    Columbia River Basin: A Multilayered Collection of Directives and
    Plans Guides Federal Fish and Wildlife Activities (04-JUN-04,
    GAO-04-602).

    Numerous federal agencies conduct water, power, or resource
    management activities affecting the fish and wildlife of the
    Columbia River Basin, as well as the 13 tribes residing there.
    These agencies, such as the Bonneville Power Administration
    (Bonneville), Army Corps of Engineers, and Forest Service, and
    regulatory agencies, such as the National Marine Fisheries
    Service, are also responsible for protecting, sustaining, and
    enhancing fish and wildlife resources in the basin and involving
    the tribes in the process. Recently, Bonneville's financial
    position deteriorated significantly, and some tribes in the basin
    challenged Bonneville's actions modifying funding of fish and
    wildlife activities in federal court. In this context, GAO agreed
    to (1) identify and describe the laws, treaties, executive
    orders, and court decisions that define federal responsibilities
    to perform activities benefiting fish and wildlife in the basin
    and involve the tribes, and (2) describe the plans and programs
    that guide these respective fish and wildlife activities. In
    accordance with our policy to refrain from addressing matters
    that are in litigation, GAO did not examine any issues that are
    before the court.
    -------------------------Indexing Terms-------------------------
    REPORTNUM:   GAO-04-602
        ACCNO:   A10185
      TITLE:     Columbia River Basin: A Multilayered Collection of
    Directives and Plans Guides Federal Fish and Wildlife Activities
         DATE:   06/04/2004
      SUBJECT:   Executive orders
    	     Fishes
    	     Treaties
    	     Wildlife
    	     Wildlife conservation
    	     Wildlife management
    	     Federal law
    	     Environmental monitoring
    	     Environmental policies
    	     Columbia River Basin
    	     Columbia River Basin Fish and Wildlife
    	     Program

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    GAO-04-602

    Report to Committee on Indian Affairs, U.S. Senate

    June 2004

    COLUMBIA RIVER BASIN

    A Multilayered Collection of Directives and Plans Guides Federal Fish and
    Wildlife Activities

    Contents

    Tables

    Figures

    June 4, 2004Letter

    The Honorable Ben Nighthorse Campbell Chairman The Honorable Daniel K.
    Inouye Vice Chairman Committee on Indian Affairs United States Senate

    The Columbia River Basin encompasses approximately 258,000 square miles of
    mountains, forests, rangeland, and coastline extending predominantly
    through the Western states of Washington, Oregon, Idaho, and Montana and
    into Canada. Although the basin is home to an abundance of fish and
    wildlife, some species are in danger of extinction, in part, because of
    the extensive hydropower development of the Columbia River and its
    tributaries. Endangered species include fish, such as some species of
    salmon and steelhead; birds, such as the marbled murrelet; and certain
    species of caribou, deer, and rabbit. The basin is also home to 13 Indian
    tribes, some of which have treaties with the United States, dating from
    the mid-1800s, that explicitly recognize hunting and fishing rights. The
    tribes rely on the fish and wildlife of the basin for sustenance and to
    maintain their cultural traditions.

    Numerous federal agencies conduct activities within the basin that affect
    the fish and wildlife of the basin, as well as the tribes. For example,
    the Bonneville Power Administration (Bonneville), the U.S. Army Corps of
    Engineers (Corps), and the Department of the Interior's Bureau of
    Reclamation (Reclamation) manage and operate the Federal Columbia River
    Power System, composed of 31 power-generating dams on the Columbia River
    and its tributaries. Bonneville collects the revenues from the Federal
    Columbia River Power System and uses a portion of those revenues to fund
    many of the fish and wildlife activities in the basin. The Department of
    Agriculture's Forest Service manages 81,000 square miles of forest in the
    basin, and Interior's Bureau of Land Management manages 33,000 square
    miles of rangeland.

    Along with their primary water or land management responsibilities, these
    agencies, as well as regulatory agencies such as the National Oceanic and
    Atmospheric Administration's National Marine Fisheries Service and the
    Environmental Protection Agency, are responsible under various laws,
    treaties, executive orders, and court decisions for protecting,
    mitigating, and enhancing fish and wildlife resources in the basin, as
    well as involving the tribes in the process. In addition, the Northwest
    Power and Conservation Council, established pursuant to the Pacific
    Northwest Electric Power Planning and Conservation Act (Northwest Power
    Act), develops the Columbia River Basin Fish and Wildlife Program to
    mitigate the effects of hydroelectric dams on basin wildlife.

    Recently, Bonneville's financial position deteriorated significantly,
    raising questions about its ability to meet its fish and wildlife
    responsibilities.1 Subsequently, several tribes in the basin challenged
    the legality of actions by Bonneville and the Northwest Power and
    Conservation Council regarding the funding of fish and wildlife activities
    in the United States Court of Appeals for the Ninth Circuit. In this
    context, we agreed to (1) identify and describe the laws, treaties,
    executive orders, and court decisions that define the responsibilities of
    Bonneville and other federal agencies to perform activities benefiting
    fish and wildlife in the Columbia River Basin and involve tribes in the
    process, and (2) describe the fish and wildlife plans and programs that
    Bonneville and other federal agencies have developed to guide these
    respective fish and wildlife activities. In accordance with our policy to
    refrain from addressing matters that are in litigation, we did not examine
    any issues that are before the court. In conducting our work, agency
    officials, tribal representatives, and others brought to our attention
    concerns about the implementation of various fish and wildlife plans and
    programs in the basin, and we have included information regarding these
    concerns in this report.

    To address the objectives of this report, we updated information in our
    prior report on federal salmon and steelhead recovery activities in the
    Columbia River Basin.2 To update the information and identify directives,
    plans, and programs for other fish and wildlife species, we met with
    officials of the 11 federal agencies identified in that report:
    Bonneville, the Forest Service and Natural Resources Conservation Service
    within the Department of Agriculture, the Bureau of Indian Affairs, Bureau
    of Land Management, U.S. Fish and Wildlife Service, U.S. Geological Survey
    and Reclamation within the Department of the Interior, the Corps within
    the Department of Defense, the National Marine Fisheries Service within
    the Department of Commerce, and the Environmental Protection Agency. We
    also met with representatives of 10 of the 13 Columbia River Basin tribes
    to confirm the directives identified by the 11 federal agencies and to
    determine how the tribes participate in the fish and wildlife plans and
    programs. Appendix I provides further details about the scope and
    methodology of our review. We conducted our work from August 2003 through
    April 2004 in accordance with generally accepted government auditing
    standards.

    Results in Brief

    Federal responsibilities for protecting, mitigating, and enhancing fish
    and wildlife resources in the Columbia River Basin, and for involving the
    tribes in the process, are defined by a multilayered collection of laws,
    treaties, executive orders, and court decisions. At the national level,
    federal laws such as the Endangered Species Act and the Clean Water Act
    create a responsibility for federal agencies to mitigate the impacts of
    agency activities that could potentially harm fish, wildlife, and their
    habitat. At the basin level, certain federal laws create agency
    responsibilities that are specific to the fish and wildlife within the
    basin. For example, under the Northwest Power Act, Bonneville, the Corps,
    and Reclamation must work together to mitigate the effects of the Federal
    Columbia River Power System on fish and wildlife. At the mission level,
    many agencies that operate within the basin have fish and wildlife
    responsibilities under laws that are unique to their own activities, such
    as the Federal Land Policy and Management Act of 1976 for the Bureau of
    Land Management and the National Forest Management Act for the Forest
    Service. At the tribal level, 6 of the 13 tribes in the basin have treaty
    hunting and fishing rights, and various laws and executive orders provide
    that federal agencies are to consult and collaborate with Indian tribes on
    the management of fish and wildlife in the basin. Agencies have developed
    internal agency orders to implement this guidance. Federal
    responsibilities under these multilayered directives are continually being
    clarified through court decisions, and cases such as United States v.
    Oregon and United States v. Washington have confirmed tribal treaty
    fishing rights and the extent of those rights.

    Multiple plans and programs guide agency fish and wildlife activities in
    the basin. Agencies design and implement these plans and programs both
    collaboratively and independently, but the majority of fish and wildlife
    activities are driven by the Northwest Power Act and the Endangered
    Species Act. The Columbia River Basin Fish and Wildlife Program, developed
    pursuant to a requirement of the Northwest Power Act, outlines a
    collaborative strategy for protecting, mitigating impacts to, and
    enhancing fish and wildlife affected by the construction and operation of
    hydroelectric dams. The Northwest Power and Conservation Council
    spearheads the development and revision of the program. In addition to
    developing the program, the Council is also involved with developing plans
    for subbasins using watershed-level input from federal agencies, state and
    local governments, and tribes. Bonneville funds the implementation of the
    program through contracts with federal and state agencies, tribes, and
    private organizations, and funds the development of the subbasin plans. In
    response to the Endangered Species Act, biological opinions have been
    developed that set forth reasonable and prudent measures/alternatives to
    minimize the impacts of agency actions on certain fish species-salmon,
    steelhead, bull trout, and white sturgeon-affected by the federal
    hydropower system and other federal actions. The National Marine Fisheries
    Service and the U.S. Fish and Wildlife Service developed these biological
    opinions collaboratively. In addition, they have collaborated with other
    federal agencies on the development of the Basin-wide Salmon Recovery
    Strategy, which outlines a conceptual salmon recovery plan. Agencies also
    implement fish and wildlife plans and programs that are driven by
    agency-specific missions. For example, the Corps utilizes Project
    Management Plans to ensure that agency activities follow proper guidelines
    for protecting and allowing for fish passage through its hydropower
    projects on the Columbia River.

    Bonneville and the Departments of Agriculture and Commerce provided
    technical comments on this report and we made changes, where appropriate.
    The Department of Defense and the Environmental Protection Agency had no
    comments on the report. The Department of the Interior did not provide
    comments in time to be included in this report.

    Background

    The Columbia River Basin, the nation's fourth largest, extends through
    seven Western states-Oregon, Idaho, Montana, Nevada, Utah, Washington, and
    Wyoming-and into Canada. (See fig. 1.) Twelve major tributaries, the
    longest of which is the Snake River, feed the Columbia River. The basin
    contains over 250 reservoirs and about 150 hydroelectric projects,
    including 18 dams on the Columbia and Snake Rivers.

    Figure 1: Map of the Columbia River Basin

    The basin is home to many species of fish and wildlife, some of which are
    listed under the Endangered Species Act (ESA) as threatened or endangered,
    in part as a result of the extensive hydropower development of the basin
    rivers. Endangered fish in the basin include certain species of salmon,
    steelhead, and white sturgeon; bull trout are listed as threatened.
    Threatened and endangered wildlife in the basin include birds such as the
    marbled murrelet and northern spotted owl, and other animals such as
    certain species of caribou, deer, lynx, and rabbit. The basin is also home
    to 13 Indian tribes, which by treaty, executive order, or other authority,
    reside on reservation lands within the basin. As shown in table 1, nearly
    45,000 members are enrolled in the tribes with reservation lands in the
    basin. Fish and wildlife are of critical importance to these tribes, as
    the tribes rely on them for sustenance as well as preservation of their
    cultural traditions. For example, salmon are part of the spiritual and
    cultural identity of most of the basin's tribes, and are frequently used
    in tribal religious services.

    Table 1: The 13 Columbia River Basin Indian Tribes, Reservation Size, and
    Enrollment

                                           Acreage encompassed Number of enrolled
    Tribe                                within reservation    tribal membersb
                                                   boundariesa
    Coeur D'Alene Tribe of the Coeur                345,000              1,493
    D'Alene Reservation, Idaho
    Kootenai Tribe of Idaho                             250                121
    Nez Perce Tribe of Idaho                        750,000              3,300
    Shoshone-Bannock Tribes of the Fort             544,000              4,535
    Hall Reservation of Idaho
    Confederated Salish and Kootenai
    Tribes of the Flathead Reservation,           1,244,000              6,950
    Montana
    Shoshone-Paiute Tribes of the Duck              289,819              1,888
    Valley Reservation, Nevada
    Burns Paiute Tribe of the Burns                  11,466                295
    Paiute Indian Colony of Oregon
    Confederated Tribes of the Umatilla             172,140              2,140
    Reservation, Oregon
    Confederated Tribes of the Warm                 643,570              3,831
    Springs Reservation of Oregon
    Confederated Tribes of the Colville           1,400,000              8,842
    Reservation, Washington
    Kalispel Indian Community of the                  4,629                329
    Kalispel Reservation, Washington
    Spokane Tribe of the Spokane                    154,898              2,305
    Reservation, Washington
    Confederated Tribes and Bands of              1,372,000              8,624
    the Yakama Reservation, Washington
    Total                                         6,931,772             44,653

    Sources: U.S. Department of the Interior and U.S. Department of Commerce.

    aIncludes Indian and non-Indian land.

    bTribe members residing both on and off reservation lands in 2001.

    Numerous federal agencies, including the following, conduct activities
    within the basin that affect fish and wildlife, as well as the Columbia
    River Basin Indian tribes. Many of these agencies are responsible for
    managing water resources, the power generated by hydroelectric projects,
    or land resources, such as forests, grazing lands, and wildlife refuges.

    o Bonneville Power Administration (Bonneville) provides power transmission
    services and markets the electricity generated by the 31 Corps and
    Reclamation dams comprising the Federal Columbia River Power System
    (FCRPS). In doing so, it must provide treatment to fish and wildlife
    equitable to the other purposes for which the FCRPS is operated.

    o U.S. Army Corps of Engineers (Corps) designs, builds, and operates civil
    works projects to provide electric power, navigation, flood control, and
    environmental protection.

    o Bureau of Reclamation (Reclamation) designs, constructs, and operates
    water projects for multiple purposes, including irrigation, hydropower
    production, municipal and industrial water supply, flood control,
    recreation, and fish and wildlife.

    o U.S. Forest Service (Forest Service) manages national forests and
    grasslands under the principles of multiple use and sustained yield, and
    ensures that lands will be available for future generations.

    o Bureau of Land Management (BLM) administers public lands and subsurface
    mineral resources, and sustains the health, diversity, and productivity of
    public lands for the use and enjoyment of future generations.

    o U.S. Fish and Wildlife Service (FWS) manages wildlife refuges,
    conserves, protects, and enhances fish, wildlife, and plants, and
    implements the ESA for terrestrial species, migratory birds, certain
    marine mammals, and certain fish.

    o Bureau of Indian Affairs (BIA) encourages and assists American Indians
    to manage their own affairs under the trust relationship with the federal
    government. It develops forestlands, leases assets on these lands, directs
    agricultural programs, protects water and land rights, and undertakes
    other responsibilities in cooperation with the tribes.

    Together, these federal agencies and the 13 basin tribes manage over half
    of the portion of the Columbia River Basin located within the United
    States. The Forest Service and BLM manage about 81,000 square miles of
    forest and grasslands, and 33,000 square miles of rangeland, or about 37
    percent and 15 percent of the basin's U.S. land area, respectively.
    Reservation land totals about 5 percent. All other agencies combined
    manage about 3 percent of the U.S. portion of the basin. Figure 2
    illustrates the federal and tribal land ownership patterns.

    Figure 2: Landholders in the Columbia River Basin

    Note: Area shown within reservation boundaries includes both Indian and
    non-Indian land.

    In addition to the water, power, and land resource management agencies,
    several other federal agencies have regulatory, resource protection, and
    research responsibilities in the basin.

    o National Marine Fisheries Service (NMFS) conserves, protects, and
    manages living marine resources so as to ensure their continuation as
    functioning components of marine ecosystems, and to afford economic
    opportunities. NMFS also implements the ESA for marine and anadromous
    (migratory fish such as salmon and steelhead) species.

    o Environmental Protection Agency (EPA) protects human health and
    safeguards the natural environment by protecting the air, water, and land.
    It administers the Clean Water Act and Clean Air Act.

    o Natural Resources Conservation Service (NRCS) assists farmers, ranchers,
    and other landowners in developing and carrying out voluntary efforts to
    protect the nation's natural resources.

    o U.S. Geological Survey (USGS) conducts objective scientific studies and
    provides information to address problems dealing with natural resources,
    geologic hazards, and the effects of environmental conditions on human and
    wildlife health.

    Along with their primary water, power, resource, and other management and
    regulatory responsibilities, these agencies are responsible under various
    laws, treaties, executive orders, and court decisions for protecting,
    mitigating, and enhancing fish and wildlife resources in the basin, as
    well as involving the tribes in the process. One of the main drivers of
    such activities is the Northwest Power Act, which provided for the
    establishment of the Northwest Power and Conservation Council. Under the
    act, the Council develops the Columbia River Basin Fish and Wildlife
    Program to mitigate the effects of hydroelectric dams on basin fish and
    wildlife, and Bonneville assists in implementation and is the principal
    source of funding for the program.

    Bonneville recently experienced a substantial deterioration of its
    financial condition, in part because of drought conditions, rising costs
    of providing power, and lower than projected revenue from selling surplus
    power. For example, as we reported in July 2003, its end of year cash
    reserves fell from $811 million to $188 million from fiscal year 2000 to
    2002.3 Bonneville's financial difficulties caused concern about its
    ability to meet its fish and wildlife funding responsibilities under the
    Northwest Power Act. The Yakama tribe filed two petitions in June 2003,
    and the Upper Columbia United Tribes filed a petition in December 2003, in
    the United States Court of Appeals for the Ninth Circuit to review
    Bonneville's budgeting, accounting, and contracting processes, and in the
    case of the Yakama, the Northwest Power and Conservation Council's
    recommendations, regarding fish and wildlife funding. As of now, the two
    Yakama filings and the Upper Columbia United Tribes filing are being
    discussed in separate settlement negotiations. In accordance with our
    policy to refrain from addressing matters that are in litigation, we did
    not address the issues before the court in this report.

    A Multilayered Collection of Directives Defines Federal Responsibilities
    to Fish, Wildlife, and Tribes in the Columbia River Basin

    Federal responsibilities for protecting, mitigating, and enhancing fish
    and wildlife resources in the basin, as well as involving the tribes in
    the process, are defined by a multilayered collection of laws, treaties,
    executive orders, and court decisions. Nationwide, basin-specific, and
    agency mission-specific laws create responsibilities for federal agencies
    to mitigate the impacts of their activities on fish, wildlife, and their
    habitat. In addition, various laws, treaties, executive orders, court
    decisions, and agency policies require agencies to consider the rights of
    tribes in the basin. Federal responsibilities and activities under these
    layers of directives have been defined and clarified over the years
    through numerous court decisions. Appendix II lists laws, treaties, and
    executive orders identified by federal agencies as guiding their fish and
    wildlife responsibilities in the basin. Appendix III lists laws, treaties,
    and executive orders identified by federal agencies as guiding their
    tribal responsibilities in the basin. Appendix IV lists court decisions
    that have helped define or clarify agency responsibilities to fish,
    wildlife, and tribes under these directives. Each appendix includes the
    citation for every law, treaty, executive order, and court case listed.

    Agency Responsibilities Are Defined by Nationwide, Basin-specific, and
    Mission-specific Fish and Wildlife Directives

    Federal agencies are responsible under nationwide, basin-specific, and
    agency mission-specific laws for mitigating the impacts of their
    activities that could potentially harm fish, wildlife, and their habitat.
    At the national level, federal environmental and fish and wildlife
    protection laws create broad responsibilities for federal agencies in
    addition to each agency's mission-specific responsibilities. These laws
    guide the fish and wildlife activities of federal agencies nationwide, in
    some cases, under the oversight and enforcement authority of regulatory
    agencies such as EPA and NMFS. Federal agencies identified the following
    nationwide laws, among others, as guiding their fish and wildlife
    activities:

    o Clean Water Act-Authorizes EPA to establish effluent limitations and
    requires permits for the discharge of pollutants from a point source to
    navigable waters. EPA approves state and tribal limits for the maximum
    amount of a pollutant that a water body can receive and still meet water
    quality standards for specified purposes, including fish and wildlife.

    o Endangered Species Act-Provides for the conservation and recovery of
    species of plants and animals that FWS and NMFS determine to be in danger
    or soon to become in danger of extinction.

    o National Environmental Policy Act-Requires federal agencies to examine
    the impacts of proposed major federal actions significantly affecting the
    environment.

    At the basin level, certain federal laws create agency responsibilities
    that are specific to the fish and wildlife there. These laws guide the
    fish and wildlife activities of agencies such as Bonneville, the Corps,
    and Reclamation that are to be conducted in conjunction with their water
    and power responsibilities within the basin. Federal agencies identified
    the following basin-specific laws, among others, as guiding their fish and
    wildlife activities:

    o Pacific Northwest Electric Power Planning and Conservation Act
    (Northwest Power Act)-Provides for the formation of the Northwest Power
    and Conservation Council and directs it to develop a program to protect,
    mitigate, and enhance the fish and wildlife of the Columbia River Basin.
    Requires Bonneville's administrator to use Bonneville's funding
    authorities to protect, mitigate, and enhance fish and wildlife affected
    by the development and operation of the FCRPS and to do so in a manner
    consistent with the Council's program while ensuring the Pacific Northwest
    an adequate, efficient, economical, and reliable power supply.

    o Fisheries Restoration and Irrigation Mitigation Act of 2000-Directs the
    Secretary of the Interior to establish a program to implement projects,
    such as installation of fish screens and fish passage devices, to mitigate
    impacts on fisheries associated with irrigation systems in Idaho, Montana,
    Oregon, and Washington.

    o Mitchell Act-Directs the Secretary of Commerce to carry on activities
    for the conservation of fishery resources in the Columbia River Basin.

    At the mission level, many agencies that operate within the basin have
    fish and wildlife responsibilities under laws that are unique to their
    activities. These laws guide the fish and wildlife activities of agencies
    such as the Forest Service, BLM, FWS, and BIA that are to be conducted in
    conjunction with their resource management responsibilities. The following
    laws were among the numerous mission-specific laws that federal agencies
    identified as guiding their fish and wildlife activities:

    o National Forest Management Act-Mandates multiple uses for lands managed
    by the Forest Service to include outdoor recreation, range, timber,
    watershed, wildlife and fish, and wilderness purposes.

    o Federal Land Policy and Management Act of 1976-Directs the Secretary of
    the Interior to develop and maintain land use plans using a systematic
    interdisciplinary approach to achieve the integrated consideration of
    physical, biological, and economic factors.

    o National Wildlife Refuge System Administration Act of 1966-Establishes
    the National Wildlife Refuge System and directs the Secretary of the
    Interior in the overall management of the refuge system to maintain the
    biological integrity, diversity, and environmental health of the system,
    and prepare a comprehensive conservation plan for each refuge.

    o National Indian Forest Resources Management Act-Directs the Secretary of
    the Interior to undertake management activities on Indian forest lands
    with tribal participation.

    Treaties and executive orders also establish federal agency
    responsibilities for fish and wildlife. Federal agencies identified two
    treaties guiding their fish and wildlife activities in the basin-the
    Columbia River Treaty, which defines the relationship between the United
    States and Canada concerning the operation of Columbia River dams and
    reservoirs, and the Pacific Salmon Treaty, which governs the harvest of
    certain stocks in the fisheries of Northwest states (including Alaska) and
    Canada. Federal agencies also identified three executive orders guiding
    their activities with regard to floodplain management, protection of
    wetlands, and protection of migratory birds. The most recent of these,
    Executive Order 13186, January 10, 2001, titled Responsibilities of
    Federal Agencies To Protect Migratory Birds, directs executive agencies to
    take certain actions to further implement the Migratory Bird Treaty Act
    for the conservation of migratory birds and their habitats. Executive
    Order 11988, May 24, 1977, requires certain actions related to floodplain
    management, and Executive Order 11990 of the same date requires certain
    actions related to the protection of wetlands.

    Various Laws, Treaties, and Executive Orders Require Agencies to Consider
    the Rights of Tribes

    Laws, treaties, and executive orders create federal responsibilities to
    Indian tribes and guide federal agency activities that affect the tribes
    of the Columbia River Basin. Federal laws, including the following, create
    a responsibility for federal agencies to support tribal self-government,
    facilitate tribal participation in federal activities, and assist in the
    management of tribal resources.

    o Indian Reorganization Act-Enacts measures to protect ownership of Indian
    lands, restore lands to tribal ownership, and grants rights of
    self-government to Indians.

    o Indian Self-Determination and Education Assistance Act-Enacts measures
    that promote a policy of Indian self-determination by assuring maximum
    Indian participation in educational and other federal services to Indian
    communities, generally provided through the Departments of the Interior
    and Health and Human Services programs for Indians.

    o Snyder Act-Authorizes appropriations and expenditures through BIA for
    the benefit; care; and assistance of Indians, such as education, health,
    and other purposes.

    Treaties between the United States and six basin tribes document the
    agreements reached between the federal government and the tribes in
    exchange for ceding most of their ancestral lands. Federal agencies have a
    general trust responsibility to protect tribal rights reserved under these
    treaties. Typically, each treaty describes the boundaries of the tribal
    lands ceded, the boundaries of lands reserved for habitation by the tribe,
    payments to be made to the tribe, and certain rights of the tribe under
    the treaty, including specific hunting and/or fishing rights, as shown in
    table 2.

    Table 2: Treaties Establishing Reservations and Reserving Hunting and/or
    Fishing Rights of Six Columbia River Basin Tribes

    Treaty                 Tribe                        Hunting and/or fishing
                                                           rights
    Treaty with the        Confederated Tribes of the
    Wallawalla, Cayuse,    Umatilla Indian              The exclusive right of
    etc. (12 Stat. 945)    Reservation, Oregon          taking fish in the
    June 9, 1855                                        streams running
    Treaty with the Yakama Confederated Tribes and      through and bordering
    (12 Stat. 951) June 9, Bands of the Yakama          the reservation and at
    1855                   Reservation, Washington      all other usual and
    Treaty with the Tribes Confederated Tribes of the   accustomed stations in
    of Middle Oregon (12   Warm Springs Reservation of  common with citizens
    Stat. 963) June 25,    Oregona                      of the United States,
    1855a                                               and the privilege of
    Treaty with the Nez                                 hunting, gathering
    Perces (12 Stat. 957)  Nez Perce Tribe of Idaho     roots, and pasturing
    June 11, 1855                                       their stock on
    Treaty with the        Confederated Salish and      unclaimed lands in
    Flatheads, etc. (12    Kootenai Tribes of the       common with citizens.
    Stat. 975) July 16,    Flathead Reservation,
    1855                   Montana
    Treaty with the                                     The right to hunt on
    Eastern Band Shoshoni  Shoshone-Bannock Tribes of   the unoccupied lands
    and Bannock (15 Stat.  the Fort Hall Reservation    of the United States
    673) July 3, 1868      of Idaho                     so long as game may be
                                                           found thereon.

    Source: GAO analysis.

    aOff-reservation hunting, fishing, and other rights were relinquished in a
    supplemental treaty of November 15, 1865.

    Presidential executive orders were used by the U.S. government to reserve
    lands for six other Columbia River Basin tribes, as shown in table 3.4
    Similar to treaties, these executive orders describe the lands reserved
    for habitation by the tribes, but unlike treaties, do not explicitly state
    each tribe's right to fish and/or hunt. Nevertheless, the federal
    government has respected nontreaty rights to hunt and fish on tribal
    lands.

    Table 3: Executive Orders Establishing Reservations for Six Columbia River
    Basin Tribes

    Executive order date Tribe
    April 9, 1872 a      Confederated Tribes of the Colville Reservation,
                            Washington
    Sept.12, 1872b       Burns Paiute Tribe of the Burns Paiute Indian Colony
                            of Oregon
    Nov. 8, 1873 c       Coeur D'Alene Tribe of the Coeur D'Alene Reservation,
                            Idaho
    April 16, 1877d      Shoshone-Paiute Tribes of the Duck Valley
                            Reservation, Nevada
    Jan.18, 1881         Spokane Tribe of the Spokane Reservation
    March 23, 1914       Kalispel Indian Community of the Kalispel
                            Reservation, Washington

    Source: GAO analysis.

    aThe April executive order was superseded by a July 2, 1872, executive
    order that redefined the reservation boundaries. In a May 9, 1891,
    agreement, the Indians ceded about 1.5 million acres of the reservation,
    referred to as the "North Half", to the United States. Under the
    agreement, the tribe retained the right to hunt and fish on those lands.
    Congress ratified the agreement in an act of June 21, 1906, 34 Stat. 325,
    377-8, and the Supreme Court upheld the hunting and fishing rights
    retained against state regulation in Antoine v. Washington, 420 U.S. 194
    (1975). Although the 1891 agreement was not ratified until 1906, Congress
    opened up the North Half of the reservation for settlement in an act of
    July 1, 1892, 27 Stat. 62.

    bThe reservation was subsequently dissolved in 1883; lands were purchased
    as a subsistence homestead in 1934, under Title II of the National
    Industrial Recovery Act of 1933.

    cComposed of lands reserved for Indians by an executive order of June 14,
    1867.

    dA treaty of October 1, 1863, between the United States and the Western
    Bands of Shoshonee Indians, authorized the President to establish a
    reservation when deemed necessary, and the bands received an annuity as
    full compensation and equivalent for the loss of game and the rights and
    privileges conceded.

    Three other executive orders, as well as a presidential memorandum, were
    identified by federal agencies as providing guidance in their
    intergovernmental relationships with tribes while performing their
    missions.

    o Executive Order 12866 (September 30, 1993), Regulatory Planning and
    Review-Establishes a program to reform and make more efficient the
    regulatory process, including making the process more accessible and open
    to the public. Provides that wherever feasible, agencies shall seek views
    of appropriate state, local, and tribal officials before imposing
    regulatory requirements that might significantly or uniquely affect them.

    o Executive Order 12875 (October 26, 1993), Enhancing the
    Intergovernmental Partnership-Prohibits executive agencies, to the extent
    feasible, from promulgating any regulation not required by statute that
    creates a mandate upon a state, local, or tribal government, unless
    funding for the direct costs is provided or the agency consults with the
    affected government.

    o Executive Order 13175 (November 6, 2000), Consultation and Coordination
    with Indian Tribal Governments-Requires executive agencies to respect
    Indian tribal self-governance and sovereignty, honor tribal treaty and
    other rights, and strive to meet the responsibilities that arise from the
    unique legal relationship between the federal government and tribal
    governments. Provides that each agency shall have an accountable process
    to ensure meaningful and timely tribal input in the development of
    regulatory policies that have tribal implications.

    o Memorandum for the Heads of Executive Departments and Agencies (April
    29, 1994), Government to Government Relations with Native American Tribal
    Governments-Requires, among other things, that executive agencies operate
    within a government to government relationship with federally recognized
    tribal governments; consult to the greatest extent possible with tribal
    governments before taking actions that affect tribal governments; and
    assess the impact of federal government plans, projects, programs, and
    activities on tribal trust resources and ensure that tribal rights and
    concerns are considered in developing them.

    In addition to these executive orders, some federal agencies have internal
    orders and memorandums to guide their actions with tribes. For example,
    Secretarial Order 3206, jointly issued by the Secretary of the Interior
    and the Secretary of Commerce in 1997, clarifies the responsibilities of
    the departments, their agencies, offices, and bureaus when actions taken
    under the authority of the ESA affect or may affect Indian lands, tribal
    trust resources, or the exercise of tribal rights. The order acknowledges
    the trust responsibility and treaty obligations of the United States
    toward Indian tribes and tribal members and its government to government
    relationship in dealing with the tribes. Accordingly, activities of the
    Departments of Commerce and the Interior under the ESA should harmonize
    trust responsibilities, tribal sovereignty, and the agency missions, and
    strive to ensure that Indian tribes do not bear a disproportionate burden
    for the conservation of listed species. In its 1996 Tribal Policy,
    Bonneville outlines the foundation for its trust responsibility as a
    federal agency and provides a framework for a government to government
    relationship with the 13 federally recognized Columbia River Basin tribes.
    In addition, FWS cited its Native American Policy of 1994, EPA cited its
    Tribal Consultation Framework of 2001, and NMFS cited the Department of
    Commerce's American Indian and Alaska Native Policy of 1995, as providing
    agency guidance for meeting responsibilities to the tribes.

    Court Decisions Define and Clarify Agency Responsibilities

    Federal responsibilities and activities under laws, treaties, and
    executive orders are continually being defined and clarified through court
    decisions. These decisions provide guidance regarding the fish and
    wildlife activities of federal agencies such as Bonneville, the Corps, and
    NMFS. The following court decisions were among those that federal agencies
    identified as guiding their fish and wildlife activities in the basin:

    o National Wildlife Federation v. National Marine Fisheries
    Service-Remanded NMFS' 2000 biological opinion for ESA-listed salmon and
    steelhead in the Columbia and Snake Rivers to NMFS to resolve deficiencies
    identified by the court.5

    o National Wildlife Federation v. United States Army Corps of
    Engineers-Remanded a decision regarding dam operations in the FCRPS to the
    Corps to address compliance with its obligations under the Clean Water
    Act.6

    o Northwest Environmental Defense Center v. Bonneville Power
    Administration-Interpreted Bonneville's responsibility to provide
    "equitable treatment" for fish and wildlife in conducting its power
    marketing activities under the Northwest Power Act.7

    Court decisions have also defined and clarified the responsibilities of
    federal agencies to tribes, regarding both the extent of the federal
    government's trust responsibilities to tribes under laws, treaties, and
    executive orders, and, more specifically, the extent of Columbia River
    Basin treaty tribes' fishing rights. Regarding the extent of federal
    agency trust responsibilities for Indian tribes, case law defines the
    trust responsibility of the federal government to protect the rights of
    tribes as established in treaties and other agreements. For example, in
    Seminole Nation v. United States, the Supreme Court said that the
    government's conduct in carrying out its obligations to Indians should be
    "judged by the most exacting fiduciary standards,"8 and in Pyramid Lake
    Paiute Tribe of Indians v. Morton, a federal district court found that the
    Secretary of the Interior was required to assert his statutory and
    contractual authority "to the fullest extent possible"  9 to fulfill the
    government's trust responsibilities.

    Regarding Columbia River Basin tribes, federal agencies identified two
    court cases that have helped to identify and define treaty rights to fish
    for four treaty tribes-the Confederated Tribes of the Umatilla
    Reservation, Oregon; the Confederated Tribes and Bands of the Yakama
    Reservation, Washington; the Confederated Tribes of the Warm Springs
    Reservation of Oregon; and the Nez Perce Tribe of Idaho. In 1968, 14
    Yakama tribal members filed suit to prevent the State of Oregon from
    interfering with their off-reservation treaty fishing rights. The court
    found that the state's authority to regulate Indian fishing for
    conservation purposes was limited as treaties reserved to the Columbia
    River tribes an absolute right to a fair share of the fish produced by the
    Columbia River system.10 In the second case, United States v. Washington,
    a federal district court in Washington found that the Indians were
    entitled to the opportunity to take up to 50 percent of the harvestable
    number of fish that can be taken.11

    Multiple Plans and Programs Guide Federal Fish and Wildlife Activities in
    the Basin

    Federal agency fish and wildlife activities in the basin are guided by
    numerous plans and programs, but the majority of fish and wildlife
    benefits are achieved through a few key collaborative plans, driven by the
    Northwest Power Act and the ESA. Under the Northwest Power Act, the
    Columbia River Basin Fish and Wildlife Program outlines a collaborative
    strategy for benefiting fish and wildlife affected by the development and
    operation of hydroelectric dams in the Columbia River Basin, and under the
    ESA, agencies are guided by biological opinions developed collaboratively
    by FWS and NMFS for the recovery of threatened and endangered species, as
    well as by two other related collaborative plans. Additional laws and
    specific agency missions drive numerous other collaborative and individual
    fish and wildlife plans and programs. Appendix V provides descriptions of
    selected plans and programs identified by federal agencies in the basin.

    The Northwest Power Act and the Endangered Species Act Drive Key
    Collaborative Plans and Programs

    The key collaborative fish and wildlife plans and programs in the basin
    are driven by responsibilities created under the Northwest Power Act and
    the ESA. Agencies collaborate on both the development, as well as the
    implementation, of these key plans and programs. The lead agencies and
    federal and tribal collaborators in the development and implementation of
    the plans and programs are summarized in figure 3.

    Figure 3: Federal and Tribal Collaboration on Key Fish and Wildlife Plans
    and Programs Driven by the Northwest Power Act and the Endangered Species
    Act

    Note: Figure does not include significant state, local, and private entity
    participation in plan development and implementation.

    aThe Northwest Power and Conservation Council, which is led by
    representatives from four states, was created by the Northwest Power Act
    to assist Bonneville in fulfilling its federal responsibilities to fish
    and wildlife.

    bThe recovery plans for salmon are still under development. This figure
    reflects expected agency contributions to the implementation of recovery
    plans.

    Northwest Power Act-Driven Plans and Programs

    Under the Northwest Power Act, the Northwest Power and Conservation
    Council (Council) has a duty to prepare and adopt the Columbia River Basin
    Fish and Wildlife Program (Fish and Wildlife Program) to protect,
    mitigate, and enhance fish and wildlife, including related spawning
    grounds and habitat, on the Columbia River and its tributaries for impacts
    of all federal and nonfederal hydroelectric projects in the basin. In
    preparing the Fish and Wildlife Program, the Council periodically solicits
    recommendations from federal and state fish and wildlife agencies, Indian
    tribes, and others concerning the needs of fish and wildlife in the basin.
    The Council then develops a draft Amendment to the Fish and Wildlife
    Program that incorporates the recommendations received, and releases the
    draft for public comment. After reviewing comments received on the draft,
    and balancing the needs of fish and wildlife with the region's hydropower
    needs, the Council issues the Fish and Wildlife Program, which provides
    guidance and recommendations on mitigating the impacts of hydropower on
    the region's fish and wildlife.

    To incorporate local planning for the more than 50 subbasins in the
    Columbia River Basin into the Council's development of the Fish and
    Wildlife Program, the Council initiated subbasin planning in 2001. The
    Council expects to complete the first round of subbasin plans in May 2004,
    review and take comments on the plans through the fall, and then amend
    them into the program by January 2005. The plans will then form the basis
    from which projects will be solicited and selected. Federal agencies,
    including the Corps, Forest Service, Reclamation, BLM, EPA, FWS, NMFS,
    NRCS, and USGS, are providing watershed-level information and technical
    assistance, and some Columbia River Basin tribes are among those taking
    the lead in coordinating and managing development of specific subbasin
    plans. A few of the tribes reported that subbasin planning is an important
    step to including local input in the Fish and Wildlife Program, but
    expressed concern that challenges to the successful implementation of
    subbasin plans exist. For example, one tribal representative expressed
    concern with the consistency of funding and contracting procedures, while
    another expressed concern at the level of local commitment to subbasin
    fish and wildlife priorities.

    The Northwest Power Act directs Bonneville to fund the protection,
    mitigation, and enhancement of fish and wildlife in a manner consistent
    with the act. To meet this requirement, Bonneville takes actions and
    enters into agreements with other entities to meet the goals and
    objectives outlined by the Council. Bonneville receives assistance in this
    process from the Columbia Basin Fish and Wildlife Authority, composed of
    federal, state, and tribal fish and wildlife officials, which provides
    recommendations regarding fish and wildlife projects proposed by
    contractors. The Council's Independent Scientific Review Panel reviews
    proposed projects to ensure that they are consistent with the goals of the
    Fish and Wildlife Program. As shown in the following examples, other
    federal agencies and tribes also collaborate with Bonneville in
    implementing the Fish and Wildlife Program, affording Bonneville access to
    additional knowledge and technical capabilities, as well as access to
    resources needed for mitigation activities.

    o FWS and NMFS provide Bonneville with assistance on issues such as fish
    passage and population monitoring. In addition, Bonneville provides direct
    funding to FWS for the operation and maintenance of certain hatcheries.

    o The Corps and Reclamation manage in-river mitigation at hydropower
    facilities, such as fish screens, with direct funding from Bonneville.

    o Federal agencies such as the Forest Service and BLM, as well as state,
    tribal, and private landowners, receive direct funding or contract with
    Bonneville for habitat mitigation activities.

    o Tribes contract with Bonneville to provide mitigation activities such as
    habitat improvement, hatchery management, and habitat acquisition projects
    both on and off reservation.

    Recently, Bonneville revised its Fish and Wildlife Program project budget,
    accounting, and contracting policies, raising concerns among federal
    agencies, the Council, and the tribes. For example, in 2002, Bonneville
    decided that it should not be the primary source of funding for off-site
    mitigation projects on federal lands, and placed a temporary hold on
    funding for land purchases and easements for off-site mitigation while it
    reviewed its financial condition and liquidity position. In addition,
    Bonneville changed its budgeting and planning methods from obligations to
    accruals in November 2002. Federal agencies, the Council, and some tribes
    reported that Bonneville's processes for project submittal, approval, and
    contract renewal and management are inconsistent and constantly changing.
    As such, many project managers at the tribes who serve as contractors to
    Bonneville reported spending as much time learning and adapting to
    changing processes as implementing projects on the ground. According to
    Bonneville, the changes were based in part on the recommendations of a
    1997 accounting firm review of program implementation, and were necessary
    to improve program implementation, keep Fish and Wildlife Program costs on
    target, and align its fish and wildlife budgeting approach with its other
    program budgets.12

    Endangered Species Act-Driven Plans and Programs

    Under the ESA, agencies must use their authorities to conserve endangered
    and threatened species and make sure that their actions do not jeopardize
    the continued existence of listed species. In the Columbia River Basin,
    agencies collaborate on several concurrent and sometimes overlapping plans
    towards this end, including biological opinions, the proposed recovery
    plans for salmon, and the Basin-wide Salmon Recovery Strategy. While
    different in their specific focus and scope, all of these plans promote
    the continued existence of threatened and endangered species in the basin.

    As the regulating agencies for endangered and threatened species, FWS and
    NMFS are the lead agencies on most fish and wildlife plans driven by the
    ESA. Section 7 of the ESA requires agencies to consult with FWS and NMFS
    to ensure that actions are not likely to jeopardize listed species. Based
    on these consultations, FWS and NMFS are required to produce biological
    opinions that prescribe reasonable and prudent measures/alternatives for
    proposed federal actions that may adversely affect listed species.
    Bonneville, the Corps, and Reclamation consult with FWS and NMFS on the
    impacts that operation of the FCRPS has on endangered and threatened
    species. In response to these consultations, NMFS develops biological
    opinions for anadromous species impacted by the FCRPS, while FWS develops
    biological opinions for resident fish and wildlife impacted by the
    FCRPS.13

    NMFS first issued a Biological Opinion for the FCRPS for salmon and
    steelhead in 1992, and developed subsequent versions, such as a 1998
    supplement that added steelhead. The most recent Biological Opinion for
    the FCRPS for salmon and steelhead was issued in 2000. In 2003, however, a
    federal court remanded the 2000 Biological Opinion after ruling it
    deficient, due to reliance on federal mitigation actions that had not
    undergone section 7 consultations, as well as reliance on off-site
    nonfederal mitigation activities that were not reasonably certain to
    occur.14 A new salmon and steelhead Biological Opinion for the FCRPS is
    due in June 2004. FWS developed a Biological Opinion for resident fish
    impacted by the FCRPS, including bull trout and white sturgeon. The first
    FCRPS Biological Opinion for white sturgeon was developed by FWS in 1995.

    To develop the reasonable and prudent measures/alternatives outlined in
    the FCRPS Biological Opinions, FWS and NMFS rely on technical input from
    several agencies, as well as information contained in other fish and
    wildlife plans:

    o Bonneville, the Corps, and Reclamation consult with FWS and NMFS in
    developing reasonable and prudent measures/alternatives for hydropower
    operation that can reasonably be implemented;

    o Forest Service and BLM contribute information used to develop the
    reasonable and prudent measures/alternatives that address off-site
    habitat; and

    o To the extent possible, NMFS has incorporated information from the
    Council's subbasin planning in their development of the Biological
    Opinions due in June.

    Notwithstanding this collaboration, several agencies and groups, such as
    the Council and tribes, expressed a desire for increased participation in
    developing the Biological Opinions. These groups indicated that they have
    important technical information and experience that could help inform the
    development of the Biological Opinions.

    Responsibility for implementing the Biological Opinions lies with the
    operators and managers of the FCRPS-Bonneville, the Corps, and
    Reclamation-known as the Action Agencies. In fulfilling this
    responsibility, the Action Agencies create Biological Opinion
    Implementation Plans, which provide guidance on how the Biological
    Opinions should be implemented. The Action Agencies create 1-Year
    Implementation Plans, which outline annual goals for meeting reasonable
    and prudent measures/alternatives, as well as 5-Year Implementation Plans,
    which address longer-term goals for meeting the measures. The development
    of Implementation Plans typically involves significant input from other
    agencies. For example, Bonneville and the Council work together to support
    ESA objectives by integrating the implementation of the Biological
    Opinions with subbasin planning and the Fish and Wildlife Program's
    administrative process. In addition, implementation of the Biological
    Opinions has evolved as the Action Agencies continue to incorporate new
    information from ESA recovery planning processes.

    Many basin agencies provide input to the Action Agencies on the
    implementation of hydrosystem operations and configuration under the
    Biological Opinions through the Regional Forum (Forum). Key members of the
    Forum include Bonneville, the Corps, and Reclamation, as well as FWS and
    NMFS, and the states of Oregon, Washington, Idaho, and Montana. The Forum
    is composed of five committees that make decisions concerning the FCRPS in
    accordance with the Biological Opinions, facilitating regional
    communication and coordination towards fulfillment of the Biological
    Opinions. Forum meetings are open to all entities, and interagency
    collaboration is an essential element of the Forum. However, some tribal
    representatives indicated that they would like to have more sovereign
    representation on the Forum. They feel that the meetings neither provide
    for a collaborative, balanced exchange of information between federal
    agencies and the tribes, nor satisfy the requirement for
    government-to-government consultation with tribes on matters that affect
    them.

    As further required by the ESA, NMFS is currently developing recovery
    plans for salmon (recovery plans) for various regions within the Columbia
    River Basin, which outline programs for the recovery of endangered or
    threatened salmon and steelhead in the basin. Specifically, the recovery
    plans are designed to organize, coordinate, and prioritize recovery
    actions for salmon and steelhead, as well as outline objective measurable
    criteria that will be used to determine when they no longer need the
    protection of the ESA. In addition, recovery plans communicate the vision
    for salmon and steelhead recovery to other agencies and the public.

    NMFS' development of the recovery plans has been enhanced by collaboration
    and information sharing with other agencies and groups, including tribes.
    NMFS is using the Council's subbasin planning as a framework for
    developing the various recovery plans. While NMFS is not required to
    collaborate with the Council on this effort, working through the subbasin
    framework affords NMFS access to local watershed information. Although the
    recovery plans have yet to be completed- the first recovery plan is due in
    December 2005-NMFS hopes they will be implemented through interagency
    collaboration using the subbasin plans.

    Separate from the recovery plans, the Basin-wide Salmon Recovery Strategy
    provides an interim conceptual, collaborative plan for the recovery of
    salmon and steelhead in the basin, until recovery plans are complete.
    Referred to as the "All-H Paper" because it addresses the four "H's" of
    fish management-hatcheries, habitat, harvest, and hydropower-it is a
    blueprint for collaboration among federal agencies in the basin seeking to
    restore aquatic habitat and achieve recovery objectives for endangered and
    threatened salmon and steelhead.

    Development of the All-H paper involved input from nine federal agencies,
    collectively known as the Federal Caucus-Bonneville, the Corps, Forest
    Service, Reclamation, BIA, BLM, EPA, FWS, and NMFS. Agency participation
    in the development varied according to agencies' missions and expertise:

    o Bonneville, the Corps, and Reclamation provided input on recovery
    activities related to hydropower, and Reclamation provided input on
    irrigation;

    o Forest Service and BLM provided input on recovery concerns related to
    habitat;

    o FWS and NMFS provided input on the role of annual harvest allocations in
    recovery;

    o FWS and NMFS provided extensive input and guidance on the role of
    hatcheries in recovery; and

    o EPA provided input and recommendations related to habitat and
    hydropower.

    After input from the nine agencies had been collected, and the All-H was
    completed, agencies memorialized their collaboration through a Memorandum
    of Agreement that outlined how agencies could cooperate on implementation
    of the All-H. Overall, interagency collaboration on the development of the
    All-H was well regarded, and the four "H's" have contributed to decision
    making on other plans in the basin. In addition, NMFS has relied on
    information outlined in the All-H Paper as a framework for developing the
    forthcoming recovery plans.

    Implementation of the measures by the nine federal agencies as outlined in
    the All-H Paper is voluntary; while agreed to by members of the Federal
    Caucus, the paper establishes expectations, but does not establish
    specific obligations for individual agencies. Actual implementation of the
    recommendations has varied across agencies, and across the different
    categories of recovery-hatcheries, habitat, harvest, and hydropower.
    Nonetheless, the comprehensive approach to species management outlined in
    the All-H Paper has informed and guided agencies' work on other plans. For
    example, the Council now uses information contained in the All-H Paper in
    its development of the Fish and Wildlife Program, and the Action Agencies
    use the four "H's" in the Biological Opinion Implementation Plans.

    Other Directives and Agency Missions Drive Additional Collaborative and
    Independent Plans and Programs

    Additional fish and wildlife plans and programs are driven by other
    directives, such as the Clean Water Act and court decisions based on
    treaty rights, as well as by each agency's unique mission. Agencies
    develop and implement these plans and programs through collaborative and
    independent agency efforts. The lead agencies and federal and tribal
    collaborators in the development and implementation for selected plans and
    programs are summarized in figure 4.

    Figure 4: Federal and Tribal Collaboration on Selected Fish and Wildlife
    Plans and Programs Driven by Other Directives and Agency Missions

    Note: Figure does not include significant state, local, and private entity
    participation in plan development and implementation.

    Clean Water Act-Driven Programs

    The Clean Water Act established the basic structure for regulating
    discharges of pollutants into the waters of the United States. As the
    regulating agency for the Clean Water Act, EPA has the authority to

    implement pollution control programs such as setting wastewater standards
    for industry. The Clean Water Act also provides for states and tribes to
    set water quality standards for all contaminants in surface waters. EPA
    also manages grant programs designed to assist agencies, tribes, and
    others to comply with this guidance.

    In the Columbia River Basin, EPA manages several grant programs that
    indirectly benefit fish and wildlife by promoting water and environmental
    quality on tribal lands. EPA manages these programs collaboratively with
    tribes and other organizations to identify water quality needs in the
    basin, as well as suitable projects to address these needs. Grant programs
    in the basin identified by EPA include the following:

    o Clean Water Act General Assistance Grant Program to Tribes-Provides
    general assistance grants to Indian tribal governments and intertribal
    consortia to build capacity to administer regulatory and multimedia
    programs addressing environmental issues on Indian lands.

    o Clean Water Act Section 319 Grant Program-Provides funding to states and
    Indian tribes for a wide variety of nonpoint source activities, including
    technical and financial assistance, education, training, technology
    transfer, demonstration projects, and monitoring.

    o Clean Water Act Section 106 Grant Programs-Assists Indian tribes and
    states in carrying out effective water pollution control programs,
    including water quality planning and assessments, development of water
    quality standards, and water quality monitoring.

    Implementation of these grant projects is handled by grant recipients,
    with minimal assistance from EPA beyond the initial discussions concerning
    project design and funding. According to EPA, the grant programs work well
    and allow the tribes to fully incorporate their technical knowledge and
    experience into water quality planning.

    Court Decision-Driven Plans and Programs

    In addition to federal environmental protection laws, such as the Clean
    Water Act, tribal treaty rights and clarifying court decisions have also
    resulted in plans to manage basin fish and wildlife. For example, the 1969
    United States v. Oregon and 1974 United States v. Washington court
    decisions ruled that certain Columbia River Basin tribes have a right to
    50 percent of the annual harvestable catch of fish at all usual and
    accustomed fishing areas. A subsequent court ruling in 1977 ordered FWS,
    NMFS, state fish and wildlife agencies, and the tribes to develop a
    collaborative plan for managing the annual harvest of the fisheries
    affected by United States v. Oregon. In addition, BIA assists the tribes
    in negotiations with federal agencies and development of the plan. Known
    as the Five Year Columbia River Fish Management Plan, the plan sets forth
    harvest allocation terms, as well as efforts to rebuild and enhance fish
    runs. Since that plan expired in 1982, harvest allocation under United
    States v. Oregon has been alternately managed by additional multiyear
    collaborative plans and annual court-ordered negotiations that seek to
    balance tribal harvest, nontribal harvest, and species protection.
    According to FWS and NMFS, their input on United States v. Oregon
    negotiations must balance both their trust responsibilities to tribes, as
    well as their responsibilities to endangered and threatened species that
    are affected by the United States v. Oregon decision. At present, United
    States v. Oregon harvest allocation is decided by annual court-ordered
    negotiations, although the parties are seeking to develop a new long-term
    collaborative plan, to be known as the Columbia River Fish Management
    Agreement. Otherwise, the parties will continue to revisit harvest and
    fish management decisions for the Columbia River through annual
    negotiations.

    Implementation of measures agreed to in United States v. Oregon
    negotiations or plans is handled collaboratively by federal, state, and
    tribal parties. For example, FWS and NMFS are responsible for implementing
    measures, such as hatchery enhancement, to rebuild depressed fish stocks.
    State agencies are responsible for publishing and regulating annual
    harvest levels. The five Columbia River Basin tribes that are parties to
    United States v. Oregon are responsible for abiding by annual harvest
    levels. According to NMFS, the implementation of United States v. Oregon
    negotiations or plans affect fisheries in a number of important areas,
    including habitat, production, and hatchery management. Furthermore, the
    decisions reached during the negotiations serve as guidelines for the
    various decisions made on the Regional Forum committees. For example,
    agreements concerning harvest levels that are reached with tribes during
    the United States v. Oregon negotiations serve as the baseline for
    discussions of harvest management and monitoring at the Regional Forum.

    Agency Mission-Driven Plans and Programs

    Agency missions also drive fish and wildlife plans in the basin.
    Specifically, the water and resource management responsibilities of the
    Corps, Reclamation, Forest Service, BLM, and NRCS require these agencies
    to create plans that address the fish and wildlife impacts of their
    activities. Some of these plans are collaborative in their design or
    implementation, and represent agency efforts to more fully meet their
    mission with assistance from other agencies. Others are designed and
    implemented independently by individual agencies, and represent agency
    efforts to benefit fish and wildlife through mission activities.

    The Corps uses Project Management Plans to ensure that their internal
    agency activities follow appropriate guidelines for protecting fish
    passage and mitigating barriers to it along the Columbia River. The scope
    of Project Management Plans varies widely, but each plan includes a fish
    protection and mitigation component. Development and implementation of
    Project Management Plans is handled independently by the Corps.
    Information contained within Project Management Plans informs the Corps'
    participation in other plans in the basin, and thus influences the
    activities of other agencies. For example, the Corps reported that the
    content of Project Management Plans is frequently used in developing the
    annual and 5-year Biological Opinion Implementation Plans for the FCRPS.

    Reclamation uses Research and Monitoring Programs to independently fund,
    develop, and implement a wide range of discretionary efforts, including
    research and monitoring efforts that focus on fish and wildlife. Funding
    for the Research and Monitoring Programs is distributed annually from
    Reclamation's Commissioner's office, and projects are selected from across
    a variety of departments. According to Reclamation officials, Research and
    Monitoring Programs are important tools for incorporating fish and
    wildlife activities into internal agency policies.

    The collaborative efforts of the Forest Service and BLM have yielded the
    Northwest Forest Plan, an effort to facilitate a collaborative interagency
    approach to ecosystem management on federal lands located within the range
    of the threatened northern spotted owl. In addition, the Northwest Forest
    Plan includes an Aquatic Conservation Strategy designed to promote the
    recovery of listed endangered and threatened species, as well as nonlisted
    aquatic species. As land management agencies, Forest Service and BLM take
    the lead on developing and implementing measures for the long-term health
    of forests, wildlife, and waterways on their lands. Nonetheless, several
    other federal agencies provided input on the design of the Northwest
    Forest Plan through a Memorandum of Understanding signed by the Corps,
    Forest Service, BIA, BLM, EPA, FWS, NMFS, USGS, and the National Park
    Service. In addition, federal agencies, as well as state, local, and
    tribal governments, continually collaborate on the implementation of the
    Northwest Forest Plan. For example, the Regional Interagency Executive
    Committee, which is comprised of representatives from the federal
    agencies, facilitates the prompt and coordinated implementation of the
    Northwest Forest Plan at the regional level. In addition, the
    Intergovernmental Advisory Committee, which is comprised of
    representatives from federal, state, county, and tribal governments,
    provides a vehicle for input from the states, counties, and tribes, and
    promotes the integration and coordination of forest management activities
    among federal and nonfederal entities.

    The Forest Service also develops Land and Resource Management Plans,
    commonly referred to as Forest Plans, to manage each specific National
    Forest. Forest Plans, developed through the National Environmental Policy
    Act public comment process, address a variety of forest management
    concerns but contain objectives and standards/guidelines that specifically
    address conservation and restoration of fish and wildlife habitat
    integrated with other resource management needs. According to the Forest
    Service, Forest Plans were the primary vehicle for integrating fish and
    wildlife concerns with other management objectives. Forest Plans do not
    set forth determinations on the type and number of actions to be
    implemented, but provide sideboards and guidance for the design of
    site-level actions. Development and implementation of these plans are
    primarily handled by the Forest Service, although NMFS, FWS, and tribes
    provide some input. The Forest Service coordinates with BLM on the
    development of Forest Plans where BLM lands lie adjacent to National
    Forests. BLM and Forest Service also collaborate on species management,
    including habitat management and aquatic management strategies. Through
    consultations with the Forest Service, Columbia River Basin tribes provide
    input on the design and implementation of Forest Plans, and also
    participate in cost-share fish and wildlife activities on National Forest
    System lands. According to one Forest Service official, securing
    cost-share funding for activities benefiting nonlisted fish is an ongoing
    challenge because endangered and threatened species fish tend to receive
    the most attention and funding.

    BLM uses District Resource Management Plans to guide agency activities.
    Resource Management Plans outline general management guidelines for all
    agency activities, and also contain specific management guidelines for
    protecting fish and wildlife. Although Resource Management Plans address
    internal management guidelines for BLM, they are developed through the
    National Environmental Policy Act public comment process. As such, they
    receive significant public attention and input, and BLM must incorporate
    the comments into their development of the plans.

    NRCS uses its Environmental Quality Incentive Program to fund projects
    that indirectly benefit fish and wildlife through environmental
    improvements to irrigation, erosion, water quality, and agriculture.
    Operated collaboratively with tribes, NRCS funds these projects on a
    cost-share basis, providing a minimum of 2.6 percent of the total funds.
    According to NRCS, tribes are an excellent vehicle for gaining access to
    lands previously inaccessible to environmental improvements because the
    tribes are continually purchasing land from private sellers, and because
    they are willing to partner with NRCS on land rehabilitation.

    In conjunction with their agency missions, and in recognition of their
    trust responsibilities to tribes, federal agencies also have the
    opportunity to participate in the development and implementation of
    tribally managed fish and wildlife plans. For example, representatives
    from the Nez Perce, Umatilla, Warm Springs, and Yakama tribes, as well as
    staff from the Columbia River Inter-Tribal Fish Commission, compiled the
    Wy-Kan-Ush-Mi Wa-Kish-Wit, which outlines a framework for restoring
    anadromous fish stocks in the Columbia River Basin. This tribal plan
    outlines the cultural context for the tribes' salmon restoration efforts,
    as well as technical and institutional recommendations and watershed
    restoration actions. According to the tribes, however, federal agency
    collaboration on tribe-led plans is minimal, and there is significant room
    for increased participation from agencies on tribal fish and wildlife
    plans.

    In addition to opportunities for collaboration on tribal plans, agencies
    also have opportunities to fulfill agency missions and other
    responsibilities through collaboration on state-managed plans. For
    example, one agency reported collaborating with the state of Washington on
    their "Extinction Is Not an Option" plan, which provides a framework for
    the recovery of endangered species in the state. Agencies also collaborate
    with the state of Oregon on the Plan for Salmon and Watersheds. According
    to some federal agency representatives, collaboration on federal and state
    fish and wildlife plans is important in ensuring that overall fish and
    wildlife goals in the basin are met.

    Agency Comments and Our Evaluation

    We provided copies of our draft report to the Departments of Agriculture,
    Commerce, Defense, the Interior, as well as Bonneville and EPA. Bonneville
    and the Departments of Agriculture and Commerce provided official written
    comments. (See apps. VI through VIII, respectively, for the full text of
    the comments received from these agencies and our responses.) The comments
    were generally technical in nature with few comments on the report's
    overall findings. We made changes to the report, where appropriate, based
    on the technical comments provided by the three entities that commented on
    the report. The Department of Defense and EPA had no comments on the
    report. The Department of the Interior did not provide comments in time to
    be included in this report.

    Bonneville commented that the draft would benefit from the inclusion of
    additional information regarding the federal government's trust
    responsibilities to the tribes in the Columbia River Basin. Within the
    scope of our review, we believe the topic is adequately and accurately
    described in the report. The Department of Agriculture objected to our
    assertions in figures 3 and 4 that the Forest Service contributes to the
    development or implementation of certain plans, and that BLM contributes
    to the development and implementation of Forest Service Land and Resource
    Management Plans, respectively. The figures are intended to demonstrate
    the collaborative nature of fish and wildlife plans and programs in the
    basin. While we recognize that in many cases agencies do not have official
    roles or responsibilities in specific plans, we believe our figures
    accurately highlight both formal and informal contributions from agencies
    and tribes, as described to us by agency officials, tribal
    representatives, and others.

    We are sending copies of this report to the Secretaries of Agriculture,
    Commerce, Defense, the Interior, and the Administrators of Bonneville and
    EPA, appropriate congressional committees, and other interested Members of
    Congress. We will also make copies available to others upon request. In
    addition, the report will be available at no charge on the GAO Web site at
    http://www.gao.gov.

    If you or your staff have questions about this report, please contact me
    at (202) 512-3841. Key contributors to this report are listed in appendix
    IX.

    Barry T. Hill Director, Natural Resources and Environment

    Scope and MethodologyAppendix I

    To identify and describe the laws, treaties, executive orders, and court
    decisions that define the responsibilities of the Bonneville Power
    Administration (Bonneville) and other federal agencies to perform
    activities benefiting fish and wildlife in the Columbia River Basin and
    involve tribes in the process, we reviewed our prior report on salmon and
    steelhead recovery activities in the Columbia River Basin for 11 agencies
    with significant responsibility for fish and wildlife in the Pacific
    Northwest.1 These agencies were Bonneville; the Forest Service and Natural
    Resources Conservation Service (NRCS) within the Department of
    Agriculture; the Bureau of Indian Affairs (BIA), Bureau of Land Management
    (BLM), Bureau of Reclamation (Reclamation), U.S. Fish and Wildlife Service
    (FWS), and U.S. Geological Survey (USGS) within the Department of the
    Interior; the U.S. Army Corps of Engineers (Corps) within the Department
    of Defense; the National Marine Fisheries Service (NMFS) within the
    Department of Commerce; and the Environmental Protection Agency (EPA). We
    reviewed the directives identified by the agencies in the report as
    defining their responsibilities for salmon and steelhead in the basin, and
    requested confirmation from each agency on these directives. In addition,
    we asked each agency to identify any additional directives that define
    their responsibilities for other fish and wildlife, and to identify any
    directives applicable to Columbia River Basin tribes that create fish and
    wildlife responsibilities for agencies. We also requested input from the
    13 Columbia River Basin tribes on the directives that define federal
    responsibilities for fish and wildlife in the basin. Based on the
    responses provided by agencies and tribes, we compiled a summary of
    directives that define agency responsibilities for fish and wildlife in
    the basin. We collected documentation on these directives from the
    agencies, discussed the directives with agency, tribal, and other
    representatives for clarification.

    To identify and describe the fish and wildlife plans and programs that
    Bonneville and other federal agencies have developed to guide their fish
    and wildlife activities, we reviewed our prior report on salmon and
    steelhead recovery activities in the Columbia River Basin. We then
    reviewed the plans and programs identified by the agencies in the report
    as guiding their recovery activities for salmon and steelhead, and
    requested confirmation from each agency on these plans and programs. In
    addition, we asked agencies to identify any additional plans and programs
    used to fulfill agency responsibilities for fish and wildlife in the
    basin, and we interviewed agency officials to gather additional
    information on the implementation of fish and wildlife plans and programs.
    We also interviewed staff and officials of the Northwest Power and
    Conservation Council and the Columbia Basin Fish and Wildlife Authority,
    in order to gather information on their roles in assisting federal
    agencies with the design and implementation of fish and wildlife plans and
    programs. To gather the tribal perspective on fish and wildlife plans and
    programs, we met with representatives from 10 of the 13 federally
    recognized tribes in the basin, as well as representatives from the
    Columbia River Inter-Tribal Fish Commission, and the Upper Columbia United
    Tribes. In addition, 10 of the 13 tribes submitted written comments on
    tribal participation in federal fish and wildlife plans in the basin.

    During our information collection, agencies, organizations, and tribes
    highlighted a number of concerns regarding the implementation of fish and
    wildlife plans and programs in the basin, which we included in this
    report. In accordance with our policy to refrain from addressing matters
    that are in litigation, we did not examine or report on any issues that
    are before the court.

    We performed our work from August 2003 through April 2004, in accordance
    with generally accepted government auditing standards.

    Laws, Treaties, and Executive Orders Guiding Agency Activities Affecting
    Columbia River Basin Fish and WildlifeAppendix II

    Tables 4, 5, and 6 list the nationwide, basin-specific, and
    mission-specific laws reported by federal agencies as guiding their
    actions to protect, mitigate, and enhance fish and wildlife in the
    Columbia River Basin.

    Table 4: Nationwide Laws Guiding Agency Activities Affecting Columbia
    River Basin Fish and Wildlife

    Nationwide law              Citation             Description
                                                        Authorizes the
                                                        Secretaries of Commerce
                                                        and of the Interior to
                                                        enter into cooperative
    Anadromous Fish             16 U.S.C. S:S:       agreements for the
    Conservation Act            757a-757f            development,
                                                        conservation, and
                                                        enhancement of anadromous
                                                        (migratory) fish
                                                        resources.
                                                        Prohibits the taking or
                                   16 U.S.C. S:S:       possession of and
    Bald Eagle Protection Act   668-668d             commerce in bald and
                                                        golden eagles, with
                                                        limited exceptions.
                                                        Requires EPA to set
                                                        limits on air pollutants
                                                        and approve state
                                   42 U.S.C. S:S:       implementation plans to
    Clean Air Act               7401-7671q           reduce pollutants that
                                                        exceed limits, and
                                                        requires federal
                                                        activities to comply with
                                                        limits.
                                                        Provides for the
                                                        restoration and
                                                        maintenance of the
                                                        Nation's waters.
                                                        Authorizes EPA to
                                                        establish effluent
                                                        limitations and requires
    Federal Water Pollution                          permits for the discharge
    Control Act (commonly       33 U.S.C. S:S:       of pollutants from a
    referred to as the Clean    1251-1387            point source to navigable
    Water Act)                                       waters. EPA approves
                                                        state and tribal limits
                                                        for the maximum amount of
                                                        a pollutant that a water
                                                        body can receive and
                                                        still meet water quality
                                                        standards for specified
                                                        purposes, including fish
                                                        and wildlife.
                                                        Directs federal agencies
                                                        to cooperate with state
                                                        and local governments to
                                                        control polluted runoff
                                                        in coastal waters and to
    Coastal Zone Management Act 16 U.S.C. S:S:       otherwise generally
    of 1972                     1451-1465            protect, develop, and
                                                        restore the resources of
                                                        the nation's coastal
                                                        zone, including fish and
                                                        wildlife and their
                                                        habitats.
                                                        Provides for the cleanup
                                                        of hazardous waste by
                                                        imposing liabilities and
                                                        duties on responsible
    Comprehensive Environmental                      parties, including
    Response, Compensation, and 42 U.S.C. S:S:       federal agencies, and by
    Liability Act of 1980       9601-9675            authorizing the federal
                                                        government to take
                                                        cleanup actions in
                                                        response to releases or
                                                        threatened releases of
                                                        hazardous substances.
                                                        Provides for the
                                                        conservation and recovery
                                                        of species of plants and
                                                        animals that the National
                                                        Marine Fisheries Service
                                                        or the U.S. Fish and
    Endangered Species Act      16 U.S.C. S:S:       Wildlife Service
                                   1531-1544            determines to be in
                                                        danger of or soon to
                                                        become in danger of
                                                        extinction. Includes
                                                        measures to protect the
                                                        habitats of these
                                                        species.
                                                        Declares that recreation
                                                        and fish and wildlife
    Federal Water Project       16 U.S.C. S:S:       enhancement should be
    Recreation Act              460l-12 to l-21      given full consideration
                                                        as purposes of federal
                                                        water development
                                                        projects.
                                                        Provides for financial
                                                        and technical assistance
    Fish and Wildlife           16 U.S.C. S:S:       to states for development
    Conservation Act of 1980    2901-2912            and implementation of
                                                        conservation plans and
                                                        programs for nongame fish
                                                        and wildlife.
                                                        Authorizes the Secretary
                                                        of the Interior to, among
                                                        other things, provide
                                                        assistance to, and
                                                        cooperate with, federal,
                                                        state, and public or
                                                        private agencies and
    Fish and Wildlife           16 U.S.C. S:S:       organizations in the
    Coordination Act            661-666c             development, protection,
                                                        rearing, and stocking of
                                                        all species of wildlife
                                                        and their habitat, in
                                                        minimizing damages from
                                                        overabundant species, and
                                                        in providing public
                                                        shooting and fishing
                                                        areas.
    Nationwide law              Citation             Description
                                   E.g. Flood Control   Authorize projects for
                                   Act of 1970, Pub. L. the benefit of
                                   No. 91-611, 84 Stat. navigation, the control
    Flood Control Acts          1818 (1970) and      of destructive
                                   Flood Control Act of floodwaters, protection
                                   1965, Pub. L. No.    of the shorelines, and
                                   89-298, 79 Stat.     other purposes.
                                   1073 (1965).
                                                        Establishes a framework
                                                        for the conservation and
                                                        management of U.S.
                                                        coastal and Outer
                                                        Continental Shelf fishery
                                                        resources and anadromous
                                                        species, which includes
                                                        the establishment of
                                                        national standards for
                                                        fishery management and
                                                        conservation and of eight
    Magnuson-Stevens Fishery                         Regional Fishery
    Conservation and Management 16 U.S.C. S:S:       Management Councils to
    Act of 1972                 1801-1883            develop fishery
                                                        management plans.
                                                        Requires federal agencies
                                                        to consult with the
                                                        Secretary of Commerce
                                                        with respect to any
                                                        agencies actions that may
                                                        adversely affect
                                                        essential fish habitat,
                                                        and requires the
                                                        Secretary to recommend
                                                        habitat conservation
                                                        measures to the agency.
                                                        Enacts various measures
                                                        to protect marine mammals
                                                        and their habitats. Most
                                                        notably, prohibits the
    Marine Mammal Protection    16 U.S.C. S:S:       taking of marine mammals,
    Act                         1361-1421h           except under certain
                                                        conditions, including as
                                                        an incidental take during
                                                        commercial fishing
                                                        operations.
                                                        Regulates the dumping of
                                                        all types of materials
                                                        into ocean waters and
                                                        authorizes the EPA to
                                                        issue dumping permits for
                                                        material other than
                                   33 U.S.C. S:S:       dredged material and the
    Marine Protection, Research 1401-1445, 16 U.S.C. Army Corps of Engineers
    and Sanctuaries Act of 1972 S:S: 1431-1434       to issue permits for the
                                                        transportation and
                                                        dumping of dredged
                                                        materials, based in part
                                                        on the effect of the
                                                        dumping on fish and
                                                        wildlife and the marine
                                                        environment.
                                                        Establishes a Migratory
                                                        Bird Conservation
                                                        Commission, headed by the
                                                        Secretary of the
                                                        Interior, to approve
    Migratory Bird Conservation 16 U.S.C. S:S:       areas of land or water
    Act                         715-715r             recommended by the
                                                        Secretary, and approved
                                                        by the state in which the
                                                        land is located, for
                                                        acquisition as
                                                        reservations for
                                                        migratory birds.
                                                        Implements various
                                                        treaties and conventions
                                                        between the United
                                                        States, Canada, Japan,
    Migratory Bird Treaty Act   16 U.S.C. S:S:       Mexico, and the former
                                   703-712              Soviet Union for the
                                                        protection of migratory
                                                        birds. Prohibits taking,
                                                        killing, or possessing
                                                        migratory birds.
                                                        Enacts measures to
                                                        promote efforts to
                                                        prevent or eliminate
                                                        damage to the
    National Environmental      42 U.S.C. S:S:       environment. Requires
    Policy Act of 1969          4321-4347            federal agencies to
                                                        examine the impacts of
                                                        proposed major federal
                                                        actions "significantly
                                                        affecting" the
                                                        environment.
                                                        Encourages agencies and
                                                        individuals to develop
                                                        historic preservation
                                                        programs, and requires
                                                        agencies to oversee any
                                                        historic sites under
    National Historic           16 U.S.C. S:S: 470   their jurisdiction and
    Preservation Act of 1966                         consider the effects of
                                                        its actions on historic
                                                        sites. Provides for
                                                        tribes to designate an
                                                        official to administer
                                                        the preservation program
                                                        on tribal lands.
                                                        Enacts measures to
                                                        prevent the unintentional
                                                        introduction of
                                                        nonindigenous species
                                                        into the waters of the
                                                        United States and to
                                                        minimize the economic and
    Nonindigenous Aquatic                            ecological effects of
    Nuisance Prevention and     16 U.S.C. S:S:       such species that become
    Control Act of 1990         4701-4751            established. Establishes
                                                        a task force, comprising,
                                                        among others, the FWS,
                                                        the Coast Guard, and EPA
                                                        to develop a program to
                                                        prevent introduction of
                                                        and to control the spread
                                                        of introduced aquatic
                                                        nuisance species.
    Nationwide law              Citation             Description
                                                        Enacts measures to
                                                        protect, enhance,
                                                        restore, and manage
                                                        wetlands and their
    North American Wetlands     16 U.S.C. S:S:       ecosystems (which
    Conservation Act            4401-4414            includes fish and
                                                        wildlife). Authorizes the
                                                        Secretary of the Interior
                                                        to fund wetland
                                                        improvement projects.
                                                        Imposes liability on
                                                        responsible parties for
                                                        damages (e.g., loss of
                                   33 U.S.C. S:S:       natural resources) and
    Oil Pollution Act of 1990   2701-2761            for removal costs that
                                                        agencies, tribes, and
                                                        others incur from oil
                                                        discharges into navigable
                                                        waters.
                                                        Establishes a national
                                                        policy to improve
                                                        conditions on public
                                                        rangelands; requires the
                                                        Secretary of the Interior
    Public Rangelands           43 U.S.C. S:S:       and Secretary of
    Improvement Act of 1978     1901-1908            Agriculture to develop,
                                                        update, and maintain and
                                                        inventory of range
                                                        conditions; and
                                                        authorizes funding for
                                                        range improvement
                                                        projects.
                                                        Prohibits projects that
                                                        interfere with
                                                        navigation, unless
                                                        congressional approval is
                                                        given and a permit is
                                                        obtained from the
    River and Harbor Act of     33 U.S.C. S:S: 401,  Department of
    1899, S:S: 9,10             403                  Transportation for
                                                        bridges or causeways, or
                                                        from the Army Corps of
                                                        Engineers for other
                                                        projects such as piers,
                                                        wharfs, breakwaters,
                                                        bulkheads, jetties,
                                                        weirs, dams, or dikes.
                                                        Enacts measures to
                                                        protect public drinking
                                                        water. Requires EPA to
                                                        promulgate national
                                                        drinking water
    Safe Drinking Water Act of  42 U.S.C. S:S: 300f  regulations to be
    1974                        to j-26              enforced by states, and
                                                        prohibits federal
                                                        agencies from assisting
                                                        actions that will
                                                        contaminate an aquifer
                                                        designated as a drinking
                                                        water source.
                                                        Establishes a program for
                                                        conservation and
                                                        rehabilitation of natural
                                                        resources, including fish
                                                        and wildlife, at military
    Sikes Act                   16 U.S.C. S:S:       installations, in
                                   670-670o             accordance with a plan
                                                        developed by the
                                                        Secretaries of Defense
                                                        and the Interior in
                                                        coordination with the
                                                        appropriate state agency.
                                                        Directs the Secretary of
                                                        Transportation, in
                                                        coordination with the
                                                        Secretary of the
                                                        Interior, to study
                                                        alternative
                                                        transportation needs on
                                                        public lands, such as
                                                        national parks,
                                                        recreation areas, and
    Transportation Equity Act                        wildlife refuges, to
    for the 21st Century, S:    49 U.S.C. S: 138     encourage and promote the
    3039                        note                 development of
                                                        transportation systems
                                                        for the betterment of
                                                        those areas in order to,
                                                        among other things,
                                                        conserve natural,
                                                        historical, and cultural
                                                        resources and prevent
                                                        adverse impacts, relieve
                                                        congestion, reduce
                                                        pollution, and enhance
                                                        the visitor experience.
                                                        Authorizes the Secretary
                                                        of Agriculture to provide
                                                        financial and other
                                                        assistance to state and
                                                        local entities and to
    Watershed Protection and    16 U.S.C. S:S:       Indian tribes to plan and
    Flood Prevention Act        1001-1010            carry out projects in
                                                        watersheds for flood
                                                        prevention, conservation,
                                                        development, utilization,
                                                        and disposal of water, or
                                                        for conservation and
                                                        proper use of land.
                                                        Institutes a national
                                                        wild and scenic rivers
                                                        system and implements a
                                                        policy of protecting
    Wild and Scenic Rivers Act  16 U.S.C. S:S:       rivers that comprise the
                                   1271-1287            system and preserving
                                                        them in a free-flowing
                                                        state, by enacting
                                                        protective and other
                                                        measures.
                                                        Establishes a National
                                                        Wilderness Preservation
                                                        System composed of
                                                        federally owned areas the
                                                        Congress designates as
                                                        "wilderness areas," which
                                                        are to be administered in
    Wilderness Act              16 U.S.C. S:S:       a way that protects the
                                   1131-1136            areas and preserves their
                                                        wilderness character.
                                                        Federal agencies that had
                                                        jurisdiction over areas
                                                        designated as part of the
                                                        system are to retain
                                                        jurisdiction and continue
                                                        to manage them.

    Source: GAO analysis of information provided by federal agencies.

    Table 5: Basin-specific Laws Guiding Agency Activities Affecting Columbia
    River Basin Fish and Wildlife

    Basin-specific law        Citation         Description
                                                  Authorizes the construction,
                                                  maintenance and operation of
                                                  the Bonneville Project to
                                                  improve navigation on the
                                                  Columbia River, and for
                                                  incidental purposes such as the
                                                  production of electricity.
                                                  Creates the Bonneville Power
                                                  Administration (Bonneville) and
    Bonneville Project Act of 16 U.S.C. S:S:   authorizes it to market power
    1937                      832-832l         produced by the Project and to
                                                  construct electricity
                                                  transmission lines. Requires
                                                  Bonneville to set its rates in
                                                  a way that considers the
                                                  recovery of the cost of
                                                  producing and transmitting
                                                  electric energy from the
                                                  Federal Columbia River Power
                                                  System.
                                                  Makes the construction of Grand
                                                  Coulee Dam subject to federal
                                                  reclamation laws discussed in
                                                  this table, and authorizes the
    Columbia Basin Project    16 U.S.C. S:S:   Secretary of the Interior to
    Act                       835-835c-5       take certain actions, including
                                                  the sale and exchange of lands
                                                  and the administration of
                                                  public lands in the project
                                                  area, to, among other things,
                                                  protect project land.
                                                  Directs the Secretary of
                                                  Energy, through the
                                                  Administrator of the Bonneville
                                                  Power Administration, to
                                                  operate and maintain the
                                                  federal electric power
                                                  transmission system in the
                                                  Pacific Northwest and to
    Federal Columbia River    16 U.S.C. S:S:   construct appropriate
    Transmission System Act   838-838k         improvements and additions.
                                                  Designates Bonneville as the
                                                  marketing agent, with some
                                                  exceptions, of electric power
                                                  generated by federal plants
                                                  constructed by the Army Corps
                                                  of Engineers or the Bureau of
                                                  Reclamation in the Pacific
                                                  Northwest.
                                                  Directs the Secretary of the
                                                  Interior, in consultation with
                                                  heads of other appropriate
                                                  agencies, to develop and
                                                  implement projects to mitigate
                                                  impacts on fisheries of the
                                                  construction and operation of
    Fisheries Restoration and                  water diversions by local
    Irrigation Mitigation Act 16 U.S.C. S: 777 governmental entities in
    of 2000                                    portions of Oregon, Washington,
                                                  Montana, and Idaho from which
                                                  water drains into the Pacific
                                                  Ocean. Eligible projects
                                                  include the development,
                                                  improvement, or installation of
                                                  fish screens and fish passage
                                                  devices.
                                                  Directs the Secretary of
                                                  Commerce to establish
                                                  salmon-cultural stations in the
                                 16 U.S.C. S:S:   Columbia River Basin in Oregon,
    Mitchell Act              755-757          Washington, and Idaho, and to
                                                  carry out other activities for
                                                  the conservation of fishery
                                                  resources in the Columbia River
                                                  Basin.
    Basin-specific law        Citation         Description
                                                  Enacts measures to assure the
                                                  Pacific Northwest of an
                                                  adequate, efficient,
                                                  economical, and reliable power
                                                  supply, and includes provisions
                                                  for the protection of fish and
                                                  wildlife. Provides for the
                                                  formation of the Pacific
                                                  Northwest Electric Power and
                                                  Conservation Planning Council
                                                  (Council) and directs it to,
                                                  among other things, develop a
                                                  program to "protect, mitigate,
                                                  and enhance" fish and wildlife
                                                  of the Columbia River Basin.
                                                  Requires the Administrator of
                                                  the Bonneville Power
                                                  Administration to take steps to
                                                  "protect, mitigate, and
    Pacific Northwest         16 U.S.C. S:S:   enhance" fish and wildlife
    Electric Power Planning   839-839h         affected by the development and
    and Conservation Act                       operation of the Federal
                                                  Columbia River Power System,
                                                  while ensuring the Pacific
                                                  Northwest an adequate,
                                                  efficient, economical, and
                                                  reliable power supply. Requires
                                                  federal agencies responsible
                                                  for managing, operating, or
                                                  regulating hydroelectric
                                                  facilities in the Columbia
                                                  River Basin to provide
                                                  equitable treatment for fish
                                                  and wildlife with the other
                                                  purposes for which these
                                                  facilities are operated and
                                                  managed, and to consider in
                                                  their decision-making process,
                                                  to the fullest extent
                                                  practicable, the Council's fish
                                                  and wildlife program.

    Source: GAO analysis of information provided by federal agencies.

    Table 6: Mission-specific Laws Guiding Agency Activities Affecting
    Columbia River Basin Fish and Wildlife

    Mission-specific law      Citation             Description
                                                      In setting policy for and
                                                      providing for the
                                                      management of public lands,
                                                      along with the
                                                      Classification and Multiple
                                                      Use Act, establishes a
                                                      multiple-use mandate for
                                                      lands managed by the Bureau
    Federal Land Policy and   43 U.S.C. S:S:       of Land Management. Directs
    Management Act of 1976    1701-1782            the Secretary of the
                                                      Interior to develop and
                                                      maintain land use plans
                                                      using a systematic
                                                      interdisciplinary approach
                                                      to achieve the integrated
                                                      consideration of physical,
                                                      biological, and economic
                                                      factors.
                                                      Provides for the
                                                      development, conservation,
                                                      and use of the nation's
                                                      navigable waters, including
                                                      the development of
                                                      waterpower resources, and,
                                                      to that end, requires
                                                      federal licenses for the
                                                      construction and operation
                                                      of certain nonfederal
                                                      hydroelectric projects. For
                                                      projects using lands within
                                                      federal land reservations,
                                                      such as national forests,
                                 16 U.S.C. S:S:       licenses are subject to
    Federal Power Act         791a-797, 798-824a,  conditions established by
                                 and 824b-825r        the relevant land
                                                      management agency for
                                                      protection of the lands.
                                                      License conditions must
                                                      include a requirement for
                                                      fish passage as prescribed
                                                      by the Secretaries of the
                                                      Interior and Commerce. The
                                                      license must also include
                                                      conditions for the
                                                      protection and enhancement
                                                      of fish and wildlife, based
                                                      generally on
                                                      recommendations made by
                                                      federal and state fish and
                                                      wildlife agencies.
                                                      Authorize Columbia River
                                                      Basin projects by agencies
    Individual project        Various authorizing  such as the Army Corps of
    authorization acts (E.g., statutes (E.g., Pub. Engineers and the Bureau of
    Tualatin Federal          L. No. 89-596, 80    Reclamation for purposes
    Reclamation Project Act)  Stat. 822)           such as navigation, power
                                                      production, fish and
                                                      wildlife conservation, and
                                                      recreation.
                                                      Directs the Secretary of
                                                      Agriculture to develop and
                                                      administer the renewable
                                                      surface resources of the
                                                      national forests for
    Multiple-Use              16 U.S.C. S:S:       multiple use and sustained
    Sustained-Yield Act of    528-531              yield of the various
    1960                                           products and services
                                                      obtained from those areas,
                                                      in cooperation with
                                                      interested state and local
                                                      government agencies and
                                                      others.
                                                      Along with the Organic Act
                                                      and the Multiple-Use
                                                      Sustained-Yield Act,
                                                      establishes a multiple-use
                                                      mandate for lands managed
                                                      by the Forest Service to
                                                      include outdoor recreation,
                                                      range, timber, watershed,
    National Forest           16 U.S.C. S:S:       wildlife and fish, and
    Management Act            1600-1614            wilderness purposes.
                                                      Regulations adopted
                                                      pursuant to the National
                                                      Forest Management Act
                                                      require the Forest Service
                                                      to manage habitat to
                                                      maintain viable and
                                                      well-distributed
                                                      populations of native fish
                                                      and wildlife.
                                                      Establishes the National
                                                      Wildlife Refuge System and
                                                      directs the Secretary of
                                                      the Interior to, among
    National Wildlife Refuge  16 U.S.C. S:S:       other things, provide for
    System Administration Act 668dd, 668ee         the conservation of fish
    of 1966                                        and wildlife and their
                                                      habitats within the system
                                                      and to prepare a
                                                      comprehensive conservation
                                                      plan for each refuge.
                                 Act of June 17,      Includes a requirement that
                                 1902, ch. 1093, 32   the Bureau of Reclamation
    Reclamation Act           Stat. 388; Act of    obtains water project
                                 August 4, 1939, ch.  permits from and operates
                                 418, 55 Stat. 1187   projects in accordance with
                                                      state water law.
                                                      Establishes federal
                                                      responsibility to provide
                                                      opportunities for public
                                                      recreation at federal water
    Reclamation Recreation    16 U.S.C. S:S:       projects, and authorizes
    Management Act            4601-4631            the Secretary of the
                                                      Interior to undertake
                                                      specific measures for the
                                                      management of Reclamation
                                                      lands.
    Mission-specific law      Citation             Description
                                                      Authorizes the Natural
                                                      Resources Conservation
                                                      Service, and includes among
                                                      its purposes the protection
    Soil Conservation and     16 U.S.C. S:S: 590a  of rivers and harbors
    Domestic Allotment Act    to 590q-3            against the results of soil
                                                      erosion, and the prevention
                                                      and abatement of
                                                      agriculture-related
                                                      pollution.
                                                      Authorize the Army Corps of
                                                      Engineers to construct
                                                      environmental restoration
                                                      projects; to restore
                                                      degraded ecosystems
                                                      resulting from the
                                                      construction or operation
                                 E.g., Water          of a project; to restore,
                                 Resources            protect, and create aquatic
    Water Resources           Development Act, 33  and wetlands habitat in
    Development Acts          U.S.C. S:S:          connection with a project;
                                 2201-2330            and to assist tribal,
                                                      state, and local
                                                      governments in preparing
                                                      comprehensive development
                                                      plans. Authorize
                                                      compensation for fish and
                                                      wildlife losses caused by
                                                      four dams on the lower
                                                      Snake River.
                                                      Authorizes the Forest
                                                      Service and Bureau of Land
                                                      Management to enter into
                                                      cooperative agreements with
                                                      federal agencies, tribal,
                                                      state and local
    Wyden Amendment           16 U.S.C. S: 1011(a) governments, private and
                                                      nonprofit entities, and
                                                      landowners for the
                                                      protection, restoration,
                                                      and enhancement of fish and
                                                      wildlife habitat and other
                                                      resources on public or
                                                      private land.

    Source: GAO analysis of information provided by federal agencies.

    Table 7 lists the treaties that federal agencies reported as guiding their
    actions to protect, mitigate, and enhance fish and wildlife in the
    Columbia River Basin.

    Table 7: Treaties Guiding Agency Activities Affecting Columbia River Basin
    Fish and Wildlife

    Treaty                Citation                  Description
                             Treaty Relating to        Defines the relationship
                             Cooperative Development   between the United States
    Columbia River Treaty of the Water Resources of and Canada concerning the
                             the Columbia River Basin  operation of Columbia
                             (with Annexes) (September River dams and reservoirs.
                             16, 1964)
                             Treaty between the        Governs the harvest of
                             Government of Canada and  certain salmon stocks in
    Pacific Salmon Treaty the Government of the     the fisheries of the
                             United States of America  Northwest states
                             Concerning Pacific Salmon (including Alaska) and
                             (August 13, 1985)         Canada.

    Source: GAO analysis of information provided by federal agencies.

    Table 8 lists the executive orders that federal agencies reported as
    guiding their actions to protect, mitigate, and enhance fish and wildlife
    in the Columbia River Basin.

    Table 8: Executive Orders Guiding Agency Activities Affecting Columbia
    River Basin Fish and Wildlife

    Executive order             Citation            Description
                                                       Directs executive agencies
                                                       to evaluate the potential
                                                       effects of any actions
                                                       they may take in a
    Floodplain Management       E.O. 11988 (May 24, floodplain and to take
                                   1977)               action to reduce the risk
                                                       of flood loss and to
                                                       preserve the beneficial
                                                       values served by
                                                       floodplains.
                                                       Directs executive agencies
                                                       to minimize the
                                   E.O. 11990 (May     destruction, loss, or
    Protection of Wetlands      24,1977)            degradation of wetlands in
                                                       carrying out their
                                                       responsibilities on
                                                       federal land.
                                                       Directs executive agencies
                                                       to take certain actions to
    Responsibilities of Federal E.O. 13186 (January further implement the
    Agencies to Protect         10, 2001)           Migratory Bird Treaty Act
    Migratory Birds                                 for the conservation of
                                                       migratory birds and their
                                                       habitats.

    Source: GAO analysis of information provided by federal agencies.

    Laws and Executive Orders Guiding Agency Activities Affecting Columbia
    River Basin TribesAppendix III

    Table 9 lists the laws that federal agencies reported as guiding their
    actions with regard to tribes in the Columbia River Basin.

    Table 9: Laws Guiding Agency Activities Affecting Columbia River Basin
    Tribes

    Law                         Citation           Description
                                                      Enacts measures to protect
                                                      ownership of Indian lands
                                   25 U.S.C. S:S:     and to restore lands to
                                   461-463, 464, 465, tribal ownership, and
    Indian Reorganization Act   466-470, 471-473,  authorizes the Secretary of
                                   474, 475, 476-478, the Interior to acquire
                                   479.               lands for Indians. Grants
                                                      rights of self-governance
                                                      to Indians.
                                                      Enacts measures that
                                                      promote a policy of Indian
                                                      self-determination by
                                                      assuring maximum Indian
                                                      participation in
                                                      educational and other
    Indian Self-Determination   25 U.S.C. S:S:     federal services to Indian
    and Education Assistance    13a, 450-450n,     communities, including
    Act                         455-458e           effective and meaningful
                                                      participation in the
                                                      planning, conduct, and
                                                      administration of those
                                                      services. Includes measures
                                                      to improve Indian
                                                      education.
                                                      Directs the Bureau of
                                                      Indian Affairs, Department
                                                      of the Interior, to spend
                                                      appropriated funds for the
    Snyder Act                  25 U.S.C. S: 13    benefit, care, and
                                                      assistance of Indians for
                                                      enumerated purposes, such
                                                      as education, health, and
                                                      the development of water
                                                      supplies.
                                                      Directs the Secretary of
                                                      the Interior to undertake
                                                      management activities,
                                                      together with the Indians,
                                                      on Indian forestland to
                                                      develop, maintain, and
    National Indian Forest      25 U.S.C. S:S:     enhance the land in a
    Resources Management Act    3101-3120          perpetually productive
                                                      state in accordance with
                                                      the principles of sustained
                                                      yield and multiple uses, to
                                                      maintain and improve
                                                      wildlife and fisheries, and
                                                      for other purposes.
                                                      Establishes a process for
                                                      agencies to return Native
                                                      American remains and
                                                      associated funery objects
                                                      to lineal descendants and
    Native American Graves      25 U.S.C. S:S:     affiliated Indian tribes,
    Protection and Repatriation 3001-3013          and regulates the ownership
    Act                                            and control of Native
                                                      American cultural items
                                                      that are excavated or
                                                      discovered on federal or
                                                      tribal lands after November
                                                      16, 1990.

    Source: GAO analysis of information provided by federal agencies.

    Table 10 lists the executive orders and presidential memorandum that
    federal agencies reported as guiding their actions with regard to tribes
    in the Columbia River Basin.

    Table 10: Executive Orders and Presidential Memorandum Guiding Agency
    Activities Affecting Columbia River Basin Tribes

    Executive order or       Citation           Description
    memorandum
                                                   Requires executive agencies to
                                                   respect Indian tribal self
                                                   governance and sovereignty,
                                                   honor tribal treaty and other
                                                   rights, and strive to meet the
                                                   responsibilities that arise
    Consultation and                            from the unique legal
    Coordination with Indian E.O. 13175 (Nov.   relationship between the
    Tribal Governments       6, 2000)           federal government and tribal
                                                   governments. Each agency shall
                                                   have an accountable process to
                                                   ensure meaningful and timely
                                                   tribal input in the
                                                   development of regulatory
                                                   policies that have tribal
                                                   implications.
                                                   Requires, among other things,
                                                   that executive agencies
                                                   operate within a
                                                   government-to-government
                                                   relationship with federally
                                                   recognized tribal governments;
                                Memorandum for the consult to the greatest extent
    Government to Government Heads of Executive possible with tribal
    Relations with Native    Departments and    governments before taking
    American Tribal          Agencies (April    actions that affect tribal
    Governments              29, 1994)          governments; and agencies
                                                   assess the impact of federal
                                                   government plans, projects,
                                                   programs, and activities on
                                                   tribal trust resources and
                                                   ensure that tribal rights and
                                                   concerns are considered in
                                                   developing them.
                                                   Establishes a program to
                                                   reform and make more efficient
                                                   the regulatory process,
                                                   including making the process
                                                   more accessible and open to
    Regulatory Planning and  E.O. 12866         the public. Wherever feasible,
    Review                   (September 30,     agencies are required to seek
                                1993)              the views of appropriate
                                                   state, local and tribal
                                                   officials before imposing
                                                   regulatory requirements that
                                                   might significantly or
                                                   uniquely affect them.
                                                   Prohibits executive agencies,
                                                   to the extent feasible, from
                                                   promulgating any regulation
                                                   not required by statute that
                                                   creates a mandate upon a
                                                   state, local, or tribal
                                                   government, unless funds
                                                   necessary for direct costs of
                                                   the mandate are provided by
    Enhancing the            E.O. 12875         the federal government or the
    Intergovernmental        (October 26, 1993) agency has consulted with
    Partnership                                 affected state, local, or
                                                   tribal government. Requires
                                                   agencies to develop effective
                                                   processes to permit state,
                                                   local, and tribal
                                                   representatives to provide
                                                   meaningful and timely input in
                                                   the development of regulatory
                                                   proposals containing
                                                   significant unfunded mandates.

    Source: GAO analysis of information provided by federal agencies.

    Court Decisions Guiding Agency Activities Affecting Columbia River Basin
    Fish, Wildlife, and TribesAppendix IV

    Table 11 lists the court decisions that federal agencies reported as
    guiding their actions to protect, mitigate, and enhance fish and wildlife
    in the Columbia River Basin.

    Table 11: Court Decisions Guiding Agency Activities Affecting Columbia
    River Basin Fish and Wildlife

    Court decision            Citation             Result
                                                      Invalidated NMFS listing of
    Alsea Valley Alliance v.  161 F. Supp. 2d 1154 naturally spawning Coho
    Evans                     (D. Or. 2001)        salmon on the Oregon coast
                                                      as threatened.
                                                      Invalidated the NMFS
                                                      biological opinion that
                                                      concluded that in light of
                                                      certain mitigation actions,
                                                      endangered and threatened
                                                      species of salmon and
    National Wildlife         No. CV 01-640-RE,    steelhead trout in the
    Federation v. National    2003 WL 21077450 (D. Columbia River Basin would
    Marine Fisheries Service  Or. May 7, 2003)     not be jeopardized by
                                                      federal agencies' continued
                                                      operations of the Federal
                                                      Columbia River Power
                                                      System. The court remanded
                                                      the opinion to NMFS to
                                                      resolve deficiencies the
                                                      court identified.
                                                      Held that the Army Corps of
                                                      Engineers' 1995 and 1998
                                                      "Records of Decision"
                                                      describing how the Corps
                                                      would operate dams on the
                                                      Snake and Columbia Rivers
                                                      violated the Clean Water
                                                      Act by failing to ensure
    National Wildlife                              compliance with water
    Federation v. United      132 F. Supp.2d 876   quality standards issued by
    States Army Corps of      (D. Or. 2001)        the State of Washington
    Engineers                                      under the act. The court
                                                      remanded the 1998 Record of
                                                      Decision to the Corps for
                                                      reconsideration and
                                                      directed the Corps to issue
                                                      a decision, within 60 days,
                                                      that addresses compliance
                                                      with its obligations under
                                                      the Clean Water Act.
                                                      Held that the requirement
                                                      in the Pacific Northwest
                                                      Electric Power Planning and
                                                      Conservation Act to treat
                                                      fish and wildlife equitably
                                                      with power did not require
                                                      Bonneville to dedicate a
                                                      portion of the water to
                                                      fish and wildlife in
                                                      connection with agreements
                                                      Bonneville entered into
                                                      with Canada and several
                                                      utilities governing rights
    Northwest Environmental                        to water stored behind
    Defense Center v.         117 F.3d 1520 (9th   electric dams on the
    Bonneville Power          Cir. 1997)           Columbia River system in
    Administration                                 Canada. The court found
                                                      that the act did not
                                                      require equitable treatment
                                                      for fish and wildlife for
                                                      every action Bonneville
                                                      took, but only required
                                                      equitable treatment on a
                                                      systemwide basis. Also held
                                                      that the National
                                                      Environmental Policy Act
                                                      did not require Bonneville
                                                      to prepare an environmental
                                                      impact statement in this
                                                      case.
                                                      Held that in its final
                                                      amendments to the Columbia
                                                      River Basin Fish and
                                                      Wildlife Program, the
                                                      Northwest Power Planning
                                                      Council failed to comply
                                                      with requirements of the
                                                      Pacific Northwest Electric
                                                      Power Planning and
    Northwest Resource                             Conservation Act and the
    Information Center, Inc.  35 F.3d 1371 (9th    Administrative Procedure
    v. Northwest Power        Cir. 1994)           Act by failing to (1)
    Planning Council                               explain a statutory basis
                                                      for its rejection of
                                                      recommendations of fish and
                                                      wildlife agencies and
                                                      Indian tribes, and (2)
                                                      evaluate proposed program
                                                      measures against sound
                                                      biological objectives. The
                                                      court remanded the final
                                                      amendments to the Council
                                                      for reconsideration.
    Court decision            Citation             Result
                                                      Held that the Bonneville
                                                      Power Administration erred
                                                      in its adoption of the
                                                      "Final Policy" for
                                                      implementation of the

                                                      Columbia River Basin Fish
                                                      and Wildlife Program in
                                                      deciding that only those
    Public Utility District                        measures protecting fish
    No. 1 of Douglas County   947 F.2d 386, 392-94 and wildlife specifically
    v. Bonneville Power       (9th Cir. 1991)      described in the program
    Administration                                 were compensable under the
                                                      provision of the Pacific
                                                      Northwest Electric Power
                                                      Planning and Conservation
                                                      Act entitling nonfederal
                                                      electric projects to
                                                      compensation for costs,
                                                      including power loss,
                                                      resulting from federally
                                                      imposed measures to protect
                                                      fish and wildlife.
                                                      Held that the Bonneville
                                                      Power Administration's
                                                      alleged unreasonable delay
    Confederated Tribes of                         in implementing the Pacific
    the Umatilla Indian       342 F.3d 924 (9th    Northwest Electric Power
    Reservation v. Bonneville Cir. 2003)           Planning and Conservation
    Power Administration                           Act requirement to provide
                                                      equitable treatment to fish
                                                      and wildlife was not
                                                      reviewable by a court.

    Source: GAO analysis of information provided by federal agencies.

    Table 12 lists the court decisions that federal agencies reported as
    guiding their actions with regard to tribes in the Columbia River Basin.

    Table 12: Court Decisions Guiding Agency Activities Affecting Columbia
    River Basin Tribes

    Court decision            Citation             Result
                                                      Held that the lower court
                                                      should not have directed
                                                      that a permanent injunction
                                                      be issued to stop the
                                                      Secretary of the Interior
                                                      from disposing of land that
    Lane v. Pueblo of Santa                        comprised the Pueblo of
    Rosa                      249 U.S. 110 (1919)  Santa Rosa, a Pueblo Indian
                                                      town in southern Arizona
                                                      acquired from Mexico under
                                                      the Gadsden Treaty, without
                                                      allowing the federal
                                                      government a chance to
                                                      address the merits of the
                                                      claim against it.
                                                      Found, among other things,
                                                      that although the United
                                                      States had a general trust
                                                      responsibility to Indian
                                                      tribes, unless there is a
    Morongo Band of Mission                        specific duty that has been
    Indians v. Federal        161 F.3d 569, 574    placed on the government
    Aviation Administration   (9th Cir. 1998)      with respect to Indians,
                                                      this responsibility is
                                                      discharged by the agency's
                                                      compliance with general
                                                      regulations and statutes
                                                      not specifically aimed at
                                                      protecting Indian tribes.
                                                      Tribe successfully
                                                      challenged the Secretary of
                                                      the Interior's regulation
                                                      establishing the basis for
                                                      determining the amount of
                                                      water to be provided to the
                                                      Truckee-Carson Irrigation
                                                      District. Court held that
                                                      the Secretary failed to
    Pyramid Lake Paiute Tribe 354 F. Supp. 252 (D. adequately justify how much
    of Indians v. Morton      D.C. 1973)           water, under court decrees
                                                      and a contract with an
                                                      irrigation district, he
                                                      determined could be
                                                      diverted from a river prior
                                                      to the point where it
                                                      flowed into an Indian
                                                      reservation and fed a lake
                                                      relied upon by many Indians
                                                      for their livelihood.
                                                      Held that lands acquired by
                                                      the U.S. in trust for the
    United States v. Ferry    511 F. Supp. 546     tribes and individual
    County                    (E.D. Wash. 1981)    Indians are nontaxable, and
                                                      that all tax assessments
                                                      against such lands are null
                                                      and void.
                                                      Resolved a number of
                                                      monetary claims by the
    Seminole Nation v. United 316 U.S. 286 (1942)  Seminole Indians, finding
    States                                         in favor of the Seminoles
                                                      on some, and against them
                                                      on others.
    Court decision            Citation             Result
                                                      Held that the United States
                                                      was liable to the Creek
                                                      Indians for damages that
                                                      occurred when it disposed
    United States v. Creek    295 U.S. 103 (1935)  of Creek land that a survey
    Nation                                         erroneously indicated
                                                      belonged to the United
                                                      States, measured by the
                                                      value of the property at
                                                      the time of the disposal.
                                                      Held that the United States
                                                      breached its fiduciary duty
                                                      to the Indians by
    United States v. Mitchell 463 U.S. 206 (1983)  mismanaging Indian forest
                                                      resources, and was liable
                                                      to the Indians for
                                                      resulting money damages.
                                                      Held that the State of
                                                      Oregon was limited in its
                                                      power to regulate the
                                                      exercise of the Indians'
                                                      federal treaty right to
                                                      fish, in that regulation
                                                      must be necessary for
                                 302 F. Supp. 899 (D. conservation of the fish,
    Sohappy v. Smith          Or. 1969)            the state restrictions must
                                                      not discriminate against
                                                      the Indians, and
                                                      restrictions must meet
                                                      appropriate standards.
                                                      Affirmed the treaty rights
                                                      of certain Indian tribes to
                                                      a fair share of the
                                                      harvestable catch.
                                                      Held that the State of
                                                      Washington had authority to
                                                      regulate Indians' exercise
                                                      of their treaty fishing
                                                      rights only to the extent
                                                      necessary for the
                                                      conservation of fishery
    United States v.          384 F. Supp. 312     resources, and that tribes
    Washington                (W.D. Wash. 1974)    (that met certain
                                                      conditions) had the right
                                                      to regulate fishing by
                                                      their members without any
                                                      state interference.
                                                      Affirmed the treaty rights
                                                      of certain Indian tribes to
                                                      a share of the harvestable
                                                      catch.
                                                      Held that a reservation of
                                                      waters for irrigation
                                                      purposes for the Indians on
                                                      the Fort Belknap
                                                      reservation is implied from
    Winters v. United States  207 U.S. 564 (1908)  an agreement that
                                                      established a reservation
                                                      for the Indians, and that
                                                      no one has the right to
                                                      divert water from naturally
                                                      flowing to the reservation.

    Source: GAO analysis of information provided by federal agencies.

    Plans and Programs Implemented by Federal Agencies to Manage Columbia
    River Basin Fish and Wildlife ActivitiesAppendix V

    Table 13 provides descriptions of plans and programs identified by federal
    agencies, including the directives driving the plans and programs and the
    lead agencies.

    Table 13: Plans and Programs That Guide Federal Fish and Wildlife
    Activities in the Columbia River Basin

    Plan/program             Lead agency         Description
    Northwest Power
    Act-driven plans and
    programs
                                                    Program to protect, mitigate,
                                                    and enhance fish and
                                                    wildlife, including related
    Columbia River Basin     Bonneville,         spawning grounds and habitat,
    Fish and Wildlife                            on the Columbia River and its
    Program                  the Council         tributaries. Developed by the
                                                    Council, funded by
                                                    Bonneville, and implemented
                                                    by a number of agencies and
                                                    other organizations.
                                                    Process to incorporate
                                                    local-level planning for the
    Northwest Power and                          50+ subbasins in the Columbia
    Conservation Council     The Council         River Basin into the
    Subbasin Planning                            development and
    Process                                      implementation of the
                                                    Columbia River Basin Fish and
                                                    Wildlife Program.
                                                    Program developed by the
                                                    Council, and operated on a
    Northwest Power and                          3-year cycle, to improve the
    Conservation Council     The Council         technical review and approval
    Provincial Review                            of projects funded by the
                                                    Columbia River Basin Fish and
                                                    Wildlife Program.
    Endangered Species
    Act-driven plans and
    programs
                                                    Plans that set forth
                                                    reasonable and prudent
                                                    measures/alternatives for
                                                    operation by the Corps,
    Biological Opinions for  FWS and NMFS        Reclamation, and Bonneville
    the FCRPS                                    of the FCRPS, in order to
                                                    minimize impacts to fish and
                                                    wildlife. Created as a result
                                                    of consultation with FWS and
                                                    NMFS under Section 7 of ESA.
    Biological Opinion                           Frameworks developed by the
    Implementation Plans for Bonneville, the     agencies managing the FCRPS
    the FCRPS                Corps, Reclamation  for complying with Biological
                                                    Opinions for the FCRPS.
                                                    Plan designed to organize,
                                                    coordinate, and prioritize
                                                    recovery actions for bull
                                                    trout, and to outline
    Bull Trout Recovery Plan FWS                 objective measurable criteria
                                                    that will be used to
                                                    determine when bull trout no
                                                    longer needs the protection
                                                    of the ESA.
                                                    Plans designed to organize,
                                                    coordinate, and prioritize
                                                    recovery actions for
    Recovery plans for                           endangered and threatened
    salmon (under            NMFS                salmon and steelhead, and to
    development)                                 outline objective measurable
                                                    criteria that will be used to
                                                    determine when salmon and
                                                    steelhead no longer need the
                                                    protection of the ESA.
                                                    A strategy and accompanying
                                                    suite of actions to be used
    Basin-wide Salmon                            as a blueprint to guide
    Recovery Strategy (All-H All agencies in the federal actions towards
    Paper)                   Federal Caucus      recovery of threatened and
                                                    endangered salmon and
                                                    steelhead in the Columbia
                                                    River Basin.
    Clean Water Act-driven
    plans and programs
                                                    Program to provide funding to
                                                    states and Indian tribes for
                                                    a wide variety of nonpoint
    Clean Water Act Section                      source activities including
    319 Grant Program        EPA                 technical and financial
                                                    assistance, education,
                                                    training, technology
                                                    transfer, demonstration
                                                    projects, and monitoring.
                                                    Program to provide assistance
                                                    grants to Indian tribal
    Clean Water Act General                      governments and intertribal
    Assistance Grant Program EPA                 consortia to build capacity
    to Tribes                                    to administer regulatory and
                                                    multimedia programs
                                                    addressing environmental
                                                    issues on Indian lands.
    Plan/program             Lead agency         Description
                                                    Program to provide assistance
                                                    to state water pollution
                                                    control agencies; interstate
                                                    agencies; and other nonprofit
    Clean Water Act Section                      institutions, organizations,
    104(b)(3) Support to     EPA                 and individuals to promote
    Total Maximum Daily                          the coordination of
    Loads                                        environmentally beneficial
                                                    activities, including storm
                                                    water control, sludge
                                                    management, and pretreatment
                                                    of wastewater.
                                                    Program to provide assistance
                                                    to Indian tribes in carrying
                                                    out effective water pollution
    Clean Water Act Section                      control programs, including
    106 Grant Program        EPA                 water quality planning and
                                                    assessments, developing water
                                                    quality standards and total
                                                    maximum daily loads, and
                                                    ambient monitoring.
                                                    A loan program to fund water
                                                    quality protection projects
    Clean Water State        EPA                 for wastewater treatment,
    Revolving Fund                               nonpoint source pollution
                                                    control, and watershed and
                                                    estuary management.
                                                    Program under Clean Water Act
                                                    Section 320 to improve the
                                                    quality of the Lower Columbia
                                                    Estuary, and provide the
    Lower Columbia Estuary   EPA                 basis for estuarine salmon
    Partnership                                  recovery efforts. Key
                                                    activities include habitat
                                                    monitoring, volunteering
                                                    monitoring, and species
                                                    recovery.
    Court-driven plans and
    programs
                                                    Plans that address tribal
                                                    allocation of annual fish
    U.S. v Oregon Management FWS, NMFS           harvest, as well as hatchery
    Plans/Agreements                             and supplementation measures
                                                    designed to help rebuild
                                                    depressed fish stocks.
    Mission-driven plans and
    programs
                                                    Project to install spillway
    Gas Abatement Project at                     deflectors and implement
    Chief Joseph Dam         The Corps           operational changes at Chief
                                                    Joseph Dam in order to reduce
                                                    total dissolved gas levels.
                                                    Program to develop and
                                                    evaluate anadromous fish
                                                    passage facilities at Corps
                                                    dams on the Columbia and
    Army Corps Anadromous    The Corps           lower Snake Rivers. Includes
    Fish Evaluation Program                      monitoring, research, and
                                                    evaluation studies conducted
                                                    in collaboration with other
                                                    federal, state, and tribal
                                                    agencies.
                                                    Internal management plans
                                                    developed in parallel with
                                                    any Corps project. Designed
    Project Management Plans The Corps           to ensure that proper
                                                    internal procedures are
                                                    followed to protect and
                                                    mitigate barriers to fish
                                                    passage.
                                                    Internal management plans for
                                                    all BLM activities. Developed
                                                    via the National
    District Resource        BLM                 Environmental Policy Act
    Management Plans                             process, they include
                                                    specific management
                                                    guidelines for protection of
                                                    fish and wildlife.
                                                    Management plans developed to
                                                    ensure that agency activities
    Wild and Scenic River                        protect identified
    Plans                    BLM, Forest Service "outstandingly remarkable
                                                    values," including fish and
                                                    wildlife, recognized in Wild
                                                    and Scenic River Areas.
                                                    Project designed to provide a
                                                    basis of coordination and
                                                    cooperation between local,
                                                    private, state, tribal, and
                                                    federal fish and land
    Upper Salmon Basin                           managers, land users, land
    Project                  NRCS                owners and other affected
                                                    entities. Goal is to manage
                                                    the biological; social; and
                                                    economic resources to
                                                    protect, restore, and enhance
                                                    anadromous and resident fish
                                                    habitat.
                                                    Projects funded by special
                                                    congressional appropriations,
                                                    some of which address fish
    General Investigations   Reclamation         and wildlife enhancement or
                                                    mitigation. Also typically
                                                    involve partnerships with
                                                    other groups, such as states,
                                                    interest groups, and tribes.
                                                    Internal Reclamation programs
                                                    funded by the Commissioner's
    Research and Monitoring                      office that focus on a range
    Programs                 Reclamation         of discretionary activities,
                                                    including research and
                                                    monitoring efforts for fish
                                                    and wildlife.
    Plan/program             Lead agency         Description
                                                    Management plans required for
                                                    all reservoirs managed by the
    Resource Management                          agency. Plans address
    Plans                    Reclamation         management of recreational
                                                    activities, as well as
                                                    conservation of fish and
                                                    wildlife.
                                                    Specific project at Hungry
                                                    Horse Dam to control water
    Hungry Horse Mitigation                      withdrawals at the reservoir
    Implementation Plan      Reclamation         that were causing harm to
                                                    fish, and to mitigate for
                                                    impacts of constructing a
                                                    water control system.
                                                    Specific project to mitigate
                                                    impacts to fish and wildlife
    Lower Snake River                            from construction of last
    Compensation Plan        Bonneville, FWS     four FCRPS dams on the Lower
                                                    Snake River. Project preceded
                                                    mitigation requirements set
                                                    forth under the Power Act.
    Recreational Fishery                         Internal agency plan to
    Resources Conservation   FWS                 incorporate conservation
    Plan                                         planning into the management
                                                    of recreational fisheries.
                                                    Internal agency plans that
                                                    incorporate specific
    Land and Resource                            conservation measures for
    Management Plans (Forest Forest Service      fish, wildlife, plants, and
    Plans)                                       other natural resources, into
                                                    management of National
                                                    Forests.
                                                    Strategy to address the needs
                                                    of lynx and lynx habitat in
    Lynx Conservation                            the context of forest
    Strategy and Agreement   Forest Service      management, and to foster
                                                    cooperation and interaction
                                                    between foresters and
                                                    wildlife biologists.
                                                    Aquatic strategies that apply
                                                    interim standards and
                                                    guidelines to agency actions
    PACFISH & INFISH         Forest Service, BLM for the protection of aquatic
                                                    and riparian habitat for the
                                                    restoration of endangered and
                                                    threatened fish within the
                                                    interior Columbia basin.
                                                    An interagency approach to
                                                    developing and implementing
    Northwest Forest Plan    Forest Service, BLM measures for the long-term
                                                    health of forests, wildlife,
                                                    and waterways on federal
                                                    lands.
    Pacific Coastal Salmon                       Assist the states and tribes
    Recovery Fund            NMFS                in implementing salmon
                                                    restoration efforts.
                                                    Cost-share program, operated
                                                    collaboratively with tribes,
    Environmental Quality                        to benefit fish and wildlife
    Incentive Program        NRCS                through environmental
                                                    improvements to irrigation,
                                                    erosion, water quality, and
                                                    agriculture.
    State-driven plans and
    programs
                                                    Long-term strategy for the
                                                    recovery of salmon in
    "Extinction Is Not an                        Washington state. Primary
    Option": Washington                          goals of the strategy are to
    Statewide Strategy to    State of Washington restore salmon, steelhead,
    Recover Salmon                               and trout populations to
                                                    healthy and harvestable
                                                    levels and improve the
                                                    habitats on which fish rely.
                                                    Collaborative agreement
                                                    between Washington state,
                                                    tribes, federal agencies,
    Fish and Forest          State of Washington timber interests, and
    Agreement in Washington                      environmental groups to
                                                    address timber practices so
                                                    as to minimize impacts to
                                                    fish populations.
                                                    A statewide approach to
                                                    natural resource management
                                                    in Oregon that focuses on
    Oregon Plan for Salmon &                     restoring Coho salmon through
    Watersheds               State of Oregon     the Coastal Salmon
                                                    Restoration Initiative and
                                                    improving water quality
                                                    through the Healthy Streams
                                                    Partnership.
    Tribally-driven plans
    and programs
                                                    A framework for restoring
                                                    salmon in the Columbia River
                                Nez Perce,          that outlines the cultural
    Wy-Kan-Ush-Mi            Umatilla, Warm      context for the tribes'
    Wa-Kish-Wit ("Spirit of  Springs, Yakama     salmon restoration efforts,
    the Salmon")             tribes              as well as technical and
                                                    institutional recommendations
                                                    and watershed restoration
                                                    activities.
                                                    Plan outlining management
    Warm Springs National                        measures and operational
    Fish Hatchery                                procedures for the Warm
    Operational and          Warm Springs tribe  Springs National Fish
    Implementation Plan                          Hatchery, which is
                                                    cooperatively managed by FWS
                                                    and the Warm Springs tribe.

    Source: GAO analysis of information provided by federal agencies.

    Comments from the Bonneville Power AdministrationAppendix VI

    Comments from the Department of AgricultureAppendix VII

    Comments from the Department of CommerceAppendix VIII

    GAO Contacts and Staff AcknowledgmentsAppendix IX

    GAO Contacts

    Barry T. Hill, (202) 512-3841 Jeffery D. Malcolm, (202) 512-6536

    Acknowledgments

    In addition to those named above, Jill Berman, Brad Dobbins, and Rebecca
    Sandulli made key contributions to this report. Also contributing to the
    report were Bob Crystal and Cynthia Norris.

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