Our Klamath Basin Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.
TESTIMONY OF BILL PAULI, PRESIDENT,
CALIFORNIA FARM BUREAU FEDERATION
TO THE WATER AND POWER SUBCOMMITTEE OF THE
U.S. HOUSE OF REPRESENTATIVES COMMITTEE ON RESOURCES
July 17, 2004
Good morning, Mr. Chair, and members. I am Bill Pauli, representing the California Farm Bureau Federation ("Farm Bureau"). The Farm Bureau appreciates the opportunity to provide comments on the above-captioned matter. The Farm Bureau is a non-governmental, non-profit, voluntary membership California corporation based in Sacramento. The Farm Bureau’s purpose is to protect and improve the ability of farmers and ranchers engaged in production agriculture to provide a reliable food and fiber supply through responsible stewardship of California's resources. Its members consist of 53 county farm bureaus and, through them, more than 89,000 farm families and individual members.
We strongly applaud Rep. Walden for his foresight in developing legislation to strengthen the use of science in ESA decision-making. And, we thank the Chairman and all the Members of the Committee who have taken the time in the middle of the summer to come here on the ground to hear from the people most impacted by ESA decisions. Utilizing science to guide agency decisions is a cornerstone of environmental statutes. Congress has expressed repeatedly a belief that science should be the major factor affecting environmental policy decisions. The Endangered Species Act ("ESA") requires science to be the "sole basis" for a determination. In spite of this Congressional mandate, the ESA and its associated regulations, policy manuals, and guidance or handbooks available to the U.S. Fish and Wildlife Service’s ("USFWS") and NOAA Fisheries’ ("NOAA"), collective referred to as ("Services"), staff and the general public do not define "science." The absence of a uniform approach to utilizing science in agency decision-making can be remedied, at least partially, by adopting Congressman Walden’s legislation.
Science, the ESA, and the Klamath Project
The recent events in Northern California/Southern Oregon’s Klamath Basin highlight problems that will continue to occur if Congress fails to act. Prior to 1997, the Klamath Project ("Project") was operated based on a century-old system of water rights. Since then, the U.S. Bureau of Reclamation ("Bureau") has been under increasing pressure from the Services, to operate the Project to increase Klamath River flows and maintain high water levels at Upper Klamath Reservoir for the purported benefit of the federally listed Lost River Sucker, Shortnose Sucker, and coho salmon.
On June 30, 2000, the Bureau was sued by a variety of environmental organizations for alleged violations of the ESA. The environmental organizations sought an injunction ordering the Bureau to restore instream flows to the levels that the Services determined were necessary for the listed species. A flurry of additional litigation ensued. In short, a biological opinion was prepared in 2001 that shut-off water to the agricultural communities served by the Project. This created a political firestorm, garnered national media attention, and forced several farmers and ranchers to sell land their families had cultivated for generations and to endure the rigors of bankruptcy.
After the 2001 biological opinion was completed, under a court-imposed deadline, after the water had been shut-off, and after the crisis had been created, the National Academy of Sciences ("NAS") was asked to evaluate the science behind the Services’ 2001 biological opinions that resulted in farmers and ranchers throughout the Klamath Basin receiving little or no water during the 2001 irrigation season. NAS released its final report on this situation in 2003. NAS found there was "no empirical support" for the Services’ required increases in Klamath River flows and maintaining high water levels at Upper Klamath Reservoir.
Unless the role of science in the ESA is strengthened by way of passing Congressman Walden’s legislation, the Klamath situation will be repeated across the nation. This is problematic and Congress must act to help ensure a situation similar to the Klamath situation never happens again. The scientific process, including a rigorous, independent peer review must be followed, especially in situations where courts have gotten involved. Consistent with Congress’s original intent when the ESA was passed in 1973, a sound scientific process must be the cornerstone of ESA decisions, and science, rather than court orders or untested hypotheses, must play the prominent role in ESA implementation.
The ESA Needs to be Strengthened Through the Scientific Process
Despite the requirement to use "best available science," the ESA’s current framework does not always allow science to be utilized. As the NAS noted, "application of the ESA to fishes of the Klamath River basin puts into focus one of the central dilemmas of the ESA: the need to reconcile the ESA’s legal framework with its scientific foundations." The ESA demands the Services to make clear distinctions regarding jeopardy, take, and even listing determinations, "but the scientific process is not fully compatible with such sharp distinctions." Presently, the Services can "satisfy the demands of the ESA with an analysis that would not satisfy the demands for scientific review for publication or other peer-reviewed processes common in modern science." This is frequently done under the guise of "best professional judgment" and by utilizing the "precautionary principle." The statutory term "best scientific and commercial data available" needs to be defined and clarified, and Congressman Walden’s legislation will help accomplish this objective thereby strengthening the ESA in a way that will satisfy basic principles common in modern science.
A. Meaningful Peer Review Must Be Utilized When Making ESA Decisions
Independent peer review is an essential part of the scientific process in the United States. Scientific journals will not publish scientific findings until a scientifically rigorous review and critique of the study’s methods, results, and findings by others in the field with requisite training and expertise occurs. This process is known simply as "peer review." The Office of Management and Budget has noted, "independent, objective peer review has long been regarded as a critical element in ensuring the reliability of scientific analyses." According to the General Accounting Office, "peer review is critical for improving the quality of scientific and technical products. . . ." However, the Services do not have a uniform approach to conducting independent peer review, just as they do not have a uniform definition of the term "science." This has led to situations where the public’s confidence in regulatory decisions made under the ESA, whether formal rulemakings, listing determinations, processing of individual permits, or issuance of biological opinions, is lacking and activist groups appear to be in a race to the courthouse. Under this scenario, everyone loses, and the environmental protections implemented by the Services are questionable. Congressman Walden’s legislation represents a positive first-step toward the Services utilizing improved science when making decisions. This has the potential of creating greater environmental protections and less litigation.
B. Utilizing "Best Professional Judgment" is Not a Scientific Method
The "scientific burden of proof may differ from the legal burden of proof; this issue pervades the ESA, where science and law intersect." This dilemma is compounded by the very stringent deadlines in the ESA. Often, the Services have to make difficult decisions and very little scientific evidence exists. In such circumstances, the Services frequently utilize their "best professional judgment." While this may be appropriate in some circumstances, these decisions should not be considered scientifically based, and the public should not be allowed to believe that such decisions are anything more than the professional opinion of the Services’ staff. NAS recently discussed the use of best professional judgment when agencies make ESA determinations:
Professional judgment can be used in three ways, and the distinctions among them are quite important. . . . First, for an issue about which there is no information whatsoever, an agency that is charged with protecting a threatened or endangered species can justify the use of professional judgment. Although such an approach is weak in that the transferability of ecological knowledge from one set of circumstances to another is problematic, there is some scientific basis for it, and barring the feasibility of other approaches, it can be said to have weak but not negligible scientific strength.
Second, a resource agency might use professional judgment to endorse various proposals for action when valid scientific information contradicts it. This use of professional judgment is difficult to justify. Scientifically, … sound and relevant empirical information always trumps speculation or generalization; an agency could argue the reverse only on the basis of a very conservative approach to risk.
Third, an agency might choose to use professional judgment that is consistent with a small amount of direct evidence. In this case, the use of professional judgment is reinforced rather than contradicted, and scientific support for it can be deemed moderate rather than negligible.
It is important for the public to know when the Services are making a decision using best professional judgment and under which scenario. Such knowledge, particularly when the public knows that a panel of independent peer reviewers also evaluated the propriety of the Service’s decision to use best professional judgment, may help reduce litigation and accusations that the decision was based on political agendas rather than true science. The public should be fully informed when the Services are using "best professional judgment" rather than science by publishing each professional judgment and its justification in the Federal Register notice accompanying the Services’ recommended action. The NAS report contains this type of discussion, in table format, and it should become standard in every proposed rule for any ESA action. Further, decisions made based on "best professional judgment" may or may not be accurate once science has been further developed. Thus, these types of decisions should be subjected to continuous review and be accompanied by a blueprint for scientific studies and technical information that will help assess whether the Services’ "best profession judgment" is, in fact, correct or needs to be changed.
The Services’ internal decision to utilize the "precautionary principle" when making regulatory decisions should also be subjected to independent peer review and fully publicized, particularly since neither the statute nor its implementing regulations discusses or contemplates the use of the precautionary principle in the decision-making process. Under the precautionary principle, a higher burden of proof lies with those who wish to utilize resources or undertake an activity that may result in environmental degradation. Frequently, the Services utilize the precautionary principle when making decisions that should be based on science and never inform the public that they are proceeding under this policy instrument. Under these circumstances, agencies should acknowledge the precautionary principle is a decision-making policy instrument, not a scientific standard of proof required by the ESA. Congress should require independent peer-review of any decision to utilize the precautionary principle. This peer-review should be made available to the public as part of the Federal Register notice accompanying the proposed action.
"[E]ven when a policy decision is made to apply the precautionary principle, the question of whether the decision is consistent with the available scientific information is important." Frequently, in the decision-making context, regulatory agencies have the discretion to utilize the precautionary principle when they are confronted with substantial, but inconclusive or conflicting data. "At some point, however, erring on the side of protection in decision-making ceases to be precautionary and becomes arbitrary." It is difficult for the public to determine whether the Services are acting appropriately or arbitrarily when utilizing the precautionary principle if there is no acknowledgment by the Services that they have decided to utilize that approach. This often leaves the public with doubt about the Services’ regulatory decision. The public then seeks a neutral arbitrator – the courts – to ascertain whether agencies acted appropriately. As the ESA’s implementation is increasingly dictated by judges, rather than scientific principles, the ability to make positive improvements that may actually result in recovering species diminishes.
Subjecting the Services’ decisions to implement the precautionary principle to independent peer review will help avoid this situation and reduce the amount of litigation. It is also appropriate to have independent peer reviewers evaluate the agencies’ decision to implement the precautionary principle because "[o]ne indication that policy-based precaution has given way to bias or political forces is a major inconsistency of a presumed precautionary action with the available scientific information." In the ESA decision-making context, the Services need to be held accountable when utilizing the precautionary principle, and should only use this principle sparingly, by requiring staff to justify this decision and reconcile it with the best available scientific data.
In closing, the Farm Bureau would like to thank the Committee for providing us with the opportunity to express our views. The situation in the Klamath Basin provides us with a unique opportunity to implement changes that will benefit the fish and improve the ESA’s ability to actually recover listed species. We must heed the advice of the NAS with respect to finding solutions for the Klamath Basin and making science the cornerstone of the ESA, as Congress originally envisioned. The Bush Administration and Congress should be thanked for having the courage and commitment to tackle these very complex and controversial issues.
The NAS report makes it clear that Congress and the public have a very important decision to make. The ESA can either be guided by science and common sense, incentive based solutions, or it can be guided by strict guidelines and litigation, which often hinders the Services’ abilities to have science guide their decisions. America deserves an ESA similar to the one Congress envisioned 30 years ago – an ESA based on common sense, guided by true science, and protective of those species that truly warrant protection. America also needs to measure success by the number of species recovered rather than the number of species listed. Passing Congressman Walden’s legislation will be a necessary first step.
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