    [Senate Hearing 108-636]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 108-636

                     NEZ PERCE-SNAKE RIVER WATER RIGHTS ACT

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

                                    HEARING

                                   BEFORE THE

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                          ONE HUNDRED EIGHTH CONGRESS

                                 SECOND SESSION

                                       ON

                                    S. 2605

    TO DIRECT THE SECRETARY OF THE INTERIOR AND THE HEADS OF OTHER FEDERAL
     AGENCIES TO CARRYOUT AN AGREEMENT RESOLVING MAJOR ISSUES RELATING TO
        THE ADJUDICATION OF WATER RIGHTS IN THE SNAKE RIVER BASIN, IDAHO

                                   __________

                                 JULY 20, 2004
                                 WASHINGTON, DC

                     U.S. GOVERNMENT PRINTING OFFICE

    95-051                 WASHINGTON : 2004
    _________________________________________________________________
    For sale by the Superintendent of Documents, U.S. Government Printing
    Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800;
    DC area (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP,
    Washington, DC 20402-0001

                          COMMITTEE ON INDIAN AFFAIRS

                  BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

                    DANIEL K. INOUYE, Hawaii, Vice Chairman

    JOHN McCAIN, Arizona,                KENT CONRAD, North Dakota
    PETE V. DOMENICI, New Mexico         HARRY REID, Nevada
    CRAIG THOMAS, Wyoming                DANIEL K. AKAKA, Hawaii
    ORRIN G. HATCH, Utah                 BYRON L. DORGAN, North Dakota
    JAMES M. INHOFE, Oklahoma            TIM JOHNSON, South Dakota
    GORDON SMITH, Oregon                 MARIA CANTWELL, Washington
    LISA MURKOWSKI, Alaska

             Paul Moorehead, Majority Staff Director/Chief Counsel
            Patricia M. Zell, Minority Staff Director/Chief Counsel

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page
    S. 2605, text of.................................................     2
    Statements:
        Bogert, Michael, counsel, Office of Governor Kempthorne......    33
        Craig, Hon. Larry, U.S. Senator from Idaho...................    31
        Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice
          chairman, Committee on Indian Affairs......................     1
        Johnson, Anthony, chairman, Nez Perce Tribal Executive
          Committee..................................................    28
        Ling, Roger, counsel, Ling, Robinson & Walker................    36
        Olsen, Michael, counselor to the assistant secretary, Indian
          Affairs, Department of the Interior........................    25
        Riley, Jim, executive director, Intermountain Forest
          Association................................................    39

                                    Appendix

    Prepared statements:
        Johnson, Anthony (with attachment)...........................    54
        Kempthorne, Dirk, Governor, Idaho............................    47
        Ling, Roger..................................................    49
        Olsen, Michael...............................................    73
        Riley, Jim...................................................    51
    Additional material submitted for the record:
        Mediator's Term Sheet........................................    78

                     NEZ PERCE-SNAKE RIVER WATER RIGHTS ACT

                                  ----------

                             TUESDAY, JULY 20, 2004

                                           U.S. Senate,
                                   Committee on Indian Affairs,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10 a.m. in room
    485, Russell Senate Building, Hon. Daniel K. Inouye (vice
    chairman of the committee) presiding.
        Present: Senator Inouye.

     STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
               VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

        Senator Inouye. The committee meets this morning to receive
    testimony on S. 2605, the Snake River Water Rights Act of 2004.
    S. 2605 was introduced by Senator Craig for himself and Senator
    Crapo on June 24 of this year. The bill was referred to the
    Committee on Indian Affairs and this hearing on the bill was
    scheduled.
        The legislation is intended to resolve the water rights
    claims of the Nez Perce Tribe of Idaho as those claims have
    been asserted in the general stream adjudication known as the
    Snake River Basin Adjudication.
        The committee looks forward to receiving the testimony on
    this measure today. We know that the sponsors of this measure,
    as well as the Nez Perce Tribe and the other parties to the
    settlement are anxious to have the bill move forward to the
    full Senate at the earliest possible time.
        [Text of S. 2605 follows:]

        Senator Inouye. Our first witness is Senator Larry Craig.
    Is he here? We will set aside time for him. May I now call upon
    the counselor to the assistant secretary for Indian Affairs of
    the Department of the Interior, Michael Olsen.
        Mr. Olsen, please.

        STATEMENT OF MICHAEL OLSEN, COUNSELOR TO THE ASSISTANT
        SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

        Mr. Olsen. Thank you. Good morning, Mr. Vice Chairman.
        My name is Michael Olsen. I am a counselor to the assistant
    secretary for Indian Affairs. Before I start, I would like to
    apologize on behalf of Commissioner Keyes, who until late
    yesterday afternoon was scheduled to be here to testify, and
    because of health reasons is not able to be here. I will be
    pinch hitting for him.
        I appreciate the opportunity to present testimony on behalf
    of the Administration in support of the Snake River Water
    Rights Act of 2004. This legislation helps ensure certainty not
    only for the Nez Perce Tribe, but also for Idaho cities,
    farmers, ranchers and individual landowners. It provides
    numerous conservation benefits and relieves the Federal
    Government of the obligation to litigate the tribe's water
    rights claims.
        The legislation and the settlement that it implements lays
    the groundwork for resolving longstanding and contentious water
    rights issues in the Snake River basin in Idaho. The result of
    several years of formal mediation and negotiations, the
    settlement provides a just resolution to protracted litigation,
    while protecting the interests of all parties. The settlement
    fully determines the Nez Perce Tribe's water rights, provides
    for in-stream flows that protect the habitat of endangered
    species, and protects valid existing rights to water and land
    use.
        The Snake River basin adjudication involves over 150,000
    claims to water from the Snake River and its tributaries. The
    adjudication covers all or part of 38 of Idaho's 44 counties.
    In 1993, the United States filed, on behalf of the tribe,
    several claims including in-stream flow claims to support the
    tribe's treaty-based fishing rights, claims to support the
    tribe's consumptive use, and claims to springs in the area
    ceded by the tribe in 1863.
        The settlement agreement which is the result of the
    parties' creative and collaborative work contains three main
    components. The first is resolution of the Nez Perce Tribe's
    water rights. The second is a section addressing in-stream flow
    and Endangered Species Act issues within the Salmon and
    Clearwater River basins, and a component covering in-stream
    flows and flow augmentation from the Upper Snake River basin to
    benefit threatened or endangered fish.
        As a package, these three provisions resolve the tribe's
    water rights claims, ensures that the water has enough water to
    meet present and future needs, and allows water users in Idaho
    to participate in voluntary programs to maintain, improve and
    restore fish habitat.
        S. 2605 directs the Federal Government to implement the
    settlement. It also confirms the tribe's right to 50,000 acre-
    feet of water annually to meet on-reservation water needs. It
    confirms the tribe's right to water from springs on Federal
    land surrounding the reservation and authorizes Federal funds
    for domestic and municipal water, sewer treatment facilities,
    and projects related to water and fisheries resources.
        The bill also directs the BLM to transfer land valued at up
    to $7 million to the BIA to be held in trust for the tribe.
        S. 2605 also authorizes funding for habitat protection and
    restoration in the Salmon and Clearwater basins, which is one
    of the most important areas of spawning and rearing habitat for
    anadromous fish in the Columbia River system. The legislation
    authorizes the Secretary to carry out the Upper Snake River
    basin flows component of the agreement, including reclamations
    flow augmentation program to benefit anadromous fish.
        The bill also authorizes a one-time mitigation payments to
    local governments that may be affected by the Bureau of
    Reclamation's acquisition of up to 60,000 acre-feet of
    consumptive natural flow rights from the Snake River.
        Finally, the settlement agreement anticipates that the
    parties will address a number of Endangered Species Act issues
    through existing statutory and regulatory authorities. S. 2605
    would enable the settlement to proceed and implementation would
    result in Federal actions that would be subject to the
    consultation provisions of section 7 of the Endangered Species
    Act.
        However, neither S. 2605 nor the settlement agreement would
    affect the review of those Federal actions, pre-judge the
    outcome of that review, provide for pre-enforcement review, or
    limit the ability of any party to challenge the outcome of that
    review through existing administrative or judicial avenues.
        Further, S. 2605 would not alter the procedural or
    substantive requirements of the National Environmental Policy
    Act [NEPA] or any other Federal law.
        The settlement approved by S. 2605 is an example of
    creativity in resolving contentious water rights disputes in
    the West. We believe that the Federal participation and
    contribution contemplated in the legislation is appropriate to
    resolve the tribe's claims and the related issues in the
    settlement agreement.
        This concludes my statement. I would be happy to answer any
    of your questions.
        [Prepared statement of Mr. Olsen appears in appendix.]
        Senator Inouye. I thank you very much, Mr. Olsen.
        In looking over your measure, we note that your measure
    does not include any schedule for the payment to the fund that
    will be necessary to carryout the activities set forth in the
    agreement. Will these terms be provided to the committee before
    we act on the bill?
        Mr. Olsen. Certainly. We would be willing to work with the
    committee to the extent that the committee would like to see
    those. As you mentioned, the bill is silent on payment. The
    Administration figures that the majority of the money that is
    provided for in the settlement will be paid out over the course
    of approximately 10 years from the final passage of legislation
    and execution and so forth.
        The Department, of course, will include in its budget
    sufficient amounts to comply with the terms of the term sheet,
    and then we contemplate that at that point it would be up to
    Congress in the appropriations process. But to the extent the
    committee would like to work with the Department on some sort
    of provision for payment of funds, we can certainly do that. At
    this point we intend to include the amounts necessary in our
    budget and then leave it up to the appropriations process.
        Senator Inouye. We gather that the Indian leaders are very
    much in need of the funds to carry on the activities. I think
    it might help if all three parties sat down and discussed this
    matter. So I will have the staff initiate this with your
    office?
        Mr. Olsen. Okay.
        Senator Inouye. What is the legal status of this agreement,
    also known as the mediator's term sheet? Does it have the
    effect of law that overrides any existing statutes, such as the
    Endangered Species Act that may conflict with it? Or is it
    merely a contract that binds the signatories, without changing
    existing law or affecting the rights of non-parties?
        Mr. Olsen. It would be the latter. It does not have the
    binding effect of law. This is one very important first step in
    the process and there will need to be Federal legislation and
    State legislation, as well as Endangered Species Act documents
    produced as part of this.
        As I mentioned in my oral statement, there is no conflict
    in this settlement with existing law and it is not intended to
    trump or override existing environmental laws.
        Senator Inouye. This agreement contains language that seems
    to appear to require the parties, including the United States,
    to seek amendment to the Endangered Species Act and Clean Water
    Act if it becomes necessary, because of the conflict between
    the agreement and those existing statutes. My question is, can
    the Congress lawfully enact a statute that binds the executive
    branch to seek the enactment of new legislation?
        Mr. Olsen. Could you repeat the question one more time for
    me?
        Senator Inouye. This bill is an agreement.
        Mr. Olsen. Right.
        Senator Inouye. It contains language appearing to require
    the parties, which includes the Government of the United
    States, to seek an amendment to the Endangered Species Act or
    the Clean Water Act if such be, quote, ``necessary.'' My
    question is, can we in the Congress lawfully enact a statute
    that binds the executive branch to seek an enactment of
    legislation such as this.
        Mr. Olsen. The language that you are referring to, I
    believe, well, let me take a step back. The settlement requires
    the Federal Government to do several things, some of which
    require additional statutory authority. That authority is
    provided in the legislation, but other things that are required
    to carryout the legislation, we do have statutory authority
    for, for example, the Bureau of Reclamation's current practice,
    which it has been doing for approximately 10 years, of flow
    augmentation.
        We also have authority to do everything that is required
    under the Clean Water Act and the Endangered Species Act. The
    legislation is in no way, as I said, intended to modify those
    two acts, and I am not certain and will have to, go back to the
    Department and do some reviewing with attorneys about specifics
    of your question. We do not view that there is going to be a
    need for modification of the Endangered Species Act or the
    Clean Water Act, but we do need authority to perform some of
    the Federal functions or Federal actions upon which we will
    consult under section 7 of the Endangered Species Act.
        For example, we would need funding for a section 6 of the
    Endangered Species Act program, which is contemplated in the
    settlement. We will also need payment of mitigation for flow
    augmentation.
        We do not believe that there is going to be a need to
    modify or amend the Endangered Species Act. We will certainly
    look more into that to the extent there is a concern.
        Senator Inouye. Can the court order the President or the
    Secretary of the Interior to lobby Congress to change existing
    law if that becomes, quote, ``necessary'' to allow the
    fulfillment of the terms of the agreement?
        Mr. Olsen. Like I said, we do not believe that that would
    be necessary to fulfill the terms of the agreement. I would
    have to consult with our attorneys on exactly what lobbying can
    be done. Our position, at this point, is that we do not believe
    that any modification is going to be necessary.
        Senator Inouye. Because of the technicalities involved, Mr.
    Olsen, may we submit to your office questions to clarify some
    of these?
        Mr. Olsen. Absolutely. We would be happy to address any
    questions you have.
        Senator Inouye. I appreciate that. In order to expedite
    this, and as you know we just have a few days left in the
    session, but I think we can if we apply ourselves get this
    measure through both Houses and to the President. So let's work
    on it.
        Mr. Olsen. Very well.
        Senator Inouye. Thank you very much.
        Mr. Olsen. Thank you.
        Senator Inouye. Now may I call upon Anthony Johnson,
    chairman of the Nez Perce Tribal Executive Committee of Lapwai,
    Idaho. Chairman Johnson, welcome, sir.

       STATEMENT OF ANTHONY JOHNSON, CHAIRMAN, NEZ PERCE TRIBAL
                          EXECUTIVE COMMITTEE

        Mr. Johnson. Thank you, Senator Inouye.
        Good morning. Thank you, Vice Chairman Inouye and members
    of this Committee on Indian Affairs and your staff members for
    agreeing to bring S. 2605, the Snake River Water Rights Act of
    2004 to a hearing so quickly after introduction. I am Anthony
    Johnson, chairman of the Nez Perce Tribal Executive Committee.
    I appreciate the opportunity to provide testimony today on this
    legislation, which would implement the proposed Snake River Nez
    Perce water settlement.
        I also add my appreciation of the efforts and leadership of
    Senator Craig and Senator Crapo in sponsoring this legislation.
        Before I go on, I would like to say how much your
    leadership as vice chairman of this committee and your service
    as chairman as well have meant to the Nez Perce Tribe and to
    Indian country. As you prepare at the end of this Congress to
    step down as vice chairman, I want to express our deep
    appreciation for your many efforts on behalf of Indian people
    over the years and the strong affection the Nez Perce people
    have for the Senior Senator from Hawaii.
        This proposed settlement should be considered in the light
    of the history of my people and their connection to water and
    fish. Since time immemorial, the Nez Perce people occupied a
    geographic area encompassing a large part of what is today
    Idaho, Washington, and Oregon. The territory exclusively
    occupied by the Nez Perce, over 13 million acres, stretched
    from the continental divide forming the border between Idaho
    and Montana in the Bitterroot Mountains, to the Blue Mountains
    of northeast Oregon and southeast Washington.
        I have brought with me a map that shows the aboriginal area
    of the Nez Perce, and the boundary lines of the 1855 and 1863
    treaties with the United States. When you consider the equities
    of this proposed settlement for the Nez Perce Tribe as well as
    other parties, I hope you consider the vast expanse of land
    that was my people's and the portion of the Northwest United
    States it occupies today.
        We understood that our promises to cede millions of acres
    of land to the United States were forever. We expect the United
    States' promise to protect the Nez Perce homeland and our
    fishing, hunting, pasturing and gathering rights was forever as
    well. This agreement maintains that promise. Nothing in this
    proposed settlement changes any of those rights.
        The Nez Perce culture revolved and revolves still around
    water and fish, most notably salmon. Nez Perce people define
    themselves in terms of their relationship to water and fish.
    This is a lesson that has been taught to my people by our
    elders over many generations. Water and fish are essential to
    the Nez Perce in declines in their availability due to human
    alteration and restrictions on access have had devastating
    effects on our people and culture.
        We did not choose to take our water rights to court. The
    Snake River Basin Adjudication, or SRBA, began in Idaho in 1987
    as a comprehensive state court proceeding. Because of the
    McCarran Amendment, in 1993 we filed three categories of water
    rights claims together with the United States as our trustee.
    These are, first, claims to water for consumptive use on tribal
    lands within the reservation, traditionally known as Winter's
    rights; second, claims for access and use of springs and
    fountains in the 1863 treaty ceded area; and third, claims for
    in-stream flows based on the 1855 treaty fishing right.
        The springs and fountains claims are unique. They are based
    on article 8 of the Nez Perce Treaty of 1863, which expressly
    reserved for the Nez Perce people access to and use of springs
    and fountains in the ceded area in common with non-Indians. The
    in-stream flow claims are in fulfillment of the fishing right
    reserved by the tribe under the Treaty of 1855 and preserved by
    the Treaty of 1863.
        The tribe's claims are based on the simple concept that to
    fulfill the purpose of the reservation of fishing rights, a
    water right must be implied to provide habitat for fish to
    ensure that there are fish. These claims are supported by the
    U.S. Supreme Court's recognition that water rights must be
    implied, regardless of the silence of treaties, to fulfill the
    purpose of Indian reservations and by the several Federal
    courts that have recognized the existence of Indian water
    rights necessary to fulfill the purpose of treaty fishing
    rights.
        The litigation process changed fundamentally for us when
    the SRBA court ordered confidential mediation of our claims
    beginning in late 1998. Only since the parties' public
    announcement on May 15, 2004 have the complex details of the
    proposed agreement been permitted to be revealed to the public,
    including our tribal public.
        This proposed settlement can be described accurately as a
    hybrid of Indian water rights resolutions and related
    Endangered Species Act agreements. Other witnesses before you
    today will describe its ESA provisions. For the tribe, the
    proposed settlement at its core is about ensuring water for
    fish and water for the Nez Perce people in fulfillment of the
    1855 and 1863 treaties with the United States.
        For the tribe, the resolution of its water rights claims in
    SRBA--decreeing Winter's rights on our reservation, as well as
    the rights to springs on Federal public lands in the 1863 ceded
    territory would provide, along with other provisions of the
    settlement, various important benefits for our people. There
    would be in-stream flows established under State law on
    approximately 200 streams of importance to the tribe in our
    aboriginal territory; BLM lands on the reservation transferred
    in trust to the tribe; Federal fish hatchery agreements; and a
    new flow-release agreement at Dworshak Dam on the North Fork
    Clearwater River.
        There would be appropriations of Federal funds in
    consideration of tribal waivers that would enable our people to
    make needed improvements to drinking water and sewer systems on
    our reservation; and land and fish habitat improvements
    throughout our aboriginal territory. And I will say again how
    critical it is that nothing in this proposed settlement changes
    our treaty fishing, hunting, pasturing, and gathering rights.
        The settlement of the tribe's SRBA claims involves
    difficult compromises for us. Other parties have made
    compromises and it is the collective offerings made by all
    parties to which the tribe looks in examining the overall merit
    of the proposed agreement.
        It is the same set of collective provisions to which all
    residents of Idaho and the Pacific Northwest will look for
    ultimate benefits to salmon population recovery. In important
    respects, this proposed settlement offers a new model for
    future conduct in our relationship with the State of Idaho in
    particular, when compared to the expensive, time consuming and
    uncertain path of litigation. A mutual respect between the
    state and tribe as sovereign governments underlies this
    proposed agreement in ways that contrasts with the hostility of
    litigation.
        It has taken a certain amount of courage and commonsense on
    the part of all parties to make it to this point, and I respect
    that and hope you do as well. The path of continued fighting in
    court begun 17 years ago could well continue for another decade
    if this effort were to fail.
        The parties to the proposed settlement have committed to
    each other a final completion and approval date of March 31,
    2005. By that date, a number of things need to occur, including
    the final approval of all three sovereigns: the United States,
    the Nez Perce Tribe and the State of Idaho.
        A final Nez Perce decision will occur through NPTEC or a
    decision of the tribe's general council, or some coordination
    of those governing bodies. We are involved in an ongoing
    process of informing our tribal members that will take several
    months. We are committed to taking the time necessary to ensure
    that tribal members are fully informed and have their questions
    answered before a final decision is made.
        Because we have just emerged from a 5-year period of
    confidential mediation, our public information process is
    particularly important. At the same time, because of your busy
    schedule, particularly in this election year, we are here to
    inform you and gain your support at this relatively early point
    in the final approval process.
        When we look forward to March 31, 2005 and set out the work
    needed to complete the settlement, we know that we must be here
    today informing you and answering your questions to have a
    chance of meeting that goal. Much work remains, work that we
    are actively engaged in, but that will take several months more
    to complete--implementing parts of the proposed agreement that
    require additional detail, answering questions of the Indian
    and non-Indian public in Idaho, and reaching out to the
    downriver tribes and non-Indian public in Oregon and
    Washington. I do not underestimate the work ahead in passing
    this bill through Congress.
        I thank you for your time and willingness to listen, and
    for the opportunity to provide you with these comments and my
    written statement. I am pleased to answer any questions you may
    have.
        [Prepared statement of Mr. Johnson appears in appendix.]
        Senator Inouye. Thank you very much, Mr. Chairman.
        Before asking questions, I have the honor of presenting and
    calling upon my colleague, the illustrious Senator from Idaho,
    Senator Craig.

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

        Senator Craig. Mr. Chairman, thank you. I say that, Mr.
    Chairman, Ranking Member, but always chairman of this committee
    and the fine work you have done, Senator, on behalf of Native
    Americans in the work of this committee.
        I am here only briefly, but I did want to catch the
    comments of Chairman Johnson, and thank you very much, Mr.
    Chairman, for the work of the Nez Perce and cooperating with
    the State of Idaho and the Federal Government in getting us to
    this point with S. 2605.
        I welcome all who are here today on behalf of this
    legislation. We are moving it as quickly as we can, having
    received it from the negotiators very recently. I thank them
    for the work they have done over the last good number of years.
        I think in my statement this is probably the thought that
    brings me here and brings most Idahoans collectively to this
    point. Once this legislation is enacted, and the chairman
    referenced this, years of protracted litigation that has caused
    considerable uncertainty and drained life from Idaho's economy,
    can come to a close.
        Though much I think still needs to be done across the
    State, and the chairman spoke of informing his members.
    Certainly, that will be true of all Idahoans, whether it be at
    the State level or tribal government levels.
        The important thing is that officially this will end
    litigation when enacted. I think most importantly, it is a
    milestone in the State's 114-year quest to control its water
    destiny. It has been done at home in the State of Idaho by the
    interested parties involved, where it should be. But because of
    the magnitude of it and the character of it, we collectively,
    Mr. Chairman, have to put the final stamp of approval on it.
        In Idaho, this is not unanimously received by all parties.
    There are concerns and frustrations, but all I think recognize
    the importance of bringing this issue to a resolution and the
    legislation does so. So we thank you for the timely movement of
    this committee in the short session that we are in, and hope
    that able to complete it this year.
        Thank you, Mr. Chairman.
        Senator Inouye. As the saying goes in our Senate, what
    Larry Craig wants, Larry Craig gets. [Laughter.]
        I was impressed by your statement, Mr. Chairman, that for 5
    years you have had mediation that members of your tribe and the
    community were not aware of.
        Mr. Johnson. Mr. Chairman, that was the 5-years of
    negotiations.
        Confidential negotiation ordered by the SRBA court.
        Senator Inouye. In this city, if you said something now, we
    would give you 5 minutes and it would be leaked out. You have
    kept yours secret for 5 years? Congratulations. [Laughter.]
        I know this will be a success if you can do that.
        Are there any details of the bill that remain to be
    resolved by the parties before everything can be addressed
    action? I assume that the bill itself does not end.
        Mr. Johnson. No; it does not. In fact, we have, as stated
    in the testimony, until March 31, 2005, where there are many
    processes in motion at this time, not just the Senate bill, but
    agreements on hatcheries. There are many technical people
    within our organization, the State of Idaho and the other
    parties to bring this all on line and provide by March 31, 2005
    when all parties must make a decision, to have everything in
    place. Should that decision be to go forward by all parties,
    then everything would be put in motion all at once.
        So you have hatchery agreements. You have people looking at
    the land transfer and prioritizing right now. So many of the
    things spoken of in this testimony and many of the things that
    are more important on the term sheet are presently ongoing and
    will require a lot of work up to completion of this process

        Senator Inouye. Are the discussions ongoing now? Or are
    they waiting for the passage of this bill?
        Mr. Johnson. No; this is a machine that has many parts
    ongoing right now.
        Senator Inouye. Well, I can assure you, Mr. Chairman, that
    this committee will do its best to work on this measure and
    pass it, so you will have some resolution.
        Mr. Johnson. Thank you very much.
        Senator Inouye. This will be our Christmas present to you,
    sir.
        Mr. Johnson. Okay. Thank you very much, Mr. Chairman. If
    there is anything more?
        Senator Inouye. No; we have another panel here. I would
    suggest you may want listen to what they have to say.
        Mr. Johnson. Okay. Thank you very much, Mr. Inouye. Thank
    you, Senate Committee on Indian Affairs.
        Senator Inouye. Thank you very much, sir.
        Our final panel consists of the counsel of the Office of
    Governor Kempthorne of Boise, ID, Michael Bogert; the counsel
    of Ling, Robinson and Walker of Rupert, ID, Roger Ling; and the
    executive director of the Intermountain Forest Association of
    Coeur d'Alene, ID, Jim Riley.
        Shall we begin with Mr. Bogert? Welcome, gentlemen.

       STATEMENT OF MICHAEL BOGERT, COUNSEL, OFFICE OF GOVERNOR
                               KEMPTHORNE

        Mr. Bogert. Mr. Vice Chairman, thank you for having us. I
    bring greetings from Governor Kempthorne, who with great
    disappointment could not be with the committee today. He is
    chairing his final day as chairman of the National Governors
    Association in Seattle. As you know, Senator and others, one of
    his joys is to come back to the Senate and visit with his
    former colleagues and friends. He sends his regrets that he
    could not be with us here today.
        Senator Inouye. Would you tell the Governor we miss him
    here?
        Mr. Bogert. He will be pleased to hear that, Mr. Vice
    Chairman.
        Mr. Vice Chairman, the agreement that is before this
    committee today is the result, as you have already heard, of
    several years of difficult discussions and compromise. As
    already mentioned by Senator Craig, water is very important in
    our arid State of Idaho and even more important to our people
    is the protection of it.
        Having said that, the parties to the negotiations over the
    Nez Perce Tribe's water rights claims were able to reach a
    settlement agreement, while remaining true to their fundamental
    beliefs over water and protection of endangered species. There
    have been times during the past few years when the path we were
    on seemed to be leading away from the negotiating table and
    back into the courtroom. Time and again, we decided to come
    back to the table and keep the discussions moving forward.
        The result is that we have formed, and Chairman Johnson
    touched upon this, stronger bonds with each other and between
    our respective governments so that the path now leads from a
    celebration several weeks ago in Boise to our appearance before
    you today in this committee.
        Mr. Vice Chairman, in order to provide a bit more insight
    into Idaho's perspective on this settlement, let me give you a
    brief bit of background on the SRBA. In 1985, the Idaho
    legislature laid out a process to adjudicate the water rights
    claims that ultimately concluded in this agreement in the Snake
    River Basin known as the Snake River Basin Adjudication, or as
    we have been referring to it today, the SRBA.
        As you can imagine, adjudicating or resolving all of the
    competing interests for Idaho water has been a monumental task.
    In the beginning, there were nearly 150,000 water rights in
    question, and we had contested claims of 38 of Idaho's 44
    counties. The Nez Perce Tribe, as they were entitled to do
    under the SRBA, filed their claims in the adjudication.
        When the Governor took office over 5 years ago, one of his
    priorities was to tackle the tribe's claims head-on and come to
    a much-needed resolution. The Governor's directive to the
    State's negotiators to make progress on the tribe's claims was
    clear. Any resolution had to maintain our state sovereignty. It
    had to protect our State water rights, and it had to protect
    state water law by resisting any federally-reserved water
    rights.
        After 5 years of back and forth, and frankly sometimes
    intense negotiations, we reached the agreement that is before
    you today that has accomplished, we believe, Mr. Chairman, all
    of these goals. The benefits of this agreement for Idaho are
    that we have protected our State sovereignty, provided long-
    term certainty for our agriculture interests in our state, and
    provided future opportunity for Idaho and her stakeholders to
    chart their own destiny under the Endangered Species Act.
        This agreement protects Idaho's sovereignty by maintaining
    our system of water law and our existing water rights and water
    rights holders, which is a process familiar to this committee
    in traditional tribal water rights settlements. It provides
    certainty for the Nez Perce Tribe by resolving their water
    rights, and as mentioned by Senator Craig, the end of
    protracted litigation through the SRBA, as well as certainty
    for our Idaho water user community and important stakeholders
    in our natural resource-based economy because of the
    protections contained in the agreement for the next 30 years.
        It provides opportunity by setting forth a new way of going
    about protecting endangered species, while preserving access to
    state and private timberlands for our resource-based industries
    and the rural communities that depend on Idaho's forests.
        We will speak about this more in depth, but one opportunity
    worth highlighting in particular as a result of this agreement
    is that in some key parts of our state that support important,
    ESA-listed fish habitat, irrigators may now have a choice to
    forego water they would otherwise be entitled to fully divert
    under their state water rights, in exchange through a program
    that we are still working on as we speak, for protection under
    the Endangered Species Act.
        Mr. Vice Chairman, this is an innovation in a State like
    Idaho 5 years ago, if we could have predicted that this would
    have been a possible outcome, would have boggled our minds. In
    this instance, there is a real possibility of a win-win for our
    agriculture community as well as ESA-listed fish.
        Finally and importantly, almost $200 million will be
    authorized in this legislation for the State of Idaho, the
    tribe and Federal agencies to implement the agreement.
        Mr. Vice Chairman and members of the committee, this
    legislation is of no small significance for the State of Idaho
    and for state, Federal and tribal government-to-government
    relations. This process has spanned four Administrations in
    Idaho and two Administrations in the White House. The state,
    the Nez Perce Tribe, numerous Federal agencies, water user
    organizations and some of our state's largest and most
    important irrigation districts came to the table, many times at
    the behest of the Governor in his office, to overcome their
    differences and achieve a solution that is best for the entire
    State and our stakeholders.
        There has been some discussion about the process.
    Admittedly, I think everyone who will be before the committee
    today will testify that the agreement before you is a
    compromise and thus is inherently imperfect. But we are
    extremely confident, Mr. Vice Chairman, that the process we
    undertook was all that we could have asked of ourselves, of the
    people that we represent and our stakeholders that we are
    trying to protect and defend.
        As we have traveled about the State and discussed this with
    the people who are wondering what is in this agreement, we have
    found and we have related stories of the fact that we went
    beyond our mere negotiating positions in these discussions. We
    took the time, Mr. Vice Chairman, to understand what our
    interests were. That is the only reason that we stayed at the
    table for the 5 years of this process. It was important to us.
    We understood what was important to the tribe, and the tribe,
    to their great credit, understood what was important to
    agriculture in Idaho and our resource-based industries. For
    that, we have great respect for the tribe.
        As this committee reviews the agreement you have asked to
    approve, we believe you will find that it could very well be a
    national model for future tribal water settlements of this
    type. Now that we have agreed to these terms, there is still
    work ahead. Governor Kempthorne is working closely with
    Senators Craig and Crapo, and he looks forward to partnering
    with them, as well as the members of this committee, as this
    legislation now moves through Congress.
        Mr. Vice Chairman, we appreciate the work of the committee
    staff, particularly Marilyn Bruce, your committee's chief
    clerk, to help us get ready for the hearing today. Governor
    Kempthorne wants to again publicly thank Chairman Johnson and
    his predecessor Sam Penny for their leadership, and again
    acknowledge publicly the commitment from the Nez Perce Tribe to
    proceed forward with this settlement.
        The Governor greatly appreciates Idaho's water users and
    the countless others who agreed that working together for a
    solution was a better outcome than litigation and uncertainty.
        Not to belabor the thank yous, Mr. Vice Chairman, but we
    especially appreciate the efforts of Ann Klee of the Department
    of the Interior who was the lead Federal negotiator on this, as
    well as Clive Strong from the Idaho Attorney General's Office
    who was our lead negotiator as well.
        We are grateful for the opportunity to describe for you
    what we think is one of the most important and exciting
    developments in the Indian water rights area in the country,
    and we are proud of what we have accomplished and the
    partnerships that have developed as a result of this process.
        We know that the next few weeks bring great challenges if
    we are to succeed in this legislative session of Congress, but
    we also know that with great challenges come great
    opportunities. We look forward to working with you in the days
    ahead to provide your and your staff with the information you
    need to help us achieve the promise of this agreement so
    important for the people of Idaho and so important for the
    tribe.
        Thank you, Mr. Vice Chairman.
        [Prepared statement of Mr. Kempthorne appears in appendix.]
        Senator Inouye. I thank you very much, Mr. Bogert. I will
    call on the other members of the panel before asking questions.
        May I now call upon Mr. Roger Ling.

       STATEMENT OF ROGER LING, COUNSEL, LING, ROBINSON & WALKER

        Mr. Ling. Thank you, Vice Chairman Inouye. It is an honor
    and pleasure to appear before the Senate Committee on Indian
    Affairs, especially you whom I have heard much about, but have
    not had the pleasure of testifying before your committee prior
    to today. I appear today as a representative of the water users
    of the Upper Snake River in southern Idaho in support of S.
    2605.
        A brief review of the efforts of water users in the Upper
    Snake Plain may be helpful to obtain a proper perspective on my
    comments. In 1987, the State of Idaho commenced what is known
    as the Snake River Basin Adjudication, a general river
    adjudication of the entire watershed of the Snake River from
    where it enters the State from Wyoming on the east to where it
    leaves the State near Lewiston, ID on the west.
        Under this general adjudication, claims were required to be
    filed by all water users, claiming a right to divert or use
    water from the Snake River and its tributaries, as well as
    claims to any reserved water rights by the Federal Government
    and Indian tribes within the state, including the Nez Perce
    Tribe.
        As the result of claims filed in the SRBA by the Federal
    Government in its own right and as trustee for the Nez Perce
    Tribe, a group of claimants in the SRBA consisting primarily of
    irrigation districts, canal companies, water districts and
    advisory committees of water districts formed a Federal claims
    coalition to address Federal and Nez Perce tribal claims.
        In July 1998, claimants represented by the Federal claims
    coalition, the State of Idaho, United States, and Nez Perce
    Tribe tentatively agreed to proceed with a mediation of Federal
    and tribal claims. Mediation was ultimately ordered by the
    district court of the Fifth Judicial District of the State of
    Idaho in and for the county of Twin Falls, which has been
    designated as the SRBA court, and mediation ultimately
    culminated in a term sheet dated April 20, 2004, which is the
    subject matter of S. 2605.
        The full significance of the mediator's term sheet and the
    interests of the Federal claims coalition may not be fully
    appreciated without some understanding of the Snake River and
    the interests of water users making a claim for use of the
    Snake River and its tributaries. The Upper Snake River Basin is
    generally divided into two segments. The first segment is being
    that portion of the Snake River and its tributaries above
    Milner Dam near Twin Falls, ID, which is a diversion structure
    used to divert all of the Snake River not previously diverted
    upstream by senior appropriators.
        Anadromous fish have never existed in this portion of the
    Snake River. There are approximately 1,717,580 irrigated acres
    above this point, which include acres irrigated with
    groundwater which is hydrologically connected to the Snake
    River. There are approximately one million acres irrigated from
    the Snake River and its tributaries below Milner Dam to the
    mouth of the Weiser River, with diversions primarily from the
    Snake River and the Boise, Payette and Weiser River
    tributaries.
        As a part of the significant agriculture development
    relying upon the Snake River and its tributaries, there have
    been developed active storage facilities of approximately 7
    million acre-feet, 6.3 million acre-feet of which are used for
    irrigation. Unfortunately, this storage space is not filled
    each and every year and substantial shortages can and do occur
    in times of drought similar to the drought we have experienced
    over the last 5 years.
        It is therefore readily apparent that the agricultural
    community depending upon water for irrigation has significant
    and real concerns when there are additional claims made to the
    use of the water they have appropriated. The significant
    appropriation of the Snake River resulting in zero flows at
    Milner Dam does not tell the whole story. The Snake River
    begins to replenish itself below Milner from spring waters
    known as the Thousand Springs reach. As the result of these
    inflows to the river, the Snake River is soon replenished to a
    flow of approximately 5,000 cubic feet per second, and the flow
    increases to an average of 10,000 cubic feet per second at the
    Weiser gauge, which is generally considered to be below the
    last significant diversions from the Upper Snake River for
    irrigation.
        Substantial litigation has occurred in the SRBA involving
    Federal and tribal claims to reserved water rights. It has
    become apparent to all concerned that negotiated settlements
    are the preferred method for resolving these claims, both from
    a financial perspective and for reaching finality and certainty
    in the outcome.
        In the mediation of the Federal and tribal claims, however,
    it became apparent that a settlement of these claims would not
    necessarily result in finality as to the claims to the use of
    the water of the Snake River as additional demands could arise
    under the Endangered Species Act and Clean Water Act for which
    no claims would be filed in the adjudication.
        Through the significant efforts of all parties concerned
    and their committed cooperation and desire to reach a
    resolution of these issues, the mediator's term sheet was
    ultimately agreed upon. Under the Snake River flow component of
    the mediator's term sheet, it is agreed by all parties,
    including water users represented by the Federal claims
    coalition, that the minimum in-stream flows established by the
    Swan Falls Agreement would be decreed in the SRBA to the Idaho
    Water Resource Board.
        These minimum in-stream flows of 3,900 cfs average daily
    flow from April 1 to October 31 and 5,600 cfs average daily
    flow from November 1 to March 31 were affirmed to protect an
    in-stream power right senior to all rights acquired after July
    1, 1985. It was also agreed in the mediator's term sheet that a
    term-of-the-agreement flow augmentation program would be
    implemented following in most respects the flow augmentation
    program that had been implemented, which allows for water to be
    leased on a willing lessor-lessee basis and for water right
    acquisitions to provide flow augmentation of up to 427,000
    acre-feet per year from the Upper Snake River. I would like to
    add, actually up to 487,000 acre-feet in good years.
        Many terms of the flow augmentation program to be
    established are contained in the mediator's term sheet. It was
    further agreed that biological opinions will be issued for the
    term of the agreement, that is 30 years, which will provide
    incidental take coverage if necessary for all Federal actions
    and related private actions, including Bureau of Reclamation
    action in the Upper Snake River and related private
    depletionary effects as they may affect listed anadromous fish
    and listed resident species.
        The mediator's term sheet provides that to the maximum
    extent practicable the United States shall be responsible for
    managing water acquired or rented pursuant to the agreement to
    meet needs of all species covered by the agreement, and in a
    manner that will not result in the violation of any permit,
    applicable water quality rule and regulation or other
    requirements of the Clean Water Act, and in a manner that will
    not cause jeopardy to other species in the State of Idaho or
    result in significant adverse impacts to recreational uses of
    the water in the Snake and its tributaries within the State of
    Idaho.
        The mediator's term sheet describes the proposed Federal
    action for which consultation will take place under the
    Endangered Species Act. On the other hand, it provides that in
    the event that the services fail to issue no-jeopardy
    biological opinions and to provide incidental-take coverage, or
    if the services require terms or conditions inconsistent or not
    contained in the Upper Snake component, this component of the
    agreement shall be terminated upon written notice by the state
    or private parties to the agreement.
        Finally, the Federal agencies which are parties to the
    agreement may seek additional Endangered Species Act flow
    measures from the Snake River Basin upon certain conditions
    that are set forth in the agreement. It is not conceded by the
    State of Idaho nor the private parties to the Snake River Flow
    component of the agreement that, by entering into the
    agreement, the flows identified will benefit the listed
    species; that BOR operations in the Upper Snake require ESA
    consultations, or that BOR operations in the Upper Snake are
    subject to modifications to meet ESA requirements or concerns,
    or that diversions, storage or use of water in the State of
    Idaho are subject to modification to meet ESA requirements or
    concerns. I might add, though, we are committed, however, to
    our conditions and our obligations under the agreement.
        Of equal importance to the Federal claims coalition are the
    general conditions applicable to the entire agreement. Under
    these general conditions, certain Endangered Species Act and
    Clean Water Act assurances are provided under certain
    conditions and the Nez Perce Tribe and the United States waive
    and release all claims to water rights within the Snake River
    Basin in Idaho, injuries to such water rights, and injuries to
    the tribe's treaty rights, except to the extent provided in the
    mediator's term sheet.
        I have not attempted to address all of the significant
    issues addressed by the mediator's term sheet, nor have I
    attempted to identify all terms that are extremely important to
    the Federal claims coalition. It is believed by the Federal
    claims coalition and all of the parties represented by the
    coalition that the mediator's term sheet is an appropriate
    settlement of claims in the SRBA and provides water users in
    the Upper Snake River in the State of Idaho with some degree of
    certainty and finality in regard to future claims under the
    Endangered Species Act and Clean Water Act. It is for these
    reasons that we urge the passage of S. 2605 and the early
    implementation of the provisions in that bill.
        Again, I would like to thank the vice chairman for the
    opportunity to present our views on S. 2605, and I am willing
    to answer questions to the extent my ability and knowledge
    allow.
        Thank you.
        [Prepared statement of Mr. Ling appears in appendix.]
        Senator Inouye. I thank you very much, Mr. Ling.
        May I call upon Mr. Riley.

       STATEMENT OF JIM RILEY, EXECUTIVE DIRECTOR, INTERMOUNTAIN
                           FOREST ASSOCIATION

        Mr. Riley. Thank you, Mr. Vice Chairman. I am Jim Riley. I
    am the president and CEO of the Intermountain Forest
    Association in Coeur d'Alene, Idaho. We represent the forest
    businesses of our State, as well as the forest landowners.
        I, too, am honored and gratified to be here today to
    express our support for S. 2605 and for this historic agreement
    that has brought to this spot. I am particularly proud of the
    collaboration of the colleagues that are on this panel and the
    work we have done with Chairman Johnson and the members of the
    Nez Perce Tribe to arrive at this point.
        This agreement is unique. It is unique both in terms of its
    substance and of the people of the State of Idaho who
    collaborated to make it happen. It represents a significant
    change in our approach to public policy as it relates to water
    and natural resources. The fundamental premise here, which was
    really the vision of our Governor, Governor Kempthorne, is if
    we could not work together as Idahoans to refocus our energies
    and our investments on what could be possible, rather than in
    endless debates through the courts as to what is minimally
    required or minimal entitlements under law. In doing so, I
    think we have achieved a framework for benefits to publicly
    held fisheries resources, as well as private interests
    throughout the State.
        Others on this panel before me have talked about the
    important water elements of this proposal as far as the State
    and tribal elements of this. I want to focus my attention on
    the forest and fisheries elements which are admittedly a minor,
    but integral part of what is before you today.
        Just as a little bit of background, I want to advise the
    committee members that all forest management in Idaho is
    regulated and has been for some time by our state Forest
    Practices Act, which sets mandatory minimum requirements for
    forestry and forest-related activities on all forest lands
    throughout the State. This Act, as well as the performance of
    forestry in our State, makes Idaho's forestry some of the most
    environmentally and economically advanced anywhere in the
    world.
        This agreement is not about providing fundamental threshold
    protections for endangered species under the Endangered Species
    Act in our State, because those requirements are being fully
    and completely met by forestry today. What this agreement is
    all about is establishing a program for voluntary enrollment of
    landowners and forestry operations to provide additional
    benefits to species that might be diminished for one reason or
    another.
        What is included in this agreement I call the forestry and
    fisheries component of the Snake River Basin Adjudication, are
    some important elements that build upon the fundamental
    threshold of the Idaho Forest Practices Act. The agreement in
    the term sheet outlines specific provisions agreed to by
    forestry interests, the State of Idaho and Federal fisheries
    experts from the Department of the Interior and from NOAA
    Fisheries as providing significant opportunities beyond those
    required by the Endangered Species Act to benefit fish species
    in forested habitats of Idaho covered by this agreement.
        There are four essential elements of the forestry and
    fisheries provisions. The first and foremost platform, as it is
    in other elements of this program, is that participation is
    voluntary for landowners. It is voluntary because it
    establishes standards for forest management which go well
    beyond the requirements of current law. But we believe that
    these voluntary standards will be addressed and bring
    additional benefits to fish. Our initial expectation, based on
    preliminary feedback from potentially enrolling landowners is
    that this program will attract broad participation.
        Second, there are specific standards articulated that will
    change the practice of forestry over time in Idaho,
    particularly as it relates to forest practices and forest
    operations in riparian areas, areas immediately adjacent to
    fish-bearing streams, and secondly as it relates to the
    construction of roads or other infrastructures in the forest.
    These standards are described in detail in the agreement term
    sheet, which the committee can review in some detail.
        Third, there are recognized processes under this agreement
    for assessing existing forest facilities and infrastructures to
    identify those that are potentially limiting fish productivity
    in our State and mechanisms to replace and improve those
    limiting conditions where it is warranted. That is an important
    provision in our view in providing the elements of this
    agreement. The experts have agreed that we can provide more
    benefit to fish in Idaho by focusing our attentions first and
    foremost on historically evolved infrastructure that might be
    limiting fish productivity, than on additional measures on new
    activities that have yet to occur.
        Last and perhaps also most importantly are the agreed upon
    provisions for adaptive management processes to continuously
    improve our collective understanding of the interaction between
    forestry and fisheries, and to improve the applications of the
    management practices over time. In this, all forest interests
    in our state are working together in a scientific framework to
    understand better what the implications are of various
    management practices on fisheries.
        Over time, our expectations are for widespread enrollment
    of Idaho's private forest landowners, both small and large, as
    they come to understand the opportunities to enhance fish
    species consistent with the fundamental objectives for which
    they own their land and to gain the benefits afforded by this
    agreement.
        Implementing the specific elements of the agreement's
    fisheries and forestry components is going to be accomplished
    principally through administrative channels currently
    authorized by law. We look forward to the good-faith efforts of
    the Federal agencies in carrying out their commitments to
    seeing this agreement through in the forestry and fisheries
    portion as well.
        However, S. 2605 is needed for two very important reasons.
    First, forestry is just one part of this multi-party complex
    agreement. It is an integral part and the success or the
    failure of this entire agreement rises and falls upon the
    success or failure of the individual parts. So we fully support
    the parts of S. 2605 that might not directly support forestry.
        Second is that the full benefits to the fish and forestry
    programs to be realized by this agreement need to be
    accomplished within the context of the agreement, including
    those authorized by S. 2605, and that the funding for the
    habitat restoration fund in the projects will be used in many
    cases to improve the infrastructure on forested lands.
        In conclusion, Senators, I want to fully endorse S. 2605 as
    it authorizes important programs which benefit both the people
    of Idaho and the Nez Perce Tribe, but also is nationally
    justified as it provides essential support to species
    recognized as threatened or endangered under the Endangered
    Species Act.
        This agreement is borne by a unique multi-party
    collaboration described in this hearing today, and I am honored
    to be part of the coalition which is before you.
        I would be happy to answer any questions at this time.
        [Prepared statement of Mr. Riley appears in appendix.]
        Senator Inouye. Thank you very much, Mr. Riley.
        If I may go back to Mr. Bogert, there is a provision in
    this act that seems to obligate the parties, including the
    United States, to call upon the Congress to amend certain
    environmental laws in order to carryout the terms of the
    agreement.
        My question would be, how do you enforce this against the
    government of the United States? How do you force them to do
    something like this?
        Mr. Bogert. Mr. Vice Chairman, that was your question to
    the prior panel. I can tell you what the intent of the parties
    was in terms of our acknowledgement and understanding of the
    legal framework for the negotiations. I reference my answer by
    indicating that there is perhaps no former or current United
    States Senator with as much background of reforming the
    Endangered Species Act as Governor Kempthorne.
        The side-bars and the ground rules for these negotiations,
    Mr. Vice Chairman, were that we would work within the existing
    confines of the Endangered Species Act and the Clean Water Act.
    The issues of implementation that I think you have pointed to
    in the agreement itself point to breathing life into the
    agreement through separate statutory enactments. For example,
    one of our obligations in Idaho, and Mr. Ling referred to that
    in his testimony, is that pursuant to our state law, the Bureau
    of Reclamation has the authority, and they have had such
    authority for the past several years, to obtain from willing
    buyers and willing sellers of water so that they can otherwise
    resolve their Endangered Species Act obligations through the
    Bureau of Reclamation projects for flow augmentation.
        The particular clause, Mr. Vice Chairman, that you
    referenced a moment ago on Mr. Olsen's panel, we have
    interpreted that as being a requirement that the State's
    obligation and the Governor's obligation to introduce
    legislation and in good faith advocate for a change in our
    existing State law is a part of the agreement.
        I can tell you that having been through several of these
    negotiating sessions, the agreement itself, the term sheet that
    we have been discussing today, was negotiated within the
    current structures of the Endangered Species Act and the Clean
    Water Act. We would view it very problematic and I would think
    that this would be a constitutional law professor's dream
    question on an exam, if any judge could order the executive
    branch to introduce legislation and have enforcement of the
    agreement hinge on an act of Congress.
        I think the legislation itself, Mr. Vice Chairman, speaks
    to what certainly the intent of the parties is by moving
    forward with the agreement. On page 21 of the legislation,
    lines 17-21, and this was negotiated, I might add, Mr. Vice
    Chairman, with the Department of the Interior, the Federal
    agencies with responsibilities. The reference in subsection
    B(1) says, nothing in this act is intended to amend, supersede
    or preempt any State law, Federal law, tribal law, or
    interstate compact.
        Mr. Vice Chairman, it was the intent of all of the
    negotiators not only within the term sheet, as well as those of
    us who are before you today on the Senate bill, that there
    would be no separate substantive amendments of any of the
    existing Federal laws that otherwise are impacted by this
    agreement.
        Senator Inouye. But there is another phrase before that
    saying, except as expressly provided in this act. Is there
    anything expressly provided in this Act that would say you can
    amend, supersede or preempt any State, Federal law, or tribal
    law?
        Mr. Bogert. Mr. Vice Chairman, that is correct, and the
    operative provision of the bill as we see it is in section 4,
    page 5, lines 9-10. The act of this legislation in this Senate
    bill is to approve, ratify and confirm the agreement itself. So
    we have viewed the legislation, S. 2605, as being self-
    contained both in terms of approving the agreement itself and
    then expressly intending through the language itself that there
    shall be no effort or interpretation of this bill to amend the
    Endangered Species Act or the Clean Water Act.
        Senator Inouye. Thank you.
        Mr. Bogert. Mr. Vice Chairman, I apologize. We would be
    pleased to followup with you and your staff in terms of
    clarifying that that it is indeed the intent of this
    legislation.
        Senator Inouye. I hope you will, sir.
        Is there anything in this bill that remains to be
    negotiated, or have you finished negotiations?
        Mr. Bogert. Mr. Vice Chairman, as Chairman Johnson
    indicated, we are in the throes of many pieces of
    implementation. There are discussions as we speak about some of
    the Endangered Species Act understandings and section six
    agreements as contemplated in the term sheet. Those are ongoing
    as we speak.
        Senator Inouye. So you agree with the Chairman?
        Mr. Bogert. Yes; we do.
        Senator Inouye. Mr. Ling, in your testimony you note that
    the State and private parties may terminate the agreement if it
    becomes impossible to obtain a no-jeopardy statement for
    species listed under the Endangered Species Act. If you
    terminate the agreement, what options would be available to you
    and other parties? Would you then be required to obtain
    incidental-take permits under section 10 of the ESA?
        Mr. Ling. Mr. Vice Chairman, those provisions, and I might
    note, I have been involved in the negotiations from the very
    beginning on behalf of water users. We recognized at the
    beginning that there was no way that we could negotiate any
    kind of a change to the Endangered Species Act or the Clean
    Water Act. We had to couch an agreement consistent with those
    acts.
        We think that we have done that, and that the agreement
    will be consistent with the obligations of NOAA Fisheries and
    the Bureau of Reclamation under the Clean Water Act and
    certainly under the Endangered Species Act. But in order to
    provide relief, because we have not agreed that our commitments
    are something that are actually required, and that is something
    that we are going to provide those things, but we have not
    agreed that they are necessary.
        So our only alternative would be if in fact under the
    Endangered Species Act it should be determined that what we
    have agreed to do is not sufficient, and incidental-take is a
    fact as a result of the operation of the Upper Snake or some
    substantial effects on critical habitat is a result of the
    operation of the Upper Snake operations of the Bureau of
    Reclamation. Then that is a whole new ball game because now we
    have a commitment that we had not anticipated. The only thing
    we could do is say that we then want out of our agreement.
        I guess we would have to go back and negotiate in the event
    there was, say, a court decision which said we have not done
    enough, or we would litigate that issue to prove that maybe we
    do not have any obligation at all. But that was the only relief
    that we could have because we are not going to bind any agency
    under their obligations under existing acts.
        It goes the same way to the question you previously asked
    on whether or not we anticipated there would be any obligation
    to amend the ESA or the Clean Water Act. We particularly
    refrained from doing that, knowing that that would not be
    possible for us to agree to and no agency could agree to that.
    We do say that we ought to have necessary legislation and
    everybody has to work to that and to implement the agreement.
    That would be like the Bureau of Reclamation, how much it can
    pay for the lease of water to meet its obligation under the
    agreement may need congressional approval.
        Whether or not they can mitigate properly, and we would
    expect that if there are any questions about their ability to
    mitigate the loss of power production for reserve power users,
    for instance by using powerhead water for augmentation, we want
    to make sure that, and we have provided that they would seek
    legislation to assure that could be done within the terms of
    the agreement.
        Senator Inouye. My final question is to Mr. Riley. This
    bill has a planned cooperative agreement under section 6 of the
    Endangered Species Act. Does that agreement permit private
    parties to the agreement to obtain incidental-take permits
    under that act?
        Mr. Riley. We understand that under section 6 of the
    Endangered Species Act, the State would be provided the
    authority by the Federal Government to enroll private
    landowners who wish to step up and enroll and to obtain a
    permit for inclusion under a State permit for incidental take.
        The interesting conundrum of the Endangered Species Act
    today is that a private landowner who wishes to act in a way
    that will increase the viability of a listed population of
    species on their own land has then attracted to themselves
    quite a liability under a risk of future litigation as to
    whether they harm the very species that they helped create.
        That is the fundamental problem we are trying to overcome
    here, Senator. So section 6 would be used to establish a
    cooperative agreement between the Federal Government and the
    State, which is expressly what section 6 is for, which would
    allow the State to establish a programmatic process to enroll
    landowners, with which to embrace the supplemental measures,
    and therefore obtain incidental-take permit authority if there
    was any alleged harm to the species they help benefit.
        Senator Inouye. That is a rather clever move, that
    cooperative agreement.
        Mr. Riley. I think that it is not only clever, it is quite
    insightful. It has changed the application of endangered
    species law or seeks to in Idaho, from rather than just trying
    to stimulate private parties to do the minimum necessary, to
    truly embrace the notion that if you act to benefit species,
    that you will not be jeopardized by having taken those actions,
    and that you can do so in a way which adds value to your
    ownership and your asset base.
        Senator Inouye. I ask those questions as a preface to the
    statement I am about to make.
        It is the committee's understanding that the parties have
    identified certain provisions of the bill that are incomplete
    or that need modification or correction. You have indicated
    that you are still in the process of negotiation.
        Therefore, may I call upon the parties to assure that the
    committee is provided with an agreed-upon final product as soon
    as possible so that we can have a markup in September. A markup
    is when the committee acts upon the bill.
        We will be suspending our activities for the August recess
    beginning this Saturday, because on Sunday the Democrats go to
    Boston for their convention and all of August members go back
    to their States. At the end of August, the Republicans go to
    New York for theirs and we return on September 7. So if you
    could have a product that has been agreed to by all parties, we
    promise you we will act upon it as soon as we can.
        Is that okay?
        Mr. Bogert. Mr Vice Chairman, absolutely.
        Mr. Ling. It is certainly fine for the water users.
        Mr. Riley. We should have it to you by next week, in my
    view.
        Senator Inouye. Mr. Chairman, would that be all right with
    you?
        Well, with that assurance we will look forward to receiving
    your work product in September.
        [Whereupon, at 11:15 a.m. the committee was adjourned, to
    reconvene at the call of the Chair.]
    =======================================================================

                                A P P E N D I X

                                  ----------

                  Additional Material Submitted for the Record

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

             Prepared Statement of Dirk Kempthorne, Governor, Idaho

        Mr. Chairman and distinguished members of the committee, it is with
    great pride that I submit this testimony in support of your
    consideration of S. 2605, the Snake River Water Rights Act of 2004.
        This bill is the result of a monumental collaborative effort by the
    State of Idaho with the Nez Perce Tribe, the Bush administration, our
    resource industries, and our water user community.
        In Idaho, when you can have the intensity of the negotiations we
    have had involving water over the last few years and leave the table
    with a deep, and abiding respect for each other, that is a great
    accomplishment.
        We certainly have a great respect for the Nez Perce Tribe as our
    partners in this process, and this agreement represents a remarkable
    success story.
        We announced the agreement on May 15, 2004, and before describing
    what the agreement means to us, let me provide some background on how
    we arrived at this moment.
        In 1985, the Idaho Legislature laid out a process to adjudicate
    water rights claims in the Snake River Basin, known as the Snake River
    Basin Adjudication, or the SRBA.
        The first claims in the SRBA were filed 2 years later.
        As you can imagine, adjudicating--or resolving--all of the
    competing interests for Idaho water has been a monumental task.
        In the beginning, there were nearly 150,000 water rights in
    question. There were contested claims in 38 of Idaho's 44 counties.
        After some early jurisdictional issues were resolved in the SRBA,
    Idaho is now on the verge of adjudicating the water rights of many of
    our State's. most important water users, including several of our
    Native American governments.
        Over those years, much work has been done.
        With renewed emphasis, more than 80 percent of the claims were
    resolved by early 2002, the majority of which have taken place in the
    last 5 years.
        Add to the mix the settlement of the claims of the Nez Perce Tribe,
    and we can truly see the light at the end of the tunnel for finishing
    up this important water adjudication which has received national
    attention.
        The beginning of the water rights settlement now before your
    committee began in 1993, when the Nez Perce Tribe filed its claims as
    part of the adjudication process.
        When I became Governor over 5 years ago, one of my priorities was
    to tackle these claims head-on and come to a much-needed resolution of
    them through the SRBA.
        I directed my Office and the Attorney General's Office to begin
    negotiations in earnest with all parties.
        When we began, our goal was simple.
        In the context of negotiating a settlement for the Nez Perce
    Tribe's water rights, we challenged ourselves to develop a framework
    that would provide protection not only for the tribe, but for our most
    significant water user interests that are impacted by any adjudication
    of water in our State.
        My directive to the State's negotiators to resolve these claims was
    clear.

        Any resolution had to:

       \\\\\\Maintain State sovereignty;
       \\\\\\Protect State water rights; and
       \\\\\\Protect State water law by resisting any federally
            reserved water rights.

        After 5 years of back-and-forth and, frankly, sometimes intense
    negotiations, we reached an agreement that accomplishes all those
    goals.
        Water is the lifeblood of Idaho, and harnessing this valuable
    resource has allowed our State to prosper.
        The major interest protected in S. 2605 Idaho for is water.
        There is no more important issue to the future of our State than
    water, and this legislation represents one of the single most critical
    milestones in our State's 114-year crusade to control its water.

        What we achieved in this agreement is:

       \\\\\\Sovereignty;
       \\\\\\Certainty; and
       \\\\\\Opportunity for Idaho and her stakeholders to chart
            their own destiny under the Endangered Species Act.

        This is as it should be.
        This agreement protects Idaho's sovereignty by maintaining our
    system of water law and our existing water rights, which is a process
    familiar to this committee in traditional water rights settlements.
        It provides certainty for the Nez Perce Tribe by resolving their
    water rights, as well as certainty for our Idaho water user community
    and important stakeholders in our natural resource economy because of
    the protections contained in the agreement for the next 30 years.
        It provides opportunity by setting forth a new way of going about
    protecting endangered species while preserving access to State and
    private timber lands for our resource-based industries and the rural
    communities that depend on Idaho's forests.
        Importantly, almost 200 million dollars will be provided to the
    State, Tribe, and Federal agencies to implement the agreement.
        The promise of this agreement is that the farmer in Rexburg, ID
    will know that he won't lose water that he was counting on to irrigate
    his crops for decades to come.
        The logger in Orofino knows he'll have access to State or private
    timber lands to provide a livelihood for his family, but under a
    negotiated framework that protects important fish and wildlife.
        And the Port of Lewiston will remain a viable gateway to the world
    for Idaho products for the foreseeable future.
        Many individuals and groups have devoted countless hours to get
    where we are today.
        This process has spanned four administrations in Idaho, and two
    administrations in the White House.
        The State of Idaho, the Nez Perce Tribe, numerous Federal agencies,
    water user organizations, including the committee of Nine, the Federal
    Claims Coalition, and some of our State's largest and most important
    irrigation districts came to the table--many times in my office--to
    overcome their differences and achieve a solution that's best for the
    entire State.
        I know that as you review the agreement you are asked to approve
    through this legislation, you will find that it could very well be a
    national model for future settlements of this type.
        Now that we have agreed to these terms, there is still more work
    ahead of us.
        This agreement requires your approval.
        We are working closely with Senators Craig and Crapo, and I look
    forward to partnering with them as this legislation moves through
    Congress.
        State legislation is also needed, and I intend to have a package of
    bills drafted and ready for the next session of the Idaho Legislature.
        The Nez Perce Tribal government also needs to ratify the agreement.
        Once those actions are completed, all parties will seek approval by
    the SRBA court.
        Mr. Chairman and members of the committee, this legislation is of
    no small significance for the State of Idaho and for State, Federal,
    and tribal government-to-government relations.
        When we announced the agreement on May 15 in Boise, I paused and
    observed the parties who joined us on that day.
        I saw them enjoying the moment and each other in celebration of
    what was achieved through this agreement.
        These were parties who were once adversaries.
        I thought then as I do now that the alternative--several more years
    of litigation with the prospect that the ultimate outcome could be
    resolved by the U.S. Supreme Court--was no alternative at all.
        I want to thank Chairman Johnson and his predecessor Sam Penny for
    their leadership, as well as the commitment from the Nez Perce Tribe to
    proceed with this settlement.
        I greatly appreciate Idaho's water users and countless others who
    agreed that working together for a solution was a better outcome than
    litigation and uncertainty.
        I want to thank the dedication of the Bush administration;
    Secretary Norton and her team, including Ann Klee; also John Keys,
    Commissioner of the Bureau of Reclamation; Bob Lohn of NOAA Fisheries;
    Clive Strong from the Idaho Attorney General's Office as well as
    Michael Bogert, Jim Yost, and Jim Caswell from my Office.
        Mr. Chairman and distinguished members, I am grateful for the
    opportunity to describe for you what we think is one of the most
    exciting developments in the Indian water rights area in our country.
        Again, I am proud of what we have accomplished and the partnerships
    that have developed as a result of this process.
        We know that the next few weeks bring great challenges if we are to
    succeed in this legislative session of Congress.
        But with great challenges come great opportunities.
        I look forward to working with you in the days ahead to provide you
    and your staff with the information you need to help us achieve the
    promise of this agreement.
        Thank you.
                                     ______

        Prepared Statement of Roger D. Ling on Behalf of Federal Claims
                    Coalition Upper Snake River Water Users

        It is an honor and pleasure to appear today before the Senate
    Committee on Indian Affairs as a representative of water users in the
    upper Snake River plain of Southern Idaho in support of S. 2605. A
    brief review of the efforts of water users in the upper Snake River
    plain may be helpful to obtain a proper perspective of my comments. In
    1987, the State of Idaho commenced what is known as the Snake River
    Basin Adjudication [SRBA], a general river adjudication of the entire
    watershed of the Snake River from where it enters the State from
    Wyoming on the east to where it leaves the State near Lewiston, ID on
    the west. Under this general adjudication, claims were required to be
    filed by all water users claiming a right to divert or use water from
    the Snake River and its tributaries, as well as claims to any reserved
    water rights by the Federal Government and Indian tribes within the
    State, including the Nez Perce Tribe. As the result of claims filed in
    the SRBA by the Federal Government in its own night and as trustee for
    the Nez Perce Tribe, a group of claimants in the SRBA consisting
    primarily of irrigation districts, canal companies, water districts and
    advisory committees of water districts formed a ``Federal claims
    coalition'' to address Federal and Nez Perce Tribal claims. In July
    1998, claimants represented by the Federal claims coalition, State of
    Idaho, United States, and Nez Perce Tribe tentatively agreed to proceed
    with a mediation of Federal and tribal claims. The mediation was
    ultimately ordered by the District Court of the Fifth Judicial District
    of the State of Idaho, in and for the county of Twin Falls, which had
    been designated as the SRBA Court. Mediation ultimately culminated in a
    ``term sheet'' dated April 20, 2004, which is the subject matter of S.
    2605.
        The full significance of the Mediator's Term Sheet and the
    interests of the Federal claims coalition may not be fully appreciated
    without some understanding of the Snake River and the interests of
    water users making a claim to use of the Snake River and its
    tributaries.
        The Snake River basin is general divided into two segments, the
    first being that portion of the Snake River and its tributaries above
    Milner Dam near Twin Falls, Idaho, which is a diversion structure used
    to divert all of the Snake River not previously diverted upstream by
    senior appropriators. Anadromous fish have never existed in this
    portion of the Snake River. There are approximately 1,717,580 irrigated
    acres above this point, which include acres irrigated with ground water
    which is hydrologically connected to the Snake River. There are
    approximately 1,042,460 acres irrigated from the Snake River and its
    tributaries below Milner Dam with diversions primarily from the Snake
    River and the Boise, Payette and Weiser River tributaries. As a part of
    the significant agricultural development relying upon the Snake River
    and its tributaries, there has been developed active storage facilities
    of approximately 7 million acre-feet, 6.3 million acre-feet of which is
    used for irrigation. Unfortunately, this storage space does not fill
    each and every year and substantial shortages can and do occur in times
    of drought similar to the drought that we have experienced over the
    last 5 years. It is therefore readily apparent that the agricultural
    community depending upon water for irrigation has significant and real
    concerns when there are additional claims made to the use of the water
    they have appropriated.
        The significant appropriation of the Snake River resulting in zero
    (0) flows at Milner Dam does not tell the whole story. The Snake River
    begins to replenish itself below Milner from spring waters known as the
    Thousand Springs reach. As the result of these inflows to the river,
    the Snake River is soon replenished to a flow of approximately 5,000
    cubic feet per second (cfs), and the flow increases to approximately
    10,000 cfs at the Weiser gauge which is generally considered to be
    below the last significant diversions from the upper Snake River for
    irrigation.
        Substantial litigation has occurred in the SRBA involving Federal
    and tribal claims to reserved water rights. It has become apparent to
    all concerned that negotiated settlements is the preferred method for
    resolving these claims, both from a financial perspective and for
    reaching finality and certainty in the outcome. In mediation of the
    Federal and tribal claims however, it became apparent that a settlement
    of these claims would not necessarily result in finality as to the
    claims to the use of water of the Snake River, as additional demands
    could anise under the Endangered Species Act [ESA] and Clean Water Act,
    for which no claims would be filed in the adjudication. Through the
    significant efforts of all parties concerned and their committed
    cooperation and desire to reach a resolution of these issues, the
    Mediator's Term Sheet was ultimately agreed to.
        Under the Snake River flow component of the Mediator's Term Sheet,
    it was agreed to by all parties, including water users represented by
    the Federal claims coalition, that the minimum instream flows
    established by the Swan Falls Agreement would be decreed in the SRBA to
    the Idaho Water Resource board. These minimum instream flows of 3900
    cfs average daily flow from April 1 to October 31 and 5600 cfs average
    daily flow from November 1 to March 31 were affirmed to protect an
    instream power water right senior to all rights acquired after July 1,
    1985. It was also agreed in the Mediator's Term Sheet that a term-of-
    the-agreement flow augmentation program would be implemented following
    in most respects the flow augmentation program that had been
    implemented, which allows for water to be leased on a willing lessor-
    lessee basis and for water right acquisitions to provide flow
    augmentation of up to 427,000 acre-feet per year from the upper Snake
    River. Many terms of the flow augmentation program to be established
    are contained in the Mediator's Term Sheet. It was further agreed that
    biological opinions will be issued for the term of the agreement (30
    years) which will provide incidental take coverage, if necessary, for
    all Federal actions and related private actions, including Bureau of
    Reclamation [BOR] action in the upper Snake River and related private
    depletionary effects as they may affect listed anadromous fish and
    listed resident species. The Mediator's Term Sheet provides that, to
    the maximum extent practicable, the United States shall be responsible
    for managing water acquired or rented pursuant to the agreement to meet
    needs of all species covered by the agreement, and in a manner that
    will not result in the violation of any permit, applicable water
    quality rule and regulation or other requirements of the Clean Water
    Act, and in a manner that will not cause jeopardy to other species in
    the State of Idaho or result in significant adverse impacts to
    recreational uses of the water in the Snake River and its tributaries
    within the State of Idaho. The Mediator's Term Sheet describes the
    proposed Federal action for which consultation will take place under
    the Endangered Species Act. On the other hand, it provides that in the
    event that the services fail to issue no-jeopardy biological opinions
    and to provide incidental-take coverage, or if the services require
    terms or conditions inconsistent or not contained in the upper Snake
    component, this component of the agreement shall be terminated upon
    written notice by the State or private parties to the agreement.
        Finally, the Federal agencies which are parties to the agreement
    may seek additional Endangered Species Act flow measures from the Snake
    River basin upon certain conditions that are set forth in the
    agreement. It is not conceded by the State of Idaho nor the private
    parties to the Snake River Flow Component of the agreement that, by
    entering into the agreement, the flows identified will benefit the
    listed species, that BOR operations in the upper Snake require ESA
    consultations, that BOR operations in the upper Snake are subject to
    modification to meet ESA requirements or concerns, or that diversions,
    storage or use of water in the State of Idaho are subject to
    modification to meet ESA requirements or concerns.
        Of equal importance to the Federal claims coalition are the general
    conditions applicable to the entire agreement. Under these general
    conditions, certain Endangered Species Act and Clean Water Act,
    assurances are provided under certain conditions, and, the Nez Perce
    Tribe and the United States waive and release all claims to water
    rights within the Snake River basin in Idaho, injuries to such water
    rights, and injuries to the tribe's treaty rights, except to the extent
    provided in the Mediator's Term Sheet.
        I have not attempted to address all of the significant issues
    addressed by the Mediator's Term Sheet, nor have I attempted to
    identify all terms that are extremely important to the Federal claims
    coalition. It is believed by the Federal claims coalition and all of
    the parties represented by the coalition that the Mediator's Term Sheet
    is an appropriate settlement of claims in the SRBA, and provides water
    users in the upper Snake River in the State of Idaho with some degree
    of certainty and finality in regard to future claims under the
    Endangered Species Act and Clean Water Act. It is for these reasons
    that we urge the passage of S. 2605 and the early implementation of the
    provisions in that bill.
        Again, I would like to thank the committee for the opportunity to
    present our views on S. 2605, and I am willing to answer questions to
    the extent of my ability and knowledge.
                                     ______

     Prepared Statement of James S. Riley, President, Intermountain Forest
                                  Association

        Mr. Chairman and members of the committee, I am James S. Riley,
    president and CEO of Intermountain Forest Association [IFA]
    headquartered in Coeur d'Alene, ID. Our association represents forest
    land owners and forest businesses of Idaho.
        IFA has a long history of developing and implementing solution-
    oriented policies for forest stewardship and conservation of our
    Idaho's remarkable and abundant forest lands. In addition, IFA provides
    expertise and creative opportunities for member landowners and
    businesses to develop cooperative relationships with other interests in
    forest policy.
        I am honored to be here today to express our support for S. 2605,
    and present our views on this unique and historic agreement among the
    diverse interests of Idaho and the Nez Perce Tribe concerning water
    rights, fisheries, and forestry in Idaho. The agreement we have
    reached, among ourselves and with the Federal Government, is a
    remarkable accomplishment. All of the members represented by IFA--are
    proud of our role in securing this accomplishment. We are also proud of
    the successful collaboration we have formed with the other Idaho
    organizations and interests represented at this hearing today.
        The legislation before this committee is the product of many years
    of work, much innovation, and much compromise by all involved. S. 2605
    includes the essential legislative components of a broader Agreement
    referred to by sec. 4 the legislation. Other parts of the agreement
    will be accomplished administratively. Overall the Agreement resolves a
    long standing dispute over the water, fisheries and related resources
    of our state. This Agreement involves private, tribal, state, and
    Federal Government interests.
        This Agreement is unique--both in terms of its substance and in
    terms of the diverse coalition of interests which have come together on
    the terms. As it is implemented it will bring significant benefits to
    the public wildlife resources, stability to the private sector by
    relieving the risk of continuous litigation, and support for the Nez
    Perce tribal fisheries programs. With the support of Congress,
    implementation of this Agreement and its component programs will allow
    land owners, resource managers for all sectors, and private and public
    interests to focus their energies and investments on management of our
    natural resources in a manner which brings significant benefits to
    fisheries resources, and allows for the continuation of free enterprise
    and resource economies of our State.
        Others on this panel will discuss the important water user, tribal,
    and State elements of this proposal. I will focus my attention on the
    forestry-fisheries provisions, which are an integral part of this
    overall agreement.
        The geographic areas covered by this agreement are the vast
    Clearwater and Salmon River basins of Idaho. This is the heart of our
    State and includes more than 20 million acres of land, of which 65
    percent is forested. Seventy-five percent of the Clearwater Basin
    forest land, and nearly all of the Salmon Basin forests, are managed by
    the Federal Government as National Forests. Yet within the Clearwater
    basin there are 1 million acres of private forest lands, and an
    additional 336,000 acres of forest managed by the State of Idaho. The
    private forest lands are owned by both large commercial forest
    landowners, managed for sustained production of timber and related
    resources, and by small non-industrial landowners managed for a variety
    of purposes but commonly including timber harvest where this use meets
    the landowners' personal objective.
        Forest management in Idaho is among the most environmentally and
    economically advanced anywhere in the world. All forestry activities
    are regulated by the Idaho Forest Practices Act which sets mandatory
    standards for all forest operations, including related activities such
    as road construction, road maintenance, and reforestation. The Idaho
    Forest Practices Act [FPA] standards are established by a board of
    experienced natural resource management professionals for the explicit
    purpose of ensuring forest stewardship and the long term sustainability
    of our forests, land, and water.
        Forestry operations in Idaho are carefully and continuously
    monitored to ensure absolute compliance with the FPA standards, and to
    collect data for continuous improvement of those standards. The State
    of Idaho conducts periodic effectiveness monitoring with the Idaho
    Department of Environmental Quality and includes the Federal agencies
    responsible for certain wildlife and fisheries species. Data from this
    monitoring demonstrate and ensure that forestry in Idaho protect the
    fish species listed as threatened or endangered under the Endangered
    Species Act.
        This Agreement is not about providing fundamental threshold
    protections for these species as required by law, because that
    requirement is being fully met by existing practices. This Agreement is
    all about providing a program for forest owners to provide additional
    support for listed fish species, beyond the minimums required by law.
        The forestry-fisheries component of the Agreement uses the Idaho
    Forest Practices Act framework as a base for providing additional
    forestry measures to benefit fish in forested habitats. The additional
    measures are made available to voluntarily enrolling landowners who
    will then benefit from participation in the habitat improvement
    programs authorized by this agreement, secure protection from
    subsequent litigation over management of ESA listed fish species, and
    consequently add value to their lands. The agreement terms outline
    specific provisions agreed to by forestry interests, the State of
    Idaho, and Federal fisheries experts in the Department of the Interior
    and NOAA Fisheries, as providing additional significant opportunities,
    beyond those minimally required by the ESA, to benefit fish species in
    forested habitats.
        Briefly there are four essential elements of the forestry-fisheries
    portion of this agreement.
        First, and foremost, it is voluntary for private landowners. It is
    voluntary because it establishes standards for forest management which
    go well beyond the requirements of current law. Consequently land
    owners are provided an opportunity and incentives to participate. The
    initial expectation, based on preliminary feed-back from potentially
    enrolling landowners, is that this program will attract broad
    participation.
        Second, there are specifically articulated standards for:
        No. 1. Forestry operations in riparian areas;
        No. 2. Road construction, particularly for stream crossings.
        These standards are described in detail in the Agreement term sheet
    and will be mandatory for any voluntarily enrolling landowner.
        Third, there are recognized processes for assessing existing forest
    facilities and infrastructures that are potentially limiting fish
    productivity, and mechanisms to replace or improve these limiting
    conditions when, identified.
        Last, there are agreed upon ``adaptive management'' processes to
    continuously improve both our collective understanding of the
    interaction between forestry and fisheries, and to improve the
    application of the management practices.
        Over time the expectation is for wide-spread enrollment from
    Idaho's private forest landowners, both large and small, as they come
    to understand the opportunities to enhance fish species, consistently
    with the fundamental objectives for which they own the land, and to
    gain the benefits afforded by this agreement. Today, private forestry
    interest in enhancing ESA fish populations is severely limited due to
    the increased exposure to litigation over alleged future harm to the
    very species a landowner helps promote.
        Implementing the specific elements of the Agreement's forestry-
    fisheries component is being, accomplished administratively, using the
    current authorities of sec. 6 of the Endangered Species Act, and the
    State authorities provided under the Idaho Forest Practices Act and
    related Idaho law. However, S. 2605 is needed for two important
    reasons. First, forestry is just one part of this multi-party, complex
    Agreement. S. 2605 gives important recognition to the entire agreement,
    and authorizes essential non-forestry components. For the fall benefits
    of the forestry-fisheries program to be realized, this program needs to
    be accomplished within the context of all the other components this
    Agreement, including those authorized by S. 2605.
        Second, the funding authority established by this legislation will
    be available for qualifying forest habitat projects. The habitat
    improvement funding is essential to accomplish existing fish-limiting
    infrastructure improvements, and to maximize support for broad
    voluntary landowner participation.
        Senators, S. 2605 will authorize important programs which benefit
    both the people of Idaho and the Nez Perce Tribe, but also is
    nationally justified as it provides essential support to species
    recognized as threatened or endangered under the Endangered Species
    Act. It is born by the unique multi-party agreement described in this
    hearing today. I am honored to be part of the Coalition which is before
    you today. IFA strongly and fully supports this Agreement and we urge
    its timely consideration and passage by this Congress.