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NW Fishletter #235, August 16, 2007

House Hearing Fails To Link Klamath Fish Kill To VP Cheney

Little new information surfaced at a House committee hearing on alleged Bush administration arm-twisting over the science developed by federal agencies charged with enforcing the Endangered Species Act.

The House Natural Resources Committee met July 31 to look at the question of the current administration's political influence on federal science and decision-making.

The committee invited both Vice President Dick Cheney and Interior Secretary Dirk Kempthorne, but neither appeared.

However, it did get an earful from Mary Kendall, deputy inspector general for the Department of Interior, who reviewed the investigation into the conduct of an Interior deputy assistant administrator, Julie MacDonald, a political appointee.

The inspector general's office found that MacDonald had provided nonpublic information to friends outside the government, including some who were involved in litigation against the feds.

MacDonald has since resigned and the Interior Department is reviewing nine listing decisions that may have been compromised.

In oral testimony, Kendall said her office did not investigate the conduct of Cheney in ESA matters, particularly over the situation in the Klamath Basin, where a June 27 Washington Post story said the vice president's actions aided farmers after old Cheney friend and former Oregon congressman Robert Smith had asked for help.

The Post says Cheney intervened on behalf of farmers in the dispute over water releases after the Bureau of Reclamation shut irrigators down in 2001 to protect two listed species of suckerfish in the basin and ESA-listed coho much farther downriver.

Cheney reportedly received weekly briefings on the Klamath situation from Sue Ellen Wooldridge, the 19th-ranking official at the Interior Department, and later suggested the department ask the National Academy of Science's National Research Council (NRC) to study the water issues.

A panel convened by the Academy in 2002 produced an interim report released later that year, and a final one in 2004. Both found that the water management regime that shorted farmers was not justified scientifically, for either the suckerfish or the coho.

At that point, the Bureau of Reclamation decided to implement a flow regime that was more beneficial to farmers.

But in September 2002, high water temperatures in the Klamath led to the deaths of 30,000 to 60,000 chinook from parasites (depending on which agency did the estimating). Several hundred coho also died, but most were hatchery fish, with only a few dozen estimated to be from the wild ESA-listed population.

NRC panel chair William Lewis, from the University of Colorado, told the House committee that his group found some agency decisions regarding the Klamath Project that cut irrigation water in 2001 "had been contradicted by data collected [lake levels, flows] at the project."

The panel concluded that stricter operation of the project was unlikely to benefit the ESA-listed fish. But the panel also found that a later agency proposal to widen water management parameters from the preceding decade also could not be scientifically justified.

Lewis said his group did not think the flows from the Klamath Project were the main factor in the fish kill, which provided only 10 percent of the flows to the Lower Klamath that year. He said the region was in the grip of a drought at the time, flows were very low, and once the fish kill was reported, the question came up whether the Klamath project operations were responsible for killing the 33,000 chinook out of a total run of 170,000 fish.

The NRC panel found that going back to 1988, there were five big drought years in the Klamath with no salmon mortality, and in some of those years, flows were lower than in 2002. "We began to think, this is not simply a matter of flow," said Lewis.

He said the committee decided that the Klamath Project was not likely to blame, because it had been operated the same way since 1990, and was located so far from the mouth of the river where the fish had died.

Lewis also noted that the project water is warm because it comes from storage reservoirs. "The salmon that are migrating need cool water, particularly the early migrating fish, which includes the chinook," he said.

However, when the salmon were piling into the lower river and staged for migrating, they waited for a signal like a cool flow caused by a little rain. "They waited too long because they didn't get the signal, and disease overtook them and killed a portion of them," Lewis told the politicians.

But ex-NMFS biologist Michael Kelly disagreed. As author of a draft BiOp for the Klamath Project on the listed coho, Kelly said he left the agency in 2004 after his analysis was ignored, and a BiOp was completed that he considered "illegal."

Later, the 9th U.S. Circuit Court of Appeals did rule it illegal, and Klamath project flows have been bumped up to account for about 40 percent of the total flow in the lower part of the river, according to Kelly. He says, if more flows had been available in 2002, "there would have been more water, which would have made it, possibly, easier for the fish to move upstream and avoid the crowded conditions. That's also [flows] the only thing you have control over."

Kelly said, in 2001 while he was working on the draft BiOp, his supervisor had informed him that Cheney had been briefed on the consultation. That was the only time the vice president was mentioned to him during the consultation.

In written testimony, however, after his work had been rejected, he suspected it was because it did not agree with the interim NRC report. A different BiOp was then put together by higher ups, like Jim Lecky, NMFS assistant administrator for the Southwest region. In his written testimony, Kelly said it was obvious to him that "someone up the chain of command was applying a tremendous amount of pressure on Mr. Lecky. There's simply no other explanation for anyone in NMFS developing or accepting such a completely bogus and illegal BiOp."

Kelly refused to work on it after that, and filed a whistleblower disclosure after the 2002 fish kill.

At the hearing, Congressman Greg Walden (R-Ore.) asked NRC panel chair Lewis if it was true that "the Bush Administration played the NRC like a fiddle," as Kelly had described in his written testimony.

"No," said Lewis. He said he only knew what was happening from the viewpoint of his committee. He said it was obvious the agencies involved could use an outside evaluation, "and the National Academy was the obvious source of this information."

Lewis said the formation of the committee didn't have any signals of politically motivated interference. "The committee itself, once formed, is immune from political meddling because of the way the academy has learned to handle its committees over the last 150 years," he said.

In earlier testimony that day, NOAA assistant administrator William Hogarth, said influence of resource managers "comes from lots of different levels. As far as political influence from the administration, I've had zero since I've been here. So, I haven't seen any."

He said he has had talks with members of the Hill, the fishing industry, and with most of those who are regulated by his agency, but has seen no pressure from the administration. -Bill Rudolph

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