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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