests
    It is all too often forgotten in Oregon, my home state, that 
roughly two thirds of the Klamath Basin lies in California. Thus the 
Klamath Irrigation Project, which over the years has reduced the total 
flows from the upper Klamath River to California by nearly an order of 
magnitude and polluted the whole upper river, has had tremendous 
impacts over the border in California. In a real sense, Oregon has 
simply exported its pollution to California.
    Any solution to Klamath Basin water issues MUST involve elected 
officials as well as the agencies of both states. Any solution MUST 
also involve the full range of stakeholders, including the downriver 
Northern California coastal communities that have seen their fisheries-
based economies systematically strangled, and also including the lower 
river Tribes whose cultures have been violated and whose fishing rights 
have been rendered all but meaningless.
    Unfortunately, the Bureau of Reclamation has long managed the 
Klamath Project simply to provide as much water to irrigators as 
possible, but without regard to the environmental consequences or to 
other downriver and coastal economic sectors. The consequence has been 
to create unnecessary conflict between Tribal rights, fisheries and 
wildlife on the one side with Klamath Falls farmers on the other, a 
conflict that is unnecessary and ultimately counterproductive. In a wet 
year, these conflicts were apparent and pervasive but largely ignored 
by the Bureau and therefore unresolved. Now, in this extremely dry 
year, these conflicts have reached crisis.
   conservation and increasing supply is in everyone's best interests
    Since at least July, 1994, when I personally testified on these 
very same issues before this very same Subcommittee in a field hearing 
in Klamath Falls, we have been strong supporters of efforts to increase 
overall storage of water in the Basin. Specifically we supported the 
Smith-Wyden Bill (S. 2882) in the 106th Congress, now P.L. 106-498, as 
a good if belated beginning, and we commend both Senators for their 
efforts in this regard.
    Now we urge this Committee and other Members of Congress to fully 
fund P.L. 106-498 and urge the Administration to include that funding 
in the President's Budget. No good idea is worth much if it cannot be 
implemented.
    Inherent in P.L. 106-498 is language that also allows us to look at 
some creative solutions:
          ``Sec 2(3): The potential for further innovations in the use 
        of existing water resources, or market-based approaches, in 
        order to meet growing water needs consistent with State water 
        law.''
    This means finding creative ways to better conserve and reuse 
existing water supplies, as well as considering a water marketing 
system to make more efficient economic use of the supplies we do have. 
All these are proven methods.
    Conservation, in the short run, is the only option that we have 
this year to stretch water supplies to their furthest for all users. 
Making more efficient use of a scarce resource also makes sound 
economic sense. For this year, the Bureau should put everything it can 
into increasing conservation for water within the basin. This includes 
urban uses as well.
    We continue to strongly support P.L. 106-498, want to see it fully 
funded, and look forward to helping with its implementation.
      farmers should stop blaming the esa and get to work solving 
                          their real problems
    As small-scale family food providers, commercial fishing families 
are very similar to, and generally very sympathetic to, the plight of 
upper basin farmers who may be facing a year with no water because of 
forces over which they have no control. However, we must also inject a 
note of reality into the current near-panic. The problems facing upper 
Klamath Basin agriculture are not primarily driven by either water 
shortages (except on a short term basis) nor the increasing need to 
protect flows for fish and wildlife. Nor can the blame be ascribed, as 
some would have it, to the Endangered Species Act, which is after all 
only the messenger. Upper Klamath Basin farmer's problems are much more 
pervasive and systemic, including:
    1. Climate and Location of the Klamath Basin Is Not Ideal for 
Agriculture: The high elevation of the upper Klamath in and around 
Klamath Falls, and the resulting reduced growing season with both late 
and early frosts, has made it difficult to grow a wide variety of 
crops. Reliance on traditional temperature-hardy crops such as onions, 
sugarbeets and potatoes, however, has created problems in itself 
because these commodities are in oversupply in both U.S. and world 
markets.
    Likewise, Klamath Falls is not near the major transportation hubs 
of the region, and so has more difficulty and expense in shipping its 
produce to markets than many other regions. These problems add to the 
cost.
    2. Many Upper Klamath Farming Operations Can No Longer Compete in 
World Markets: Because of the additional transportation costs, short 
growing seasons, and other added costs of Klamath Falls agriculture, 
many growers can no longer compete in the world markets. Many Upper 
Klamath Basin potato farmers, for instance, chose last year to plow 
their potatos into the ground because they would have lost money 
competing on saturated and depressed world markets. Klamath Basin 
cannot even compete cost effectively with potato production in Idaho, 
much less foreign markets, and the same is true for many of its 
products.
    3. Processing Capacity Has Left the Basin: Secondary or value-added 
processing is one major ways agriculture remains profitable and serves 
a variety of markets. However, potato and sugar beet processors and 
other processing plants have left the basin, largely because of the 
first two factors mentioned. It is no longer economically feasible for 
major processors to remain in the basin because of transportation 
costs, limited and uncertain production, and oversupplied world 
markets.
    4. Conflicting Uses: Some 20,000 acres of the national wildlife 
refuges (public lands) is now leased out to private parties for row 
crop farming. Oddly, these lease lands have first call on water that 
would otherwise go to the refuge. In other words, even when the refuge 
wetlands themselves are threatened with drying up, the farms on the 
refuge continue to receive full water! Additionally, those farms are 
allowed to use pesticides and agricultural fertilizers that are well 
known to damage wildlife in the refuges. Lease land farming on the 
refuges is clearly a conflicting use, and should be phased out by 
nonrenewal of these leases, which are on five-year renewable terms. In 
order to keep those farmers whole, there are a number of opportunities 
at present to simply move lease holders to farmland now for sale 
outside the refuges on a willing seller willing buyer basis, and this 
would be a good use of federal funds, freeing up additional water for 
the refuges as well as allowing those farmers who wished to continue in 
operation to do so.
    Most of these problems have little or nothing to do with ESA listed 
species, but rather with the costs of production, conflicting uses, 
global gluts and an increasingly volatile and interconnected world 
market. Klamath Basin farmers are far more oppressed by world trade 
agreements and increased global competition than by any endangered 
species.
    The impacts of global competition have been devastating on Klamath 
county. Income from farming in Klamath county declined 93 percent (in 
real terms) between 1969 and 1997 and now represents only two-tens of 
one percent of total county personal income. Agricultural services 
accounted for six-tens of one percent of total income in 1997, a slight 
decrease since 1969.\6\ This is why so many have recently offered to 
sell out, well before the current water crisis has hit the region. The 
reality is that many of those traditional farming operations in the 
basin are simply no longer profitable.
---------------------------------------------------------------------------
    \6\ From Economic Profile of Klamath County, Oregon, an economic 
study by The Wilderness Society (2000), available from The Wilderness 
Society, 1615 M. Street, Washington, DC 20036 (202) 833-2300.
---------------------------------------------------------------------------
    Fortunately the Klamath County economy has been diversifying in 
recent years, and the farming sector now accounts for only about 6 
percent of total county employment. Most new jobs in recent years, and 
those projected over the next several years, will be in other sectors 
as the economy matures. The Klamath County economy will survive, and 
even thrive in the long run, if traditional agriculture within the 
county is cut back to more sustainable, and ultimately more profitable, 
levels.
            a new restoration vision: the klamath coalition
    PCFFA is here today not only as a major industry but also as a 
member of A Coalition for the Klamath Basin, a broad based alliance of 
organizations dedicated to conserving and restoring the Klamath Basin. 
The Coalition includes local, regional, and national conservation 
groups as well as PCFFA as the Coalition's largest industry group. In 
addition to PCFFA the Klamath Coalition's founding members include The 
Wilderness Society, Klamath Basin Audubon Society, Klamath Forest 
Alliance, Oregon Natural Resources Council, the Sierra Club Oregon 
Chapter, WaterWatch of Oregon, and the Institute for Fisheries 
Resources (a PCFFA affilate). Part of our effort has been to articulate 
a positive vision for how the Klamath Basin ecological problems could 
be addressed in creative ways while maintaining a balanced use of the 
resource, including agriculture.
    In February, 2000, the Klamath Coalition released a Conservation 
Vision for the Klamath Basin at a workshop in Klamath Falls, Oregon. 
More than thirty organizations in Oregon and California have now 
endorsed our vision. We have discussed our vision with and received 
input from farmers, Tribes, federal agencies, and other leaders in the 
Klamath Basin and are very pleased to have this opportunity to submit 
this document as an attachment to this testimony.
    Two main themes run throughout our Conservation Vision. First, the 
three major ecological problems in the Klamath Basin--loss of fish and 
wildlife habitat, degraded water quality, and altered hydrology--are 
interrelated, and restoration efforts should seek to address these 
problems together. Past diking and draining of wetlands have not only 
damaged wildlife and fisheries habitat, these actions have also 
degraded water quality and eliminated much of the natural water storage 
capacity in the Klamath Basin. Restoring native wetlands and other 
habitats can improve water quality, reestablish the natural water 
storage capacity that has been lost, improve wildlife habitat and 
provide more flows for downriver fisheries.
    Second, the Klamath Basin should be addressed in its totality. 
Activities in the upper Klamath Basin have a profound impact on the 
ecology, economy, culture, and quality of life in the lower Klamath 
Basin and along the Oregon and California coast, particularly true with 
respect to both in--river recreational fisheries and the marine 
commercial fishing industry. Water diversions and developments in the 
upper Klamath Basin threaten the very survival of coho salmon and other 
anadromous fish in the Klamath River, which in turn greatly limits fish 
harvest of otherwise abundant salmon stocks in order to protect these 
weakened stocks.
    The vision of our coalition is to restore a healthy, naturally 
diverse, and productive Klamath Basin ecosystem by reestablishing, to 
as great a degree as feasible, natural hydrological conditions and 
ecological functions throughout the entire basin. This should be 
accomplished through a comprehensive, ecosystem restoration program. 
Certainly appropriate water storage augmentation as contemplated in 
P.L. 106-498 will help that process.
    The goal of these efforts should be to restore ``normative'' 
conditions, under which ecological processes occur using natural 
patterns of variation, throughout the Klamath Basin. This does not mean 
restoring the basin to its original state, which is an impossibility 
giving a growing human population. By this we mean that the Klamath 
River and related habitats should be managed so as to approximate or 
mimic the natural rhythms under which the fish and wildlife of the 
region evolved to the greatest extent feasible.
    Viable populations of native species should be restored to the 
Basin. Migratory birds should once again darken the skies. Salmon 
stocks in the Klamath River should be restored to a level that not only 
satisfies the requirements of the Endangered Species Act but also 
supports Native American tribal rights, and the commercial and sport 
fishing economies of river and coastal communities in Oregon and 
California.
    We have proposed an array of specific actions that are described in 
the Vision. Many of these actions can be taken cost effectively, with 
few impacts to existing uses and will in themselves contribute 
substantially to the regional economy. Wetlands restoration, for 
instance, adds greatly to the water storage capacity of the whole basin 
and (unlike reservoir storage) also adds to the ecological integrity of 
the system by adding additional wildlife habitat, buffering the effects 
of drought, and providing downriver flows for fish and wildlife.\7\
---------------------------------------------------------------------------
    \7\ Wetlands is nature's best water storage system, One acre of 
wetlands holding one acre-foot of water. for instance, has stored 
325,851 gallons of water which would otherwise be lost to evaporation 
or waste or floods. Wetlands naturally release this water into the 
system to buffer the effect of droughts and seasonal rainfall. (1 acre-
foot = 43,560 cu. ft. x 1,728 cu. in. per cu. ft. = 75,271,680 cu in. 
of water. One gallon = 231 cu. in. Divide one by the other = 325,851 
gallons/acre-ft. of wetlands storage).
---------------------------------------------------------------------------
    All these actions are doable--if we make the wise investments 
necessary to bring that about. P.L. 106-498 can certainly become one of 
the vehicles for making that possible.
                  surviving the immediate water crisis
    There is now little doubt that this will be one of the driest years 
on record for the Klamath Basin. Farmers, fishermen and wildlife are 
facing a crisis now that, unfortunately, long-term projects for water 
storage will not be able to address in time. However, there are several 
things that can be done immediately or in the short term to prevent 
water conflicts, to aid distressed farmers and their families, and to 
move the upper Klamath Basin toward a restoration program to prevent 
such conflicts in the future. These include:
    (1) Termination of Lease Land Farming in the Wildlife Refuges and 
Use Lease Lands Water to Keep the Refuges Viable: Many basin farmers 
now have private land for sale on the open market in areas outside the 
refuge. There is a proposal to buy these for-sale farmlands using a 
combination of private land trust funds and federal funds, and then to 
lease these lands back to the local irrigation district so that the 
district can sublease those lands to farmers now leasing within the 
refuges as replacement lands as they are moved off the refuges. This 
would recapture more wetlands for the refuges (i.e., add more total 
water storage), eliminate conflicts between farming and the refuges, 
and give those farmers now leasing lands on the refuge itself 
replacement land for row crops at a comparable price. It appears to be 
a win-win solution to these conflicts and should be pursued actively. 
In the meantime, no new farm leases on refuge lands should be issued 
and those which can be terminated should be.
    (2) Terminate Terminable Water Contracts: Many water contracts are 
terminable by their terms in low water years. The farmers holding these 
contracts know this, bought them with that in mind, have planned 
financially for that eventuality, and are expecting them to be 
terminated this year. They should be terminated immediately. Higher 
priority user contracts and fish and wildlife needs must be serviced 
first to the extent possible, and even so, many of these uses will not 
get sufficient water this year.
    (3) Implement Stringent Conservation Measures: Every possible way 
water can be conserved should be implemented as soon as possible. This 
includes updating closed-system irrigation technology (rather than open 
ditches), and encouraging planting of low water use crops. A fund 
should be established to help farmers pay for transition to new 
irrigation systems, to plug leaks, and to help pay for other emergency 
conservation measures. Conservation always makes sense.
    (4) Declare a Water Emergency: Klamath Basin is in the middle of a 
drought which constitutes a serious water emergency. Like any other 
farmers nationwide suffering from natural disasters, farmers in that 
basin should qualify for disaster relief funds. Do whatever is 
necessary to qualify those farmers for emergency relief funds to help 
compensate the many who are likely to have little or no water this 
year, particularly if the water is needed to meeting fish and wildlife 
and Tribal rights obligations.
    (5) Meet all Fish and Wildlife Obligations to the Greatest Extent 
Possible: Obligations under the ESA to prevent extinction of valuable 
public resources, and obligations to Tribes to provide instream flows 
sufficient to assure fisheries and protect their culture, are primary 
obligations that the courts have ruled must be satisfied ahead of 
Bureau obligations to water contractors. Klamath Water Users Assn. v. 
Patterson, 204 F. 3d 1206 (9th Cir. 1999), cert. denied, 121 S. Ct. 44 
(2000). See also O'Neal v. United States, 50 F. 3d 677 (9th Cir. 1995). 
This is the law of the land. Though not as clear in the courts, the 
same policy considerations should also apply to protection of migratory 
bird species on the national wildlife refuges, which are protected 
under the Migratory Bird Treaty Act and under international treaties. 
Obligations to public resources must be met first, under the law, by 
public agencies before meeting the needs of private farmers to make a 
profit using public water.
    It is unfortunate that in very dry years like the one coming up, 
that limited water supplies may create hardships for some farming 
families. We should seek to do all we can to: (1) avoid such conflicts 
by increasing the overall water supply and making the most efficient 
use of the water we do have through conservation and sustainable land 
use practices, and; (2) where cutbacks on irrigation water do cause 
hardships, take all reasonable and necessary steps to see that farmers 
are reasonably compensated for the hardships they must endure through 
no fault of their own.
    In the long term, however, the efforts contemplated under P.L. 106-
498 to augment the current water supply will help moderate and perhaps 
eliminate some of these conflicts in the future. We fully support P.L. 
106-498 and urge its full funding.

Attached: Table 1 (retained in subcommittee files.)

    Senator Smith. Thank you, Glen.
    John Crawford. I do not want to hurry anybody, 
unnecessarily, but we do not have a long lease on this room.

STATEMENT OF JOHN CRAWFORD, FARMER, ON BEHALF OF KLAMATH WATER 
              USERS ASSOCIATION, KLAMATH FALLS, OR

    Mr. Crawford. Thank you, Mr. Chairman.
    Senator Smith. Tell us what you want us to know. We are 
anxious to hear.
    Mr. Crawford. I think that, first of all, it is necessary 
that you know who we are. And we are small family farms in the 
Klamath Basin. Corporate farming America has managed to avoid 
the Klamath Basin. So, our basis is still small family farms.
    We are veterans of World War I and World War II, who were 
invited by the Bureau of Reclamation onto these reclaimed lands 
that were ceded from the States of California and from Oregon 
to the Federal Government for the purposes of reclamation and 
irrigation.
    It is necessary to understand that the Klamath Project was 
probably one of the most appropriate projects in all of the 
West, because it was superimposed on open water and marshlands 
that consumptively used between 400,000 and 600,000 acre feet 
of water annually.
    The use by agriculture averages--and the refuge--included 
averages something under 500,000 acre feet of water. We have 
not intruded on the use of the river or the elevation of the 
lakes. Certainly, that is not the case.
    We are second, third, and fourth generation descendants of 
those homesteaders who were made a promise by the United 
States, and they had some obligations, as well. The first of 
their obligations was to repay the cost of construction of that 
Klamath Project. And that was done in its entirety.
    They were also charged with creating communities from the 
ground up. And at a peaceful demonstration in Klamath Falls, a 
week ago, the first lady veteran to receive a homestead was one 
of our initial speakers. And she spoke of doing just that; 
living in a building drug from the old Japanese internment camp 
at Newell; raising four children; sending them all to college; 
and doing so on her homestead that she received in Tulelake.
    We also had a mission to feed a hungry world. And we have 
upheld each and every aspect of our part of a bargain. Now, the 
obligation that the government has to us must be upheld, as 
well.
    The proposed operations for today need to be looked at in 
the context of what happened, historically. Senator Wyden asked 
the question, what could be done, now? Everybody wants to know, 
what can be done, now? We have to know what is possible for us 
to do; for farmers, refuges, sucker, and salmon. In order to 
know that, we have to take a historic look at what has happened 
over the last 10 years.
    From 1991 through 1994, we had three low water years. Mr. 
Spear referred to the viable and most numerous year class of 
suckers, which is in 1991. The water elevation at Upper Klamath 
Lake in 1991, a drought year, was 4,138, two feet below the 
proposed elevation in the current biological opinion.
    There were no significant fish kills regarding suckers in 
either 1992 or 1994. The salmon run that returned to the Lower 
Klamath River--fall chinook, that is--in 1995, following the 
lowest flows in the history of the Klamath River in 1992, was 
the best run that we had had in 44 years.
    It was noted that that was insignificant, because a good 
many of those fish were hatchery fish. On the other hand, in 
1996, another important and large run of fish came up the river 
that was comprised of 78 percent 4-year-old fish that were 
naturally spawning fish occurring in the mainstream Klamath 
River.
    In 1992, we were able to flood up 94 percent of the 
traditionally flooded wetlands within the wildlife refuge 
systems. Be it, they might not have been flooded up as deeply 
as the Fish and Wildlife Service would have wanted, but 94 
percent is a laudable goal in--given the shortage of the 
resource in that year.
    Through this 10-year period, agriculture has initiated or 
supported basin-wide wetland restoration and recovery 
products--projects that compromise one of the most ambitious 
efforts of this kind in the world today. This proactive 
restoration support goes well beyond the obligations of the 
Endangered Species Act.
    The impacts proposed in the NMFS BO and the U.S. Fish and 
Wildlife Service's BO to these communities that we have talked 
about are this, basically: Small communities, such as Tulelake, 
California; Bonanza, Merrill and Malin, Oregon, are being asked 
to shut down their farms; to shut down their businesses; to 
close their schools; close their churches; and move on from the 
land. In no one's eyes, can that be deemed reasonable or 
prudent.
    What do we need? What we need is a time-out from the 
issuance of biological opinions with questionable scientific 
basis and validity. We need to turn away from subjective 
management with questionable benefits and disastrous impacts to 
communities.
    The Departments of the Interior and Commerce must be 
convinced to consider current drought conditions; past drought 
operations and their impacts; to utilize the new information 
that is available to them on suckers; to evaluate dam removal, 
as part of this process, when it comes to Chiloquin Dam.
    At the same time, we need to take a legitimate look at the 
lack of knowledge that we have on the Klamath River, as 
compared to 12 years of flow study development on the Trinity 
River; and a secretarial decision coming from Secretary Babbitt 
that put 50 percent of the historical flow back into that 
river. That was not only to sustain the endangered coho, that 
was to recover the endangered coho.
    So, we have to make a legitimate comparison in the same 
watershed for the same fish as to what 85 percent of the 
historical flow, which is averaged in the Klamath River, what 
that impact is as compared to the 50 percent on the Trinity 
River.
    It is time to insert some common sense, some 
reasonableness, and some flexibility into the section 7 
process. History shows us that we can do this. No resource 
needs to shoulder a disproportionate share of the burden of 
drought.
    The flexibility of historic operations will cause no 
extinctions. Endangered suckers and threatened salmon may, 
indeed, have benefitted from project operations during drought.
    Agriculture and the refuges suffered the most severe 
impacts, but they have been able to survive until now.
    [The prepared statement of Mr. Crawford follows:]
Prepared Statement of John Crawford, Farmer, on Behalf of Klamath Water 
                  Users Association, Klamath Falls, OR
    Chairman Smith and members of the subcommittee: Thank you for 
inviting the Klamath Water Users Association (Association) to testify 
at this hearing. I am John Crawford, a farmer and member of the Board 
of Directors of Tulelake Irrigation District (TID). TID is an 
Association member as are nearly all the irrigation districts that 
receive water from the Klamath Project. I am accompanied by David 
Solem, who is the Manager of the Klamath Irrigation District, who will 
help answer any questions. We are both past presidents of the 
Association.
    For the community forum sponsored by Senator Smith last November, 
the Association prepared a detailed written statement. Rather than 
repeat those matters, I have attached the statement, as well as the 
statement of Tulelake Growers Association, to this written testimony.*
---------------------------------------------------------------------------
    * Attachments to this statement have been retained in subcommittee 
files.
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    My testimony today necessarily focuses on the severe threats faced 
by our farm families and communities who rely on the Klamath Project. 
In my irrigation district, at this time of the year, we normally have 
been to work in the fields and made use of the water supplies through 
the Klamath Project irrigation system we have paid for. Just over two 
weeks ago, we were told not to use any water until further notice and 
warned of the potential for severe shortage.
    For myself and my neighbors, this threat is devastating. Banks will 
not talk to farmers. Farmers have already let some workers go because 
of uncertainty. Seed salesmen, equipment dealers, car dealers, hardware 
stores, paint dealers, local government and schools, are at tremendous 
risk. The anxiety and tension throughout the community are tremendous.
    The situation is all the more painful considering that we are here 
at the invitation of the United States. In 1905, a reclamation project 
was authorized to promote settlement and agriculture. The Klamath 
Project was brilliantly conceived. It was superimposed on areas of open 
water and marsh, such that our consumptive use of water on the 
reclaimed, productive farmland is not believed to be significantly 
different from pre-Project water consumption and evaporation in those 
same areas. That same design, and the system's operation, result in 
extremely efficient use of water. Settlers and homesteaders, including 
the veterans of world wars who were given preference in homesteading, 
made a pact with the United States. Water users agreed to repay the 
costs of Project construction and finance its operation, in exchange 
for a water supply made available through Project facilities. We have 
kept our end of the bargain, and fulfilled the vision of the 
Reclamation Act. The United States must, and can, honor its commitments 
to us.
    On March 9, our communities, descendants of turn-of-the-century 
settlers and even a few of the last homesteaders, held a peaceful rally 
to support agriculture, our communities, and our heritage. The crowd 
was addressed by long-time family farmers, high school students, farm 
employees, and business owners. Information on that rally is being 
furnished to the subcommittee. It is humbling to speak to you as a 
representative of those communities.
    The unfortunate fact is that the threat to our community is not 
simply dry conditions, but a threatened regulatory drought. On January 
19, 2001, federal agencies issued a total of three documents in which 
agency staffs threatened wholesale changes in the status quo. One was a 
letter from the National Marine Fisheries Service threatening to insist 
on unprecedented high river flows in the Klamath River. A second was a 
memo from the U.S. Fish and Wildlife Service (USFWS) threatening to 
insist on unprecedented high elevations in Upper Klamath Lake, a threat 
that has been recently perpetuated by USFWS staff in a draft biological 
opinion. A third was a draft proposal from USFWS staff threatening to 
change water availability on Klamath Project lease lands. It is these 
threats, not the dry conditions, which in reality create our current 
situation.
    These developments have led to media sensationalism, and even 
rumors of invoking the Endangered Species Committee (``God Squad'') for 
ESA exemptions. This makes great press, and incites the opponents of 
agriculture, but is thoroughly unnecessary.
    I emphasize that these threats also are built on the strange 
reality we face in the Klamath Project. No matter how much water is 
used by others, or exported from the Basin by others, no matter the 
impacts of overfishing or the many forms of habitat modification 
throughout the Klamath Basin, we in the Klamath Project are asked to 
guarantee instream water levels to mitigate for those conditions. The 
burden we are asked to bear on one segment of the Klamath River system 
(flow at Iron Gate) is grossly disproportionate to the highest 
requirements even under serious consideration on the Trinity River, a 
major Klamath River tributary. Yet, that decision on the Trinity is 
being made on the basis of a comprehensive flow study and there is no 
such study pertaining to mainstem flows at Iron Gate.
    We know from a century of experience that we can manage our way 
through the present drought. The dry conditions of 1991, 1992 and 1994 
were no less challenging than those we face today. Yet, we managed to 
allocate water in those years so that no interest experienced any 
greater damage than any other. Farms, and fish and wildlife, continued 
successfully. Indeed, the low lake elevations of 1991 produced an 
unusually abundant number of suckers in Upper Klamath Lake. We observed 
no significant fish kills during the low lake elevations of 1991, 1992, 
and 1994. Yet, we observed significant fish kills in the higher water 
years of 1995, 1996, and 1997. Below average flows at Iron Gate in the 
Klamath River have produced relatively high salmon runs. On the other 
hand, artificially high releases of warm water from Project storage 
have had detrimental effects to Klamath River salmon. In the past few 
years, we had more abundant water supplies to work with than in the 
early 1990s, and we have tested the consequences of different water 
management schemes. We know enough to recognize that variability is a 
constant. We cannot ignore real facts, such as the population successes 
of fish species in relatively low flow and lake level conditions and 
the lack of evidence of benefit from deviating from historical Klamath 
Project operations.
    I stress that while we are committed to preserving agricultural 
families and communities, we are not ``anti'' any other interest. 
Ironically, at a time when we face a major challenge, significant 
efforts of our Association have been directed at environmental 
improvement. Together with Ducks Unlimited and California Waterfowl 
Association, we have recently recommended to USFWS a number of 
constructive measures to improve the water supply of our local wildlife 
refuges and enhance habitat values on farmland. Our joint letter is 
attached. Within the last month, we have developed a detailed report 
with specific, aggressive recommendations to recover the endangered 
sucker species. We want to see things happen on the ground that benefit 
fish and wildlife. We, irrigation water users, are actually promoting 
removal of a dam, in order to restore vast areas of spawning and 
rearing habitat for endangered suckers. These recent actions are but a 
continuation of the activities of the Association dating to 1993, when 
farmers reached into their own pockets and funded an Initial Ecosystem 
Restoration Plan for the Upper Klamath Basin.
    Is there self interest involved in our environmental activism? Yes. 
I derive as much enjoyment from the fish and wildlife in the Klamath 
Basin as anyone you can name, from the fishery resources of Upper 
Klamath Lake to the fisheries resources of the Klamath River to the 
waterfowl and wildlife on my land and the lease lands that I farm. In 
addition, however, Klamath Project farmers simply are not stuck on 
saying ``no'' to the environment. We must take care of farmers, 
communities and our fish and wildlife. Everyone with those goals will 
be a welcome partner in our efforts.
    The question for the moment is whether we have thrown away the 
historic flexibility of the Klamath Project, and with it the entire 
Klamath Project and wildlife refuges themselves. There is a gravely 
destructive downside to destroying that flexibility, and it is 
completely unnecessary. We encourage the subcommittee to promote the 
overall welfare of the Klamath Basin, as we do. Right now, family 
farmers and rural farming communities, such as Tulelake, Merrill, 
Malin, and Bonanza, are being told to shut down farms, close their 
businesses, close their schools and churches, and move, based on 
subjective management that we have no reason to believe will benefit 
the listed species. This is completely unnecessary. Flexible drought 
operations and cooperation, which have served all interests in the 
past, can do so again.

    Senator Smith. Thank you, John.
    Mr. Crawford. Thank you.
    Senator Smith. I also wanted to thank you, sir, for coming. 
And we look forward to learning from your scholarly 
perspective.

  STATEMENT OF ALEX J. HORNE, Ph.D., PROFESSOR, DEPARTMENT OF 
CIVIL AND ENVIRONMENTAL ENGINEERING, UNIVERSITY OF CALIFORNIA, 
                            BERKELEY

    Dr. Horne. Mr. Chairman, thank you for inviting me to this 
important meeting. In the interest of time, I will submit my 
written testimony, and I will just pick out a few of the 
highlights for you.
    Senator Smith. Pleased to receive it.
    Dr. Horne. For the last 30 years, I have been a professor 
of ecological engineering at UC, Berkeley. And ecological 
engineering is a way of manipulating and managing the 
environment that tends to use sustainable resources.
    We use a lot of photosynthetic solar and wind, which might 
interest your committee in other aspects; particularly, of 
course, in wetlands, which is the ideal method primary for 
wastewater treatment. So, it is the green engineering. So, I 
think it is particularly appropriate for this particular 
community.
    My education is in zoology, biochemistry, limnology, and 
oceanography. I have worked, I think, in just about all the 
continents; hundreds of reservoirs, lakes, rivers, streams, 
deep oceans, for just about every kind of agency from the 
Federal Government down to individuals.
    In particular, for this particular question here, I have 
designed a number of systems which have saved the lives of 
hundreds of thousands of fish and taken out hundreds of tons of 
nutrients and continue to do so until this day.
    Now, I cannot restore the world to what it was. None of us 
can. For instance, we can get rid of species of fish that have 
been introduced by--from other countries, and which flourish in 
our systems.
    So, what we have to do is do the best we can with what we 
have. And that tends to be what civil engineers, which 
officially I am also, it is happening. I think, in this case, 
there are a number of methods which we could use to solve some 
of the problems.
    In essence, what we have is an inelastic supply of water. 
And to some extent, the supply of water, in volume, can be 
replaced by making the water you have of a higher quality.
    Now, let us look at the particular case here. I was 
retained in October by the Klamath Water Users Association to 
look at the relationships between lake depth, water quality, 
and fish kills. And my recommendations appear in the plan, 
which is protecting the beneficial uses of Upper Klamath Lake; 
a plan to accelerate recovery of the Lost River and shortnose 
suckers.
    And with me today, in the audience, is David Vogel, who is 
a fisheries biologist, who worked with me on this project.
    I have--unlike most people, I seem to have read the 
biological opinion. And I have also read a number of other 
documents. I first did work, actually, in Upper Klamath Lake 
back in 1970, I am afraid to say. My first work came out when I 
was working on Clear Lake--our Clear Lake, which is 
California's Clear Lake, because the lakes are very similar, 
but they have some similar--they have some important 
differences.
    So my problem was, is there a fish kill related to water 
quality? And yes, there is. But is it related to water level? 
Well, there are five reports of major fish kills. The average 
height of the water at those times is about .6 feet above the 
average. And some of them occurred when the water was one or 
two feet higher. And one of them occurred when it was lower.
    There, once is a coincidence. Twice, maybe. But five times? 
It does not seem to me that water level, alone, is a cause or 
even the main cause. And if we read the biological opinion, 
there is a lot of good data in the biological opinion. A lot of 
good studies have been done. My colleagues, fellow scientists, 
and others have done excellent work and made measurements.
    I have taken that data and used that data. I may not 
particularly agree with all of their conclusions, but I think 
the data forms a nice study base for us to make decisions on.
    And my conclusion is that the water quality; particularly, 
the lack of oxygen, the lack of dissolved oxygen in deep water 
or the deeper water, the bottom of the lake, anyway, or 
whatever it is, is the prime cause that we can see right now of 
these fish kills.
    I do not think this is in particular disagreement with 
anybody else's ideas. The Bureau of Reclamation and biological 
opinion seems to concur with that opinion.
    Well, I spend a lot of my time working with lakes and 
reservoirs where this very system is the problem. Some of 
these--like I am working with one in Australia right now--the 
water is only five or six feet deep. But, nevertheless, we can 
do something about it. Some of the ones I have worked with are 
very large; as large as the Upper Klamath Lake.
    I would like to show a few overheads, so that I might 
illustrate what I mean here. You have copies of all of these 
submitted to you. So, they are available for you to look at.
    Senator Smith. Doctor, just a question. Have you ever been 
involved in a peer review?
    Dr. Horne. In a peer review?
    Senator Smith. Yes. Connected with this lake.
    Dr. Horne. Not connected with this lake, no. Though, I have 
followed its progress over the years, because I have heard most 
of the people that work in science here--in fact, the last time 
I heard something was in November, when Eugene Wells, an 
eminent limnologist, presented his ideas about the lake.
    I do not think I disagree with most of these ideas. It is 
not that the studies are wrong; it is how can we fix the lake, 
rather than does this cause that. Some of the does this cause 
that turned out not to be too involved.
    [Slide.]
    Dr. Horne. The effective sediment and anoxia--anoxia is no 
oxygen in the lake is--is--affects the water quality. If we 
have too much algae and too much eutrophication, which is too 
much algae, we get lower oxygen in the lake bottom. No argument 
about this one. Lower oxygen releases undesirable water quality 
chemicals. I do not think there is any argument about this one. 
An addition of oxygen reverses this situation.
    If we reduce the nutrients coming from in the lake or from 
outside the lake, we will eventually cure the problem. The 
difficulty is reducing nutrients outside the lake is rather 
hard to do. Some of these nutrient recyclings and increases in 
nutrients may actually be due to the fact we have exotic fish 
in the lake. It is not just as simple as saying, ``We stop you. 
We stop you.'' It is not even a TMDL process.
    Some of the nutrients come from the atmosphere. It is more 
difficult. But internally, we can do something. And we can do 
something quickly, which is part of the idea here.
    Now--this is going to be hard to do, standing up, but 
imagine your lake is only this deep. There is never going to be 
an oxygen shortage in the bottom, because there is an 
inexhaustible supply in the air that can be mixed in.
    As the lake gets deeper, it becomes more and more difficult 
to stir the lake around until you only get a lake that is about 
40 feet, then the bottom part becomes completely isolated and 
remains that way all summer. This is the way most reservoirs 
are.
    Somewhere in between is a critical level where you have not 
got enough mixing to get oxygen down to the bottom. This is 
what is happening in this lake. It just so happens that Klamath 
Lake, as run now, within a few feet it is going up and down, is 
at that critical level.
    And I will illustrate this with a couple more slides.
    [Slide.]
    Dr. Horne. This is the one-way route to problems, but here 
is what--when things are good. We have few algae in the surface 
water. This is presumably what Klamath Lake was like many, many 
years ago, perhaps; certainly a bit better than it is now. Lots 
of oxygen in the deep water.
    Now, remember, this scale here can change. If we were in 
Algeria and it was very hot, the vertical scale here might only 
be six feet or even two feet. If we were in the open ocean, the 
scale might be 200 feet. It depends how warm the day is. It 
depends where the lake is. In the case of Klamath Lake, this is 
somewhere between five and ten and twenty feet deep.
    When there is oxygen at the bottom, iron, phosphorus, and 
things like hydrogen sulfide and ammonia, which are toxic 
substances, remain in the bottom.
    Senator Smith. It puts pressure on them to stay at the 
bottom. Is that what you are saying?
    Dr. Horne. No. What happens is this secret thing here 
called the oxic microsome. There is a little layer at the 
bottom of the lake that is healthy. It is about that thick, or 
even thinner.
    [Indicating] It can be as much as a centimeter or two. Lake 
Tahoe, it is five centimeters. It can be as little as a 
millimeter.
    That tiny boundary prevents things like hydrogen sulfide, 
phosphorus, iron getting through. It is small, but it takes out 
the toxicants and holds them in non-toxic form.
    What happens is, when algae increase, we have a self-
perpetuating situation, which is typical of many lakes, 
including Klamath Lake. If we have a lot of algae, we have an 
anoxic microsome at the bottom. Once it is anoxic, everything 
pours out. So, you could imagine the deeper parts of the lake 
are like fountains of ammonia, hydrogen sulfide, phosphorus, 
and iron, which go out and increase the--it is just a self-
perpetuating process. This is common the world over.
    Well, one way, obviously, is to reduce the nutrients and to 
reduce the algae. That takes a while. And like I say, some of 
these things may be due to internal cycling, like exotic fish.
    So, what can you do? This is an example of----
    Senator Smith. Can you tell me, Doctor, what exotic fish we 
are talking about?
    Dr. Horne. Yellow perch is one.
    Senator Smith. Yellow----
    Dr. Horne. There is usually fairly small fish. There is 
lots of them. They compete with native fish, because they are 
usually eastern fish----
    Senator Smith. They are not native.
    Dr. Horne. They are not native.
    Senator Smith. Who put them there?
    Dr. Horne. They got there accidently.
    Senator Smith. Okay.
    Dr. Horne. We will say it that way. They are not really 
good fishing fish. They are usually bait fish. And when you 
finish fishing, you tip your bait out.
    Senator Smith. Okay.
    Dr. Horne. And some of them survive very well. They are a 
nuisance all over the West.
    Senator Smith. Okay.
    Dr. Horne. Okay.
    Senator Smith. They are not endangered.
    Dr. Horne. I wish they were. I think most people would.
    [Slide.]
    Dr. Horne. This is an example of a reservoir of about 
425,000 acre feet, which is a little smaller than Klamath Lake, 
but it is--it had--155,000 fish died in one day in the fish 
hatchery below. So, as you can imagine, there was a lot of 
trouble. Now, this was in the 1986 drought.
    The solution suggested by the agencies was increase the 
water level. That, of course, would mean less water for the 
city of Oakland, in which--who operates this reservoir. So, a 
compromise had to be looked for.
    What I did is, I said, ``I do not think the lower water is 
to blame for the kills. I think it was because we had no oxygen 
in the deeper water.'' I suggested using oxygenation. We found 
a system; installed a device that adds pure oxygen, in fact six 
tons a day, to the bottom of the lake; started in 1993. The 
nutrients declined. The algae declined, reversed 
eutrophication, and most importantly perhaps, there has been no 
fish kills due to water quality problems in the 9 years since.
    Senator Smith. Never, since.
    Dr. Horne. Never.
    Senator Smith. So, you really did hit on it.
    Dr. Horne. You get lucky sometimes.
    So, I can conclude that lower water, though a problem and 
though it was involved, was not the key factor. And you could 
get around it some other way. Now, this is an artificial 
system. It is a life support system, as you rightly put.
    Maybe in 15 years' time, with other things, we can figure 
out other things to do--maybe 10 years' time, maybe even 5 
years. But right now I cannot see any other way to keep those 
fish abundant.
    And if I was a fish, I would say, ``Okay, Prof, it is not 
brilliant, but it will give me life for the next 5 or 10 
years,'' while we do another bigger solution, while we get in 
all the people together and deciding what we can do here and 
there. It allows you to be flexible, with an inflexible water 
supply.
    Senator Smith. Have you--and as you look at the biological 
opinion, is any of this ever factored into a solution?
    Dr. Horne. None of this is factored into a solution, 
because all the solutions seem to be--it is a bit like the Bay 
Delta. Everybody was focusing on the striped bass, for example, 
and in fact, it was flows. But that is because everybody was 
working on flows, because they were funded to work on flows. 
Nobody was working on pesticides, because they were not funded 
to work on pesticides.
    Eventually, some of the problems were tracked down to other 
causes than just simple flow causes.
    Senator Smith. Have you ever suggested this to anybody in 
the agencies as a solution? I mean, what you are telling me is, 
we are looking at the glass and it is half empty. But you are 
telling us how to see it half full and a real future for all of 
the interests and--in this room.
    Dr. Horne. Until this agency set up this particular system, 
there were not many of these that are successful.
    Now, the Tennessee Valley Authority has huge systems using 
oxygen. They have enormous reservoirs; a million-plus acre 
feet; flows of 7,500 CFS. And they use oxygen in large 
quantities.
    We took their data--in fact, the system we used is based on 
the TVA's work. I just take other people's date and apply it.
    Senator Smith. Doctor, you are talking about active 
management of the lake. Without active management of the lake, 
how long will it take to recover? Just setting aside all the 
human devastation to Tribes and to farmers.
    Dr. Horne. I am not quite sure of the question you are 
asking. That we take out a human influence or----
    Senator Smith. Yes. And just say that the biological 
opinions of the different agencies, which are not consistent 
and which cannot be achieved even in--when you put them 
together, they are both inconsistent. So, setting the other 
interests aside, if we just follow their recommendations, how 
long until this lake recovers?
    Dr. Horne. Well, it will never recover.
    Senator Smith. Okay. That is the point.
    Dr. Horne. I mean, you have got to make some more--you have 
got to do some active management upstream, as well, which I 
could show you the next set.
    Senator Smith. With active management, how long are we 
talking about?
    Dr. Horne. Good point. Just before I complete that, these 
are the actual data from this reservoir.
    [Slide.]
    Dr. Horne. What we see here is soluble phosphate, which is 
of concern in this lake and other lakes in the world, on the 
vertical axis against time. Oxygen started in 1993. And you can 
see there is a lot of phosphorus in the lake before we add the 
oxygen. After the oxygen, it drops a lot. The bottom figure 
here indicates chlorophyl, which is algae, which is one of the 
root causes of problems. And you can see chlorophyl was high 
before the oxygen, and it went low.
    Now, this was a new finding. And I had to wait--you see, we 
have got several years--about 4 years' or 5 years' data before 
and about 8 years' data afterwards. Now, I can be sure it is 
not freak, it is not some fluke.
    So, a bunch of us who were working on this--perhaps a half-
dozen scientists--have begun to go around and say, ``Look, 
these are methods we can use.'' My own water district is 
installing one of these oxygenation systems this fall. The 
Contra Costa Water District has just installed one to the 
north.
    So, it is a new technology. So, not everybody knows about 
it yet. How do we get these things out? We try. We publish 
documents. I published a document with some of this information 
in, recently. But these things take a while for everybody to 
find out.
    Senator Smith. Can we have it in 2 weeks?
    [Laughter.]
    Senator Smith. Doctor, we have got an extension on the 
room, but I do not on my schedule. And I am going to leave this 
hearing open. The counsel is going to be here--got the gavel. 
This is legal. And Congressman Walden is going to close with 
questions and closing comments.
    Dr. Horne. Can I answer just one question?
    Senator Smith. Yes.
    Dr. Horne. And that was, you said, how long? If I skip to 
the back end of my presentation here, this is a very bad algae 
problem in upper Newport Bay, one of the richest communities, 
as you know, around.
    [Slide.]
    Dr. Horne. The algae biomass is on one side, time is on the 
other side. We started in 1995 with the pre-data. We built 
these wetlands in--these are actually wetlands--we built them 
in 1996 and 1997. And we are down to 50 percent of what we had 
by this year.
    You saw the results of oxygenation on the reservoir. They 
were instant; within the year.
    Senator Smith. Wow.
    Dr. Horne. And with that, I will----
    Senator Smith. Doctor, first, I thank all of our witnesses. 
You have been tremendous to come here. And this is important, 
but Doctor, you are the first ray of hope I have had in this 
Klamath debate since I have been in public life. And I cannot 
thank you enough. And we will talk some more.
    Congressman Walden. Did you want to go on through your 
other--yes. Why do you not go ahead and----
    Dr. Horne. Maybe I could finish that off. We talked about 
the internal loading, which is the stuff coming out from the 
bottom; the toxicants and the biostimulants. I have 
demonstrated that those can be removed by oxygenation.
    The extent to which they would remove and solve Klamath 
Lake's problem depends a little on the specifics of Klamath 
Lake. I am giving you not the engineering detail, but the 
engineering overview right now.
    The second thing we need to do is do something upstream; to 
do something with nutrients coming in. And we have talked about 
wetlands. There have been wetlands built, but I do not believe 
they have been built deliberately to clean up the lake and 
redress eutrophication. They have been built for various 
reasons.
    I would like to show you, just briefly, what you can do 
with such a wetland.
    [Slide.]
    Dr. Horne. This one involves the reversal of 
eutrophication. This was a river containing large amounts of 
nitrate, in this case, from housing and agriculture. We had an 
estuary that was full of large algae. We had a determination it 
was harmful to the fish.
    And thus, I designed a wetland to remove the nutrients. The 
wetland started in 1997. It is an 80-acre wetland in this 
particular case. It removed 200 pounds of nitrogen a day. And 
we had the algae reduced by 50 percent.
    [Slide.]
    Dr. Horne. Now, this is the concept we have to get into. 
Here is a couple of beavers. And the old one is talking to the 
young one. He is saying, ``Sure, kid, you start by working for 
the ecosystem, but pretty soon you figure out how to get the 
ecosystem working for you.''
    And that is the essence of ecological engineering. And it 
is the essence of how a wetland works. We use solar power. We 
use the energy of photosynthesis to power bacteria to do the 
work that we want them to do. And since bacteria do not have a 
lobbyist, they cannot object to being asked to do that.
    This is what this particular wetland, which is an urban 
wetland, looks like.
    Congressman Walden. Although, I have seen some lobbyist 
that might fit the--never mind.
    [Laughter.]
    Dr. Horne. And it also is in this case, it is a bird 
habitat. And not only do we have good removal of nutrients; we 
also have 122 bird species.
    [Slide.]
    Dr. Horne. This gives you one example. This is the example 
in Irvine, in California. Nitrate came in at about 13 
milligrams per liter. Two weeks later, or a week later, in this 
case, it goes out at about three-and-a-half. This is removal of 
nutrients of the grand scale. And the result, as I have 
mentioned before, was this one, which indicates the loss of 
algae as we pass along the system.
    Congressman Walden. Dr. Horne, I wonder if you could give 
us some ballpark as to what would it cost to oxygenate a lake 
the size of Klamath?
    Dr. Horne. The cost----
    Congressman Walden. How would we go about that?
    Dr. Horne. The cost to oxygenate a similarly--a lake of a 
similar volume, would run anywhere from about half a million to 
about $3 million; the capital costs. It depends on how much 
oxygen you want to put in. And besides specific things, like 
where power is; whether you are using solar power; or whether 
you are using other alternative energy sources; and sometimes 
just the length of pipe. Electrical wire is pretty expensive 
stuff underwater. It is about $150 a foot. So, that can crank 
up your prices.
    Running costs, I would estimate, in the order of $1,000 or 
$2,000 a day. And you would use this for anywhere between 100 
and 200 days a year.
    Those are the kind of costs that are being--that, right 
today, are being used for Camanche Reservoir.
    Congressman Walden. And if we were to do that, and say, got 
it going this year, what do you look at for fish recovery, 
then, to the suckers?
    Dr. Horne. Well, you imagine being a sucker. Now, I am no 
sucker biologist, but I have----
    Congressman Walden. I have been accused of that.
    [Laughter.]
    Dr. Horne. I have some training in zoology. And I have 
spent a lot of time on lakes. Most small fish--the young 
suckers and to some extent the adults--usually go down during 
the day. They like to get into deeper water.
    Congressman Walden. All right.
    Dr. Horne. They cannot do that in this lake, because the 
deeper water is nasty.
    Congressman Walden. All right.
    Dr. Horne. If you add oxygen, that is a whole more bigger 
habitat for them. So, suddenly, we have created, out of 
nothing, more habitat for suckers.
    Their prey, small zooplankton, also would like to get down, 
too. But they cannot go down very far, because it is toxic down 
there. The fountain of toxicants that comes out from the 
bottom--ammonia, sulfide, which has not even been looked at in 
this lake, yet it is the cause of toxicity in almost all the 
lakes I have looked at, though it is real, had to be sure with 
fish kills, you know.
    It is probably one of the chronic factors that perhaps 
increases the bacterial infection that the Fish and Game--Fish 
and Wildlife people think is a problem. Whether that is, you 
know, coming on--I think we all agree, diseases usually hit 
weakened fish. This toxicant is coming out of the bottom.
    Now, what percentage is coming out of the deep part of the 
lake and what is coming out of the shallow part, I do not know. 
Supplemental oxygenation can be used for the deeper parts, too, 
other than the very deepest.
    This is just a technology that seems to have worked well. 
And it seems to be a technology whose time has come. And I 
think it should be given a chance.
    Congressman Walden. Are there any down sides to the 
environment from what you are recommending?
    Dr. Horne. We have not found any, so far. The TVA has been 
using this kind of stuff since 1974. They usually use it for 
their tailwaters. They cannot meet the standards for 
tailwaters, and they add oxygen at the back.
    I, personally, have designed at least half a dozen systems 
where we have looked at everything, because some of these have 
been very controversial.
    The one that I showed you at Camanche Reservoir, the East 
Bay MUD, Oakland's supply, was a criminal lawsuit for negligent 
fish killing. So we have everybody in the world examining the 
data very, very, very carefully. And the reports came out 
reasonably well. And we have seemed to come away with--in fact, 
what happened is we now have got the system so much that we can 
now generate our own electricity, because the water is now so 
pure, we can release it downstream. And the system is now 
paying for itself.
    Congressman Walden. Wow. Would the same principle, same 
science apply, say, up in the Columbia River-Snake River 
system, involving salmon, or is that a whole different set of 
issues?
    Dr. Horne. Well, you have two issues there. One is just the 
issue of costs of the dam, and little fish and big fish moving 
up and down. But to the extent that you need to add oxygen if--
I do not think oxygen is a problem on those reservoirs, to my 
knowledge.
    I am also working on dam removal, but that is a different 
category.
    This is for more still waters; though, further down the 
Klamath River, there was a problem of low oxygen. If there is 
low oxygen in a river, one of the--oxygen is $50 a ton. That is 
a billion milligrams. It is .0008 centimeters per liter. And it 
takes quite a while to get rid of a liter.
    So, it is a relatively cheap technology, even with 
increased power prices that we have now.
    Congressman Walden. And if we were to install this in 
Klamath Lake, is this something you would need to run forever, 
or do you bring the levels down to a better healthier level in 
the lake, and then you do not have to run it as much?
    Dr. Horne. One would probably find, if it is like other 
reservoirs, you would run it for a while, and then we would 
need to run it less, because the algae would have gone down. 
Everything would have gone down. We would be able to operate 
the reservoir with more nutrients coming in than we really 
should. Until we got those nutrients back down to what they 
used to be, we could never switch it off completely.
    I mean, I would like to retire it. And there is no reason, 
with an aggressive program of wetlands and other systems, you 
could not think about retiring it in one or two decades. But 
that is probably about the lifetime I would think you would 
need to work on. But the lake improvement, if it works, would 
be very rapid. I mean, you have seen the results.
    Congressman Walden. Do you think it could be rapid enough, 
if installed in short order, a matter of months that--is there 
anything we can do this year to offset the----
    Dr. Horne. The delays are always for the environmental--I 
mean, there is about a month's contracting delay. It is about a 
month or so to build these things. The rest is the 
environmental impact statement.
    And I do not know whether one can say, ``Well, this is an 
emergency; that we need to try.'' And so we build a sort of 
pilot-scale project as part of other solutions. You know, this 
is just one, of course, of many solutions that you could use.
    Congressman Walden. I know there are those who think the 
God Squad ought to be brought to bear on--on this particular 
situation. And you know, to the extent that is even being 
discussed is remarkable.
    Dr. Horne. Well, I can give you a similar--we had some 
problems in California in the early seventies, in the big 
reservoirs in southern California--the big southern--the big 
water supply reservoirs that were built as part of the State 
Water Project.
    In those days, we were using aeration, where we were just 
adding air, not oxygen. Oxygen is much more efficient, because 
it is all oxygen. But in those days we used air. And I think we 
put those systems in pretty quickly; in a matter of weeks. They 
just got some compressors.
    Now, you cannot--this is a little more sophisticated. This 
system, you cannot put it in that quickly. But the thing is 
only a few pipes and, you know, it is not an earth-shattering 
piece of equipment. And the guy who originally came up with the 
idea that seems to work well is still alive and working. He is 
a professor in Pennsylvania--in Tennessee.
    Congressman Walden. Who?
    Dr. Horne. And a number of people are now working with 
these systems. Because, like I say, they have been installed 
here and there. And so, the ideal would be to get one in before 
the lake loses--runs out of oxygen. I doubt one could do that, 
because that is pretty quick. But you could get pretty near.
    [The prepared statement of Dr. Horne follows:]
  Prepared Statement of Alex J. Horne, Ph.D., Department of Civil and 
   Environmental Engineering, University of California, Berkeley, CA
    Chairman Smith and members of the subcommittee, thank you for 
inviting me to testify at this important hearing. My name is Alex Horne 
and for the last 30 years I have been a professor of Ecological 
Engineering in the Department of Civil and Environmental Engineering at 
the University of California, Berkeley. Ecological Engineering involves 
the manipulation of aquatic environments to improve water quality and 
wildlife habitat using renewable resources. It is the ``green'' version 
of Environmental Engineering. My education includes degrees in Zoology, 
Biochemistry, Limnology and Oceanography and I am the author of the 
best-selling textbook on limnology (the study of inland waters). I have 
carried out research on lakes and their management since 1964 and have 
worked on hundreds of lakes, reservoirs, wetlands, rivers, estuaries, 
and oceans in most continents. I have worked on shallow lakes and 
reservoirs and wetlands in the semi-arid Western United States. In 
particular, I have designed systems for large reservoirs that have 
stopped the deaths of hundreds of thousands of fish and have designed 
several large wetlands that remove hundreds of tons of nutrients 
annually. I have designed several systems that reversed eutrophication 
in large water bodies. I am actively working on other large systems, 
including a $15 million five-method project in Lake Elsinore that uses 
in-lake techniques and watershed wetlands for the prevention of fish 
kills and eutrophication in several shallow lakes.
    Upper Klamath Lake is the largest reservoir for the Klamath 
Irrigation Project. Its quality is poor, especially in summer, a 
condition that has occurred for many decades. The lake is also a 
habitat for endangered fish species. Poor water quality is a problem 
for these species and has been associated with fish kills. Recently, 
regulatory requirements have been proposed that would hold the lake at 
higher than historic elevations in the belief that could improve water 
quality and avoid fish kills. I was retained in October 2000 by Klamath 
Water Users Association to investigate the relationships between lake 
depth, water quality and fish kills, as well as to identify means for 
water quality improvement. My analysis and recommendations appear in 
the report entitled ``Protecting the Beneficial Uses of Waters of Upper 
Klamath Lake: A Plan to Accelerate Recovery of the Lost River and 
Shortnose Suckers.'' With me today is David Vogel, a biologist, who 
also contributed to the report.*
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    * The report has been retained in subcommittee files.
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                                summary
    In Upper Klamath Lake, as in many lakes, determining the cause of 
fish kills is extraordinarily difficult. Fish kills are rapid and 
unexpected and often occur at night. When a fish kill is discovered, 
the conditions that caused it have usually vanished. All parties seem 
to agree that eutrophication in Upper Klamath Lake causes poor water 
quality that directly or indirectly promotes fish kills. If the lake 
were less eutrophic fish kills would be reduced or eliminated.
    Reversal of eutrophication is possible. The 1972 Clean Water Act 
funded domestic and industrial sewage treatment that reduced algae-
stimulating nutrients and cleaned up many of the Nation's lakes and 
rivers. However, shallow lakes with large drainage basins have not been 
so easily restored, in part because nutrients come from many diffuse 
sources.
    A major concern at Upper Klamath Lake is the effect of small 
changes in water elevation on eutrophication, the health of the fish 
and water quality. Most limnologists and lake managers believe that 
``more is better'' in terms of lake size and depth. However, this is 
not always true in relatively shallow lakes. Fish kills in Upper 
Klamath Lake are not correlated with lake elevation. Fish kills have 
occurred at higher elevations and have not occurred at the lowest 
elevations. The same conclusion has been reached for other large 
shallow lakes. The only common factor is that kills occur in the 
warmest season and this weather condition results in periods of 
temporary thermal stratification. Unlike the more familiar seasonal 
stratification in deep lakes that lasts from spring to fall, temporary 
stratification lasts only a few days or weeks and may involve only 
small temperature differences. Temporary stratification is common in 
shallow lakes in warm weather. Following certain kinds of weather 
patterns, temporary stratification produces a layer of warmer buoyant 
water that floats on top of a cooler denser layer. The two layers do 
not mix for several days but when mixing (de-stratification) does occur 
fish kills can result. I conclude that this temporary thermal 
Stratification and DeStratification (SDS) is the reason for most fish 
kills in shallow lakes. I believe that others concur that SDS is an 
important, if not the only, cause of fish kills. In my opinion, SDS is 
the most probable cause, direct and indirect, of fish kills in Upper 
Klamath Lake.
    The mechanism by which fish die from SDS is that during the 
temporary stratification in the warmest part of the year, toxicants and 
nutrients build up in the deeper water. When the water mixes again the 
fish are exposed to toxicants and have no refuge. The nutrients mixed 
into the surface waters stimulate eutrophication and algae growth and 
the process re-enforces itself over time. In particular, hydrogen 
sulfide, a highly toxic and soluble gas, is produced in sediments that 
are anoxic (lacking oxygen). Ammonia, phosphate and other undesirable 
chemicals are produced under the same anoxic conditions. SDS causes 
kills of fish and other water creatures in the summer in the very large 
Salton Sea where only the shallow edge water contains healthy biota in 
summer. Fish kills caused by toxic substances released by SDS are often 
rapid. However, if sufficient dilution is available, toxic effects may 
be chronic and the fish become sick rather than dead. During this time 
they are more susceptible to disease, especially gill diseases and 
hydrogen sulfide produced by SDS causes damage to gill membranes.
    When temporary thermal stratification occurs in shallow water, the 
thickness of the buoyant upper layer is similar, regardless of the 
total depth. However, the thickness of the deeper less buoyant layer is 
very different and larger for the deeper water. Fish in water with only 
a thin deep layer are less likely to suffer SDS-induced toxicity than 
fish in water with a thick deep layer. The shallower total depth 
results in a smaller volume of deeper anoxic water relative to the 
fixed volume of the upper oxygenated layer. For example in relatively 
shallow water, if the two layers produced by temporary thermal 
stratification had equal volume and the sediment releases 1 mg/L of 
toxicants to the lower layer, then the toxicant will be diluted to 0.5 
mg/L when the two layers mixed. If the water were one-third deeper, the 
lower layer would be twice the volume of the upper layer and the 
concentration of the pollutant when the layers mixed would be 0.67 mg/
L. After mixing the deeper water would be more toxic to fish after 
mixing (0.67 mg/L of toxicant) than the shallower water (0.5 mg/L of 
toxicant).
    For these reasons, the probable effect of requiring Upper Klamath 
Lake to operate to greater depth is to promote rather than discourage 
fish kills. At other relatively shallow lakes where I have worked, the 
presumption or argument was initially made, incorrectly, that deeper is 
better. It would be very unfortunate to repeat this experience, given 
the significant stakes involved.
                               solutions
    A major purpose of our report is to promote recovery of endangered 
suckers. This includes many measures identified by Mr. Vogel, which are 
described in the report. Suggested solutions to the water quality 
problems at Upper Klamath Lake include active and passive management 
strategies. Prime among these solutions are deeper water oxygenation 
and nutrient removal wetlands near the inflows. Oxygenation would 
prevent toxicity following SDS and would reverse eutrophication. 
Wetlands could remove nutrients before they reach they lake and thus 
reduce eutrophication. I have used these methods to successfully 
eliminate fish kills and reverse eutrophication in other lakes. Other 
methods to improve water quality are also described in the report. 
Studies to clean up the lake and reverse eutrophication and research to 
determine the effectiveness of lake management techniques should be 
carried out alongside the other studies at Upper Klamath Lake.

    Congressman Walden. That is a question I would have for 
everybody at the table. Is there anybody that would object to 
pursuing this course of action? Based on what you know, 
realizing there is probably more out there. Is there--on the 
face of it?
    Mr. Spain. Congressman Walden, it should be looked at, and 
should be looked at carefully, but I am concerned that we would 
be missing opportunities for long-term restoration by doing a 
technological fix and not reducing the nitrates from sources 
where we can reduce them.
    I am very interested in the idea of using wetlands as a 
nitrate filtration system, because the wetlands serve bird 
habitat purposes. They clean up the water. They, you know, make 
the system function better biologically.
    But when you commit to a long-term technological solution, 
as opposed to a biological solution, you are committing to 
long-term costs.
    Congressman Walden. Yes. I know. But I thought what I was 
hearing Dr. Horne say is it is a combination of both. You use 
wetlands and other----
    Dr. Horne. Oh, yes. And there is actually another method.
    Congressman Walden [continuing]. You know, the Deschutes 
Basin, I know.
    Mr. Spain. We ought to look at it.
    Dr. Horne. There is a method called biomanipulation, which 
is the long-term sustainable way to clean up all lakes, but 
that requires a reduction of nutrients and--at least, give it a 
start with the oxygenation. You have got to do it for a while.
    Congressman Walden. Others at the table?
    Mr. Foreman. Congressman, we are talking about a lake which 
has an average depth of seven feet. You know, we are not 
talking--so, the depth issue here is not really the issue, but 
I would like to see more studies on this here, because if it is 
basically a scheme or whatever you want to call it to draw the 
lake down.
    Let us say you draw it down four feet, you have got three 
feet depth there. You are going to have--I do not care what you 
say. You are going to have serious fish kills. And just--
because the temperature, alone, on three feet of water versus 
seven or eight feet is going to adversely affect the fish.
    Mr. Spain. There might be trade-offs, yes.
    Congressman Walden. Can you respond to that? Because that 
seems to be the heart of debate here, is the lake level.
    Dr. Horne. Yes. That is the heart of the debate. First of 
all, where you would put the oxygenation system is in the worst 
spot, which may be the fountain of almost all the toxicants, 
which is 30 feet deep. And if the lake goes up and down two or 
three feet, it makes no difference. That is still deep.
    I cannot answer the temperature question. That is not my 
expertise. I can only note that there have been some low lake 
levels where there were no fish kills, but fish kills are 
notoriously difficult to be absolutely sure about.
    Congressman Walden. All right. The State of Oregon?
    Mr. Marbut.
    Mr. Marbut. No. We have--the State of Oregon is on the 
record as asking for flexibility in this matter. And the 
flexibility that was available in 1992 and we requested in 
1998, we maintain that same flexibility should be pursued.
    If this technology can give us, so to speak, some fish kill 
insurance to experiment with that flexibility, we would 
absolutely be in support of it.
    Congressman Walden. Roger.
    Mr. Nicholson. I think we would be very much in support of 
it. And it is a healthy and refreshing idea to see somebody 
come with a solution that is economically feasible, and 
perhaps, make everybody whole in this basin and get on with 
life and live as a community once again.
    Mr. Foreman. All right. So, if I may interrupt just a 
minute. We are talking about maintaining a species from 
extinction versus restoring them to harvestable levels. And, as 
I mentioned earlier, I think that has got to be an important 
component of this, because we are starting from the bottom to 
begin with.
    Congressman Walden. Right.
    Mr. Foreman. And these species are nearing extinction. And 
just maintaining their existence is not the answer we are 
looking for. We want to get them to harvestable levels for at 
least our crops.
    Congressman Walden. I understand. In your experience at 
Camanche and elsewhere, are you seeing that kind of restoration 
of fish?
    Dr. Horne. We have seen an increase in fish crop, yes.
    Congressman Walden. Yes. Okay. There is just more 
turnaround----
    Dr. Horne. There is just more habitat available for the 
fish. We did fish monitoring experiments during the first two 
years. And the fish moved to a much greater part of the 
reservoir. So, there were more fish in the entire reservoir.
    Congressman Walden. You looked on up the river, did you 
not, in terms of habitat for the suckers?
    Dr. Horne. I did not do that. David Vogel did that.
    Congressman Walden. Oh, somebody did.
    Dr. Horne. Yes.
    Congressman Walden. Yes. Okay. All right. Well, I have one 
other request from Senator Wyden, to ask each of you at the 
table to designate one person to speak for your group or 
organization viewpoint at the meeting tomorrow morning with the 
Federal agencies. If you are able to do that, it will be the 
first of many working group type meetings to be continued in 
the Klamath Basin and on this issue.
    If it is possible, Sarah--yes. If you could let Sarah know 
who your designee will be, if not yourself, that would be 
helpful.
    I cannot adjourn the meeting, because I do not--I am not 
allowed to touch the gavel, but our counsel can.
    Counsel. Now, we will keep the record open for 2 weeks, as 
is our practice, for any additional comments and questions. A 
number of witnesses have been asked for follow-up information 
and other documents, if you can provide those to the committee.
    The hearing is adjourned.
    Congressman Walden. Thank you very much.
    [Whereupon, at 4:32 p.m., the hearing was adjourned.]