Hearings and Business Meetings

SD-366 Energy Committee Hearing Room 10:00 AM

Mr. Scott Yates

Director, Wyoming Water Project, Trout Unlimited

Statement of Scott Yates
Director, Wyoming Water Project
Trout Unlimited

before the

Energy and Natural Resources Committee
United States Senate
May 23, 2006

Mr. Chairman, Members of the Committee, I appreciate the opportunity to appear
before you today to provide Trout Unlimited’s views and perspective on the National Research Council (NRC) report entitled, “Managing Construction and Infrastructure in the 21st Century, Bureau of Reclamation” and Reclamation’s action plan completed in response to the NRC’s findings and recommendations.

 Trout Unlimited (TU) is the nation’s largest coldwater fisheries conservation organization dedicated to the protection and restoration of our nation’s trout and salmon resources, and the watersheds that sustain those resources.  TU has more than 160,000 members organized into 450 chapters in 38 states.  Our members generally are trout and salmon anglers who give back to the resources they love by voluntarily contributing substantial amounts of their personal time and resources to fisheries habitat protection and restoration efforts on public and private land.  The average TU chapter donates 1,000 hours of volunteer time on an annual basis. 

My name is Scott Yates and I serve as Trout Unlimited’s Wyoming Water Project Director, however, I am fortunate to have lived and worked in a few different places across the west.  Prior to accepting my current position, I initiated and led TU’s Idaho Water Project for four years including an overlapping six month stint as the interim Executive Director for the Henry’s Fork Foundation, and recently gained useful private sector experience having worked for Portland General Electric in Oregon as the license manager for the largest hydroelectric project located wholly inside the State of Oregon – the Pelton Round Butte Project on the Deschutes River.

The mission of TU’s Western Water Project is to conserve, protect and restore healthy flows in the coldwater fisheries of Colorado, Idaho, Montana, Utah and Wyoming.  All of our activities are guided by two key tenants; 1) healthy rivers are a necessary part of the ecosystem and 2) restoring rivers strengthen adjacent communities.  Some of our nation’s greatest trout fisheries in the West are below federal dams, including blue ribbon trout fisheries on river systems like the Snake, Henry’s Fork, Green, Beaverhead, Shoshone, North Platte, Gunnison, and numerous others.

As stated on its website, the current mission statement for the Bureau of Reclamation (Reclamation) is to manage, develop, and protect water and related resources in an environmentally-sound manner in the interest of the American public.  Clearly, this broad mandate encompasses much more than “delivering water and generating power,” the two historically prominent and primary purposes for large Reclamation dams.  In recent committee briefings and meetings, some still describe Reclamation’s mission as limited to such activities and “whatever it takes” to accomplish water delivery and power generation. (see page 22 of NRC report).   But the mission has broadened to include numerous other drivers, not the least of which includes protecting and restoring river resources. 

TU believes the NRC accurately and poignantly described the underlying challenge for Reclamation, namely, that the agency must embrace change and adapt to the 21st century by recognizing that its mission encompasses more than just delivering water and producing power.  Moreover, adapting to today’s circumstances is not optional.  As the NRC states in its report, Reclamation must (emphasis added) be responsive to several realities including environmental factors to thrive and survive into the future.

On page 10 of its report, NRC states that the “predominant workload has changed from new construction to O&M, repair, . . . modernization of aging infrastructure, . . . and environmental restoration and enhancement.”  As such, it is imperative that Reclamation transition into a pro-active river management agency, by developing and implementing programs and designing budgets to ensure river health needs are met.

Consistent with the NRC findings and recommendations, there are four key components to address as Reclamation transitions into the 21st Century:  (1) strengthening outreach and diverse stakeholder participation; (2) policy consistency – improve consistency between national policy directives and programs and implementation at the regional, area, and local offices; (3) the need for either organic legislation or use of existing authority (i.e. the Fish and Wildlife Coordination Act) to expand the reach of Reclamation’s technical services division in a coordinated and consistent way; and (4) retaining identifiable substantive environmental and natural resource protection measures when future proposals involving shifting operations and maintenance and construction to project beneficiaries or other outside sources.

I. Strengthening Outreach and Diverse Stakeholder Participation

As the NRC report states, upfront, ongoing and inclusive collaboration with
diverse stakeholders will strengthen and enhance Reclamation’s decisions and processes.       In part, NRC Recommendation 1b states that Reclamation’s stakeholders want close contact with empowered officials.  Similarly, on page 95 of its report, NRC notes that “consideration of the effects of a project on environmental costs and opportunities to increase sustainability must become ingrained from the outset, not simply an add-on to business as usual.”  Upfront consideration of environmental issues in a collaborative way ensures far less controversy, increases the chance for multi-stakeholder buy-in, and hopefully, leads to final decisions that are more likely to be technically and legally defensible.  From TU’s perspective, collaboration must be broader than just project beneficiaries.

In some areas of the country, Reclamation already has a proven track record of
conducting its business in this way.  One example involves Palisades Dam on Idaho’s South Fork Snake River.  The South Fork Snake River is one of the West’s great native trout fisheries, and is frequented by anglers from all over the country, including on an annual basis, by Vice President Cheney.   However, federal and state resource agencies and other stakeholders such as TU and the Upper Snake River irrigation community have been grappling in recent years with the possibility that Yellowstone cutthroat (YCT) may be listed under the federal Endangered Species Act.  The South Fork represents the last big river population of YCT in Idaho, but YCT numbers had dwindled in recent years and non-native but naturally reproducing rainbow trout threatened the genetic integrity of the South Fork populations.

During 2000 to 2001 Reclamation officials from the Pacific Northwest Region initiated the Ecologically Based System Management (EBSM) Project – a three- phase pilot study funded by Reclamation and conducted by the Flathead Lake Biological Station.  The goal of the EBSM Project was clear – determine the hydrologic regimes necessary to provide a functioning South Fork ecosystem within the constraints of state water law and contractual obligations.  The information generated by the Reclamation study was incredibly important in putting together the ecological picture for the South Fork, and dovetailed completely with excellent fish population data collected and analyzed by the Idaho Department of Fish and Game and critical hydrologic analysis by Idaho State University.

Perhaps the most impressive part of Reclamation’s EBSM efforts involved the agency’s ability to coalesce a diverse group of stakeholders regarding implementation of the EBSM flow recommendations.  The agency was able to present complex findings in an organized and understandable manner, including recommendations that required creative operations during certain water years that challenged historic assumptions about not only how water could be stored and delivered in the Upper Snake River system, but also about fishery needs and the relationship between native cutthroat year class production and survival and the hydrograph.  The Reclamation accomplished re-operation of a major BOR dam with the support of non-traditional partners – and in doing so was able to both meet traditional water needs during drought years and expand flexibility regarding the timing and movement of water to benefit the struggling native cutthroat fishery.

I would argue that the South Fork Snake River effort is one of the most comprehensive and successful native trout restoration efforts in the West and Reclamation is right in the middle developing sound science, proposing dam operations that incorporate such principles while still fulfilling project purposes, and helping disseminate information and ensure multi-stakeholder participation and support.  Reclamation’s effort on the South Fork is also a good example of a federal resource management agency doing more than just sitting back and waiting for a species to be listed under the ESA prior to taking action.  If Yellowstone cutthroat are not listed under the ESA, Reclamation’s activities over the past five years will be one of the primary reasons.    

II. Policy Consistency – Improving Consistency Between National Policy Directives and Programs and Implementation at the Regional, Area, and Local Offices

With the focus TU places on river protection and restoration, it is often confounding for our Western Water Project offices when Reclamation river management or programmatic activities vary from project to project.  Obviously, some of these differences are based on ecological conditions in a specific river system or on the water storage and delivery dynamics that either limit or constrain re-operation or management flexibility.  Further, in some areas consensus amongst stakeholders is either non-existent or in the initial stages of fruition.  There are some river systems, however, where the table has been set for creative management below a Reclamation dam and the agency has failed to take advantage.  The Sun River in Montana is a good example of where Reclamation efforts have limited the success of a stakeholder group convened to assess both irrigation rights and obvious ecological river needs.

The Sun River’s headwaters drain the pristine Bob Marshall Wilderness area below Glacier National Park.  The Sun River joins the upper Missouri River near Great Falls, Montana.  The Reclamation reservoir behind Gibson Dam, lies just beyond the Forest Service boundary, and serves two downstream irrigation districts.  The Sun River has suffered from severe and chronic dewatering due to substantial irrigation water withdrawals for many decades.  However, in recent years, productive discussions have begun among the irrigation districts and interested stakeholders, Trout Unlimited among them, on finding ways to restore flows to the Sun River and thereby protect and enhance the Sun’s wild trout fishery.

These discussions have taken place through the Sun River Watershed Group and have focused on ways to meet federal Clean Water Act requirements – the Sun River is a Section 303(d) listed stream below Gibson Dam – by addressing the probable causes for river impairment including flow alteration and resultant thermal modification and habitat modification.  The Sun River Watershed Group worked closely with DEQ to develop TMDLs that effectively address environmental and agricultural concerns.  One of the most difficult issues in this process was finding cooperative ways to address the Sun’s water quantity, or flow, problems.

While chronic low flows were identified as a limiting factor for both water quality and the Sun River fishery, river flows are an important source of irrigation water for basin farmers.  The river is the site of a large Reclamation water project, which includes Gibson dam and reservoir, a secondary diversion dam, two smaller storage reservoirs, and numerous irrigation canals.  The Reclamation project provides water to the Greenfields Irrigation District (GID) and the Fort Shaw Irrigation District (FSID).  Several other major ranches have additional water right claims from the Sun River downstream of the Gibson reservoir.  During drought years, the river barely contains enough water to satisfy the irrigators’ water rights, and the riverbed is nearly run dry.

Despite assessing complex and historically contentious issues, the Sun River Watershed Group has maintained a diverse membership list that includes representatives of the Cascade, Lewis and Clark, and Teton County Conservation Districts; Reclamation; GID; FSID; DEQ; the Broken O Ranch; the USDA Natural Resources Conservation Service; Montana Fish, Wildlife and Parks; Pacific Power and Light; Trout Unlimited; the Medicine River Canoe Club; Missouri River Flyfishers; Audubon Chapter; and the Russell Country Sportsmen’s Association.  The Group also receives support from numerous local businesses and organizations, as well as all three of Montana’s Congressmen and has received numerous awards for finding innovative and cooperative solutions to environmental and agricultural problems. 

The Group’s diverse membership grappled with the hard issues of stream flows and water rights during the TMDL process.  The Watershed Group came up with an approach for exploring flow restoration that was acceptable to all stakeholders, tied these flow restoration goals to thermal TMDL targets, and the Sun River TMDL was approved by the EPA last year.  A first-step in the flow restoration goals is improving river winter flows below Reclamation’s Gibson Dam, by taking a close look at reservoir operations and the current reservoir fill regime to determine whether some flexibility could be found in the operational regime to increase winter flows without jeopardizing the ability of Gibson Reservoir to fill with the spring peak flows due to snow-melt.

Unfortunately, Watershed Group momentum and efforts to assess reservoir operations have been stymied by a lack of cooperation from Reclamation.  For nearly two years, Reclamation has been promising the Watershed Group and its stakeholders that it would re-run the reservoir operations model to determine if there was in fact some flexibility to increase winter flows.  There is reason to believe that this flexibility does in fact exist, because the reservoir has never failed to fill in its 70-year history due to the large spring peak flows coming from the east side of the Bob Marshall Wilderness Area.  In addition, the Sun River Watershed Group invested significant resources in a detailed review of flow regime and snow pack data that should aid Reclamation’s model re-run.    Nevertheless, Reclamation has consistently failed to meet its promise to re-run the reservoir operations model, and has been extending its deadline to do so in 6-month increments for nearly two years.  Despite support from the Sun River Watershed Group, and despite a consensus recommendation from all stakeholders – including the two irrigation districts that the Reclamation project serves – Reclamation has still not come through.

When juxtaposed with successful Reclamation partnership efforts on the South Fork Snake River, there is little discernible excuse for the agency approach in the Sun River Basin.  The agency needs to continually strive for transparency and consistency on reservoir reoperation issues, and take advantage of existing partnership mechanisms such as the Sun River Watershed Group. The South Fork Snake River example cited above is a good example of the agency identifying a programmatic vision that was coordinated at the Regional level and supported by staff at the area office and local staff levels and moving forward to achieve multiple and diverse river management goals.  There is no reason a similar situation should not occur in the Sun River Basin.

III. The Need for Either Organic Legislation or Flexible Use of Existing Authority to Expand the Coordinated and Consistent Reach of Technical Services Division

TU recognizes the importance of Recommendation 1c in NRC’s report stating that “[d]ecentralization has meant that some area and project offices housing a dedicated technical office are staffed by only one or two individuals.  The committee is concerned about the effectiveness of such small units and whether their technical competencies can be maintained.”  This recommendation has obvious implications for project beneficiaries as it relates to increasing institutional capacity via outsourcing certain traditional Reclamation activities.  However, the increased role for Reclamation technical field staff in addressing environmental issues must be preserved and even expanded in order for the agency to fulfill its expanded mission in the 21st century including assessing and addressing river health issues associated with its projects.  This should include Reclamation either seeking additional statutory authority or utilizing existing legal mechanisms – such as the Fish & Wildlife Coordination Act – in order to fully address complex resource issues.

The Columbia River Basin is replete with examples of where Reclamation Water Conservation Field Service Program (WCFSP) representatives have made a difference regarding the design of fish passage or water use efficiency projects that benefits ESA-listed salmon and steelhead.  The Federal Columbia River Power System (FCRPS) off-site habitat program is designed to meet Biological Opinion (BiOp) requirements for tributary stream flow and habitat improvements.  However, while program funding for this ESA-driven program has been reasonable, the agency lacks full authority to accomplish program tasks.  Reclamation technical staff is able to provide technical assistance such as up-front data collection, engineering, and design for specific projects but lack statutory authority to construct or provide financial assistance necessary to truly ensure BiOp obligations are met.  At no cost, or some reasonable additional cost, to taxpayers, more could be accomplished with technical service programs with adequate authority.

Reclamation technical services programs have also had a positive impact outside ESA-listed salmonid drainages in the Snake River Basin.  TU has developed a large-scale watershed restoration project in the Rainey Creek drainage – an important South Fork Snake River Yellowstone cutthroat trout spawning tributary.  The key to project success has been the willingness of landowners to assess the fish migration and entrainment issues.   Reclamation has provided funding from the Snake River Area Office via the Technical Assistance to States Program that enabled a WCFSP staffer to help assess Rainey Creek water use and management issues and identify cost-effective and technically-defensible solutions.  Reclamation staff looked at all major diversion points and measured several of the key ditches for water loss and then developed a report entitled Water Use and Efficiency Analysis for Rainey Creek – Idaho that details mitigation measures to eliminate the fish barriers and improve stream flows in the Rainey Creek system.

These types of efforts by Reclamation staff are invaluable to non-profit conservation groups such as TU whose mission includes working on-the-ground with the agricultural community in high priority native and wild trout drainages to protect and restore habitat.  Such efforts should not be limited to river basins where ESA-listed fish are present or to areas within a specific Reclamation project boundary.  Reasonable and locally supported solutions in places like Rainey Creek - high priority restoration areas that are outside project boundaries but certainly located in a river basin with at least one Reclamation storage dam – should be encouraged.  Such projects include water conservation, fish passage, and habitat improvement projects in off-Project tributaries that may alleviate the need for project water or at the least, reduce the overall conservation burden on dam operators and project beneficiaries.  Reclamation needs the authority and consistent funding to explore these opportunities.

IV.            To the Extent that Reclamation Reorganization Results in Shifting Responsibility for O&M and Construction to Project Beneficiaries or Other Non-Governmental Entities, Reclamation Must Ensure that These Entities Fulfill the Agency’s Core Mission of Natural Resource Management and Protection. 

In the event that, in response to the National Research Council’s report, Reclamation’s leadership decides to reorganize the agency in a way that greatly increases the outsourcing of technical work, it will be critical that the instruments used to achieve this outsourcing bind the entities doing this work in the future to fulfill both Reclamation’s stewardship responsibility, and its core natural resource management mission.  This will be necessary particularly where Reclamation considers transferring its own responsibilities to project beneficiaries who have no historical experience with being responsible for the conservation, protection or restoration of rivers or aquatic species.

The NRC report and Reclamation’s response reveal at least three different examples of potential transfers of responsibility where assurance of the means, will and accountability for on-going stewardship will be important:  title transfers, O&M, and performance-based construction standards. 
A.  Title Transfers
Reclamation should contemplate project ownership transfers only when doing so
results in certain and sustained improvement in the ability to meet future needs of the west. We should not be satisfied with fundamental changes to the current system, such as change in ownership, unless there is a very substantial return on the enormous federal investment in Reclamation projects.  Much of this return should be in the form of improved fish and wildlife benefits, both because they were harmed during construction and operation of Reclamation facilities, but more importantly, continued economic growth in the west demands restoration of river health. 
Meeting this requirement has been particularly problematic with regard to title transfers because the project beneficiary who assumes ownership has rarely, if ever, had a mission which included ESA compliance or river restoration goals.  Given that title transfers will, as a matter of course, dilute the project’s federal nexus, there is a very real possibility that the new owner will not sustain any stewardship mission, absent explicit directives in the transfer instruments.

Reclamation’s action plan includes the following action item – determine where opportunities exist for mutually beneficial transfer of title to project sponsors in order to eliminate Reclamation’s responsibility and costs for those facilities, and encourage any that are appropriate.  As Reclamation proceeds with this task, we urge its leadership adhere to the NRC’s recommendation that open communication and an inclusive process are keys to moving forward in a successful way.  This is imperative to meeting the requirement that title transfers produce a return on the substantial federal investment in Reclamation projects.
B.  Operations and Maintenance

Finding 5b in the NRC report states that the O&M burden for an aging infrastructure will increase, and that “long term sustainment will require more innovation and greater efficiency in order to get the job done.”  This finding should not be used to justify haphazard and wholesale transfers of O&M.  To the contrary, Reclamation’s action plan set forth key issues that must be addressed prior to contemplating any future transfers of O&M, including:

• How much O&M of our reserved works can be beneficially outsourced while maintaining the core capabilities necessary to ensure the agency remains a smart buyer of services and effectively fulfills its mission responsibilities; and
• how can we ensure that Federal responsibilities such as environmental, recreation and cultural resources are met?  (see page 10 of Reclamation Action Plan).

Similar to title transfers, Reclamation must proceed cautiously when
contemplating O&M transfers or outsourcing.  Project beneficiaries do not have a mission that includes river restoration and we cannot lose that key component of Reclamation’s mission.  Any O&M transfers must include provisions to retain the stewardship and resource protection and restoration components of Reclamation’s mission.

The NRC report and Reclamation’s response suggest that Reclamation is poised to ramp up its outsourcing of operation and maintenance responsibilities for existing projects and facilities.  While TU appreciates that outsourcing may be cost-effective at some level, and may not threaten a loss of core competencies within the agency, it is important that Reclamation only proceed with such outsourcing on a case-by-case basis, after a complete review of all of the costs of this strategy.  In a thorough cost assessment, Reclamation must include third party benefits and costs, such as those associated with river restoration.  Operating Reclamation facilities on the South Fork Snake and Sun rivers demonstrates that there may be significant positive benefits to reoperation of such facilities.  But, with non-federal operators, they may be unlikely to identify, explore, or seek to achieve such benefits absent explicit language in their contracts providing either requirements or incentives to do so.
C.  Performance-based construction standards
Trout Unlimited believes that there is no reason for Reclamation not to move to performance-based standards for contractors who are constructing and/or rehabilitating federal facilities.  However, because of the broad nature of Reclamation’s mandate, it will be imperative that Reclamation provide uniform policy guidance regarding the scope of such standards.  For example, performance based standards must incorporate environmental compliance and resource protection measures.  Given the nature of Reclamation’s mission, performance based standards could provide bonuses to contractors who go “beyond compliance,” who incorporate green building standards, who incorporate energy efficiency components into their work and whose work ultimately allows for river and fishery restoration.

Thank you again for the opportunity to testify today.  I look forward to answering any
questions you may have.