[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













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95-051                 WASHINGTON : 2004
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                      COMMITTEE ON INDIAN AFFAIRS

              BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

                DANIEL K. INOUYE, Hawaii, Vice Chairman

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

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

                                  (ii)














                            C O N T E N T S

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

                                Appendix

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














                 NEZ PERCE-SNAKE RIVER WATER RIGHTS ACT

                              ----------                              


                         TUESDAY, JULY 20, 2004


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

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

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

  




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

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

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

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

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

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

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

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

   STATEMENT OF MICHAEL BOGERT, COUNSEL, OFFICE OF GOVERNOR 
                           KEMPTHORNE

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

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

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

   STATEMENT OF JIM RILEY, EXECUTIVE DIRECTOR, INTERMOUNTAIN 
                       FOREST ASSOCIATION

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


                            A P P E N D I X

                              ----------                              


              Additional Material Submitted for the Record

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


         Prepared Statement of Dirk Kempthorne, Governor, Idaho

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

    Any resolution had to:

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

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

    What we achieved in this agreement is:

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

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

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

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

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

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




                          



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