Endangered Species Law and Policy : Environmental and Natural Resources Attorneys from Nossaman

Following the resignations of Dr. Pat Glibert and Dr. Michael McGuire from the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta, three new members were named to the Committee.  The three new members are Dr. John Connolly, Dr. Hans Paerl, and Dr. Stephen Monismith.  A complete list of the committee members with brief accompanying biographies is available here.

The Committee met on July 13 in Sacramento to discuss its second task.  The agenda for that meeting is available here.  At the July 13 meeting, representatives of the federal government asked the Committee to consider amending its existing task by agreeing to conduct a review of the draft Bay Delta Conservation Plan (BDCP).  The draft BDCP is due out in late 2010.  A schedule for completion of the BDCP is available here.  It is unclear whether the Committee will agree to take on the additional task proposed by the federal government.  It is also unclear whether Congress must authorize the proposed change to the Committee's existing task statement and appropriate additional funding for the purpose of completing the additional task.

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In a letter (PDF) dated May 25, 2010 and sent to Secretaries Salazar and Locke of the Departments of the Interior and Commerce, respectively, Stephen Parker of the National Research Council's Water Science and Technology Board explained the National Research Council's decision to force the resignation of Dr. Pat Glibert of the University of Maryland.

The forced resignation is extraordinary in light of the National Research Council's Policy on Composition and Balance and Conflicts of Interest for Committees Used in the Development of Reports (which explicitly acknowledges that it is not uncommon for committee members to find that their own published and professional work is part of the technical basis and literature for the committee) and past practice.

In response to the resignations, Congressmen Costa and Cardoza sent a letter (PDF) dated May 28, 2010, expressing concerns over the resignations of Dr. Glibert and Dr. McGuire and seeking "an objective, comprehensive analysis of all of the factors that have limited the abundance of listed fish species in the Delta and have resulted in a significant decrease in the San Joaquin Valley’s water supply."  A press release that accompanied the letter states "Congressmen Jim Costa and Dennis Cardoza demanded answers from the National Academy of Sciences to explain why a scientist whose findings question the validity of federal water policy was removed from the panel examining the factors degrading the health of the Bay-Delta and solutions to the region’s water challenges."

In addition, in a letter (PDF) dated June 1, 2010, the Coalition for a Sustainable Delta, Kern County Water Agency, the Metropolitan Water District of Southern California, and Westlands Water District expressed concerns about the resignations, arguing that they raise "serious questions regarding the integrity of the Committee and its work."

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Mike Taugher of the Contra Costa Times reports that Dr. Pat Glibert of the University of Maryland was forced to resign from the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta.  The National Research Council convened the committee at the request of members of the California congressional delegation, including Senator Feinstein and Representative Costa.

The decision to force Dr. Glibert off the committee, which released its first report in March 2010 and had plans to develop a second report in the coming year, is extremely unusual.  Taugher reports that the National Research Council's decision was directly responsive to the publication of a study in a peer-reviewed scientific journal this past week by Dr. Glibert, in which she concluded that increases in ammonium downstream of the Sacramento Regional County Sanitation District's sewage treatment plant altered the food web in the Delta and contributed to the decline of native fish.

In response, a second member of the committee and member of the Water, Science, and Technology Board that oversees the committee’s work, Michael McGuire, resigned in protest.   According to Taugher, McGuire's resignation states, "Given the fixed points of view of many of the remaining committee members and the stilling of an important alternative voice on the committee, I do not see how I can contribute to provide a meaningful contribution."  The decisions of the National Research Council and McGuire are likely to raise questions about the committee and its work.

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This week, the Endangered Species Committee of the American Bar Association's Section on Environment, Energy and Resources published its most recent edition of the Endangered Species Committee Newsletter.  The Newsletter is edited by Paul Weiland and includes an article by him regarding an interim report of the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta. The report is entitled “A Scientific Assessment of Alternatives for Reducing Water Management Effects on Threatened and Endangered Fishes in California’s Bay Delta.”  Click here for a prior post regarding the report.

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The Fish and Wildlife Service announced that the delta smelt warrants uplisting (PDF) from "threatened" to endangered" under the Endangered Species Act.  However, uplisting at this time is precluded by the need to address higher priority species.  This "warranted but precluded" finding will not have any practical effect on existing protections for the delta smelt. 

According to the Service, the delta smelt is native to the Sacramento-San Joaquin Delta and subject to several threats, including predation, competition with invasive species, contaminants, and entrainment by water export facilities.  The Service stated that it "is still unable to determine with certainty which threats or combinations of threats are directly responsible for the decrease in delta smelt abundance." 

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Senator Dianne Feinstein has responded (PDF) to the National Academy of Sciences National Research Council's report on the Sacramento-San Joaquin Delta noting that the report did not indicate a need to enforce more rigorous pumping restrictions.  Feinstein emphasized the finding that other stressors, including predators, may have a potentially large impact on endangered species in the Delta and the need to integrate the two biological opinions.  Finally, Feinstein urged the Departments of Interior and Commerce to implement the biological opinions with additional flexibility with respect to likely water limitations. 

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Today the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta released the first of two reports regarding the Sacramento-San Joaquin Delta in California. The report is entitled A Scientific Assessment of Alternatives for Reducing Water Management Effects on Threatened and Endangered Fishes in California's Bay Delta. It addresses two biological opinions issued by the Fish and Wildlife Service and the National Marine Fisheries Service (“NMFS”) under the Endangered Species Act concerning the operation of the state and federal water projects that serve 25 million Californians.

The National Research Council report focuses on:

• scientific issues regarding the reasonable and prudent alternatives (RPAs) in the two biological opinions,
• whether the RPAs might be in conflict with one another, 
• whether alternatives to the RPAs might be available that would protect the fishes with lesser impacts on other water uses, and
• the effects of stressors other than water project operations on the fishes.

The Committee reviewed the actions contained in the Service and NMFS RPAs and determined that most of them have a sound conceptual basis. Nonetheless, the Committee concluded there are a number of short-comings in the existing RPAs. For example, with respect to the Service's RPAs, the Committee determined that there is a weak statistical relationship between the salinity contour measure (“X2”) used in the biological opinion to restrict water deliveries and the size of the delta smelt populations, which makes justification of that RPA difficult to understand. With respect to the NMFS RPAs, the Committee concluded that the scientific support for specific flow targets managing the flow from the Old and Middle Rivers is uncertain.  As noted in a New York Times article on the report, the Committee added that "problems facing delta smelt and chinook salmon are not entirely caused by thirsty farms south of the estuary."

A previous post on this subject, including links to both biological opinions is available here. 

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At the March 3, 2010 California Fish and Game Commission meeting in Ontario, California, the National Oceanic and Atmospheric Administration ("NOAA") Fisheries, the federal agency charged with protecting marine and anadromous fish species such as the Sacramento River winter-run Chinook salmon and Central Valley steelhead, formally requested that the Commission revise sport-fishing regulations to increase the harvest of non-native predators that prey on species protected under the federal Endangered Species Act.  (To access archived footage of the Commission meeting, click here and on the film icon next to item 8.)

While noting that such modifications were appropriate for a variety of non-native predatory fish species, including the largemouth bass and American shad, the representative from NOAA explained that striped bass is perhaps the "most important predator on young salmon and steelhead" in the Delta, both of which are listed under the ESA.  He went on to state that focusing "on striped bass in specific sections of certain rivers or streams would probably be a good place to start."

In response to this request, the Commission directed staff to draft a technical report analyzing the issue.  (To access archived footage, click here and on the film icon next to item 10.)  No deadline was provided for staff to complete the report. 

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The United States District Court for the Eastern District of California issued a decision (PDF) granting plaintiffs' motion for summary judgment on the grounds that the National Marine Fisheries Service (NMFS) and the Bureau of Reclamation (BOR) violated the National Environmental Policy Act (NEPA) by adopting and implementing NMFS' biological opinion and reasonable and prudent alternatives regarding the long-term operations of the Central Valley Project and State Water Project in California.

The NMFS biological opinion (PDF), which covers five listed anadromous and marine mammal species, was released on June 4, 2009.  In it, NMFS determined that long-term operations of the Central Valley Project and State Water Project are likely to jeopardize the continued existence of all five listed species.  For that reason, NMFS identified reasonable and prudent alternatives that are expected to avoid the likelihood of jeopardy to the species.  Numerous plaintiffs filed lawsuits challenging the biological opinion and reasonable and prudent alternatives, and those suits were consolidated on September 25, 2009. On November 2, 2009, plaintiffs moved for summary judgment regarding their NEPA claims.

Plaintiffs argued that the adoption and implementation of the biological opinion and reasonable and prudent alternatives are major federal actions that will significantly affect the human environment and that NMFS and BOR erred by not preparing an environmental assessment or environmental impact statement as required by NEPA.  The Court agreed holding that the reasonable and prudent alternatives significantly revise the procedures for operating the Central Valley Project and will materially reduce water exports and, therefore, trigger NEPA.

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Co-authored by Ben Rubin

On February 27, 2010, the Sacramento Bee published a story by Matt Weiser entitled "Lawsuit: Striped bass to blame for California's salmon decline." The story discusses an ongoing lawsuit (PDF) challenging the California Department of Fish and Game's enforcement of striped bass sport-fishing regulations in the Sacramento-San Joaquin Delta. The lawsuit alleges that the enforcement of the striped bass sport-fishing regulations maintain an elevated striped bass population, which increases striped bass predation on a number of species listed under the Endangered Species Act ("ESA"), including the Sacramento River winter-run Chinook salmon and delta smelt. Because these species are listed, any action that increases striped bass predation is a violation of Section 9 of the ESA, which prohibits any government agency, entity, or individual from "taking" a federally protected species without prior authorization.

Plaintiffs and the Department of Fish and Game have filed cross-motions for summary judgment, which the federal District Court is scheduled to hear in late April. Plaintiffs' motion (PDF), which relies primarily on documents and statements from Department of Fish and Game employees, seeks summary adjudication on the issue of liability and standing. The Department of Fish and Game, however, has only moved (PDF) on the issue of plaintiffs' standing.

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Pursuant to a request by Congress and the U.S. Department of the Interior, the National Research Council recently held a number of hearings in Davis, California on the current crisis in the Sacramento-San Joaquin Delta. These hearings took place over a four-day stretch, running from January 24 to January 28, frequently addressing a handful of different Delta related issues each day.

The National Research Council is an arm of the National Academy of Sciences, a private non-profit institution that was created in 1863 by President Lincoln.  The primary role of the National Research Council is to synthesize, analyze, and disseminate information in order to aid government decision making. 

The proposed end result of what the National Research Council has currently scheduled to be a 24 month process, is two reports. These reports are being drafted by 15 National Research Council committee members.  The first report, which is scheduled to come out in mid-March, will focus on two biological opinions regarding the continued operations of the State Water Project and the Central Valley Project - the December 2008 biological opinion by the U.S. Fish and Wildlife Service on the delta smelt and the June 2009 biological opinion by the National Marine Fisheries Service on three salmonid species, the North American green sturgeon and the Southern Resident killer whale.  Each of these biological opinions is currently the subject of federal litigation.

The second report, which is currently scheduled to come out in November 2011, will attempt to synthesize all of the scientific information related to the Delta and the federally protected species at issue (including native species such as the Delta smelt), identify gaps in the available science and factors contributing to the decline of the federally protected species, and future water-supply and delivery options that properly account for all of the various interests in the Delta.

Delta smelt biological opinion (PDF 8 MB)

Salmon biological opinion (PDF 12 MB)

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