[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

[[Page S669]]

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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