Administration Influence on Science

TESTIMONY OF H. DALE HALL, DIRECTOR,

U.S. FISH AND WILDLIFE SERVICE,

DEPARTMENT OF THE INTERIOR,

BEFORE THE HOUSE NATURAL RESOURCES COMMITTEE REGARDING

SCIENTIFIC AND POLICY DECISIONS UNDER THE ENDANGERED SPECIES ACT

JULY 31, 2007

Mr. Chairman and Members of the Committee, I am H. Dale Hall, Director of the U.S. Fish and Wildlife Service (Service). I am here today to discuss implementation of the Endangered Species Act (ESA), including our activities in the Klamath River Basin. I appreciate the opportunity to appear before you. Joining me today to answer any questions that may relate to the Klamath River Basin and other issues that fall within their responsibilities is Robert Johnson, Commissioner of the U.S. Bureau of Reclamation (Reclamation), and Steve Thompson, the Service's California/Nevada Operations Manager.

Background

As you are aware, a recent Inspector General's investigation and media reports have raised questions regarding science and agency decision-making under the ESA. Let me begin my testimony by stating, from the outset, that I take these reports very seriously and am committed to ensuring that the Service implements the ESA with the utmost scientific integrity.

Science is the cornerstone of the Service's work; it is what guides the agency's decisions. To the extent that these recent reports cast doubt over the scientific integrity of the Service's ESA decisions, I want to assure Congress and the public that I will act to correct any decisions that did not use the best available science, as required by law.

My testimony will also highlight the actions of this Administration and our Klamath Basin partners in moving toward resolution of the long-standing conflicts that have gripped this region. The Klamath has been a hot spot in the ongoing and very real struggle resulting from multiple demands for too little water. Today, I am pleased to report that the Klamath Settlement Group has committed to settle these issues and to find long-term solutions for managing the water needs of local communities, irrigators, power generation, and wildlife, such as the shortnose and Lost River suckers and the Coho salmon, which are on the Federal list of Endangered and Threatened Species.

It is important to note that both science and policy have roles in the implementation of the ESA. For example, the Service does not always have full information about a species such that it can know with the utmost reliability a species' risk of extinction, population levels, rate of decline, or recovery needs. Under the ESA, the Service must use the best available science, be explicit about the level of uncertainty in that science, and leave it to decision makers to choose among the options that achieve the objectives of the decision. In addition, policy decisions in critical habitat designations are appropriate in the section 4(b)(2) exclusion process of the ESA, pursuant to which the Secretary must weigh the benefits of exclusion against the benefits of inclusion. Thus, the assimilation, application, and interpretation of science often represent the beginning point in making policy decisions under the ESA. The peer review process, agency leadership, and the public comment process help to ensure high quality decisions.

The Klamath River Basin

It is my understanding that you would like us to discuss our role in the ongoing efforts to manage the resources of the Klamath River Basin. The Klamath region straddles 16,400 square miles of south-central Oregon, northern-central and north-west California, with the Klamath River flowing 254 miles from its Oregon headwaters into the Pacific Ocean. The people of this region are bound together by the Klamath River's economic, ecologic and cultural importance to their communities.

The Klamath River has been and continues to be important to the economies and social fabric of that entire region. The Klamath Basin was renowned for its salmon fisheries in the Pacific Northwest, as the Klamath River was once the third largest producer of salmon in North America. Reclamation's Klamath Project, as well as private systems, supply irrigation water for a wide variety of agricultural crops throughout the upper basin. The Service operates six national wildlife refuges that provide important habitat for migrating birds. Historically, the Yurok, Hoopa, Karuk, and Klamath Tribes have relied on fish and other natural resources provided by the Basin.

Many notable accomplishments have been achieved in the Klamath Basin since 2001.

Structural improvements were completed to Klamath project facilities that have helped screen the majority of both juvenile and larval suckers from the A-Canal. The Link River Dam fish ladder became operable in 2005, giving suckers and redband trout, an Oregon State species of concern, access to historic habitat, including spawning areas in Upper Klamath Lake and its tributaries.

Additional projects are currently underway to improve habitat for other ESA-listed species and species of concern. For example, Reclamation has developed the Water Bank Program, which provides surface water storage, groundwater pumping, and land fallowing options. Since its creation, the Program has developed water supplies for Coho salmon flows. Also, The Nature Conservancy (TNC) and the Service have provided $7.25 million and $2.47 million, respectively, in addition to $1.62 million from Reclamation, to acquire Barnes Ranch for increased water storage in Agency Lake and additional habitat for the Upper Klamath National Wildlife Refuge. The total acreage of this acquisition will be 9,650 acres.

Reclamation and the Bureau of Indian Affairs are also in the process of removing Chiloquin Dam to improve fish passage on the Sprague River in southern Oregon. Removal of the dam, scheduled for completion in December 2008, will open up approximately 80 miles of spawning habitat. In addition, TNC, in partnership with the National Fish and Wildlife Foundation, the Service, and Reclamation, is undertaking the Williamson River Delta Restoration project. This project should be completed by winter of 2008 and will reconnect the Tulana and Goose Bay Farms to Upper Klamath Lake, providing 5,860 acres for increased water storage, enhanced fish and wildlife habitat, and improved water quality in Upper Klamath Lake. Reclamation and the Service each provided $2.5 million to the project.

Since 2005, a diverse group of Klamath River basin stakeholders, including Indian tribes, farmers, conservation groups, and state and federal agencies have committed to developing a detailed Klamath Settlement Agreement by November 2007. For the past two years, this group has persevered toward the development of a proposal to restore the Klamath River fisheries, meet agricultural needs, protect water quality and sustain the ecology and economies of the Klamath Basin. The group is committed to prepare and present a balanced agreement.

In January 2007, the Department of the Interior and NOAA Fisheries in the Department of Commerce announced the submission of their joint modified fishway prescriptions for the relicensing of PacifiCorp's dams and hydroelectric facilities on the Klamath River to the Federal Energy Regulatory Commission (FERC). Like their March 2006 preliminary prescriptions, the modified prescriptions include fish passage, both upstream and downstream, for PacifiCorp's Iron Gate, Copco I and II and J.C. Boyle dams, but provide a lower cost alternative for down stream passage at Copco and a less prescriptive approach for tailrace barriers and spillway modification. This is the first time any Administration has required fish passage in prescriptions for FERC relicensing in Klamath.

In fiscal year 2007, the Administration has allocated more than $90 million to support restoration, research and management in the Basin and, from 2003 through 2006, the Department has obligated $215 million for this effort. We are committed to continuing to work with everyone in the Basin to ensure the long-term sustainability of the natural resources and people of the Klamath region.

Decision-making Under the Endangered Species Act

The remainder of my testimony will focus on actions that have been undertaken to ensure the integrity of the Service's scientific decisions under the ESA. Since becoming Director, I have made scientific integrity my top priority. Having been a scientist with the Service for 29 years, I am acutely aware of the importance of science in the Service's activities and decisions.

Shortly after I was confirmed as Director in October 2005, I began to examine the process for reviewing ESA decisions in Washington. I identified problems with the division of responsibilities for ESA decisions between the Service's headquarters and the Office of the Assistant Secretary for Fish and Wildlife and Parks. The apparent lack of a clear delineation between the roles of the Service and of the Office of the Assistant Secretary for Fish and Wildlife and Parks concerned me. As a result, I began a series of discussions with the Deputy Secretary to address and correct the situation. On February 3, 2006, with the concurrence of the Deputy Secretary, I issued a memorandum detailing my views on how science should be used in making recommendations and decisions, as well as the process by which science would be reviewed in a policy and legal context. A copy of this memorandum is enclosed with my written statement (Attachment 1).

In addition, I held several meetings with then-Acting Assistant Secretary Matt Hogan and his staff to discuss how the division of responsibilities for ESA reviews and decisions should be implemented. A copy of an email on these responsibilities is also included with my written testimony (Attachment 2).

In sum, we agreed that the formulation of science would be the responsibility of the Service, while discussions between the Director's office and Assistant Secretary's office would focus on policy decision-making. With the Deputy Secretary's concurrence, we also agreed that there would be no requests for information from the Assistant Secretary's office to the Service's regional and field offices while ESA packages were being formulated, a practice that had occurred in the past. I instructed the Regions and Washington office staff that this review process had been established to ensure the integrity and credibility of ESA decisions and asked them to let me personally know of instances where the process was not honored.

Secretary Dirk Kempthorne was confirmed by the Senate in May 2006, and I have been impressed by his strong emphasis on ethical and scientific integrity. As you know, on March 29, 2007, the Department's Inspector General released a report on the Deputy Assistant Secretary's involvement in ESA decisions. This Committee held a hearing on May 9, 2007, where Deputy Secretary Lynn Scarlett committed to conducting a review of ESA decisions that may have been inappropriately influenced by Ms. MacDonald.

On May 16, 2007, I visited the Service's California-Nevada Operations Office (CNO) to meet with CNO Manager Steve Thompson and his key field office leaders about the course of action for reevaluating certain ESA decisions from 2002 to May 2007. This discussion was informed by insightful input from the field, as the CNO Manager had previously initiated a discussion with Regional leadership on this topic.

Immediately following my discussions with CNO, I received a memorandum dated May 22, 2007, from Deputy Secretary Lynn Scarlett requesting that the Service review all work products that had been produced by the Service and reviewed by the Deputy Assistant Secretary in order to determine if any of this material required revisions based upon her involvement. This memorandum is also being submitted with my testimony (Attachment 3).

I then directed each of the Service's Regional Directors to engage the appropriate field and regional staff in identifying what, if any, ESA decisions may have been influenced by the Deputy Assistant Secretary. My directive to the Regional Directors recognized that policy formulations and interpretations were the proper responsibilities of the Office of the Assistant Secretary. I instructed the Regions to identify only those decisions that may have involved the improper modification of science, which would have resulted in undermining species conservation. The Service reviewed hundreds of actions, and the Regional Directors each submitted a memorandum to me outlining the results of their reviews. These memoranda are enclosed with my testimony (Attachment 4). The Regions recommended that 11 ESA actions warranted further review.

On July 11, 2007, prior to submitting the results of the review to the Deputy Secretary, I held a conference call to have a final discussion with all of the Service's Regional Directors to discuss each ESA decision. As the Regions discussed their recommendations, it became apparent that, in one case, the Mexican garter snake, the Southwest Region had recommended a review of this package based on my directions; however, it was determined instead that the Washington Office of Endangered Species had questioned the decision. Therefore, the Mexican garter snake was removed from the list of species to be re-evaluated.

I also want to point out that during our discussion, the Regional Directors indicated that on a number of occasions they were successful in explaining the Service's recommendations, with the result being that the Deputy Assistant Secretary's comments were not included or did not affect the Service's recommendations or decisions. By the end of the call, the Regional Directors had identified 10 ESA decisions that should be re-examined in order to ensure that the decisions comport with the best available science and appropriate legal standards. The next day, I submitted a memorandum to Deputy Secretary Scarlett summarizing the results of our review and recommending that we re-evaluate these decisions. That memorandum is also enclosed with my written testimony (Attachment 5).

On July 19, 2007, Pacific Northwest Regional Director Ren Lohoefener informed me that two decisions that were initially recommended to be re-evaluated were based upon an interpretation of policy, which is appropriately the responsibility of the Assistant Secretary's office. These two decisions, the 5-year review for the marbled murrelet and critical habitat designation for the bull trout, were withdrawn from our list at his request. The July 19 memorandum from Ren Lohoefener is being submitted with my written statement (Attachment 6). Following this action, I sent a memorandum to the Deputy Secretary amending the earlier list (Attachment 7).

In sum, the Service determined that the following eight ESA decisions warrant re-evaluation: 1) Arroyo toad critical habitat, 2) California red-legged frog critical habitat, 3) 12 species of picture wing flies critical habitat, 4) White-tailed prairie dog 90-day finding, 5) Canada lynx critical habitat, 6) Preble's meadow jumping mouse 12-month finding/proposed delisting, 7) Preble's meadow jumping mouse critical habitat, and 8) Southwestern willow flycatcher critical habitat.

Reevaluation has already commenced for three decisions, the Preble's meadow jumping mouse 12-month finding/proposed delisting; the White-tailed prairie dog, where we are working on the 12-month finding; and the 12 species of picture wing flies, where we are working on a rule to re-propose critical habitat.

Conclusion

In conclusion, I would like to emphasize my personal commitment to ensuring the scientific rigor, validity, and integrity of the Service's decisions under the ESA. The reevaluation of the eight ESA decisions is emblematic of this commitment. Neither I nor the Department will tolerate instances in which scientific soundness and integrity have been compromised, and I am confident that scientific excellence will continue to guide our agency's work.

Mr. Chairman, I thank you for the opportunity to appear before you today, and I would be pleased to respond to any questions that you or other Members of the Committee might have.