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Notes from the House Resource Committee

Power and Water Subcommittee

Oversight Field Hearing on the Endangered Species Act

And the Klamath Project

July 17, 2004

Ross Ragland Theater

Klamath Falls, Oregon

Notes by Barbara Hall, Klamath Bucket Brigade, July 17, 2004

Members of Congress:

Congressman Ken Calvert, Chairman, Subcommittee on Water and Power (R-CA44),
Congressman Wally Herger (R-CA2), Congressman John T. Doolittle (R-CA4),

Congressman Greg Walden (R-OR) and Congressman George Radanovich (R-CA19)

List of witnesses in alphabetical order:

The Honorable Ralph Brown, Vice-Chair, Curry County Board of
Commissioners; Gold Beach, Oregon

Mr. Dave Carmen; Chico, California

Mr. Troy Fletcher, Klamath River Inter-Tribal Fish & Water Commission
Representative (Accompanied by Mr. Allen Foreman, Chairman,
The Klamath Tribes)

Mr. Bill Gaines, Director of Government Affairs, California Waterfowl
Association; Sacramento, California

The Honorable Doug LaMalfa, Assemblyman, 2nd District, California

Dr. William M. Lewis, Jr., Chair, Committee on Endangered and Threatened
Fishes in the Klamath River Basin (affiliated with the NRC); University of
Colorado, Boulder, Colorado

Mr. Kirk Rodgers, Regional Director, Mid-Pacific Region, Bureau of
Reclamation (Accompanied by Mr. Steve Thompson, Regional
Director, U.S. Fish and Wildlife Service, and Mr. Jim Lecky,
Assistant Regional Administrator for Protected Resources, National
Marine Fisheries Service)

The Honorable Jimmy Smith, Supervisor, Humboldt County Board of
Supervisors; Eureka, California

Mr. David Vogel, Natural Resource Scientists, Inc.; Red Bluff, California

The Field Hearing was opened by Congressman Ken Calvert (R-CA44) who asked Congressman Greg Walden to make his opening statement first.

Walden (R-OR): FDA, HHS, Marine Animal Protection Act, Agricultural Research, Safe Drinking Water Act all have layers of peer review before new products are put on the market. The ESA has none and it needs peer review. How we implement the process is important.

Radanovich (R-CA19): "What’s happened to you is inexcusable!" (left his opening statement on the plane)

Herger (R-CA2): Opened his statement by reading an April 12, 2001 letter written to him from 8-year old Tulelake resident Blake Benedorf (sp?) that said, "I have farmed all my life. Please help us, we want to keep farming." Herger stated that Blake is the poster child of the Klamath Basin.

"This county is still at risk." "People are living day to day." "People can’t live like this, they need certainty." "The Water Bank needs to be eliminated." "The Water Bank is harming agriculture." "Four years later and there’s been no positive movement toward more storage." "Nothing has changed since 2001."

Doolittle (R-CA4): (No opening statement – "Chairman has it." Spoke off the cuff.)

"We will find a solution to help all the stakeholders." "The Klamath Project has been undeservedly criticized." "I support the people of the basin to the right of their livelihood."

Calvert (R-CA44): ". . . only 7 species out of 1300 listed have been ‘recovered’ and those are mainly due to other species conservation laws. That means the Endangered Species Act has a success rate of .01% at best." " . . .entire projects are suddenly scrapped in my district because of the delhi sands flower loving fly or communities and forests are needlessly torched because the Endangered Species Act wouldn’t allow for thinning. We are all too aware of the impacts here. Clearly, something isn’t working. No one would ask you to buy 4 new tires for an old car that doesn’t run. But, in its current form, that’s what the Endangered Species Act is really doing; pouring more money into a broken, tired program and creating more economic hardships for those already caring for their land."

"We can bring the Endangered Species Act into the 21st Century while helping communities in the Klamath Basin have economic and water certainty. We have already found here – through peer-reviewed, independent science – that more water for fish doesn’t necessarily mean more fish protections."

"There’s no reason why we can’t require -- by law – independent, peer reviewed science for every major aspect of the Endangered Species Act and use that science to make the best-informed decisions in the decision-making process. This is not a new idea for other federal agencies – they do it on a daily basis. Everyone should support this effort if they truly care about protecting and recovering endangered species."





Witness Statements (Written testimony will soon be available):

Dave Carmen, Tulelake Homesteader, Chico, California: Mr. Carmen spoke about his WWII experiences in the Aleutian Islands and the retaking of the Philippines as a member of the 7th Amphibious Infantry Division.

"After 4 years and 8 months of service I came home with the rank of a 1st Lieutenant. When I heard about a homesteading opportunity in Tulelake, California I applied. In 1948 I was one of 44 applicants chosen out of 2000. At the time I had never heard of Tulelake except as a great hunting area. When I arrived to see my homestead there was nothing there, just an expanse of opportunity. No roads, no houses, no trees, just bare ground. I then pitched my tent in the corner of my homestead.

"When I began my new life as a Tulelake homesteader there were approximately 300 homesteaders, most of them with families. We united and began to build schools, churches and a hospital in Klamath Falls. We started a community. We were living the American dream and our dream was achieved by hard work and dedication.

"In 1957 we formed our own irrigation district taking over from the U.S. Bureau of Reclamation. In 1967 we paid off our portion of the Klamath Project debt to the federal government and the irrigation district became totally ours.

"In closing, I want to say we fulfilled the American dream and in 2001 the Endangered Species Act came very close to destroying our dream. Or dream was changed into a nightmare. We now know that the water cut-off was not justified.

"In my hand I have a patent for a homesteader signed by President Franklin D. Roosevelt given to a veteran of World War I. This document guarantees the right to use water from the Klamath Reclamation Project by a homesteader and his heirs forever. I would like to remind everyone that our children learned farming from us. They are homesteaders in the same regard just as we were after World War II.

"Our community has become the poster child of abuse by the Endangered Species Act. I respectfully request that the members of this congressional committee never allow us to be betrayed by an Act that has become a tool to destroy rural America."

Dave Vogel, Senior Scientist, Natural Resource Scientists, Inc.; Red Bluff, California: Vogel stressed 2 major topics, i.e., double standard by two different government agencies (USF&W and NMFS) enforcing the Endangered Species Act and single species management.

"The Klamath Project was never originally identified as the cause for the decline in suckers or coho. Four years later, the Klamath Project was named the only cause."

"Procedures for listing and delisting species are vastly different." "There’s too much focus on the Klamath Project, we need a total watershed approach." "Agencies are ignoring the NAS report, 2001 could happen again." "Science is constantly evolving while the Endangered Species Act has stayed static. We need change."

The Honorable Doug LaMalfa, Assemblyman, 2nd District, California and rice farmer: "Farmers and ranchers are the strongest supporters of the environment and the Endangered Species Act." "Environmental stewardship – water is important to farming." "Our nation’s food supply will be in danger." "If you like imported oil, you’ll love imported food." "Current application of the ESA didn’t work here." "Decisions made here will trickle down and affect other farming communities in the nation." "Shutting water off was reckless." "Making larger the water pie, not crisis management."

Troy Fletcher, Chairman of the Yurok Tribe and representative from the Inter-Tribal Fish & Water Commission: "The Tribes in southern Oregon and northern California historical land covers the entire Klamath Basin." "Goals of the Endangered Species Act fall far short for Tribal Trust resources." "The ESA has a duty to protect all the species that are important to the tribes and restore species for Tribal Trust." "Past agency management of the species has not worked, the Tribes are ready to work with the farmers, agencies, etc; but this can not stay the status quo."

The Honorable Ralph Brown, Curry County Board of Commissioners, Gold Beach, Oregon: (Owns fishing vessels, started fishing at age 8 and has been on the ocean for 30% of his life – did not read his written statement – spoke ‘off the cuff’) "Don’t forget the people." "Pay more attention to economics and the reasons people do things." "I saw the same fear here as I did on the coast."

There are no canneries left in Brookings, there used to be over 1,000 salmon boats but no longer. There used to be taken per year $7 million worth of salmon into Brookings, which translated into over $21 million into the economy. Now, the salmon industry only contributes $700,000 per year.

Bill Gaines, Director of Government Affairs, California Waterfowl Association, Sacramento, California: "The Upper Klamath Basin is the most important waterfowl staging area on the west coast, the most important in supplying food resources." "One-third of all migrating birds travel through the Klamath Basin." "Destroying agriculture in the Klamath Basin is not the solution. Farmers produce 50% of the feed needed for migration." "Klamath Project tailwater in the fall is needed and the farmers wheel that water to the refuges for fall fill up." "Agriculture is part of the solution, not the problem."

The Honorable Jimmy Smith, Supervisor, Humboldt County Board of Supervisors, Eureka, California: (Worked on the Klamath River Restoration Act) "There is coastal support for Klamath Basin farmers and ranchers." "Other species depend on Ag lands; deer and eagles." "Upper Klamath Basin farmers have a tight bond with the land." "There is a zero harvest of coho, yet they are still declining." "Fishing has taken a 50% loss in Humboldt County with over $40 million in annual losses." "The only coho taken now is by the Tribes for commercial, sustenance, and ceremonial." "Commercial fishing quotas have been reduced by another 40%. But there’s been no help on the coast." "We need increased flows on the Klamath and Trinity Rivers."

Dr. William Lewis, Chair, Committee on Endangered and Threatened Fishes in the Klamath River Basin (affiliated with the NRC); University of Colorado, Boulder, Colorado: "The 2001 drought and at the same time, plans restricting water releases to the Project clashed in 2001." "No scientific basis for water levels or water flows in what happened in 2001."

Kirk Rodgers, Regional Director, Mid-Pacific Region, Bureau of Reclamation: Mr. Rodgers spoke about the water adjudication in the Klamath Basin, how the Bureau ran the Project in 2001 and stated that Upper Klamath Lake received the 5th lowest inflow in 2001.

"Professional scientists can get different results/decisions from the same data."

He also made the following points:

  1. Need better historical flow analysis in the Upper Basin
  2. Need better forecasts
  3. Need more river flow analysis for fish habitat
  4. BOR is working with USF&WS and NOAA on new biological opinions
  5. The water bank is producing water for fish
  6. The BOR is doing storage investigations, i.e. Long Lake
  7. Continuing water conservation programs in the Project


Question and Answer Period:

Calvert: "Water is the lifeblood of many rural communities."

Calvert Question: "How did the water shut off affect the Hispanic communities?

Answer: "Many had to move from the basin and this disrupted families."

Calvert to all panel members: "Would more storage help?

Answer: All witnesses agreed that we need more storage.

Calvert: "Did incomplete science lead to 2001?

Answer Vogel: "Yes, different interruptions of the same data lead to different results." "Peer review adds new perspective."

Answer Lewis: "Early science says higher lake levels don’t help suckers but the scientists thought the data was faulty, but the NAS found that data correct."

Walden question to Lewis about Tribal Trust.

Lewis Answer: "The Endangered Species Act does not cover Tribal Trust."

Walden question to Lewis: "Do you support peer review?"

Lewis Answer: "Yes, even though it is costly and slows down the process. If the NAS report had been available before 2001, the out come would have been different. Someone from the outside has clearer eyes."

Walden to all panel members: "Do you support independent peer review of all major decisions?"

Answer: All said yes but a few had comments like this one from Steve Thompson, Regional Director, U.S Fish and Wildlife Service: "Peer review could add up to a year to each of the 250 biological opinions we do each year."

Radanovich question: Talked about the Potomac River and the endangered species located there [sturgeon] and then asked "Would the water shut off have occurred if the population here was a million plus?"

Answer from entire panel: "No." "Doubt it."

Radanovich question: How are species listed, how to biological opinions come about?

Thompson – USF&WS – answer: "Incidental take on Section 7 need coverage for that take." "Biological Opinions are based on a Biological Assessment that is turned over to the field project leader who then informs the head of the region area. The head of the agency then decides who writes the BO."

Leaky – NMFS – answer: "Our process is different. The regional administrator starts the process."

Lewis answer: "Agencies are required to make decisions without science, they must use their best judgement. In the 1980s and 90s, lots of science was available but the agencies used mostly judgement and old science." "The NAS doesn’t look at policy or politics."

Calvert question for Rogers – BOR: "Where does the water adjudication stand now?"

Rogers answer: "Lost River and the east side adjudication is done, but no water rights have been certified." The Klamath River adjudication has not been finished."

Calvert then made a statement concerning adjudication, tribal rights and ESA. "Are people sitting down and discussing solutions?" "Will adjudication help with a long term solution, a basin wide solution?" No one really answered.

Walden statement to LaMalfa: "Quit drilling your wells and sucking our water."

Walden question to all panel members: "Is there a forum alive today that is capable of finding a basin wide solution?"

Vogel: "Not yet."

LaMalfa: "We need one. We’re dealing with two different state regulations."

Foreman: "We need one with all landowners and stakeholders."

Brown: "No forum at this time."

Gaines: "No forum that brings the right people to the table."

Smith: "No."

Lewis: "The NAS recommended a group of people who disagree."

Rodgers: "We’re working on one." [The CIP]

Thompson: "The CIP."

Lecky: "The CIP."

Walden question/statement to panel: "Who should be on such a forum? Find out and get back to me."

Doolittle questions to all panel members: "How much money’s been spent and how many fish have been recovered?" "Are the suckers better off today because of the water shut off?"

Answer: None from panel witnesses.

Herger question to Vogel on sucker listing and recovery:

Answer: "For successful recovery, we need a variety of year types, more recruitment, more disbursement." "Science now shows – if this information was available in 1988 – the suckers would not have been listed." "When listed, estimates of the population was only 12,000 fish. Now, there are 10s of thousands all over the Project."

Herger spoke about the need for more water storage, question for Rodgers: "What is the status of the water feasibility studies for more water storage?"

Rodgers answer: "We’re finding technical and financial problems with Long Lake." "The benefit ratio for Long Lake is .04 to 1.0." "Studying the geology." "Pump water in, hold it, and then release through generators." "300,000 acre-feet could be stored."

" . . . looking at expanding the capacity of Upper Klamath Lake by re-flooding reclaimed property along the shores."

Doolittle question of Rodgers: "According to the NAS report, the historical summer flows were wrong. Actions were not necessary. Why hasn’t the Biological Opinions been adjusted?" "Written into the 2002 – 12 BO, is a water bank plan that will have 100,000 acre-feet required next year. This imposes great hardship on people." "The Klamath River used to dry up before the Klamath Project. The Klamath Project has helped the Klamath River."

Rodgers answer: "Re-consulting will continue till 2005 – 2006."

Doolittle: "Can’t you speed it up after what you did to them in 2001? Don’t you owe it to them?" "Do everything you can to err on the side of the people!" "God created the earth for men and women."

Closing remarks:

Walden: "It’s good that people are talking." "If the ESA is flawed, it’s up to us to fix it. Congress – the buck stops here." "PCFFA . . . Who are they? Who do they really represent?"

"How many suckers do there have to be for delisting?" Thompson answer: "We’re working on a 5 year status review."

Walden: " . . . recovery efforts, it’s never enough. Stop moving the goal posts."

Foreman statements: " . . . damages done to our society. The loss of our fisheries is just as important." "Life did not being in 1905 and we must realize that everyone suffered." "Tribal children need to know that they can harvest (fish) in the future." "Work to a solution on the real issues." "The ESA is like a gas gauge."

Walden statement to Foreman: "We want to be able to rely on the gas gauge and the fact that it’s accurate."

Other closing statements:

Herger: "We can work together. . . roll up our sleeves."

Doolittle: "I believe with good will and enough resources devoted to it, we can find solutions."

Calvert: "There’s some hope here." "Start looking for a long term solution." "But it won’t come about until ‘you’ start." "Agencies under the gun here today to help find those solutions."

Barbara Hall

The Klamath Bucket Brigade

July 18, 2004





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