CBB Q&A with Bob Lohn, NMFS Regional Administratorby Staff
Columbia Basin Bulletin - February 15, 2002
One of the most notable hot seats for federal officials in the Pacific Northwest has only gotten hotter since Bob Lohn took over in September as regional administrator for the National Marine Fisheries Service.
Before he had even settled into his chair a flurry of petitions hit his desk asking that numerous salmon and steelhead stocks be dropped from the Endangered Species Act list. Most all of those petitions used arguments similar to those posed in the Alsea Valley Alliance v NMFS case in which U.S. District Court Judge Michael Hogan said the agency had erred in making its listing determination for the Oregon coastal coho. It strayed from the law when it did not list hatchery fish that had earlier been aggregated with naturally spawning stocks in a NMFS "evolutionarily significant unit."
The NMFS decided that case had implications for as many as 24 of the 26 West Coast salmonid listing determinations. The NMFS is amidst a re-evaluation of almost the entire ledger of listed salmon stocks, and the agency's hatchery policies.
In addition, NMFS is trying to push federal, tribal, state, local and other regional stakeholders toward a unified plan to recover Pacific Northwest fish stocks while also developing individual recovery plans for the listed stocks. NMFS must also shepherd implementation of its own December 2000 biological opinion on Federal Columbia River Power System operations.
And there's the multitude of lawsuits to which the agency must attend -- and a substantial set of non-ESA responsibilities.
Lohn agreed last week to sit down for an interview with the Columbia Basin Bulletin to talk about the Hogan decision and its implications, subbasin planning efforts being launched across the Columbia Basin, and other issues of the day.
Lohn had been director of the Northwest Power Planning Council's fish and wildlife division since June 1999 when named NMFS regional administrator.
Lohn was general Counsel at the Council from 1987 through mid-1994, then served for five years as fish and wildlife director at the Bonneville Power Administration, implementing the Council's fish and wildlife program.
Prior to 1987, Lohn practiced law in the San Francisco Bay area, was director of the Office of Staff Attorneys for the U.S. Court of Appeals for the Ninth Circuit, was a law professor at the University of Georgia, was counsel to the governor of Montana, and served as an officer in the Navy.
A Montana native, he has a bachelor's degree from Harvard and a law degree from the University of Montana. He is a member of the Montana and California bar associations.
*CBB: Is NMFS on schedule with its hatchery policy rulemaking and status review process for listed West Coast salmon and steelhead? Will a draft rule be ready for public comment, and hearings, next month as originally planned?
--LOHN: We are close to the original schedule. The date when the public review of the draft begins will probably slip by a month to six weeks. We still anticipate concluding the rulemaking in September or early October. The rulemaking was intended to set a general policy for how we should look at hatchery fish that are in ESUs. The status review will then apply those standards. We anticipate on completing our work -- the NMFS part of the status reviews -- within 45 days (of completion of the rulemaking). But what we hadn't taken into account when we first announced that schedule is the status reviews involve publication and public comment (60 days). There will be a longer period before the status reviews become final.
*CBB: What do you hope will be the outcome of your review of listings and hatchery policies? What is the final product that can be expected?
--LOHN: With the rulemaking we're in, we hope to be very conscious about the role hatchery fish can or should be allowed to play in recovery and maintenance of populations. It's too early to say what that role will be, but what we intend to come out with as part of this package is good long-term guidance that identifies the risks of using hatchery stock, the benefits to the extent we are aware of them, and then makes a very clear decision as to how those risks and benefits should be weighed and by whom.
*CBB: Does having the Hogan ruling, now in the Ninth Circuit Court of Appeals, affect the process in any way? Is there a concern that a Ninth Circuit ruling (on the appeal of Hogan's ruling) will conflict with the final outcome of your review?
--LOHN: There are two effects on our process. First, we're concerned about assuring continuing protection for the Oregon coastal coho stocks. The effect of the appeal, and the stay entered in that appeal, means that those stocks continue to be ESA listed unless we decide otherwise as part of this process we're going through.
That to some degree reduces the pressure on getting this review done as quickly as we had originally talked about. Because it means all of these stocks that are listed continue to be listed while we are doing the review.
The second effect is that the federal court is reviewing the rationale for Judge Hogan's decision. Whatever the Ninth Circuit does with that decision, it is doubtful it will affect the outcome of this rulemaking. Judge Hogan basically said the National Marine Fisheries Service is required to look at the stocks in a certain way. The Ninth Circuit, if they overturn Judge Hogan, would simply say, 'no, the National Marine Fisheries Service is not required to look at stocks in that way.' Neither outcome would prevent us from taking the look we are taking at how you would integrate hatchery fish and naturally spawning fish as part of an ESA determination.
The Hogan decision simply said you must look at them. If the Ninth Circuit says that's optional, it still doesn't preclude us from taking a look at them. Hatcheries have been so widely used in the Northwest, I think a public discussion about what role hatchery fish can play is needed.
*CBB: In November -- when it was announced that NMFS would not appeal a federal court order to delist Oregon coastal coho -- the agency described the hatchery and status review process. It also promised to "increase its support for local planning efforts, including the provision of interim planning targets for listed populations." What has been done to-date to "increase" support and when will those interim standards be available?
--LOHN: The statement about targets was an attempt to assure people that we would provide some interim targets so that they could begin the planning process aiming at having some general sense of how many fish they needed to plan for. The technical planning process that is under way for all of the ESUs with TRTs (technical recovery teams) was not likely to be ready to complete targets for a number of months if not years. In two of the major areas (the Puget Sound and Lower Columbia), rather than having interim targets, we've gotten targets that are much more refined and will be coming out soon enough that they will be very useful to the planning process. In the remainder of the Columbia Basin, above the Lower Columbia, we will be providing interim planning targets in approximately two weeks.
In particular we're talking about an average number of fish by ESU, and to the extent we can, broken down by subbasin. In the Columbia Basin, where much of the planning is done on a subbasin scale, we want to make sure that we have a relevant number for those planners. If someone is doing planning, the question they have is, roughly on average, how many adult fish do we need to plan to in order to meet ESA requirements. What we are providing on interim targets are very rough estimates. It's intended to be a starting place for the planners, who then need to look at how much habitat is available, where the limiting factors are and to understand what they need to do to do to support a population of that magnitude. These are not intended to be the final delisting numbers. They are a different calculation."
*CBB: Now that you are at NMFS, how does the promise of subbasin planning look from the federal perspective? Is NMFS committed to the process? I believe I've heard you describe those subbasin plans as building blocks for NMFS recovery plans. How important will they, or can they, be?
--LOHN: I want to proceed that with just a comment on terms. Subbasin planning seems to be a term of ours that refers to planning being done under the Northwest Power Planning Council fish and wildlife program. There are other places where the same activity is called watershed planning, or regional planning.
For the purposes of this interview -- describing it as local planning -- it looks absolutely essential to what we need to do and for the recovery of the fish. The reason we are so interested in this is that salmon recovery depends less on regulatory enforcement, though enforcement can be important, and much more on local people willing to become good stewards of their land and water resources. In many instances, people are willing to do this if they understand clearly what's required, if it's done in a way that adapts itself as best as possible to the other interests and activities that they are carrying out. And, if it's something that they not only have comment on, but can actually develop a sense of ownership.
Having locally developed plans is enormously important for issues as fundamental, for example, as in-stream flows. The fact that a particular river does not have sufficient flows at certain times of the year that are critical to salmon. How you get to adequate in-stream flows involves a whole range of possible alternatives at the local level. Neither NMFS nor any other outside federal actor is going to be able to determine what the right way to achieve that would be. We can say, 'you need to make sure there's nine inches of water in this part of the stream during this month or the fish can't get through,' but it's going to be the people there that can begin to tell us what's the best way to provide that water, what efficiencies are there in the system, who might be in a better position to support that in the subbasin and do it in a way that's not only a creditable alternative but one that's supported. We need local input.
Another reason this will be so important is that we want to focus the discussion on recovering fish, not just meeting the narrow requirements of ESA. No one that I'm aware of is interested in simply maintaining a token population for the sake of complying with the federal law. This is a resource that people value, in part because in some years it will be harvestable. It is a resource that they can participate in and enjoy.
*CBB: Do you see the Council subbasin planning process as the way to bring all these separate efforts together?
--LOHN: In the Columbia Basin I see the Council process as a terrific asset, provided it can be adapted to the different initiatives that are under way in each of the states and to some degree in each of the subbasins. For example, in Washington, there are salmon recovery boards. The Council process needs to adapt to and work with those boards, as I know they are doing.
The Council process brings to the game enormous resources, not just financial but technical -- highly qualified people who can act as catalysts, facilitators, technical resources. The ability to draw together different plans and planning entities and produce an overall series of products that are consistent -- all of those add a great deal of value from our perspective.
*CBB: What will NMFS do with those products?
--LOHN: If there is a locally developed plan that is locally supported and scientifically creditable, we will use it as the foundation for our recovery plans. We're not asking that each local plan by itself become a recovery plan. A recovery plan for a particular ESU needs to look not only at what's happening inland in a particular subbasin but what happens to the fish as it moves through its migration corridors, through ocean and in-river harvest. It faces a variety of challenges outside the subbasin. Our job is to use that as the foundation for the recovery plan for that stock, to accept the techniques and recommendations for local activities and build our plan around them.
*CBB: Will NMFS want to play an aggressive role in shaping the Council's program for the mainstem, particularly when it comes to spill, flow augmentation and barging? Will NMFS want to have a strong influence on that mainstem amendment?
--LOHN: We anticipate providing the latest information from the science center. At this time we're not looking at making a lengthy series of recommendations to the Council. Our most recent recommendations are contained in the biological opinion, which is a legally binding document on us.
The function of the Council is different. They're to take a fresh look, that is current as of this year, from their perspective. That means very different interests, as to how the system should best be operated -- not just for ESA listed fish but for the whole range of fish and wildlife. I expect them to be looking at different factors, calculating the outcome somewhat differently. I think it's healthy to have that statement.
We're not looking for total congruency from the Council with our recommendations. Nonetheless, I would expect two effects from the Council's rulemaking on how we advise operating the FCRPS. First of all if the Council comes up with a better way for operating the FCRPS -- one that provides greater protection for ESA listed stocks and anadromous fish generally, we would want to look at that and be informed by it. We don't claim we have all the right answers. Secondly, if the Council identifies ways that would not significantly reduce the protections for anadromous fish but would greatly increase the benefits to other parts of the ecosystem, including resident fish and wildlife, we want to be informed by those so we can take them into account in any future decisions about operating the hydrosystem.
*CBB: Are you satisfied with the Council-led process that chooses fish restoration projects for funding?
--LOHN: I appreciate the Council's taking on the hard task of both assuring that projects are of high quality and making a fair allocation of funds among the many interests and regions in the basin that are seeking them. Those are tough things to do.
I think the next step is one we need to take together, and that depends on subbasin plans. The No. 1 criticism of fish and wildlife projects throughout the Northwest is whether or not they are good projects. I think we're doing that.
(That next step involves determining) whether or not we are choosing the best projects to meet the limiting factors in a particular subbasin or geographic area. I want to praise and thank the Council and the CBFWA people for moving to reviews under the so-called subbasin summaries that look not only at the value of a project but how that project fits in terms of the needs of that area. As we complete subbasin plans I think we'll be able to do that much more accurately. That's the point at which we'll have the best possible project selection process.
*CBB: Do NMFS and the action agencies have a process for deciding which of the project proposals submitted to the Council satisfy BiOp requirements? Will there be ledger giving "credit" to, for example, BPA for money they expend on "BiOp" projects? If so, who would decide when the ledger is closed -- when would the ESA debt be paid in full by action agencies?
--LOHN: The way that the biological opinion is structured is that we need to come up with a crediting system. We have not yet done so. It is on our list things to do. We are committed to working with Bonneville to do that.
*CBB: The Bush Administration's proposed budget includes a $12 million increase for BiOp implementation, with most earmarked for monitoring. Will that process address credit ledger issues.
--LOHN: Within that budget there is $12 million for NMFS -- $2 million of which goes to the regional office for implementing the biological opinion and $10 million which goes to the science center for developing and implementing monitoring and evaluation standards. I think the development of those standards will be helpful in the crediting discussion.
Where we're going throughout our regulatory dealings is trying to move away from what we call intermediate measurements to what we call ultimate measurements. In the end, it's good to know that people have taken several steps toward improving fish. The bottom line in the hydrosystem is, 'yes, but are the dams performing to the standards that are laid out in the biological opinion? Are we getting fish survivals where they ought to be?' In habitat fish measures you can measure the quantity of riparian land restored or stream flows, but the ultimate measurement is, are you getting fish back. We're much more focused on measuring ultimate outcomes because that helps us keep our eye on recovery and not just on process.
*CBB: What are the two or three key things that need to be done in the next year or so to maintain and improve fish restoration efforts in the basin?
--LOHN: One would be getting local planning efforts established and well under way across the Northwest. That is critical. Without that we are just marking time. Two, establishing how hatchery fish can be taken into account in determining ESA obligation -- the burden is mostly on us but we're certainly interested in public comment. Third, NMFS as an agency needs to establish common policies and be able to speak effectively and consistently when we're asked questions about ESA or about the requirements of salmon stocks. We as an agency have grown quickly and in a somewhat haphazard fashion. That occasionally comes up in inconsistent policy and the unavailability of people to address high priority problems. Internally we have some large management challenges, which we are very actively addressing. We hope to be a more responsive, consistent entity within the region. As part of that we also hope to make clearer what our role will be and won't be -- which activities you can expect us to be actively engaged in and which activities we're going to be relying on others to carry out. We can't do it all. We really need the help and support that comes from working with others, especially the agencies, tribes, state and local government. We're doing our best to be a facilitator and catalyst.
*CBB: How can legal federal responsibilities to tribes be guaranteed in that scenario of wholesale stakeholder involvement in developing subbasin or local plans?
--LOHN: In each conversation that I've had publicly about subbasin plans I've tried to emphasize the importance of including the tribes within that planning area in the planning process. Many of them are already the premier fish and wildlife experts in their immediate area. It is their land, they have studied it for a long time, they have typically very substantial staff resources and knowledge bases. They will be huge contributors to the process.
While tribes are very firm about not relinquishing their rights under trust obligations and treaties, tribes in my experience have been consistently practical about how they can achieve fish and wildlife recovery in a way that works with the people that live in that area. The thing that I have come to appreciate about the tribes is that the areas they live in are their homes. They value good relations with their neighbors. They seek practical ways to get to the outcomes to which they are entitled.
*CBB: Do you think BPA's $186 million figure for annual spending is adequate for financing Basin salmon recovery, or should Congress kick in more to help with ESA driven costs?
--LOHN: That's funding for both ESA obligations and for other fish and wildlife obligations. I haven't attempted to measure the extent of those other fish and wildlife obligations. That's why I can't tell if it is enough. On ESA listed salmon and steelhead, it's probably too early to tell. Until we have subbasin plans that lay out clearly how we are going to get from here to recovery, we don't know how much it will cost. We don't know what needs to be done and therefore we don't know how much it will cost. What I've consistently heard from the administration and am heartened by is that they are willing to support salmon restoration but they want it to be done in a creditable way. They want to know what we need and why we need it. In other words, what steps do you need to take next to recover salmon?
I'm not a supporter now of simply saying 'we might need more money, or we think we need more money. Or let's get the money before we've identified what it will deliver for us.' Our case is more compelling if we show what is needed, why it will be of value and seek funding based on that showing.
Despite the size of this year's federal budget and the relatively generous support for salmon recovery, there is every indication that in future state budgets and federal budgets we will need to make a very compelling showing in order to maintain or increase our current funding levels. I don't want to enter into those discussions until we are well prepared to show what we're going to get for additional money spent.
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