Western States Water Council 2005 Report

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I contribute? What are the risks and costs? What are the rewards? Is the goal recovery of a fish species? What does that mean? Does recovery include providing for a reasonable harvest of fish? Is the goal to avoid "take ?" Are there other goals? Given the greater uncertainty in the wake of terrorist attacks, should economic issues be given greater weight ?" During the meeting, one of the Northwest's largest employers (Boeing) announced the layoff of 30,000 employees. "What can we afford to spend to save these fish ?" David Mears, Washington State Assistant Attorney General, reported that following a review of recent ESA court cases, he had utterly failed to find any consistent themes to guide future action. However, he observed that litigation is probably the worst way to try to address ESA issues generally. Washington faces a morass of state and federal environmental protection laws, including the ESA and Clean Water Act (CWA), state land use laws, and Indian treaty rights, as it seeks to protect salmon. He noted that in the Alsea Valley Alliance case, the judge held the National Marine Fisheries Service (NMFS) can't distinguish between hatchery and naturally spawned fish that are genetically identical in its coho salmon listing decisions. He then discussed litigation which had led to the coho listing, reversing the NMFS initial decision not to list the coho, but rather rely on Oregon's Coastal Coho Salmon Plan to protect the species. He noted the recent Alsea decision may have a huge effect on NMFS efforts to protect "wild" fish and their genetic diversity, with some 30 runs of anadromous fish now listed in the Northwest. Mr. Mears also discussed the Tulare Lake Case, noting the Federal Court of Claims decided that the application of the ESA to limit the delivery of water under contractual rights amounted to a "taking" under the 5th Amendment to the Constitution. The court held, "The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so." The court will now consider awarding damages. The surprise was that the court found a "physical" taking, not a "regulatory" taking, which is the first such application to water rights. The case' may have potentially disturbing implication for states, which have "jealously guarded" their discretion in administering water rights -- should it lead to federal courts quantifying water uses -- as Washington and other states have had a hard time completing general water rights adjudications. For example, in compliance with federal law, the state forestry agency has conditioned logging permits, putting some trees off limits to protect the spotted owl. While the state argues this is not a regulatory taking, it might be found liable for a physical taking. He also discussed the state's shoreline management act and other topics. Clive Strong, Assistant Attorney General for Idaho, is the lead for the state's Snake River Basin Adjudication. He described anadromous fish issues in the Columbia River Basin as a classic "tragedy of the commons," with each group acting in their own self interest without consideration for what's best for the whole. ESA contributes to the problem as it has failed to recover most species, but has been wildly successful in engendering lawsuits and gridlock. He quoted Humpty Dumpty from Through the Looking Glass asking, "Which is to be master ?" The potential conflict with state water rights administration was apparent in 1973 when the ESA was enacted. In 1982, Senator Alan Simpson (R -WY) proposed language similar to that under CWA Section 101(g) to protect states' rights, but the Congress added a lesser policy statement under ESA Section 2(c)(2) calling for cooperation in the resolution of water resources issues "in concert with the conservation 24