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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:
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-04-602]:
GAO Highlights:
Highlights of GAO-04-602, a report to the Committee on Indian Affairs,
United States Senate
Why GAO Did This Study:
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.
What GAO Found:
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 multi-layered 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 federal activities that
could potentially harm fish, wildlife, and their habitat. For example,
the Endangered Species Act establishes nationwide responsibilities for
agencies to protect listed species, while the Northwest Electric Power
Planning and Conservation Act (Northwest Power Act) establishes
responsibilities in the basin to mitigate the impacts of hydropower
development, and each agency has mission-related responsibilities to
fish and wildlife, such as the Forest Service’s responsibilities under
the National Forest Management Act. Regarding tribes, federal agencies
must consult and collaborate with Indian tribes on fish and wildlife
activities that may impact tribal rights established under various
treaties and executive orders. Federal responsibilities and activities
under these laws, treaties, and executive orders have been defined and
clarified over the years through numerous court decisions.
Federal agency fish and wildlife activities in the basin are guided by
numerous plans and programs, but the majority of fish and wildlife
activities are driven by the Northwest Power Act and the Endangered
Species Act. Under the Northwest Power Act, the Columbia River Basin
Fish and Wildlife Program addresses all fish and wildlife impacted by
the Federal Columbia River Power System, and under the Endangered
Species Act, agencies are guided by the biological opinions developed
by the National Marine Fisheries Service and the U.S. Fish and
Wildlife Service for the protection of threatened and endangered
species, as well as two other related collaborative plans. Agency
participation in these key efforts varies widely, from mandatory
funding of fish and wildlife activities to voluntary collaboration on
the design of activities, but interagency collaboration is essential
to successful implementation of these activities. In addition, other
laws and specific agency missions drive numerous other collaborative
and individual fish and wildlife activities.
We provided copies of our draft report to the Departments of
Agriculture, Commerce, Defense, the Interior, as well as Bonneville and
the Environmental Protection Agency. Bonneville and the Departments of
Agriculture and Commerce provided official written comments. The
comments were generally technical in nature and we made changes to the
report, 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.
www.gao.gov/cgi-bin/getrpt?GAO-04-602.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Barry T. Hill at
202-512-3841 or hillbt@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
A Multilayered Collection of Directives Defines Federal
Responsibilities to Fish, Wildlife, and Tribes in the Columbia River
Basin:
Multiple Plans and Programs Guide Federal Fish and Wildlife Activities
in the Basin:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: Scope and Methodology:
Appendix II: Laws, Treaties, and Executive Orders Guiding Agency
Activities Affecting Columbia River Basin Fish and Wildlife:
Appendix III: Laws and Executive Orders Guiding Agency Activities
Affecting Columbia River Basin Tribes:
Appendix IV: Court Decisions Guiding Agency Activities Affecting
Columbia River Basin Fish, Wildlife, and Tribes:
Appendix V: Plans and Programs Implemented by Federal Agencies to
Manage Columbia River Basin Fish and Wildlife Activities:
Appendix VI: Comments from the Bonneville Power Administration:
Appendix VII: Comments from the Department of Agriculture:
Appendix VIII: Comments from the Department of Commerce:
Appendix IX: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Acknowledgments:
Tables:
Table 1: The 13 Columbia River Basin Indian Tribes, Reservation Size,
and Enrollment:
Table 2: Treaties Establishing Reservations and Reserving Hunting and/
or Fishing Rights of Six Columbia River Basin Tribes:
Table 3: Executive Orders Establishing Reservations for Six Columbia
River Basin Tribes:
Table 4: Nationwide Laws Guiding Agency Activities Affecting Columbia
River Basin Fish and Wildlife:
Table 5: Basin-specific Laws Guiding Agency Activities Affecting
Columbia River Basin Fish and Wildlife:
Table 6: Mission-specific Laws Guiding Agency Activities Affecting
Columbia River Basin Fish and Wildlife:
Table 7: Treaties Guiding Agency Activities Affecting Columbia River
Basin Fish and Wildlife:
Table 8: Executive Orders Guiding Agency Activities Affecting Columbia
River Basin Fish and Wildlife:
Table 9: Laws Guiding Agency Activities Affecting Columbia River Basin
Tribes:
Table 10: Executive Orders and Presidential Memorandum Guiding Agency
Activities Affecting Columbia River Basin Tribes:
Table 11: Court Decisions Guiding Agency Activities Affecting Columbia
River Basin Fish and Wildlife:
Table 12: Court Decisions Guiding Agency Activities Affecting Columbia
River Basin Tribes:
Table 13: Plans and Programs That Guide Federal Fish and Wildlife
Activities in the Columbia River Basin:
Figures:
Figure 1: Map of the Columbia River Basin:
Figure 2: Landholders in the Columbia River Basin:
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:
Figure 4: Federal and Tribal Collaboration on Selected Fish and
Wildlife Plans and Programs Driven by Other Directives and Agency
Missions:
Abbreviations:
BIA: Bureau of Indian Affairs:
BLM: Bureau of Land Management:
EPA: Environmental Protection Agency:
ESA: Endangered Species Act:
FCRPS: Federal Columbia River Power System:
FWS: U.S. Fish and Wildlife Service:
NMFS: National Marine Fisheries Service:
NRCS: Natural Resources Conservation Service:
USGS: U.S. Geological Survey:
Letter June 4, 2004:
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.[Footnote 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.[Footnote 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:
[See PDF for image]
[End of figure]
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:
Tribe: Coeur D'Alene Tribe of the Coeur D'Alene Reservation, Idaho;
Acreage encompassed within reservation boundaries[A]: 345,000;
Number of enrolled tribal members[B]: 1,493.
Tribe: Kootenai Tribe of Idaho;
Acreage encompassed within reservation boundaries[A]: 250;
Number of enrolled tribal members[B]: 121.
Tribe: Nez Perce Tribe of Idaho;
Acreage encompassed within reservation boundaries[A]: 750,000;
Number of enrolled tribal members[B]: 3,300.
Tribe: Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho;
Acreage encompassed within reservation boundaries[A]: 544,000;
Number of enrolled tribal members[B]: 4,535.
Tribe: Confederated Salish and Kootenai Tribes of the Flathead
Reservation, Montana;
Acreage encompassed within reservation boundaries[A]: 1,244,000;
Number of enrolled tribal members[B]: 6,950.
Tribe: Shoshone-Paiute Tribes of the Duck Valley Reservation, Nevada;
Acreage encompassed within reservation boundaries[A]: 289,819;
Number of enrolled tribal members[B]: 1,888.
Tribe: Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon;
Acreage encompassed within reservation boundaries[A]: 11,466;
Number of enrolled tribal members[B]: 295.
Tribe: Confederated Tribes of the Umatilla Reservation, Oregon;
Acreage encompassed within reservation boundaries[A]: 172,140;
Number of enrolled tribal members[B]: 2,140.
Tribe: Confederated Tribes of the Warm Springs Reservation of Oregon;
Acreage encompassed within reservation boundaries[A]: 643,570;
Number of enrolled tribal members[B]: 3,831.
Tribe: Confederated Tribes of the Colville Reservation, Washington;
Acreage encompassed within reservation boundaries[A]: 1,400,000;
Number of enrolled tribal members[B]: 8,842.
Tribe: Kalispel Indian Community of the Kalispel Reservation,
Washington;
Acreage encompassed within reservation boundaries[A]: 4,629;
Number of enrolled tribal members[B]: 329.
Tribe: Spokane Tribe of the Spokane Reservation, Washington;
Acreage encompassed within reservation boundaries[A]: 154,898;
Number of enrolled tribal members[B]: 2,305.
Tribe: Confederated Tribes and Bands of the Yakama Reservation,
Washington;
Acreage encompassed within reservation boundaries[A]: 1,372,000;
Number of enrolled tribal members[B]: 8,624.
Total;
Acreage encompassed within reservation boundaries[A]: 6,931,772;
Number of enrolled tribal members[B]: 44,653.
Sources: U.S. Department of the Interior and U.S. Department of
Commerce.
[A] Includes Indian and non-Indian land.
[B] Tribe members residing both on and off reservation lands in 2001.
[End of table]
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.
* 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.
* U.S. Army Corps of Engineers (Corps) designs, builds, and operates
civil works projects to provide electric power, navigation, flood
control, and environmental protection.
* 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.
* 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.
* 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.
* 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.
* 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:
[See PDF for image]
Note: Area shown within reservation boundaries includes both Indian and
non-Indian land.
[End of figure]
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.
* 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.
* 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.
* 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.
* 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.[Footnote 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:
* 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.
* 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.
* 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:
* 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.
* 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.
* 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:
* 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.
* 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.
* 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.
* 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.
* Indian Reorganization Act--Enacts measures to protect ownership of
Indian lands, restore lands to tribal ownership, and grants rights of
self-government to Indians.
* 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.
* 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: Treaty with the Wallawalla, Cayuse, etc. (12 Stat. 945) June 9,
1855;
Tribe: Confederated Tribes of the Umatilla Indian Reservation, Oregon;
Hunting and/or fishing rights: The exclusive right of taking fish in
the streams running through and bordering the reservation and at all
other usual and accustomed stations in common with citizens of the
United States, and the privilege of hunting, gathering roots, and
pasturing their stock on unclaimed lands in common with citizens.
Treaty: Treaty with the Yakama (12 Stat. 951) June 9, 1855;
Tribe: Confederated Tribes and Bands of the Yakama Reservation,
Washington;
Hunting and/or fishing rights: The exclusive right of taking fish in
the streams running through and bordering the reservation and at all
other usual and accustomed stations in common with citizens of the
United States, and the privilege of hunting, gathering roots, and
pasturing their stock on unclaimed lands in common with citizens.
Treaty: Treaty with the Tribes of Middle Oregon (12 Stat. 963) June 25,
1855[A];
Tribe: Confederated Tribes of the Warm Springs Reservation of Oregon[A];
Hunting and/or fishing rights: The exclusive right of taking fish in
the streams running through and bordering the reservation and at all
other usual and accustomed stations in common with citizens of the
United States, and the privilege of hunting, gathering roots, and
pasturing their stock on unclaimed lands in common with citizens.
Treaty: Treaty with the Nez Perces (12 Stat. 957) June 11, 1855;
Tribe: Nez Perce Tribe of Idaho;
Hunting and/or fishing rights: The exclusive right of taking fish in
the streams running through and bordering the reservation and at all
other usual and accustomed stations in common with citizens of the
United States, and the privilege of hunting, gathering roots, and
pasturing their stock on unclaimed lands in common with citizens.
Treaty: Treaty with the Flatheads, etc. (12 Stat. 975) July 16, 1855;
Tribe: Confederated Salish and Kootenai Tribes of the Flathead
Reservation, Montana;
Hunting and/or fishing rights: The exclusive right of taking fish in
the streams running through and bordering the reservation and at all
other usual and accustomed stations in common with citizens of the
United States, and the privilege of hunting, gathering roots, and
pasturing their stock on unclaimed lands in common with citizens.
Treaty: Treaty with the Eastern Band Shoshoni and Bannock (15 Stat.
673) July 3, 1868;
Tribe: Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho;
Hunting and/or fishing rights: The right to hunt on the unoccupied
lands of the United States so long as game may be found thereon.
Source: GAO analysis.
[A] Off-reservation hunting, fishing, and other rights were
relinquished in a supplemental treaty of November 15, 1865.
[End of table]
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.[Footnote 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: April 9, 1872[A];
Tribe: Confederated Tribes of the Colville Reservation, Washington.
Executive order date: Sept.12, 1872[B];
Tribe: Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon.
Executive order date: Nov. 8, 1873[C];
Tribe: Coeur D'Alene Tribe of the Coeur D'Alene Reservation, Idaho.
Executive order date: April 16, 1877[D];
Tribe: Shoshone-Paiute Tribes of the Duck Valley Reservation, Nevada.
Executive order date: Jan.18, 1881;
Tribe: Spokane Tribe of the Spokane Reservation.
Executive order date: March 23, 1914;
Tribe: Kalispel Indian Community of the Kalispel Reservation, Washington.
Source: GAO analysis.
[A] The 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.
[B] The 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.
[C] Composed of lands reserved for Indians by an executive order of
June 14, 1867.
[D] A 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.
[End of table]
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.
* 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.
* 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.
* 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.
* 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:
* 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.[Footnote 5]
* 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.[Footnote 6]
* 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.[Footnote 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,"[Footnote 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"[Footnote 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.[Footnote 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.[Footnote 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:
[See PDF for image]
Note: Figure does not include significant state, local, and private
entity participation in plan development and implementation.
[A] The 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.
[B] The recovery plans for salmon are still under development. This
figure reflects expected agency contributions to the implementation of
recovery plans.
[End of figure]
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.
* 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.
* The Corps and Reclamation manage in-river mitigation at hydropower
facilities, such as fish screens, with direct funding from Bonneville.
* 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.
* 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.[Footnote 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.[Footnote 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.[Footnote 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:
* 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;
* Forest Service and BLM contribute information used to develop the
reasonable and prudent measures/alternatives that address off-site
habitat; and:
* 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:
* Bonneville, the Corps, and Reclamation provided input on recovery
activities related to hydropower, and Reclamation provided input on
irrigation;
* Forest Service and BLM provided input on recovery concerns related to
habitat;
* FWS and NMFS provided input on the role of annual harvest allocations
in recovery;
* FWS and NMFS provided extensive input and guidance on the role of
hatcheries in recovery; and:
* 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:
[See PDF for image]
Note: Figure does not include significant state, local, and private
entity participation in plan development and implementation.
[End of figure]
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:
* 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.
* 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.
* 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 [Hyperlink, 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.
Signed by:
Barry T. Hill:
Director, Natural Resources and Environment:
[End of section]
Appendixes:
Appendix I: Scope and Methodology:
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.[Footnote 15] 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.
[End of section]
Appendix II: Laws, Treaties, and Executive Orders Guiding Agency
Activities Affecting Columbia River Basin Fish and Wildlife:
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: Anadromous Fish Conservation Act;
Citation: 16 U.S.C. §§ 757a-757f;
Description: Authorizes the Secretaries of Commerce and of the Interior
to enter into cooperative agreements for the development, conservation,
and enhancement of anadromous (migratory) fish resources.
Nationwide law: Bald Eagle Protection Act;
Citation: 16 U.S.C. §§ 668- 668d;
Description: Prohibits the taking or possession of and commerce in bald
and golden eagles, with limited exceptions.
Nationwide law: Clean Air Act;
Citation: 42 U.S.C. §§ 7401-7671q;
Description: Requires EPA to set limits on air pollutants and approve
state implementation plans to reduce pollutants that exceed limits,
and requires federal activities to comply with limits.
Nationwide law: Federal Water Pollution Control Act (commonly referred
to as the Clean Water Act);
Citation: 33 U.S.C. §§ 1251-1387;
Description: Provides for the restoration and maintenance of the
Nation's waters. 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.
Nationwide law: Coastal Zone Management Act of 1972;
Citation: 16 U.S.C. §§ 1451-1465;
Description: Directs federal agencies to cooperate with state and local
governments to control polluted runoff in coastal waters and to
otherwise generally protect, develop, and restore the resources of the
nation's coastal zone, including fish and wildlife and their habitats.
Nationwide law: Comprehensive Environmental Response, Compensation,
and Liability Act of 1980;
Citation: 42 U.S.C. §§ 9601-9675;
Description: Provides for the cleanup of hazardous waste by imposing
liabilities and duties on responsible parties, including federal
agencies, and by authorizing the federal government to take cleanup
actions in response to releases or threatened releases of hazardous
substances.
Nationwide law: Endangered Species Act;
Citation: 16 U.S.C. §§ 1531- 1544;
Description: Provides for the conservation and recovery of species of
plants and animals that the National Marine Fisheries Service or the
U.S. Fish and Wildlife Service determines to be in danger of or soon
to become in danger of extinction. Includes measures to protect the
habitats of these species.
Nationwide law: Federal Water Project Recreation Act;
Citation: 16 U.S.C. §§ 460l-12 to l-21;
Description: Declares that recreation and fish and wildlife enhancement
should be given full consideration as purposes of federal water
development projects.
Nationwide law: Fish and Wildlife Conservation Act of 1980;
Citation: 16 U.S.C. §§ 2901-2912;
Description: Provides for financial and technical assistance to states
for development and implementation of conservation plans and programs
for nongame fish and wildlife.
Nationwide law: Fish and Wildlife Coordination Act;
Citation: 16 U.S.C. §§ 661-666c;
Description: Authorizes the Secretary of the Interior to, among other
things, provide assistance to, and cooperate with, federal, state, and
public or private agencies and organizations in the 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: Flood Control Acts;
Citation: E.g. Flood Control Act of 1970, Pub. L. No. 91-611, 84 Stat.
1818 (1970) and Flood Control Act of 1965, Pub. L. No. 89-298, 79 Stat.
1073 (1965);
Description: Authorize projects for the benefit of navigation, the
control of destructive floodwaters, protection of the shorelines, and
other purposes.
Nationwide law: Magnuson-Stevens Fishery Conservation and Management
Act of 1972;
Citation: 16 U.S.C. §§ 1801-1883;
Description: 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 Regional Fishery Management Councils to 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.
Nationwide law: Marine Mammal Protection Act;
Citation: 16 U.S.C. §§ 1361-1421h;
Description: Enacts various measures to protect marine mammals and
their habitats. Most notably, prohibits the taking of marine mammals,
except under certain conditions, including as an incidental take
during commercial fishing operations.
Nationwide law: Marine Protection, Research and Sanctuaries Act of
1972;
Citation: 33 U.S.C. §§ 1401-1445, 16 U.S.C. §§ 1431-1434;
Description: Regulates the dumping of all types of materials into ocean
waters and authorizes the EPA to issue dumping permits for material
other than dredged material and the Army Corps of Engineers 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.
Nationwide law: Migratory Bird Conservation Act;
Citation: 16 U.S.C. §§ 715-715r;
Description: Establishes a Migratory Bird Conservation Commission,
headed by the Secretary of the Interior, to approve areas of land or
water recommended by the Secretary, and approved by the state in which
the land is located, for acquisition as reservations for migratory
birds.
Nationwide law: Migratory Bird Treaty Act;
Citation: 16 U.S.C. §§ 703- 712;
Description: Implements various treaties and conventions between the
United States, Canada, Japan, Mexico, and the former Soviet Union for
the protection of migratory birds. Prohibits taking, killing, or
possessing migratory birds.
Nationwide law: National Environmental Policy Act of 1969;
Citation: 42 U.S.C. §§ 4321-4347;
Description: Enacts measures to promote efforts to prevent or eliminate
damage to the environment. Requires federal agencies to examine the
impacts of proposed major federal actions "significantly affecting"
the environment.
Nationwide law: National Historic Preservation Act of 1966;
Citation: 16 U.S.C. §§ 470;
Description: Encourages agencies and individuals to develop historic
preservation programs, and requires agencies to oversee any historic
sites under their jurisdiction and consider the effects of its actions
on historic sites. Provides for tribes to designate an official to
administer the preservation program on tribal lands.
Nationwide law: Nonindigenous Aquatic Nuisance Prevention and Control
Act of 1990;
Citation: 16 U.S.C. §§ 4701-4751;
Description: Enacts measures to prevent the unintentional introduction
of nonindigenous species into the waters of the United States and to
minimize the economic and ecological effects of such species that
become 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: North American Wetlands Conservation Act;
Citation: 16 U.S.C. §§ 4401-4414;
Description: Enacts measures to protect, enhance, restore, and manage
wetlands and their ecosystems (which includes fish and wildlife).
Authorizes the Secretary of the Interior to fund wetland improvement
projects.
Nationwide law: Oil Pollution Act of 1990;
Citation: 33 U.S.C. §§ 2701- 2761;
Description: Imposes liability on responsible parties for damages
(e.g., loss of natural resources) and for removal costs that agencies,
tribes, and others incur from oil discharges into navigable waters.
Nationwide law: Public Rangelands Improvement Act of 1978;
Citation: 43 U.S.C. §§ 1901-1908;
Description: Establishes a national policy to improve conditions on
public rangelands
requires the Secretary of the Interior and Secretary of Agriculture to
develop, update, and maintain and inventory of range conditions
and authorizes funding for range improvement projects.
Nationwide law: River and Harbor Act of 1899, §§ 9,10;
Citation: 33 U.S.C. §§ 401, 403;
Description: Prohibits projects that interfere with navigation, unless
congressional approval is given and a permit is obtained from the
Department of 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.
Nationwide law: Safe Drinking Water Act of 1974;
Citation: 42 U.S.C. §§ 300f to j-26;
Description: Enacts measures to protect public drinking water. Requires
EPA to promulgate national drinking water regulations to be enforced by
states, and prohibits federal agencies from assisting actions that will
contaminate an aquifer designated as a drinking water source.
Nationwide law: Sikes Act;
Citation: 16 U.S.C. §§ 670-670o;
Description: Establishes a program for conservation and rehabilitation
of natural resources, including fish and wildlife, at military
installations, in accordance with a plan developed by the Secretaries
of Defense and the Interior in coordination with the appropriate state
agency.
Nationwide law: Transportation Equity Act for the 21st Century, § 3039;
Citation: 49 U.S.C. § 138 note;
Description: 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 wildlife refuges, to encourage and promote the
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.
Nationwide law: Watershed Protection and Flood Prevention Act;
Citation: 16 U.S.C. §§ 1001-1010;
Description: Authorizes the Secretary of Agriculture to provide
financial and other assistance to state and local entities and to
Indian tribes to plan and carry out projects in watersheds for flood
prevention, conservation, development, utilization, and disposal of
water, or for conservation and proper use of land.
Nationwide law: Wild and Scenic Rivers Act;
Citation: 16 U.S.C. §§ 1271-1287;
Description: Institutes a national wild and scenic rivers system and
implements a policy of protecting rivers that comprise the system and
preserving them in a free-flowing state, by enacting protective and
other measures.
Nationwide law: Wilderness Act;
Citation: 16 U.S.C. §§ 1131-1136;
Description: Establishes a National Wilderness Preservation System
composed of federally owned areas the Congress designates as
"wilderness areas," which are to be administered in a way that protects
the 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.
[End of table]
Table 5: Basin-specific Laws Guiding Agency Activities Affecting
Columbia River Basin Fish and Wildlife:
Basin-specific law: Bonneville Project Act of 1937;
Citation: 16 U.S.C. §§ 832-832l;
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 authorizes it to
market power 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.
Basin-specific law: Columbia Basin Project Act;
Citation: 16 U.S.C. §§ 835-835c-5;
Description: Makes the construction of Grand Coulee Dam subject to
federal reclamation laws discussed in this table, and authorizes the
Secretary of the Interior to 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.
Basin-specific law: Federal Columbia River Transmission System Act;
Citation: 16 U.S.C. §§ 838-838k;
Description: 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 construct appropriate 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.
Basin-specific law: Fisheries Restoration and Irrigation Mitigation
Act of 2000;
Citation: 16 U.S.C. § 777;
Description: 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 water diversions by local governmental entities in
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.
Basin-specific law: Mitchell Act;
Citation: 16 U.S.C. §§ 755-757;
Description: Directs the Secretary of Commerce to establish salmon-
cultural stations in the Columbia River Basin in Oregon, Washington,
and Idaho, and to carry out other activities for the conservation of
fishery resources in the Columbia River Basin.
Basin-specific law: Pacific Northwest Electric Power Planning and
Conservation Act;
Citation: 16 U.S.C. §§ 839-839h;
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 enhance" fish and wildlife affected by the development
and 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.
[End of table]
Table 6: Mission-specific Laws Guiding Agency Activities Affecting
Columbia River Basin Fish and Wildlife:
Mission-specific law: Federal Land Policy and Management Act of 1976;
Citation: 43 U.S.C. §§ 1701-1782;
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 of
Land Management. 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.
Mission-specific law: Federal Power Act;
Citation: 16 U.S.C. §§ 791a- 797, 798-824a, and 824b-825r;
Description: 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, licenses are subject to conditions
established by 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.
Mission-specific law: Individual project authorization acts (E.g.,
Tualatin Federal Reclamation Project Act);
Citation: Various authorizing statutes (E.g., Pub. L. No. 89-596, 80
Stat. 822);
Description: Authorize Columbia River Basin projects by agencies such
as the Army Corps of Engineers and the Bureau of Reclamation for
purposes such as navigation, power production, fish and wildlife
conservation, and recreation.
Mission-specific law: Multiple-Use Sustained-Yield Act of 1960;
Citation: 16 U.S.C. §§ 528-531;
Description: Directs the Secretary of Agriculture to develop and
administer the renewable surface resources of the national forests for
multiple use and sustained yield of the various products and services
obtained from those areas, in cooperation with interested state and
local government agencies and others.
Mission-specific law: National Forest Management Act;
Citation: 16 U.S.C. §§ 1600-1614;
Description: 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,
wildlife and fish, and 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.
Mission-specific law: National Wildlife Refuge System Administration
Act of 1966;
Citation: 16 U.S.C. §§ 668dd, 668ee;
Description: Establishes the National Wildlife Refuge System and
directs the Secretary of the Interior to, among other things, provide
for the conservation of fish and wildlife and their habitats within
the system and to prepare a comprehensive conservation plan for each
refuge.
Mission-specific law: Reclamation Act;
Citation: Act of June 17, 1902, ch. 1093, 32 Stat. 388, Act of August
4, 1939, ch. 418, 55 Stat. 1187;
Description: Includes a requirement that the Bureau of Reclamation
obtains water project permits from and operates projects in accordance
with state water law.
Mission-specific law: Reclamation Recreation Management Act;
Citation: 16 U.S.C. §§ 4601-4631;
Description: Establishes federal responsibility to provide
opportunities for public recreation at federal water projects, and
authorizes the Secretary of the Interior to undertake specific measures
for the management of Reclamation lands.
Mission-specific law: Soil Conservation and Domestic Allotment Act;
Citation: 16 U.S.C. §§ 590a to 590q-3;
Description: Authorizes the Natural Resources Conservation Service,
and includes among its purposes the protection of rivers and harbors
against the results of soil erosion, and the prevention and abatement
of agriculture-related pollution.
Mission-specific law: Water Resources Development Acts;
Citation: E.g., Water Resources Development Act, 33 U.S.C. §§ 2201-
2330;
Description: Authorize the Army Corps of Engineers to construct
environmental restoration projects to restore degraded ecosystems
resulting from the construction or operation of a project to restore,
protect, and create aquatic and wetlands habitat in connection with a
project 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.
Mission-specific law: Wyden Amendment;
Citation: 16 U.S.C. § 1011(a);
Description: Authorizes the Forest Service and Bureau of Land
Management to enter into cooperative agreements with federal agencies,
tribal, state and local 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.
[End of table]
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: Columbia River Treaty;
Citation: Treaty Relating to Cooperative Development of the Water
Resources of the Columbia River Basin (with Annexes) (September 16,
1964);
Description: Defines the relationship between the United States and
Canada concerning the operation of Columbia River dams and reservoirs.
Treaty: Pacific Salmon Treaty;
Citation: Treaty between the Government of Canada and the Government of
the United States of America Concerning Pacific Salmon (August 13,
1985);
Description: Governs the harvest of certain salmon stocks in the
fisheries of the Northwest states (including Alaska) and Canada.
Source: GAO analysis of information provided by federal agencies.
[End of table]
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: Floodplain Management;
Citation: E.O. 11988 (May 24, 1977);
Description: Directs executive agencies to evaluate the potential
effects of any actions they may take in a floodplain and to take action
to reduce the risk of flood loss and to preserve the beneficial values
served by floodplains.
Executive order: Protection of Wetlands;
Citation: E.O. 11990 (May 24,1977);
Description: Directs executive agencies to minimize the destruction,
loss, or degradation of wetlands in carrying out their
responsibilities on federal land.
Executive order: Responsibilities of Federal Agencies to Protect
Migratory Birds;
Citation: E.O. 13186 (January 10, 2001);
Description: Directs executive agencies to take certain actions to
further implement the Migratory Bird Treaty Act for the conservation of
migratory birds and their habitats.
Source: GAO analysis of information provided by federal agencies.
[End of table]
[End of section]
Appendix III: Laws and Executive Orders Guiding Agency Activities
Affecting Columbia River Basin Tribes:
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: Indian Reorganization Act;
Citation: 25 U.S.C. §§ 461-463, 464, 465, 466-470, 471-473, 474, 475,
476-478, 479;
Description: Enacts measures to protect ownership of Indian lands and
to restore lands to tribal ownership, and authorizes the Secretary of
the Interior to acquire lands for Indians. Grants rights of self-
governance to Indians.
Law: Indian Self-Determination and Education Assistance Act;
Citation: 25 U.S.C. §§ 13a, 450-450n, 455-458e;
Description: Enacts measures that promote a policy of Indian self-
determination by assuring maximum Indian participation in educational
and other federal services to Indian communities, including effective
and meaningful participation in the planning, conduct, and
administration of those services. Includes measures to improve Indian
education.
Law: Snyder Act;
Citation: 25 U.S.C. § 13;
Description: Directs the Bureau of Indian Affairs, Department of the
Interior, to spend appropriated funds for the benefit, care, and
assistance of Indians for enumerated purposes, such as education,
health, and the development of water supplies.
Law: National Indian Forest Resources Management Act;
Citation: 25 U.S.C. §§ 3101-3120;
Description: Directs the Secretary of the Interior to undertake
management activities, together with the Indians, on Indian forestland
to develop, maintain, and enhance the land in a 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.
Law: Native American Graves Protection and Repatriation Act;
Citation: 25 U.S.C. §§ 3001-3013;
Description: Establishes a process for agencies to return Native
American remains and associated funery objects to lineal descendants
and affiliated Indian tribes, and regulates the ownership 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.
[End of table]
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 memorandum: Consultation and Coordination with
Indian Tribal Governments;
Citation: E.O. 13175 (Nov. 6, 2000);
Description: 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.
Each agency shall have an accountable process to ensure meaningful and
timely tribal input in the development of regulatory policies that have
tribal implications.
Executive order or memorandum: Government to Government Relations with
Native American Tribal Governments;
Citation: Memorandum for the Heads of Executive Departments and
Agencies (April 29, 1994);
Description: 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 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.
Executive order or memorandum: Regulatory Planning and Review;
Citation: E.O. 12866 (September 30, 1993);
Description: Establishes a program to reform and make more efficient
the regulatory process, including making the process more accessible
and open to the public. Wherever feasible, agencies are required to
seek the views of appropriate state, local and tribal officials before
imposing regulatory requirements that might significantly or uniquely
affect them.
Executive order or memorandum: Enhancing the Intergovernmental
Partnership;
Citation: E.O. 12875 (October 26, 1993);
Description: 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 the federal
government or the agency has consulted with 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.
[End of table]
[End of section]
Appendix IV: Court Decisions Guiding Agency Activities Affecting
Columbia River Basin Fish, Wildlife, and Tribes:
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: Alsea Valley Alliance v. Evans;
Citation: 161 F. Supp. 2d 1154 (D. Or. 2001);
Result: Invalidated NMFS listing of naturally spawning Coho salmon on
the Oregon coast as threatened.
Court decision: National Wildlife Federation v. National Marine
Fisheries Service;
Citation: No. CV 01-640-RE, 2003 WL 21077450 (D. Or. May 7, 2003);
Result: Invalidated the NMFS biological opinion that concluded that in
light of certain mitigation actions, endangered and threatened species
of salmon and steelhead trout in the Columbia River Basin would 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.
Court decision: National Wildlife Federation v. United States Army
Corps of Engineers;
Citation: 132 F. Supp.2d 876 (D. Or. 2001);
Result: 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
compliance with water quality standards issued by the State of
Washington 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.
Court decision: Northwest Environmental Defense Center v. Bonneville
Power Administration;
Citation: 117 F.3d 1520 (9th Cir. 1997);
Result: 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 to water stored behind electric dams on the Columbia River
system in 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.
Court decision: Northwest Resource Information Center, Inc. v.
Northwest Power Planning Council;
Citation: 35 F.3d 1371 (9th Cir. 1994);
Result: 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 Conservation Act and the Administrative Procedure Act by
failing to (1) 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: Public Utility District No. 1 of Douglas County v.
Bonneville Power Administration;
Citation: 947 F.2d 386, 392-94 (9th Cir. 1991);
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 measures
protecting fish and wildlife specifically described in the program
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.
Court decision: Confederated Tribes of the Umatilla Indian Reservation
v. Bonneville Power Administration;
Citation: 342 F.3d 924 (9th Cir. 2003);
Result: Held that the Bonneville Power Administration's alleged
unreasonable delay in implementing the Pacific Northwest Electric
Power Planning and Conservation 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.
[End of table]
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: Lane v. Pueblo of Santa Rosa
Citation: 249 U.S. 110 (1919)
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 comprised the Pueblo of 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.
Court decision: Morongo Band of Mission Indians v. Federal Aviation
Administration
Citation: 161 F.3d 569, 574 (9th Cir. 1998)
Result: Found, among other things, that although the United States had
a general trust responsibility to Indian tribes, unless there is a
specific duty that has been placed on the government 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.
Court decision: Pyramid Lake Paiute Tribe of Indians v. Morton
Citation: 354 F. Supp. 252 (D. D.C. 1973)
Result: 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 adequately justify how much 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.
Court decision: United States v. Ferry County
Citation: 511 F. Supp. 546 (E.D. Wash. 1981)
Result: Held that lands acquired by the U.S. in trust for the tribes
and individual Indians are nontaxable, and that all tax assessments
against such lands are null and void.
Court decision: Seminole Nation v. United States
Citation: 316 U.S. 286 (1942)
Result: Resolved a number of monetary claims by the Seminole Indians,
finding in favor of the Seminoles on some, and against them on others.
Court decision: United States v. Creek Nation
Citation: 295 U.S. 103 (1935)
Result: Held that the United States was liable to the Creek Indians
for damages that occurred when it disposed of Creek land that a survey
erroneously indicated belonged to the United States, measured by the
value of the property at the time of the disposal.
Court decision: United States v. Mitchell
Citation: 463 U.S. 206 (1983)
Result: Held that the United States breached its fiduciary duty to the
Indians by mismanaging Indian forest resources, and was liable to the
Indians for resulting money damages.
Court decision: Sohappy v. Smith
Citation: 302 F. Supp. 899 (D. Or. 1969)
Result: 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 conservation of the fish, 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.
Court decision: United States v. Washington
Citation: 384 F. Supp. 312 (W.D. Wash. 1974)
Result: 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 resources, and that tribes
(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.
Court decision: Winters v. United States
Citation: 207 U.S. 564 (1908)
Result: Held that a reservation of waters for irrigation purposes for
the Indians on the Fort Belknap reservation is implied from 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.
[End of table]
[End of section]
Appendix V: Plans and Programs Implemented by Federal Agencies to
Manage Columbia River Basin Fish and Wildlife Activities:
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:
Northwest Power Act-driven plans and programs:
Plan/program: Columbia River Basin Fish and Wildlife Program
Lead agency: Bonneville, the Council
Description: Program to protect, mitigate, and enhance fish and
wildlife, including related spawning grounds and habitat, on the
Columbia River and its tributaries. Developed by the Council, funded
by Bonneville, and implemented by a number of agencies and other
organizations.
Plan/program: Northwest Power and Conservation Council Subbasin
Planning Process
Lead agency: The Council
Description: Process to incorporate local-level planning for the 50+
subbasins in the Columbia River Basin into the development and
implementation of the Columbia River Basin Fish and Wildlife Program.
Plan/program: Northwest Power and Conservation Council Provincial
Review
Lead agency: The Council
Description: Program developed by the Council, and operated on a 3-
year cycle, to improve the technical review and approval of projects
funded by the Columbia River Basin Fish and Wildlife Program.
Endangered Species Act-driven plans and programs:
Plan/program: Biological Opinions for the FCRPS
Lead agency: FWS and NMFS
Description: Plans that set forth reasonable and prudent measures/
alternatives for operation by the Corps, Reclamation, and Bonneville 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.
Plan/program: Biological Opinion Implementation Plans for the FCRPS
Lead agency: Bonneville, the Corps, Reclamation
Description: Frameworks developed by the agencies managing the FCRPS
for complying with Biological Opinions for the FCRPS.
Plan/program: Bull Trout Recovery Plan
Lead agency: FWS
Description: Northwest Power Act- driven plans and programs: Plan
designed to organize, coordinate, and prioritize recovery actions for
bull trout, and to outline objective measurable criteria that will be
used to determine when bull trout no longer needs the protection of
the ESA.
Plan/program: Recovery plans for salmon (under development)
Lead agency: NMFS
Description: Plans designed to organize, coordinate, and prioritize
recovery actions for endangered and threatened salmon and steelhead,
and to outline objective measurable criteria that will be used to
determine when salmon and steelhead no longer need the protection of
the ESA.
Plan/program: Basin-wide Salmon Recovery Strategy (All-H Paper)
Lead agency: All agencies in the Federal Caucus
Description: A strategy and accompanying suite of actions to be used
as a blueprint to guide federal actions towards recovery of threatened
and endangered salmon and steelhead in the Columbia River Basin.
Clean Water Act-driven plans and programs:
Plan/program: Clean Water Act Section 319 Grant Program
Lead agency: EPA
Description: Program to provide 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.
Plan/program: Clean Water Act General Assistance Grant Program to
Tribes
Lead agency: EPA
Description: Program to provide assistance grants to Indian tribal
governments and intertribal consortia to build capacity to administer
regulatory and multimedia programs addressing environmental issues on
Indian lands.
Plan/program: Clean Water Act Section 104(b)(3) Support to Total
Maximum Daily Loads
Lead agency: EPA
Description: Program to provide assistance to state water pollution
control agencies, interstate agencies, and other nonprofit
institutions, organizations, and individuals to promote the
coordination of environmentally beneficial activities, including storm
water control, sludge management, and pretreatment of wastewater.
Plan/program: Clean Water Act Section 106 Grant Program
Lead agency: EPA
Description: Program to provide assistance to Indian tribes in carrying
out effective water pollution control programs, including water
quality planning and assessments, developing water quality standards
and total maximum daily loads, and ambient monitoring.
Plan/program: Clean Water State Revolving Fund
Lead agency: EPA
Description: A loan program to fund water quality protection projects
for wastewater treatment, nonpoint source pollution control, and
watershed and estuary management.
Plan/program: Lower Columbia Estuary Partnership
Lead agency: EPA
Description: Program under Clean Water Act Section 320 to improve the
quality of the Lower Columbia Estuary, and provide the basis for
estuarine salmon recovery efforts. Key activities include habitat
monitoring, volunteering monitoring, and species recovery.
Court-driven plans and programs:
Plan/program: U.S. v Oregon Management Plans/Agreements
Lead agency: FWS, NMFS
Description: Plans that address tribal allocation of annual fish
harvest, as well as hatchery and supplementation measures designed to
help rebuild depressed fish stocks.
Mission-driven plans and programs:
Plan/program: Gas Abatement Project at Chief Joseph Dam
Lead agency: The Corps
Description: Project to install spillway deflectors and implement
operational changes at Chief Joseph Dam in order to reduce total
dissolved gas levels.
Plan/program: Army Corps Anadromous Fish Evaluation Program
Lead agency: The Corps
Description: Program to develop and evaluate anadromous fish passage
facilities at Corps dams on the Columbia and lower Snake Rivers.
Includes monitoring, research, and evaluation studies conducted in
collaboration with other federal, state, and tribal agencies.
Plan/program: Project Management Plans
Lead agency: The Corps
Description: Internal management plans developed in parallel with any
Corps project. Designed to ensure that proper internal procedures are
followed to protect and mitigate barriers to fish passage.
Plan/program: District Resource Management Plans
Lead agency: BLM
Description: Internal management plans for all BLM activities.
Developed via the National Environmental Policy Act process, they
include specific management guidelines for protection of fish and
wildlife.
Plan/program: Wild and Scenic River Plans
Lead agency: BLM, Forest Service
Description: Management plans developed to ensure that agency
activities protect identified "outstandingly remarkable values,"
including fish and wildlife, recognized in Wild and Scenic River Areas.
Plan/program: Upper Salmon Basin Project
Lead agency: NRCS
Description: Project
designed to provide a basis of coordination and cooperation between
local, private, state, tribal, and federal fish and land managers,
land users, land 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.
Plan/program: General Investigations
Lead agency: Reclamation
Description: Projects funded by special congressional appropriations,
some of which address fish and wildlife enhancement or mitigation. Also
typically involve partnerships with other groups, such as states,
interest groups, and tribes.
Plan/program: Research and Monitoring Programs
Lead agency: Reclamation
Description: Internal Reclamation programs funded by the
Commissioner's office that focus on a range of discretionary
activities, including research and monitoring efforts for fish and
wildlife.
Plan/program: Resource Management Plans
Lead agency: Reclamation
Description: Management plans required for all reservoirs managed by
the agency. Plans address management of recreational activities, as
well as conservation of fish and wildlife.
Plan/program: Hungry Horse Mitigation Implementation Plan
Lead agency: Reclamation
Description: Specific project at Hungry Horse Dam to control water
withdrawals at the reservoir that were causing harm to fish, and to
mitigate for impacts of constructing a water control system.
Plan/program: Lower Snake River Compensation Plan
Lead agency: Bonneville, FWS
Description: Specific project to mitigate impacts to fish and wildlife
from construction of last four FCRPS dams on the Lower Snake River.
Project preceded mitigation requirements set forth under the Power
Act.
Plan/program: Recreational Fishery Resources Conservation Plan
Lead agency: FWS
Description: Internal agency plan to incorporate conservation planning
into the management of recreational fisheries.
Plan/program: Land and Resource Management Plans (Forest Plans)
Lead agency: Forest Service
Description: Internal agency plans that incorporate specific
conservation measures for fish, wildlife, plants, and other natural
resources, into management of National Forests.
Plan/program: Lynx Conservation Strategy and Agreement
Lead agency: Forest Service
Description: Strategy to address the needs of lynx and lynx habitat in
the context of forest management, and to foster cooperation and
interaction between foresters and wildlife biologists.
Plan/program: PACFISH & INFISH
Lead agency: Forest Service, BLM
Description: Aquatic strategies that apply interim standards and
guidelines to agency actions for the protection of aquatic and
riparian habitat for the restoration of endangered and threatened fish
within the interior Columbia basin.
Plan/program: Northwest Forest Plan
Lead agency: Forest Service, BLM
Description: An interagency approach to developing and implementing
measures for the long-term health of forests, wildlife, and waterways
on federal lands.
Plan/program: Pacific Coastal Salmon Recovery Fund
Lead agency: NMFS
Description: Assist the states and tribes in implementing salmon
restoration efforts.
Plan/program: Environmental Quality Incentive Program
Lead agency: NRCS
Description: Cost-share program, operated collaboratively with tribes,
to benefit fish and wildlife through environmental improvements to
irrigation, erosion, water quality, and agriculture.
State-driven plans and programs:
Plan/program: "Extinction Is Not an Option": Washington Statewide
Strategy to Recover Salmon
Lead agency: State of Washington
Description: Long-term strategy for the recovery of salmon in
Washington state. Primary goals of the strategy are to restore salmon,
steelhead, and trout populations to healthy and harvestable levels and
improve the habitats on which fish rely.
Plan/program: Fish and Forest Agreement in Washington
Lead agency: State of Washington
Description: Collaborative agreement between Washington state, tribes,
federal agencies, timber interests, and environmental groups to address
timber practices so as to minimize impacts to fish populations.
Plan/program: Oregon Plan for Salmon & Watersheds
Lead agency: State of Oregon
Description: A statewide approach to natural resource management in
Oregon that focuses on restoring Coho salmon through the Coastal
Salmon Restoration Initiative and improving water quality through the
Healthy Streams Partnership.
Tribally-driven plans and programs:
Plan/program: Wy-Kan-Ush-Mi Wa-Kish-Wit ("Spirit of the Salmon")
Lead agency: Nez Perce, Umatilla, Warm Springs, Yakama tribes
Description: A framework for restoring salmon in the Columbia River
that outlines the cultural context for the tribes' salmon restoration
efforts, as well as technical and institutional recommendations and
watershed restoration activities.
Plan/program: Warm Springs National Fish Hatchery Operational and
Implementation Plan
Lead agency: Warm Springs tribe
Description: Plan outlining management measures and operational
procedures for the Warm Springs National Fish Hatchery, which is
cooperatively managed by FWS and the Warm Springs tribe.
Source: GAO analysis of information provided by federal agencies.
[End of table]
[End of section]
Appendix VI: Comments from the Bonneville Power Administration:
Department of Energy:
Bonneville Power Administration:
Washington, D.C. 20585:
MAY 10 2004:
In reply refer to: DC-WASH:
Mr. Barry T. Hill, Director:
Natural Resources and Environment:
United States General Accounting Office:
441 G Street, NW, Room 2928:
Washington, DC 20548:
Dear Mr. Hill:
Thank you for providing the Bonneville Power Administration
(Bonneville) with a copy of the draft report entitled Columbia River
Basin: A Multilayered Collection of Directives and Plans Guides Federal
Fish and Wildlife Activities (GAO-04-602). We are grateful for the
opportunity to review the draft you sent us via e-mail on April 14,
2004, and to discuss our comments with General Accounting Office (GAO)
staff before the report is issued in final form. As suggested, we are
also forwarding Bonneville's comments concerning this draft to Brad
Dobbins, Senior Analyst, in order that they may be reflected in the
final report.
Overall, we believe the report serves a valuable purpose, as intended,
in synthesizing and integrating a considerable body of information that
describes the programs, plans and processes that guide the activities
of federal agencies addressed to their fish and wildlife
responsibilities, and that involve the 13 tribal governments of the
Columbia basin. We acknowledge the difficulty inherent in this task,
and offer our continued assistance and support. We hope the attached
technical, editorial and policy comments contribute to the utility and
accuracy of your report, and will be of assistance as you improve the
final product.
There are two comments we would like to highlight for your
consideration in the final report. One is the different ways the
federal trust responsibility is expressed. Sometimes the report
suggests the duty is very broad, other times more limited.
Clarification would be of great benefit. Also, we encourage the
inclusion of a citation to the independent:
third-party review of Columbia River Basin Fish and Wildlife Program so
your audience can study it for themselves. The report may be found on
the Internet at http://www.nwppg.org/library/1998/98-l.htm. This
review identifies a number of steps to improve program implementation.
Many of the recent policy changes Bonneville has made that concern the
tribes have their origins in the independent review's recommendations.
Thank you for allowing us the opportunity to comment on the Draft
Report.
Sincerely,
Signed by:
Jeffrey K. Stier:
Vice-President for National Relations:
[End of section]
Appendix VII: Comments from the Department of Agriculture:
United States Department of Agriculture:
Forest Service:
Washington Office:
14th & Independence SW
P.O. Box 96090
Washington, DC 20090-6090:
File Code: 1310/3520:
Date: MAY 18 2004:
Mr. Barry T. Hill:
Director, Natural Resources and Environment:
U.S. General Accounting Office:
441 G Street, N.W.
Washington, DC 20548:
Dear Mr. Hill:
Thank you for the opportunity to review the draft U.S. General
Accounting Office (GAO) Report, GAO-04-602, "Columbia River Basin: A
Multi-layered Collection of Directives and Plans Guides Federal Fish
and Wildlife Activities," on the behalf of the U.S. Department of
Agriculture. Our comments are as follows:
Page 7, 2nd paragraph: Change the sentence to read, "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 hydro power
system and other federal actions". NOAA and FWS issue biological
opinions to all federal agencies, including the Forest Service, under
Section 7 of the Endangered Species Act.
Page 24, Table 4: The Forest Service does not contribute to (1) the
development of the "Columbia River Basin Fish and Wildlife Program,"
(2) the development of the "FCRPS Biological Opinions," or (3) the
implementation of the "Columbia River Basin Fish and Wildlife
Program.":
Page 27, 2nd bullet: The sentence states, "Federal Agencies such as the
Forest Service and BLM, as well as State, Tribal, and Private
Landowners, contract with Bonneville for habitat mitigation
activities." However note the Forest Service only receives a small
amount (approximately $100,000) of direct funds from Bonneville for
restoration work on less than 5% of the National Forests within the
basin. Bonneville indirectly funds restoration work on National Forests
within the basin, at a slightly higher percentage, through direct
contracts to State Fish and Game Agencies and Tribes.
Page 27, 1st paragraph, 2nd sentence: The sentence stating, "... in
2002, Bonneville decided that it would no longer be the primary source
of funding for offsite mitigation projects on federal lands..." is
misleading. Bonneville has never been the primary source of funding for
offsite mitigation projects on National Forest System lands. Any direct
funding to National Forests was for restoration, not habitat
mitigation. Costs associated with mitigating adverse effects from
Forest Service actions are borne solely by the Agency, not by
Bonneville. In addition, direct contributions from Bonneville for
restoration actions on National Forest System lands have declined.
Bonneville's focus for funding of mitigation work, beginning with the
2000 FCRPS Biological Opinion, has been on non-federal lands.
Page 29, 2nd bullet: The bullet stating, "Forest Service and BLM
provide input on the reasonable and prudent measures/alternatives that
address offsite habitat" is in regards to hydro-power consultations is
inaccurate. The Forest Service provides input to NOAH and FWS on
actions needed to address habitat limiting factors but does not
contribute to development of reasonable and prudent measures/
alternatives in biological opinions associated with Endangered Species
Act consultation on the hydrosystem.
Page 29, 2nd paragraph: Note all federal agencies proposing an action
and completing consultation under Section 7 of the Endangered Species
Act are considered "Action Agencies." The correct term in this context
is "FCRPS Action Agencies." Not all federal "Action Agencies" are
required to develop implementation plans.
Page 32, Table 5: BLM does not contribute in either the development OR
implementation of FS Land and Resource Management Plans. This is
similar to the BLM District Resource Management Plans where the Forest
Service is not identified as contributing to the development or
implementation of plans.
Page 38, top of page: Add Forest Service to the sentence as follows:
"Although the BLM Resource Management Plans and the Forest Service Land
and Resource Management Plans address internal management guidelines
for their agencies, they are developed through the National
Environmental Policy Act public comment process." Both BLM and the
Forest Service develop management objectives and guidelines at the plan
level through the NEPA process.
Page 46, Table 8: It should be noted in the description for the
"National Forest Management Act" that the FS is legally required to
maintain well-distributed populations of native fish and wildlife. The
term "viability" is associated with current regulations only.
Page 54, Table 15: Add the Forest Service to the "Wild and Scenic River
Plans" as this is not only a responsibility of BLM. Revise the
description for "PACFISH and INFISH" as follows: "These aquatic
strategies applied interim standards and guidelines to proposed and
ongoing FS and BLM actions for protection of aquatic and riparian
habitat contributing to the restoration of ESA-listed salmonids within
the interior Columbia basin." PACFISH focused on ESA-listed anadromous
salmonids while INFISH applies to all native fish species with an
emphasis on bull trout. PACFISH was amended to FS and BLM plans in
1995. INFISH amended to FS plans in 1995, not to BLM plans. BLM letter
of direction to apply INFISH only in bull trout watersheds.
Sincerely,
Signed for:
DALE N. BOSWORTH:
Chief:
cc: Sandy T Coleman,
Linda Ulmer:
[End of section]
Appendix VIII: Comments from the Department of Commerce:
UNITED STATES DEPARTMENT OF COMMERCE
The Under Secretary of Commerce for Oceans and Atmosphere
Washington, D. C. 20230:
MAY 13 2004:
Mr. Barry T. Hill:
Director, Natural Resources and Environment:
United States General Accounting Office
441 G Street, NW:
Washington, D.C. 20548:
Dear Mr. Hill:
Thank you for the opportunity to review and comment on the General
Accounting Office's draft report entitled "Columbia River Basin: A
Multilayered Collection of Directives and Plans Guides Federal Fish and
Wildlife Activities," GA0-04602. Enclosed is the National Oceanic and
Atmospheric Administration's comments on the draft report.
These comments were prepared in accordance with the Office of
Management and Budget Circular A-50.
Sincerely,
Signed by:
Conrad C. Lautenbacher, Jr.
Vice Admiral, U.S. Navy (Ret.)
Under Secretary of Commerce for Oceans and Atmosphere:
Comments on the Draft GAO Report Entitled "Columbia River Basin: A
Multilayered Collection of Directives and Plans Guides Federal Fish and
Wildlife Activities" (GAO-04-602/April 2004):
The report is comprehensive in providing information on federal agency
responsibilities for fish and wildlife and Indian tribes in the
Columbia River Basin. This report has no recommendations to respond to;
thus, we only have the following recommended changes for factual
information.
Recommended changes for Factual Information:
Page S, first paragraph, first sentence:
The U.S. Fish and Wildlife Service should be added to the first
sentence: "Along with their primary water or land management
responsibilities, these agencies, as well as regulatory agencies such
as the National Marine Fisheries Service, U.S-Fish and Wildlife
Service, and the Environmental Protection Agency...."
Page S, first paragraph, first sentence:
The National Marine Fisheries Service is a component of the National
Oceanic and Atmospheric Administration (NOAA). This distinction should
be made throughout the draft report.
Page 11 versus Page 13:
The National Marine Fisheries Service is listed with agencies on page
13 with its responsibilities for marine and anadromous species while
the U.S. Fish and Wildlife Service (FWS) and its responsibilities for
wildlife is listed with agencies on page 11. Is this because FWS has
wildlife refuge (land management) responsibilities? If so, that should
be noted.
Page 11, bullet for Bonneville Power Administration:
The Federal Columbia River Power System (FCRPS) call sometimes refer to
all 31 of the federal projects producing power marketed by the
Bonneville Power Administration. However, only 14 of those projects
participate in coordinated annual power operations (the others produce
power but have their specific annual operation dictated by other
project purposes). The definition is significant since the FCRPS
Biological Opinions (BiOps) discussed in subsequent sections address
only the 14 participating in coordinated power operations.
Page 19. footnote "a " to Table 2:
Should the footnote state that the supplemental treaty of November 15,
1865 relinquished certain off-reservation hunting, fishing and other
rights, rather than the tribe?
Page 19, last paragraph:
At the end of this paragraph, change the last sentence and add the
following sentence: "The federal government has respected non-treaty
tribal rights to hunt and fish on tribal lands. However, as a general
principle, executive order tribes do not have reserved rights to hunt
and fish off reservations."
Page 20, footnote "a" to Table 3:
Clarify the term "off-reservation." The right to hunt and fish "off
reservation" is restricted to the former reservation lands sold. This
sentence as written could be misunderstood to say the tribe has "off-
reservation" reserved rights elsewhere.
Page 22, first paragraph:
There should be a reference to the American Indian and Alaska Native
Policy of the U. S. Department of Commerce, dated March 30, 1995.
Page 28, second full paragraph:
This paragraph misstates the history of consultation on the FCRPS. The
correct history is as follows:
1. 1992 One year BiOp;
2. 1993 One Year BiOp;
3. 1994-98 Five Year BiOp, invalidated by court 1995-99;
4. Five Year BiOp, replaced 1994-98;
5. 1998 supplement to 1995-99 to add steelhead;
6. 1999 supplement to 1995-99 to add operation of Bureau of
Reclamation Upper Snake projects;
7. 2000 supplement to 1995-99 to add six additional Endangered Species
Act salmon listing in March 1999;
8. 2000-2010 Ten Year BiOp, remanded to NMFS and currently being
revised.
Page 30, first paragraph, lines 4-5:
Replace one word in the following sentence: "Forum meetings are open to
all entities."
Page 31, fourth bullet.
Add NMFS to the following sentence: "NMFS and FWS provided
extensiveinput and guidance on the role of hatcheries in recovery,"
Page 35, second paragraph, lines 5-6:
There are five "Columbia River Basin tribes that are parties to United
States v. Oregon." Although the four tribes fish the mainstem, the
Shoshone-Bannock are parties to the negotiations.
Page 43, Appendix 11, Table 6:
Under the description for the Magnuson-Stevens Fishery Conservation and
Management Act of 1972, correct the last sentence to read as follows:
"...consult with the Secretary of Commerce with respect to any of the
agencies' actions that may adversely affect essential fish
habitat...."
Page 54, Appendix Xll, Table 15:
Add the following information under "Mission-driven plans and
programs"
[End of section]
Appendix IX: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Barry T. Hill, (202) 512-3841Jeffery 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.
(360380):
FOOTNOTES
[1] U.S. General Accounting Office, Bonneville Power Administration:
Obligations to Fish and Wildlife in the Pacific Northwest, GAO-03-844T
(Washington, D.C.: June 4, 2003), and Bonneville Power Administration:
Long-Term Fiscal Challenges, GAO-03-918R (Washington, D.C.: July 1,
2003).
[2] U.S. General Accounting Office, Columbia River Basin Salmon and
Steelhead: Federal Agencies' Recovery Responsibilities, Expenditures,
and Actions, GAO-02-612 (Washington, D.C.: July 26, 2002).
[3] GAO-03-918R.
[4] Unlike the other 12 Columbia Basin tribes, the Kootenai Tribe of
Idaho has neither a treaty nor an executive order establishing
reservation lands. The Kootenai Reservation in Idaho was established in
1894, consisting of allotments on the public domain.
[5] No. CV 01-640-RE, 2003 WL 21077450 (D. Or. May 7, 2003).
[6] 132 F. Supp.2d 876 (D. Or. 2001).
[7] 117 F.3d 1520 (9TH Cir. 1997).
[8] 316 U.S. 286, 297 (1942).
[9] 354 F. Supp. 252, 256 (D.D.C. 1973).
[10] Sohappy v. Smith, 302 F. Supp. 899, 911 (D. Or. 1969),
consolidated with United States v. Oregon, Civil No. 68-513 (1969)
initiated by the United States as trustee of tribes against the State
of Oregon.
[11] United States v. Washington, 384 F. Supp. 312, 343 (W.D. Wash.
1974).
[12] Moss Adams, LLP, Columbia River Basin Fish and Wildlife Program
Management Review of Contracting Processes (Portland, Oregon: Dec.
1997). The report is available at http://www.nwppc.org/library/1998/
98-1.htm. Site last visited on May 14, 2004.
[13] While the FCRPS is composed of 31 federal projects, the biological
opinions only address the 14 projects participating in coordinated
power operations.
[14] National Wildlife Federation v. National Marine Fisheries Service,
No. CV 01-640-RE, 2003 WL 21077450 (D. Or. May 7, 2003).
[15] U.S. General Accounting Office, Columbia River Basin Salmon and
Steelhead: Federal Agencies' Recovery Responsibilities, Expenditures,
and Actions, GAO-02-612 (Washington, D.C.: July 26, 2002).
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