[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
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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
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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
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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.]
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A P P E N D I X
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Additional Material Submitted for the Record
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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.