Western States Water Council 2005 Report

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of endangered species." We're not there yet. Rather, the ESA is administered by the NMFS and U.S. Fish and Wildlife Service (FWS) by edict with virtually no discussion of cooperation. Salmon listings and drought have raised the issues to a new level of concern. Mr. Strong continued stating that trying to decide in favor of either endangered species protections or protecting water rights and their priorities, was not the way to go. The ESA's definition of "take," or prohibiting the "taking" of a species, is absolute and easily applied directly, as in the complete dewatering of a stream. However, it is much more difficult to define an indirect take and even more difficult to apply the Services' definition of a significant indirect taking. The Sweethome case upheld the definition of "harm" within the definition of "take," but as a legal matter there remain difficult questions of proximity and degree. Nowhere is that more apparent than in the Northwest, where the U.S. Bureau of Reclamation (BOR) has shut off water to Klamath Project farmers, and is purchasing water from Idaho's water bank in the Upper Snake River Basin -- for undefined ESA recovery efforts with uncertain impacts -- in essence reallocating water. While describing landowner efforts in Idaho's Lemhi basin to protect salmon and comply with ESA requirements, he noted irrigators want to know how much water they must give, but there is no common definition of a reasonable flow standard to help achieve recovery. Moreover, in any "taking" case, the burden of proof lies with the Services, which have a difficult task to show proximate cause and fix liability for any individual irrigator. In addition, the task becomes even more complex under state water law and its seniority system, with "blame shifted down the line." Mr. Strong concluded that we don't want to be asking, "What happened to the salmon ?" There is enough risk and uncertainty to bring different parties together to try to address all the factors in the salmon life cycle across the entire Columbia River system and consider a range of issues and mitigating measures to find solutions. Federal guests included: Bob Turner, NMFS; Bill Shake, FWS; Bill Mc Donald, BOR; Doug Arndt, U.S. Army Corps of Engineers; and Lorraine Bodi, Bonneville Power Administration (BPA). Mr. Turner noted the ESA is an unequivocal protection statement, which he described as a "don't take a breath without talking to the feds first statute." The federal "hooks" are Sections 7 and 9. However, he added, "After 20 years' experience, I think there is a different way to look at it." He discussed tools under Sections 4(d), 7 and 10 for finding acceptable compromises, specifically mentioning the Tacoma Water Habitat Conservation Plan (HCP) and Seattle City's Cedar River Watershed HCP. He emphasized the need to get everyone involved and contributing to solutions, noting its difficult to ask private parties to act until the "feds have their act together." He also urged states to address the need to "incorporate" ESA issues in their water rights systems, addressing junior, illegal and senior water rights subject to federal permits. He noted public policy inequities arising in different watersheds. Bill Shake, a 34 -year FWS veteran, began speaking about historic fish and wildlife management activities, concluding, "If we had been effective, maybe the Endangered Species Act wouldn't have been needed." He addressed habitat, hatchery, harvest and hydropower (All -H) issues, the Federal Columbia River Power System (FCRPS), and related biological opinions in 1994, 1995 and 2000. He noted that the creation of a federal caucus of senior agency officials and development 25