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[1] Redden Rules To Keep BiOp In Place During Year-Long Remand
[2] Feds Say Dams May No Longer Be Jeopardizing Fish Runs
[3] Senator Crapo Wants More Bucks For The BiOp
[4] Power Planning Council Unhappy With BPA Head's Senate Testimony
[5] La Nina Most Likely On The Way, NOAA Forecasters Say
[6] Summer Spill Study Begins At Ice Harbor Dam
[7] Summer Spill Analysis: Little Bang For Lots Of Bucks
[8] Bush Administration Wants Oregon Coho Off ESA List
[9] BPA Rate Increase Proposal Comes In At Net 5 Percent
[10] Kempthorne Says No White House Calls Over EPA Job

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Oregon District Court Judge James Redden denied last week a supplemental motion by the National Wildlife Federation and other environmental and fishing groups to vacate and set aside the 2000 hydro BiOp. Judge Redden, who ruled the BiOp invalid last month, said his latest opinion would be ready by July 3 to expand on his latest ruling.

Plaintiffs wanted the BiOp completely tossed out. Such a move would have given them an opportunity to add more draconian hydro actions to a new BiOp via injunctive relief.

Redden's decision means that the huge document which governs federal hydro operations and outlines 199 different fish recovery actions for ESA stocks in the Columbia Basin will remain in place while federal authorities fix it. Redden has already given NOAA Fisheries a year to satisfy his demands, which he hasn't yet made very specific.

In a succinct June 25 statement Redden said "he will discuss his expectations on remand, including NMFS's interaction with affected federal agencies re: consultations and with the sovereign parties re: offsite mitigation."

Redden ruled quickly on the BiOp issue. He denied the plaintiffs' supplemental motion less than a week after he received their last memo. His action caught most parties by surprise.

We're obviously delighted," said Brian Gorman, NOAA Fisheries spokesman. "It would have been a real disaster if it had been set aside."

But the plaintiffs felt otherwise, pointing out in their latest memo that NOAA's agitation at the thought of having its BiOp vacated and set aside was "like the steadfast attachment of the character Linus in Peanuts to his blue blanket; it is fierce but unwarranted."

After Redden's announcement, Earthjustice attorney Steve Mashuda was cautious. "We donít want to speculate about what this means without having the full opinion from the Court," he said. "But the Court has made clear that it will be keeping a very close eye on this process over the next 11 months. We'll have an opportunity to address any concerns and problems that arise during that process and quickly bring them to the court's attention," Mashuda said.

Redden has asked the feds and other parties to check in every three months to report on progress of the remand.

Mashuda said NOAA should not see Redden's decision as any reason to do less for listed fish than they are doing now. His lead client was more pointed.

"The current plan is illegal ... and there's nothing in this newest ruling that changes that reality," said Jan Hasselman of the National Wildlife Federation. "Fundamental rethinking will be required to come up with a plan that really recovers salmon. More paperwork and minor tweaks aren't going to get us there," he said.

Hasselman was referring to comments made by NOAA Fisheries Northwest regional administrator Bob Lohn after the judge's initial ruling in May. At the time, Lohn told NW Fishletter that his agency must choose whether to respond to the technical issues of the ruling and more carefully "document" the certainty of fish recovery actions outside the hydro system, or undertake a more intense analysis that uses more and better information than was previously available.

It looks like the agency may be going in both directions.

In recent testimony before a Senate subcommittee, Lohn said status updates for ESA stocks should be ready for public review by the end of the year. That will include analysis of hatchery and wild stock interactions and weigh ongoing conservation and recovery efforts before the agency determines which ESUs will require continued protection under the ESA.

But Judge Redden hasn't yet explained exactly what he wants. His brief statement also said a status conference will be scheduled "to discuss a road map for proceedings on remand, including specific timetables for the activities that are to be undertaken and reported on. The court will also seek and discuss constructive approaches offered by the parties."

"We're pleased that Judge Redden decided not to vacate our biological opinion," Lohn told NW Fishletter. "This assures that restoration activities called for in the biological opinion will continue without interruption while we complete the thorough review, additional analysis and revisions necessary to comply with the Court's remand order of June 3.

"Implementation of the biological opinion is generally on track, and we're seeing increased numbers of fish returning," Lohn said. "We believe that the All-H Strategy of working with states, tribes and local groups on continued improvements to hydropower, hatcheries, harvest and habitat remains the best approach for restoring Columbia River salmon and steelhead."

The latest reply memorandum filed June 19 by the plaintiffs had argued that relevant case law did not support leaving the BiOp in place during remand. The memo took issue with federal attorneys who argued that setting aside the BiOp would likely cause chaos with hydro operations.

The June 19 memo also argued that leaving the BiOp in place "would pose a serious threat of harm to ESA-listed salmon and steelhead." Environmental attorneys said high fish returns in recent years did not show an actual change in their prospects for survival.

Both sides argued with citations from the same NOAA Fisheries draft document on ESA fish status updates. A June 12 declaration by regional administrator Lohn said that abundance of most listed ESUs [Evolutionarily Significant Units] had improved since the BiOp was issued in December 2000, thereby causing little concern over short-term survival.

Plaintiffs pointed out that the draft document attributed the increased runs to "unusually favorable conditions in the marine environment rather than more permanent alleviations in the factors that led to widespread decline in abundance over the past century." The plaintiffs' memo said Lohn's and his agency's "new-found optimism" was not shared by his own scientists, "on whom Mr. Lohn relies."

So all parties are waiting for the judge's latest pronouncement. Meanwhile, NOAA Fisheries spokesman Brian Gorman said his agency still hasn't decided whether to appeal Redden's original ruling that invalidated the BiOp. -- Bill Rudolph


The federal government has told an Oregon federal court judge that the Columbia River salmon bonanza of the past few years could mean that all 199 fish improvement strategies spelled out in the 2000 hydro Biological Opinion may not be needed. Judge James Redden ruled in May that the BiOp was inadequate because of uncertainty over how many of those strategies could actually be successfully implemented [National Wildlife Federation v. NMFS].

"NOAA Fisheries will analyze this information in the context of the remanded opinion and it may be that the status of the stocks are sufficiently improved that a 'no jeopardy' opinion is justified without the need of an RPA [Reasonable, Prudent Alternative]," Justice Department attorneys argued in a brief filed June 13. "However, even if an RPA is required, it may well be that significantly less conservation measures are required given the improved status of the stocks."

The brief was filed in response to an attempt by environmental and fishing groups to have the BiOp vacated for the upcoming year that Judge Redden has given NOAA Fisheries to fix it. Redden has already ruled that the BiOp is invalid because language in the document was too uncertain in regard to whether salmon recovery activities outside the hydro system--like habitat improvement--were "reasonably certain to occur." He gave the feds a year to strengthen the language, with progress reports due every three months.

But just a few days after his ruling, Earthjustice attorneys called for vacating the BiOp while it is being re-worked. If the current BiOp had been vacated, they would have been able to seek injunctive relief through the court to add other elements to a new BiOp. Though they haven't said anything particular about what they want to see added, it's likely the groups wanted more flow augmentation and bypass spill for fish at major dams.

As long as the document remains in place, however, the environmental and fishing groups cannot add to the complicated recipe for future hydro operations and the wide range of improvements slated for harvest management, habitat and hatcheries.

In a brief filed last month, Earthjustice attorney Todd True cited several cases involving the Endangered Species Act in which a biological opinion was judged invalid and dismissed while a new one was being developed.

But the latest federal brief points out that Earthjustice itself has recently argued for keeping a biological opinion in place (Alsea Valley Alliance v. NMFS) while the United States Court of Appeals for the Ninth Circuit decides an appeal by environmental groups on whether hatchery salmon that are part of the same Evolutionarily Significant Unit should be listed for ESA protection along with the wild component of the stock.

The feds also took issue with plaintiffs' claims that the listed fish are in imminent danger. They noted that the record runs over the past few years are "indicating that the stocks are in much better shape than NOAA Fisheries assumed in 2000."

The brief also disputes the plaintiffs' assumption "that the Court found that more (and more certain) actions needed to be taken to avoid jeopardy," which will allow them "to impose as-yet-unspecified changes in the operation regime" if the BiOp is vacated. This, the feds argue, could create "enormous uncertainty" over future hydro operations.

"Without the certainty provided by a biological opinion during the remand," said the federal brief, "the action agencies will not be able to conduct their essential planning functions and will be left to the vagaries of any litigant seeking to overturn the delicate balance in order to meet their own unidimensional desires."

This issue has already been important enough for the region's governors to send a letter to President Bush calling for the BiOp to remain in place during the remand.

Even the state of Oregon, which originally filed an amicus brief supporting the plaintiffs, filed a new brief with defendants supporting the notion of keeping the BiOp in place while it is being re-worked. "Moreover, this court's ruling invalidating the biological opinion does not question the propriety of its basin-wide perspective or the adequacy of its scientific basis," Oregon attorneys said in their brief. "The court rejected only the opinion's overly optimistic reliance on mitigation measures that are not adequately assured."

An intervenor brief filed by Northwest Irrigation Utilities said that "irreparable harm" could come to Northwest citizens in the near-term from managing the federal hydro system without a "scientifically grounded, expertly coordinated and administered plan of operation."

The NIU brief said the plaintiffs' assurances that operations would continue under the signed records of decision if the BiOp is vacated "are illusory, nothing more than a chimera that is inconsistent with Plaintiffs' actions." The brief noted that Earthjustice served its notice of intent to sue on the action agencies only two days after Judge Redden remanded the 2000 BiOp.

Vacating the BiOp would leave day-to-day operational decisions for the hydro system to the court, said the NIU brief, not to the agencies with the expertise to run the system.

Environmental lawyers have offered to substitute plan for operations, the NIU said in its brief, which would likely lead to added power supply costs and decreased reliability, and could actually harm listed species by reducing BPA's ability to fund fish recovery efforts.

Redden denied an amicus brief filed by the Columbia-Snake River Irrigators Association, which some power industry types called "beautiful" and "right on the mark." The brief said there was no evidence that salmon survival would improve from the higher levels of flow and spill supported by plaintiffs. Rather, they said more harm to fish would likely result from the "mis-directed, piecemeal remedies" sought by the plaintiffs, since, in general, less fish are transported when spill at dams is increased.

The irrigators said the BiOp should never have concluded the stocks were at a high risk of extinction, noting that salmon returns have set records in recent years. The irrigators also said the jeopardy standard adopted by federal agencies was too strict because it included effects from the dams' existence as well as their operations, whereas Congress clearly intended otherwise. -- B. R.


Federal, state and tribal officials paraded before a Senate subcommittee last week re-iterating what they have been saying about the hydro BiOp in other public venues of late, namely, that itís really working despite a recent federal ruling that invalidated it. The June 24 hearing was chaired by Sen. Mike Crapo (R-ID), who used his position on the Environment and Public Works subcommittee on Fisheries, Wildlife and Water to stump for more federal funding, to carry out the 2000 hydro BiOp, "even in these difficult budgetary times."

Bob Lohn, Northwest regional administrator for NOAA Fisheries was on hand to tell the Senate that short-term funding was adequate if the budgeted research and evaluation funding comes through, but long-term, "itís difficult to say."

As the watershed-level subbasin planning effort goes forward in the Columbia Basin, said Lohn, the region will have a much better idea of future costs, when problems are identified that "need fixing,"

Lohn said the Administration's funding for salmon recovery is enough for the time being. He took issue with some tribes and environmental groups who have argued that federal support is much too small. "In recent months," said Lohn's written testimony, "a number of parties have asserted that federal agencies lack the financial resources to recover salmon and steelhead in the Columbia Basin, citing needs in the range of $800-900 million per year. We believe the federal dollars identified in the President's budget submittals for Fiscal Year 2003 and Fiscal Year 2004 are adequate to do the job."

The June 24 hearing gave BPA Administrator Steve Wright a chance to mend fences with the Power Planning Council. The council had fired off a scathing letter to other senators complaining that Wright's June 4 testimony before the Senate's Indian Affairs subcommittee wasn't consistent with budgetary facts.

Wright's quick synopsis of the post-2001 funding period ruffled council feathers when he said their project approval process had created expectations of more money being available than the annual $140 million commitment for funding the fish and wildlife program, neglecting to mention that BPA itself had initially developed higher budget expectations.

In his written testimony, Wright went into more detail at the Crapo hearing, noting that that F&W expenditures forecast by BPA were originally as high as $180 million. But he was clear to say that the forecasted overage "was the result of a number of complex factors. It was not the result of poor planning by the Council."

Wright echoed Lohn's testimony that the record runs over the last few years were the result of BPA-funded improvements to juvenile fish survival, habitat, hatchery management and harvest control, along with favorable ocean conditions.

Wright said fish enhancement, with an annual cost of more than $600 million, ranked as one of BPA's three largest responsibilities, along with power supply and transmission service. He also noted BPA's BiOp obligations are priorities, but would not preclude discussion with states and other parties about planning for long-term funding of the fish and wildlife program.

But Wright said BPA wasn't the only agency liable for fish recovery efforts. "... it is important to keep in mind that BPA expenditures for salmon recovery are mitigation for the power effects of the dams ... not for the impacts caused by other users of the river basin," Wright said. "Every contributor to the salmon problem has a share of the responsibility for achieving improved recovery."

Judi Danielson, chair of the Power Planning Council also testified at the Crapo hearing. She said the council was concerned that reduced funding could possibly jeopardize BPA's ability to meet its legal requirements under the Northwest Power Act and the ESA, pointing out the importance of giving equal priority to ESA-listed fish and non-listed fish in the fish and wildlife program - B. R.


The Northwest Power Planning Council has taken issue with BPA Administrator Steve Wright's answer to a senator's question about the agency's fish and wildlife budget. During a June 4 Senate hearing, Wright said that BPA has increased direct program funding for tribal fish and wildlife projects by 40 percent. The council says that's not the case.

In June 18 letters to Senators Ben Nighthorse Campbell (R-CO) and Daniel Inouye (D-HI), chairman and ranking member, respectively, of the Senate Committee on Indian Affairs, the council said Wright told committee member Sen. Gordon Smith (R-OR) that the council had recommended BPA fund more projects than the agency had agreed to support.

"That is not consistent with the facts," the council wrote. "The council has recommended program implementation budgets that are within Bonneville's commitment, and Bonneville has repeatedly confirmed that the council's recommendations were not the cause of the potential to spend more than was planned in 2003. Rather, Bonneville's accumulated outstanding contract obligations caused the problem."

The council's letter pointed out that in December 2001, BPA committed to spending an average of $186 million annually on the F&W program ($150 million for the direct program and $36 million in capital spending). But a year later, because of deteriorating financial conditions, the agency said it had to cap spending of the direct program at $139 million annually over the 2002-2006 period, rather than use it as an average target.

The letter explained the difficulties in absorbing $40 million in prior F&W funding obligations after BPA said it did not have the money to pay for them. The council further pointed out that BPA's commitment to spending $36 million annually on capital projects "has fallen aside as well." BPA has spent less than $6 million on capital projects in 2003, but internal administrative costs have increased from $8 million to $12 million annually.

Council members said they had to write the senators to put on the public record the complexity of BPA's commitment to F&W funding. "In addition, considering Bonneville's failure to carry funds it collected for fish and wildlife purposes into the current contract period, its reduction in capital spending, and the fact that Bonneville's internal costs have escalated significantly, we find the Administrator's statements of a 40-percent increase in spending to be inconsistent with the facts," the council wrote.

As for Wright's comments before the committee, "it was not his intent to blame the council," said Therese Lamb, BPA acting vice president for environment, fish and wildlife. Lamb took issue with the council's contention that funding has not increased, but "flat-lined." She pointed out that direct program expenditures averaged $96 million annually from 1996-2001, were $137 million in 2002 and were coming in at about $139 million this year.

In the June 4 hearing, Sen. Smith asked whether people might have different expectations about "what you [Wright] ought to be doing."

Wright said his agency had disagreed with tribes about funding. "Under the old [memorandum of agreement] we provided $100 million per year to the direct program, the program that I've described here," Wright said. "Under our new rates we are providing $139 million per year--a 40 percent increase in funding.

"Despite that, the Northwest Power Planning Council created a lengthy process to look at potential projects that could be funded and had approved a number of projects that, when we added them up, added up to a lot more than that $140 million a year," Wright said. "So expectations were created in that process that we would provide more money. Given our current financial circumstances, we are not able to provide more than the budgeted amount. So yes, there has been a problem with respect to these different expectations. And why we have some who say we've reduced funding when in our view we've actually increased funding compared to the budgets."

"So your point, your charts I think are telling us that every year you've increased funding--is that accurate?" asked Smith.

"With respect to the direct program, the program that the tribes use, yes, that is accurate," Wright said. - B. R.


The latest El Nino/Southern Oscillation Advisory issued by NOAA's Climate Prediction Center says that oceanic and atmospheric conditions in the tropical Pacific are consistent with a developing "cold episode." By mid-May, sub-surface ocean temperatures ranged from 2 degrees F. to 8 degrees F. below normal.

The developing cold period that forecasters expect over the next few months caught them by surprise after the ocean began cooling rapidly in late March. Near normal conditions through September had been expected before the cooling began.

Science magazine reported that in early May, 16 different forecast models were sending mixed signals; six had called for neutral conditions over the next six months, four had predicted another El Nino, and five had pointed to a La Nina.

Now the Climate Prediction Center says there is a 70 percent chance of a la Nina event. A La Nina likely means mean more hurricanes in the tropical Atlantic by summer, but a cooler, wetter Northwest winter, a colder Alaska, and a drier, warmer-than-average winter in the southern US. - B. R.


Researchers are taking a closer look at juvenile fish survival this summer at Ice Harbor Dam on the lower Snake River. Spill is the dam's main strategy for passing migrating salmon, and biologists have assumed that Ice Harbor's spillway passed fish as successfully as other dams on the lower Snake. But a closer look has found that about 11 percent of the fish die via that route, instead of the 2 percent mortality evident at nearby projects. Combined survival through the bypass and turbine routes at Ice Harbor is estimated at about 94 percent.

A shallow stilling basin
may be the culprit
Tests this spring confirmed the high mortality that was seen last year. Results from a balloon tag study showed fish were injured in both a new spill operation as well as during BiOp spill operation, which calls for about

Test operations began June 24 with alternating two-day blocks of bulk spill and no spill. Huge numbers of fall chinook are migrating out of the Snake compared to previous years with nearly a million sub-yearling migrants estimated by June 27.

Federal officials will discuss results of the summer spill evaluation after itís mid-July completion to decide how best to operate the project through the end of summer.

Spring spill operations for fish passage ended June 20 at the other three dams on the Lower Snake. For the rest of the summer, no spill is planned at those projects in order to maximize fish barging efforts, but the BiOp calls for about 75 percent summer spill at Ice Harbor, where barging fish does not take place. - B. R.


A BPA analysis of biological and economic effects from reducing spill concludes that stopping spill in the lower Columbia River for the last two weeks of August would increase the agency's revenues by at least $17 million, with negligible effects on Snake River fall chinook that are listed for protection under the Endangered Species Act.

The analysis, requested by the Pacific Northwest Utilities Conference Committee, found that Columbia River fall chinook, mainly from the Hanford Reach area, would experience about 5 percent less survival. But since only about 10 percent of the run is still migrating by the middle of August, the potential action would decrease adult returns by only about 600 fish.

Assuming 11 million fall chinook survive to John Day Dam, the analysis said that would add up to only 41 fewer chinook for non-tribal fishermen to catch, worth about $4,100 to the economy, and 117 fewer chinook for tribal fishermen, worth about $7,600.

BPA also noted, "there is no means this year to study the effects of curtailing spill by two weeks." - B. R.


James Connaughton, chair of the White House Council on Environmental Quality, paid a recent visit to Oregon's Governor Kulongoski to discuss how to get Oregon coastal coho salmon off the endangered species list.

According to Kaitlin Lovell, Trout Unlimited, the Oregon Governor's Office has been discussing how to get landowner assurances under the ESA for activities under the state's salmon recovery plan to create a 4(d) conservation plan or a Habitat Conservation Plan. But last November, the discussion shifted to delisting after the visit from White House officials.

Initially, Oregon thought it would receive $250,000 in funding that Connaughton had promised to evaluate the coho stock's status, ODFW Lindsay Ball recently told conservation groups the money was going to NOAA Fisheries to conduct a scientific review to determine whether the increased returns from the past two years were sufficient to remove them from federal protection under the ESA and turn their management over to the state.

"Suddenly, Section 6 of the ESA was no longer just about landowner assurances, money and recovery, " said Lovell, "but delisting and quickly. And the larger conservation and fish community got shut out completely."

She said an ODFW insider told her that they were going to delist Oregon Coast Coho by November using Section 6 and the policy for evaluating conservation efforts. But Oregon and the Bush administration need support from the scientists who are evaluating coho recovery actions.

Tom Nickelson, an ODFW research biologist, said the problem is that freshwater habitats limit the productivity of the wild coho salmon, especially when the ocean is in a less productive down cycle, "A population must be strong enough to survive and present habitat problems do not allow it," Nickelson said.

According to time-series data, 1952 wild coho spawner abundance was about the same as in 2002, or 264,000 fish, but the earlier run supported a 60% harvest rate whereas the 2002 run had no directed fishery and harvest was minimal.

By comparison, the coho smolt-to-adult survival in the poor ocean environment in 1998 was 0.6 percent compared to 8.8 percent in 2002. Historically, coho abundance approached a million fish, but now only functions at about one-quarter of that during a strong cycle of ocean productivity. The habitat is limiting smolt production in both good and poor ocean environments, but during years of poor ocean productivity, the coho are not sustaining themselves.

Nickelson said that survival for wild coho does not look good for this year because upwelling was late and predator activity was high. In the recent past, like 1997, this combination has meant that survival was 2-4 percent. "The good news," Nickelson said, "is more smolts are going out this year."

NOAA Fisheries, Oregon, and the Bush administration will still have to confront the fact that Oregon coastal coho are not sustainable when the ocean productivity is low because the freshwater habitat is limiting the number of smolts that produce the next run of fish.

"The governor has no desire for a non-defensible plan," said Ed Bowles, ODFW fish division administrator . "The Oregon Plan will fail if the participants are not rewarded for their efforts to protect habitat, but the fish should tell us when it is working. The naturally produced fish are the currency for delisting," - Bill Bakke


BPA wholesale rates could increase an average of 5 percent over current rates come Oct. 1, the agency said last week in a draft record of decision (ROD). But the actual amount of the safety net cost recovery adjustment clause, or SN CRAC, is still not absolutely final, and could change after a "second look" in August that will account for water and market conditions, and the status of litigation over federal power benefits received by the region's investor-owned utilities.

BPA stressed that the 5 percent hike--which the agency calculated would be the average net increase above current rates over the next three years as rates go up and down every six months--is "significantly less" than the net 15 percent it was projecting last February. Back then, market fundamentals looked grim; but that was before what at BPA has come to be known as "miracle March," when water and market conditions improved markedly, and before the agency had committed to additional cost cuts.

"The good news is it's not 15 percent," said Jerry Leone, manager of the Public Power Council. "The bad news is it isn't zero."

John Saven, executive director of Northwest Requirements Utilities, said he was disappointed with BPA's decision to "flatten things out over three years" and not direct the benefits from improved hydro conditions into fiscal year 2004. Because of current economic conditions, "We don't want an SN CRAC if it's not needed in 2004," Saven said. He also said BPA set its Treasury repayment bars too high and ought to stick to a much lower ending reserve balance of no more than $200 million.

BPA said the SN CRAC plan would allow it to move Treasury repayment probability to 80 percent from 50 percent.

BPA noted that the "single largest outstanding item" that could bring the increase down even further would be a settlement of litigation filed by public power against BPA over the federal benefits IOUs receive under their current residential exchange contracts. That's in part because BPA promised to pay two IOUs a total of $200 million if there were no settlement. The agency has said a settlement could reduce the rate increase by at least another 6 percentage points, so the implied message is clear: if the customers would settle, there could actually be a net rate decrease.

PPC's Leone said the publics will try to settle, but "We ain't the ones who put Bonneville into this position. Bonneville is the one who got itself into this position, so now we have to pull them out." - Ben Tansey


In spite of a spate of rumors, Idaho Gov. Dirk Kempthorne insists that he had not been asked to take over the Environmental Protection Agency. Kempthorne spokesman Mark Snider acknowledged that the governor had met with President Bush in early June, but Snider said they talked about National Governor's Conference matters.

"The issue of the EPA did come up in their talk, but it involved his [Kempthorne's] dealings with the agency as a senator and as governor. He did not describe it as a job interview. And, he has not been called by the president to say, 'You're my guy'," Snider told NW Fishletter.

"He did say that if the president calls, he will consider the job, but he hasn't said he will take or not take it. There's plenty he still wants to do in Idaho," added Snider.

Kempthorne, who served one term in the US Senate before running for governor or Idaho, was the subject of considerable media speculation last week as the most likely to take over when current administrator Christie Whitman leaves at the end of this week. The governor has worked with the EPA at the state level and as former chair of the Senate Environment and Public Works Subcommittee on Drinking Water, Fisheries and Wildlife.

While a senator from Idaho, Kempthorne made an unsuccessful attempt to revise the Endangered Species Act. He was also unsuccessful in efforts to revise the EPA's Superfund waste cleanup program and in another effort to enact a measure that would have limited Congress' ability to impose environmental costs on states.

Known as a states' rights advocate, Kempthorne may face a difficult confirmation if he is tapped for the job. Environmental groups have consistently given the Idaho governor low ratings, and several promised a fight last week if he is the president's choice. - Lynn Francisco

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