TESTIMONY OF THOMAS DWYER, DEPUTY REGIONAL DIRECTOR, REGION 1, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, BEFORE THE CONGRESSIONAL FIELD HEARING HOSTED BY SENATOR SLADE GORTON AND REPRESENTATIVE NORM DICKS ON PUGET SOUND SALMON RECOVERY.
APRIL 7, 1999
Mr. Chairman, Senators, Representatives and distinguished members of the panel, my name is Thomas Dwyer, Deputy Regional Director for Region 1 of the U.S. Fish and Wildlife Service. Accompanying me today on behalf of the Service is Gerry Jackson, the new Supervisor of our State Fish and Wildlife Office in Lacey, Washington. Gerry has just taken this position and formerly was the Service's Assistant Director for Ecological Services in Washington, D.C.
As you know, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service share responsibility for the administration of the Endangered Species Act. Both agencies are actively involved in the effort to bring back the listed fish, including bull trout and various runs of salmon. We appreciate the many efforts you have made to rebuild these fish stocks and intend to continue working closely with all of you in this historic and monumental undertaking.
Today, we appear before you to answer questions which your staffs have transmitted to us and which bear directly on the subject of saving fish species in the Puget Sound listed under the Endangered Species Act. Those questions and answers are as follows:
1. How the FY 99 salmon money was spent:
The $20 million appropriated to the U.S. Fish and Wildlife Service and conveyed to the State of Washington for salmon recovery efforts is funding both on-the-ground projects to restore salmon and strategic planning efforts, including watershed assessments. The Washington Governor's Salmon Recovery Office is responsible for the administration, project allocation, and accountability of the funds. The Fish and Wildlife Service is providing technical assistance to the Governor's Salmon Recovery Office in an advisory capacity to facilitate project selection and implementation.
State salmon recovery efforts include both habitat protection and restoration. Habitat protection addresses the potential loss of high quality habitat and encompasses diverse efforts, from the acquisition of property and/or development rights to changes in zoning laws to provide adequate riparian buffers. Approximately $5 million is being spent on habitat acquisition. Habitat restoration efforts focus on returning degraded habitat to functioning salmon habitat. It includes a variety of activities, such as the following: restoring riparian areas, wetlands and estuaries critical to the salmon life-cycle; providing adequate instream flows; removing and replacing of poorly designed culverts blocking fish migration; and, introducing no-till agricultural methods in areas of highly erodible soils.
Strategic planning efforts are occurring on several scales. At the watershed level, planning efforts are funded to assess watersheds and identify the most effective restoration options. Regional planning efforts are focused on developing coordinated regional recovery activities which involve the full suite of stakeholders (e.g., private landowners, tribes, County, State, industry, environmentalists, etc.), addressing needed changes to State and County regulations to accomplish recovery, and developing baseline information and recovery strategies on salmon and bull trout to facilitate Endangered Species Act coordination with the Federal agencies.
The Fish and Wildlife Service is providing technical reviews on the over 150 project proposals submitted to the Governor's Salmon Recovery Office. A limited number of site visits are conducted in reviewing the proposed projects. Where appropriate, recommendations on ways to improve or enhance specific project designs and improve their effectiveness are provided to the Governor's Salmon Recovery Office. Following approval and funding of the projects, we will assist private landowners and the State in project implementation and monitoring. As of March 30, the Fish and Wildlife Service had completed reviews on all of the 123 proposals provided to us.
2. How all the federal agencies are coordinating with regard to the impacts of salmon and bull trout listings:
With regard to Endangered Species Act (ESA) section 7 consultation for the threatened bull trout, the Fish and Wildlife Service (FWS) has worked with the Forest Service (FS) and the Bureau of Land Management (BLM) to develop an approach that incorporates a "matrix" to assist in assessing impacts of actions on Federal lands to bull trout. This approach also provides for watershed-scale consultations, which more efficiently assess the cumulative impacts of actions on bull trout.
The matrix was modeled after a similar matrix developed by the National Marine Fisheries Service (NMFS) for the same purpose relative to listed salmon and steelhead. In compiling and assessing information upon which the matrix is based, field units were encouraged to use watershed boundaries already agreed to under consultation for listed salmon and steelhead, wherever possible. In many cases, staff from the FWS, NMFS, FS and BLM meet jointly to evaluate impacts of proposed actions to salmon and bull trout, to streamline the consultation process.
The Fish and Wildlife Service and the National Marine Fisheries Service are jointly conducting programmatic consultations with the Army Corps of Engineers, the Federal Highways Administration and the Federal Emergency Management Agency. By conducting these consultations on a programmatic level, the workload should be reduced. The Fish and Wildlife Service and the National Marine Fisheries Service are also conducting training for Federal agencies and local jurisdictions that often serve as agencies and participate in consultation.
With regard to operation of Columbia and Snake River dams, the FWS, NMFS, Corps of Engineers, Bonneville Power Administration and Bureau of Reclamation met in the summer of 1998 to discuss approaches for efficiently and effectively completing ESA consultation on the operation of Federal facilities, and their effects to salmon, bull trout and other listed aquatic species such as the Kootenai River sturgeon and Snake River snails. In addition, a Federal caucus is working on a "green paper" to evaluate potential impacts of harvest, hatcheries, habitat and the hydro system on Columbia River salmon and steelhead.
The Fish and Wildlife Service and the National Marine Fisheries Service have coordinated in the development of Habitat Conservation Plans, in the negotiation of a Forestry Module for Washington State Forest Practices Rules, and in the development of a riparian standard for the Conservation Reserve Enhancement Program. Federal agencies also coordinate with other government agencies through participation on the Washington Government Council on Natural Resources.
In addition, FWS, Environmental Protection Agency (EPA), and NMFS regional executives have been meeting on a regular basis to integrate Clean Water Act and ESA programs. ESA section 7 consultation between the FWS, NMFS and EPA has been taking place in Oregon and Idaho on proposed changes to water quality standards which may affect bull trout, salmon, steelhead and other listed aquatic species.
3. What the Pacific Northwest will face in the coming year as a result of the listings:
The Klamath and Columbia River distinct population segments of the bull trout were listed as threatened in June 1998. The Fish and Wildlife Service will determine whether to list the other distinct population segments of this species in the Pacific Northwest in June 1999. The proposed rule for these other populations included a special 4(d) rule allowing sport fishing to continue in accordance with State, Tribal, and National Park fish and wildlife conservation laws and regulations. This should permit continuation of most recreational fisheries within the range of the bull trout. The Fish and Wildlife Service and the States will develop and distribute informational materials in areas affected by this listing to inform anglers and other interested parties about the biology and identification of bull trout and pertinent fishing regulations.
The joint NMFS/FWS proposal to list the southwestern Washington/Columbia River ESU of coastal cutthroat trout, and to delist the Umpqua River cutthroat trout was published in the Federal Register on Monday, April 5.
Logging, mining, grazing, and other activities on Federal land will be subject to the requirements of section 7 of the ESA. Consultations with the Bureau of Land Management and the Forest Service have been streamlined through an inter-agency agreement between those agencies and the Services. This agreement has been in place for several years and is successfully enhancing interagency coordination to adequately address the conservation of listed species under section 7. As a result, time lines for completing the process have been reduced.
Incidental take permits and accompanying Habitat Conservation Plans will be required for non-federal landowners to take federally listed wildlife or fish if such taking occurs incidentally during otherwise legal activities.
4. How the agencies will make ESA compliance easier:
The Natural Resource Conservation Service (NRCS), FWS, NMFS, EPA and the State of Washington entered a Memorandum of Agreement in March 1998 that will contribute to salmon habitat recovery and benefit other species on non-Federal lands through a cooperative, watershed-based approach. While the NRCS has no regulatory function under ESA, their unique agricultural assistance programs and ties to private non-Federal land owners provide an opportunity to assist those land owners in complying with ESA regulatory requirements while providing benefits for wildlife. A similar agreement was signed by the same Federal parties and the State of Oregon in May 1998, and a third such agreement involving the State of California is currently in the signature process.
In the signed memoranda of agreements (MOAs), the Federal agencies listed above and the respective States will (1) implement a process to provide landowners with incentives that encourage the use of appropriate management practices; (2) facilitate better cooperation among the participating agencies; (3) encourage local watershed planning efforts; and (4) provide private landowners certainty that agricultural programs implemented under NRCS technical guidance will be in compliance with ESA regulatory requirements.
The FWS and NMFS (collectively, the Services) have developed new tools using the flexibility of the ESA to create incentives for private landowners to voluntarily conserve listed and unlisted species by providing landowners with regulatory certainty. These new tools are the Safe Harbor and Candidate Conservation Agreements with Assurances Policies (to be finalized soon).
The Safe Harbor policy applies only to listed species and involves a formal agreement that establishes a "baseline" for the enrolled property, and a determination by the Service(s) that a "net conservation benefit" will be provided for the covered species. Under this agreement, the Services will authorize future incidental take of covered species above the agreed-upon baseline conditions on the enrolled property without any additional requirements.
The Candidate Conservation Agreements with Assurances Policy also involves establishing a formal agreement with a landowner that will provide for removing threats to non-listed species with the ultimate goal of not having to list it under the ESA. However, if in the future the species is listed, the landowner will have regulatory assurances. Addressing the needs of species before they become listed, usually allows for greater management flexibility.
The Services have introduced streamlining measures and other improvements in the joint Habitat Conservation Planning (HCP) Handbook. These measures include: (1) combining HCPs and National Environmental Policy Act documents; (2) establishing a "low effect" HCP category with expedited permit approval procedures for low-impact projects; (3) establishing specific time periods for processing incidental take permit applications; (4) allowing for unlisted species to be named on the incidental take permit if they are adequately addressed in the HCP (eliminating the need to amend the permit if that species is subsequently listed); and (5) allowing for mitigation and monitoring activities resulting in take to be authorized under the section 10(a)(1)(B) permit rather than a separate 10(a)(1)(A) permit.
The Fish and Wildlife Service and the National Marine Fisheries Service will encourage programmatic consultations where there is a Federal nexus and large scale HCPs to accommodate as many landowners as practicable. For example, we are working together with the Washington Department of Fish and Wildlife on an HCP that will cover activities permitted through the Department of Fish and Wildlife's hydraulics permits.
The Fish and Wildlife Service has developed Bull Trout Interim Guidance. This guidance was developed as a tool to be used by Fish and Wildlife Service biologists in participating in bull trout conservation and recovery efforts. The focus of the guidance is on the effects of land management on bull trout and their habitat. It provides valuable information to all entities on bull trout needs, impacts of activities, and broad landscape-scale recommendations for the conservation and recovery of bull trout and will assist in developing projects that ensure that the needs of the bull trout can be met.
5. What Federal and local needs are to be met to conform to the demands of the listings:
Federal agencies primarily affected by the bull trout listing are the FS and the BLM. Federal land management in the western half of Washington State is primarily governed by the Northwest Forest Plan, a Federal landscape plan specifying coordinated management direction. ESA section 7 bull trout and salmon consultations are conducted in a streamlined fashion in accordance with the NW Forest Plan. Although the bull trout and salmonid listings will increase the workload of the FS, BLM, FWS, and NMFS, the listings are not likely to affect the overall implementation of, or land management direction provided by, the NW Forest Plan. In the Eastern half of the State, the affected Federal agencies will also conduct ESA section 7 consultations, but without the overarching guidance provided by a landscape-level planning process until the Interior Columbia Basin Ecosystem Management Plan is adopted and implemented.
Due to the unprecedented nature and scope of recent ESA listing decisions, and to meet the needs of the affected public, it is anticipated that the workload will be significantly increased for the affected Federal agencies. The FWS will strive to make these workload demands a priority in the President's budget process.
The FY 2000 President's Budget includes a $3.1 million increase in Consultation funding for Region 1 (Idaho, Washington, Oregon, California, Nevada and the Pacific Islands). The FWS will effectively use those portions of the $3.1 million that can be applied to the bull trout workload to make consultations with Federal land managers, in particular, a priority. The FWS will work with the FS, BLM and other Federal agencies to establish partnerships and develop strategies for streamlining procedures in an attempt to avoid delays directly associated with section 7 consultation processes.
Another important component of ESA efforts for bull trout is the development of a recovery plan for the species. A recovery plan will establish guidelines for actions necessary to recover the species, thus facilitating land use planning at the land unit level (e.g., a national forest) and providing a basis for coordination across land ownership boundaries. We urge your support for the FY 2000 President's Budget increase request for Recovery which will help insure rapid completion of a bull trout recovery plan.
The FWS has been working with the FS and BLM since fall 1998 on the ESA section 7 approach for bull trout. We have been largely successful in implementing a consistent, streamlined approach for meeting section 7 requirements for this species. Similar efforts will be pursued with other Federal agencies to reduce the potential for project delays related to required consultations.
At the time of listing the bull trout in July 1998, the FS and BLM identified 7,000 on-going actions in the Columbia River Basin which would require section 7 consultation. Those two agencies have been working with the FWS to complete those consultations, and to address any new, proposed actions for 1999. The three agencies met in the summer and fall of 1998 and screened all those actions to sort them into categories for further section 7 consultation. Since then, the focus has been on compiling the necessary documentation by the FS and BLM (biological assessments), and in developing concurrence letters (informal section 7 consultation) and biological opinions (formal section 7 consultation) by the FWS. Schedules for completing the section 7 consultations have been discussed and agreed to by the three agencies at the local level (each National Forest and BLM District). All three agencies are committed to completing consultations in a timely manner.
Non-Federal land owners will need to either avoid "taking" the listed bull trout and salmon or pursue incidental take authorization by developing a HCP and obtaining an ESA section 10 incidental take permit. The Services are also considering the development of special rules, pursuant to section 4(d) of the ESA, to further define the take prohibitions for some of the threatened species and exempt some forms of take from these prohibitions. In any case, we believe that local governments must be involved at a watershed planning level to reflect and integrate local needs and issues. Likewise, the Fish and Wildlife Service can bring valuable fish and wildlife expertise to watershed planning efforts. We have been asked to participate in several efforts; however, lack of staffing has prevented us from meeting the demand.
The Fish and Wildlife Service is involved in the review of the State of Washington's Salmon Recovery Plan: Extinction is Not an Option. Through our review of the constituent elements of the plan, we will make recommendations to conserve and recover bull trout. We will also identify opportunities to participate in regional planning efforts and the development of state, county or local rules and regulations that can become components of special 4(d) rules and HCPs. One such effort has been started by a Tri-County group consisting of jurisdictions from King, Snohomish, and Pierce counties. We intend to participate fully in this effort.
The FWS and NMFS share the goal of restoring healthy fish populations. There are a number of tools available to local governments for complying with the ESA and continuing economic development. The most promising tools for aquatic systems are HCPs and the MOA with NRCS. However, many of these tools require additional, knowledgeable staff at all levels from the Federal government to local communities. Regardless of staffing levels, agencies will have to prioritize activities and focus on efforts that result in the most conservation and recovery of salmon and bull trout. Funding should be focused on these priorities. We look to the state of Washington to take the lead in prioritization of actions based on the best available science.
6. How bull trout and salmon habitat needs do or don't overlap:
All salmonids require aquatic habitats that are cold, clean, complex, and connected; however, bull trout tend to have more restrictive biological requirements. In other words they need habitat that is colder, cleaner, more complex and more connected. Therefore, greater protection of these important habitat components is needed.
Most bull trout spend their entire lives in freshwater environments and are therefore more vulnerable to land management activities affecting streams, rivers and lakes. The salmon ocean cycle reduces the salmon's dependence on the freshwater habitat for fulfilling all life-history stages, although the freshwater environment is critical to the functions of spawning, incubation, and juvenile rearing.
Bull trout are either resident or migratory. Migratory fish may be adfluvial (lake-dwelling), fluvial (river dwelling), or anadromous (ocean dwelling). Historically, migratory life-history forms of bull trout were more prevalent. Open migratory corridors, both within and among tributary streams, large rivers, and lake systems are critical for maintaining bull trout populations. This allowed access to a larger prey base for both sub-adults and post-spawners. Habitat degradation and dams have now isolated many resident and migratory bull trout subpopulations that historically were inter-connected as complex metapopulations. This loss of connectivity has caused decreased genetic fitness between and within nearby subpopulations as well as extirpations of bull trout stocks.
The salmon life cycle has a saltwater or ocean component with a very large prey base available for sub-adult and adult fish. At all life history stages bull trout need access to an adequate prey base, which for adults necessitates habitats accessible through migratory corridors with suitable temperature, habitat complexity, and passage. Apex predators, such as bull trout, are more extinction prone than species lower in the food chain. In stable ecosystems, top level predators have small population sizes, thus environmental disturbances tend to affect species more at the top of the food web than at lower levels.
Bull trout are among the most cold water adapted fish and require very cold water for incubation, juvenile rearing and spawning. These temperatures may in some cases be so cold as to exclude other native salmonids from utilizing the same spawning and rearing habitat as bull trout. Cold water temperatures may reduce the likelihood of invasion by brook trout and other non-native fish into bull trout watersheds.
Since bull trout eggs reside in such cool water, they require a long period of time (220+ days) from egg deposition until emergence, making them especially vulnerable to effects of temperature, sediment deposition, and bedload movement during this period. After emerging from spawning gravels, juveniles are found in areas with overhead cover and low substrate embeddedness. Juveniles are largely nocturnal and very cryptic, since they utilize the interstitial spaces between substrates for refugia. This makes bull trout especially vulnerable to effects of sediment deposition, bedload movement, and changes in channel structure.
Spawning, incubation and juvenile rearing are the bull trout life history stages that require coldest water temperatures and lowest fine sediment levels. Juvenile rearing and spawning typically occur in the smaller tributaries and headwater streams that may be upstream of anadromous salmonids, and therefore they are more directly influenced by conditions in non-fish bearing streams. Greatest riparian protection should be provided around bull trout spawning and rearing streams (often headwater streams and often the smaller fish-bearing streams), and the non-fish bearing streams above them that provide high quality water to downstream areas used by the fish.
7. How HCPs will address the needs of bull trout and salmon:
Congress intended that the HCP process would be used to reduce conflicts between listed species and economic development activities, and would be used to develop "creative partnerships" between the public and private sector in the interests of endangered and threatened species conservation. The Services have been successful in balancing biology with economics by developing these creative partnerships. One of the great strengths of the HCP process is its flexibility in being adaptive to a wide range of biological, geographical, and developmental scenarios. The ESA and its implementing regulations establish basic biological standards for HCPs, but otherwise allow HCP participants to be creative. As a result, the HCP program has produced some remarkably innovative land-use and conservation plans.
In order for the Services to approve an HCP, it must satisfy the section 10 issuance criteria. Specifically, section 10(a)(2)(A) of the ESA requires an applicant for an incidental take permit to submit an HCP that specifies, among other things, the impacts that are likely to result from the taking and the measures the permit applicant will undertake to minimize and mitigate such impacts. Issuance of a section 10 permit must not "appreciably reduce" the likelihood of the survival and recovery of the species in the wild.
It is envisioned that HCPs for bull trout and salmon will be structured so as to meet the needs of the applicants, as well as provide for the long-term conservation of the bull trout and salmon.
Examples of Aquatic HCPs:
1. Mid-Columbia Public Utility District (PUD) HCP
- Proposed HCP has been developed over the past 3+ years.
- NMFS is lead agency, as only steelhead and salmon are included as covered species.
- PUD's (Chelan and Douglas counties) proposal is an attempt to provide 100% no net impact to covered species, 95% survival of juveniles at the projects (dams) and 91% juvenile survival overall (including through the downstream reservoir) for covered species in exchange for incidental take authorization under section 10(a)(1)(B) of the ESA.
- The balance between 91% survival through the reservoir, 95% survival at the project, and the 100% no net impact standards is to be made up through the PUDs funding of additional hatchery operations and habitat improvement projects in the region.
- Three projects addressed: Wells and Rocky Reach Dams, Douglas County, Washington; Rock Island Dam, Chelan County, Washington.
- This is the first HCP developed for hydroelectric projects.
- Although FWS does not have regulatory authority over covered species, the PUDs consider FWS involvement crucial, as FWS will be a key party in the upcoming Federal Energy Regulatory Commission (FERC) re-licensing process for both PUDs in the near future (3-10 years). The PUD's goal is to have all key parties, including the affected Yakama, Colville, and Umatilla tribes, participate in the negotiations and agree to the final conservation plan so that operations authorized under the plan will not be challenged during the FERC relicensing process.
- Permit issuance pending.
2. Cedar River Watershed HCP (City of Seattle)
- Objectives are to provide reliable high quality drinking water for city customers, manage the watershed's resources, and generate hydroelectric power while complying with the ESA.
- Entities involved and which have signed an Agreement in Principal in 1997 include the Seattle City Council, Seattle Public Utilities, U.S. Army Corps of Engineers, Washington Dept. of Fish and Wildlife, Washington Dept. of Ecology, FWS and NMFS.
- Size of the watershed is 90,546 acres.
- Covered activities include: forest management such as regeneration cutting, commercial and precommercial thinning, and salvage logging; road maintenance and construction; activities associated with operation of the municipal water and hydroelectric supply including operation, maintenance and improvement of facilities at Landsburg, Cedar Falls and Masonry Dam; maintenance of trails and rights-of-way; and, new watershed educational center.
- The HCP is one facet of a larger program. The city is also negotiating an Instream Flow Agreement to protect, restore and improve fish habitat in the Cedar River to establish binding minimum instream flow requirements to replace the currently non-binding ones, and also the Landsburg Mitigation Agreement for fish passage and proposed fish hatchery.
- The City wants ESA coverage for approximately 90 listed and unlisted aquatic and terrestrial species.
- The City intends to apply for certification under the Smartwood program founded by the Rainforest Alliance in 1989. The program promotes an ecosystem-based approach to forest management. The applicant's watershed forest management plans and activities are reviewed by an independent, multi-disciplinary team of scientists that evaluate environmental, economic, and social impacts of the plans. A potential advantage of certification could be premium prices attached to green forest products produced from the watershed.
3. Tacoma Public Utilities HCP
- The City of Tacoma wants an HCP that will cover forest management activities in the Green River watershed, and activities related to two other planned projects. One project involves construction of a 33.5-mile long pipeline from the diversion dam to the City. The other is to increase the size of the dam and reservoir. Some of the activities include: water withdrawal at the dam; fish bypass during construction of the pipeline and dam and reservoir; realignment, enlargement, and addition of upgraded fish screens and bypass facilities; installation, monitoring and maintenance of instream structures; operation and maintenance of a wetland restoration project; restoration of anadromous fish by trapping and hauling adults returning to the area; and, possible planting of hatchery juveniles.
- The applicant is seeking coverage for about 25 listed and unlisted aquatic and terrestrial species.
- The plan area includes the Tacoma owned and operated water diversion dam and facilities (Headworks) on the Green River, and about 13,600 acres of land upstream from the dam. The Green River is a principal source of municipal and industrial water for the City and portions of King and Pierce counties.
- Entities involved include the City of Tacoma, Tacoma Public Utilities, Washington Dept. of Fish and Wildlife, U.S. Army Corps of Engineers, Washington Dept. of Ecology, Muckleshoot Indian Tribe, FWS, and NMFS.
In closing, I would like to reiterate on behalf of the Service our great appreciation for your support for the health of fish and wildlife in the Pacific Northwest.
This concludes my statement. Gerry Jackson and I are pleased to respond to any questions you may have.
Disclaimer: All statements are not the opinions or position of those testifying, rather they are the official positions taken by the Administration.