[Congressional Record Volume 146, Number 16 (Tuesday, February 22, 2000)]
[Senate]
[Pages S668-S670]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NATIONAL MARINE FISHERIES SERVICE REGULATION
Mr. GORTON. Mr. President, I want to read portions of a proposed
regulation found on page 173 of the January 3, 2000, issue of the
Federal Register:
``[I]t is important that individuals alter their daily
behaviors,'' ``and for governmental entities to seek
programmatic incentives, public education, regulatory
changes, or other approaches.''
``Daily behaviors'' are further defined as ``Individual
decisions about energy consumption for heating, travel, and
other purposes;'' and ``individual maintenance of residences
or gardens.''
Those passages come directly from a ``4(d)'' Endangered Species Act
regulation for the Pacific Northwest proposed by the National Marine
Fisheries Service. The rule states flatly these are examples of
activities that could kill salmon or steelhead through water, air, and
ocean pollution, and that NMFS ``might or might not'' seek to regulate
them as such under the rule.
Taken literally, if these rules are enacted as written, National
Marine Fisheries Service could regulate how often individuals drive
their cars, where and how property owners could plant or fertilize
their lawns, gardens, or farm crops. They could dictate the content of
county zoning, public works, building, and road ordinances, and
possibly even suggest limits on the setting of thermostats in homes or
public school classrooms, or the operation of public transit buses--all
to protect salmon.
Washington citizens, and those in other Northwest States, would be
asked to make a host of changes in their daily lives, but
unfortunately, could be assured of nothing except for the certainty
that a greater portion of their tax dollars would fund the salaries of
even more Federal bureaucrats to draft more rules and regulations of
this nature. This year, the National Marine Fisheries Service is asking
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Congress to fund 41 new employees just to implement its West Coast
salmon recovery plan.
Those proposals would represent a striking power grab by unelected
bureaucrats if they were absolutely necessary to save whole species of
salmon. But they are not. As I said in a letter to President Clinton 2
weeks ago, the Federal Government should be seeking to encourage and
promote incentives for States, tribes, and local entities and private
groups to come up with creative solutions to save salmon, not make it
more difficult for them.
And that is exactly what these rules do. The rules go far beyond
telling hundreds of farmers in the Methow Valley that they cannot
exercise their water rights to irrigate their crops until they have
National Marine Fisheries Service-approved fish screens installed at
their own expense, as the agency told my constituents in north central
Washington last year.
They would go beyond holding up the construction of bridges in
Columbia County or cities' efforts to install stop lights, as the
National Marine Fisheries Service's salmon regulatory process has
already done.
In short, these rules, if enacted as proposed, would be likely to
slow down local salmon recovery efforts, rather than ``increasing
people's flexibility in complying with the Endangered Species Act,'' as
the National Marine Fisheries Service publicly claimed in mid-December.
More Federal bureaucracy simply will not help local communities and
private groups protect salmon and steelhead.
I also notice that the National Marine Fisheries Service has proposed
a narrow set of exemptions within the rules, which could make the
enforcement of the rule arbitrary and unfair against those who don't
meet their stated criteria. The Oregon Department of Transportation,
for example, would be in compliance with the rule in carrying out its
road maintenance activities on roads abutting streams, because that
agency agreed to implement special National Marine Fisheries Service-
approved training for its road maintenance crews. No such exemption
exists in the rule for private land owners anywhere or the Washington
Department of Transportation to carry on the same activities.
The people of Washington State realized the importance of not
allowing endangered salmon and steelhead runs to go extinct long before
any Federal agency told them they should modify their own ``daily
behavior'' as part of the effort. The only ``daily behavior'' that
local salmon enhancement groups are concerned with in Washington right
now is to restore salmon and steelhead runs right in the streams and
rivers near where they live and work. And they are doing it.
Look, for example, at the successful efforts of the variety of
agricultural, business, and tribal groups who formed the Skagit
Watershed Council to produce an on-the-ground science-based strategy
for prioritizing local habitat recovery projects. They came together,
often disagreeing on other issues, but to work together on the most
productive salmon recovery efforts--without the Federal Government
telling them to do so.
Then there are the successful efforts of Long Live the Kings on the
Wishkah River on Grays Harbor County, where low-tech, inexpensive
habitat restoration methods helped double the returns of natural
spawning salmon there in 1 year.
A captive brook stock facility was built with $1 million in private
funds on Lilliwaup Creek on Hood Canal, and already the State of
Washington has looked to that success in restoring the very most
threatened local wild salmon runs. I can cite several more examples,
but suffice it to say that local efforts are underway, and we should
congratulate their efforts to proactively and successfully preserve
salmon.
Proposing regulations of this sort, at the very least, would be
putting the ``cart before the horse.'' The National Marine Fisheries
Service must come forward with concrete goals of how many fish they
intend to recover throughout the Northwest in areas they call
``evolutionary significant units.'' This is something that Congress
asked the National Marine Fisheries Service to do in an appropriations
conference report last year. The National Marine Fisheries Service was
directed to determine and set numerical goals for Puget Sound areas by
July 1 of this year, and, by then, to set a schedule for establishing
numerical goals for all other areas in Washington State.
Why is this important? Well, very simply put: How can you mandate
means, mandate lifestyle changes, before you know what you are trying
to accomplish? In my view, having these numerical goals is critical to
guiding the agency in any effort it makes to enforce 4(d) rules to
protect threatened species.
Unfortunately, not only has the National Marine Fisheries Service
failed to provide the required numerical goals for salmon species, it
has yet to deliver the actual funding to the State. Last year, Congress
approved $18 million to be provided directly by the National Marine
Fisheries Service to the Washington State Salmon Recovery Board, so
that the board could distribute funds for State and local salmon
recovery projects, as well as fund implementation of the Washington
Forest and Fish Agreement, which was authorized by the State
legislature. I am disturbed to learn that the National Marine Fisheries
Service has not yet secured arrangements to distribute these much-
needed funds to the State of Washington. As a result, the National
Marine Fisheries Service is holding up State and local efforts to
comply with the Endangered Species Act.
Even without funding, several counties and salmon enhancement groups
throughout Washington have been working on their own plans to comply
with ESA requirements. Many smaller counties, however, simply do not
have the resources to meet the National Marine Fisheries Service
process under the rules. They are nevertheless expected to scramble to
come up with their own ordinances that will be ultimately reviewed and
approved by the National Marine Fisheries Service to ensure that they
are ``adequate to help conserve anadromous salmonids.''
Aside from my concerns with the way these rules are written, I am not
at all pleased that the National Marine Fisheries Service has decided
to refuse even a modest extension of the public comment period, and has
stated publicly that it wants to enact this rule by July.
Keep in mind, these lengthy, 20 plus page rules were only printed for
the first time in the Federal Register about 5 weeks ago. After
tonight, the public hearings process will already have been slammed
shut.
That is why when I learned that the regional director of the National
Marine Fisheries Service had scheduled all five of Washington's public
hearings on these lengthy and complex rules within just a 7-day period,
I asked for more opportunities for citizens to be heard. Most of the
five hearings were so full of interested citizens that not everyone
could find a chair or be given adequate time to have a face to face
question and answer period with the very bureaucrats who want to have
the authority proposed in these rules.
While the National Marine Fisheries Service recently agreed to two
additional hearings scheduled on the same day and time, they flatly
refused to extend the comment process, stating that ``a longer
extension to the public comment period would not be likely to provide
any new information, and would delay implementation of the rules, which
the National Marine Fisheries Service feels are necessary for salmon
conservation.'' It is disturbing that while they are often criticized
for being too slow to process permit requests, when it comes to
listening to people on highly controversial proposals, they can't move
fast enough to enact them into law.
The National Marine Fisheries Service owes the citizens of Washington
and the Pacific Northwest a more responsible handling of their duties
to enforce the Endangered Species Act. Section 2(c)(2) of the
Endangered Species Act requires the National Marine Fisheries Service
to cooperate with State and local agencies to protect endangered
species. I believe the National Marine Fisheries Service cannot fairly
force rules and local and State agencies without first establishing the
goals and objectives requested by Congress last year. I renew the
request made by the appropriations conference for the National Marine
Fisheries Service to provide the numerical goals and objectives for
Puget Sound salmon, to provide a
[[Page S670]]
framework for similar numerical goals and objectives for the rest of
Washington and the Pacific Northwest, and to establish performance
standards for salmon recovery projects. And they should do so before
they enact these rules.
I conclude my comments by noting that any proposal which would
regulate ``daily behavior'' certainly requires closer scrutiny than 30
days of public hearings and 30 more days of written comments. I commend
those Washington citizens who are now working hard on local-based
solutions to protect salmon, and offer them my full and continued
support for the successful course they are taking to rebuild and
restore salmon. I am concerned that the Federal Government, with rules
drafted in this manner, would not help these on-the-ground local
efforts. I will continue to call on Federal agencies not to dictate how
best to accomplish ESA compliance. I request that the National Marine
Fisheries Service address the valid concerns I and others raise
regarding these proposals and to do so before they begin implementing
these sweeping regulations.
The PRESIDING OFFICER. The Senator from Montana.
Mr. BURNS. Parliamentary inquiry.
The PRESIDING OFFICER. The Senator may state his inquiry.
Mr. BURNS. Are we in morning business or are we on a specific
subject?
The PRESIDING OFFICER. The Senate is considering H.R. 1883.
Mr. BURNS. I ask unanimous consent to proceed as in morning business
for the next 15 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
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