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

Federal and state officials have issued proposed changes to the Bay Delta Conservation Plan’s (BDCP) Memorandum of Agreement (MOA) to address public comments concerning the language of the MOA and the need for meaningful public involvement in the BDCP process.

The U.S. Bureau of Reclamation (Reclamation) and the California Department of Water Resources (DWR) issued the draft MOA on September 6, 2011 and requested public comments (pdf) by November 16, 2011. The MOA is intended to replace in its entirety an earlier memorandum of agreement that was executed in March 2009.

In response to comments received from the public, federal, and state agencies issued a revised version of the MOA (pdf), comprehensive responses (pdf) to the comments, and a summary (pdf) of the comments. Revisions to the MOA included clarifying that the BDCP will address both water supply and environmental conditions, revising the BDCP schedule, and further clarifying the role of consultants in the BDCP process.

The MOA establishes a joint process for development of the BDCP among Reclamation, DWR, and certain California public water agencies that export water from the Sacramento-San Joaquin River Delta. The MOA, titled the “"First Amendment to the Memorandum of Agreement (MOA) Regarding Collaboration on the Planning, Preliminary Design and Environmental Compliance for the Delta Habitat Conservation and Conveyance Program in Connection with the Development of the Bay Delta Conservation Plan,” is intended to enable a timely analysis of conservation and water supply measures developed in the BDCP.
 

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On August 31, 2011, the U.S. District Court for the Eastern District of California enjoined implementation (pdf) of a water management action (referred to as the “Fall X2 Action”), which the U.S. Fish and Wildlife Service (Service) and Bureau of Reclamation (Reclamation) proposed to take pursuant to a 2008 biological opinion (BiOp) for operation of the California State Water Project and federal Central Valley Project in the Sacramento – San Joaquin River Delta (Delta).  Under the BiOp’s reasonable and prudent alternative, the Fall X2 Action requires a combination of reservoir releases upstream from the Delta and reductions of water exports south of the Delta to maintain a monthly average location of two parts per thousand salinity (X2) no greater (more eastward) than 74 kilometers (km) from the Golden Gate Bridge.  The Service and Reclamation took the position that this Action would benefit the delta smelt.  Plaintiffs the State of California, public water agencies, and agricultural interests sought to enjoin the Action, arguing it would provide no benefit for the species but would impose restrictions that would result in the loss of billions of gallons of water.

In its decision prohibiting implementation of the Fall X2 Action as proposed by the Service, the Court found that the estimated cost of the Fall X2 Action to water users would be 670,000 acre feet of water if 2012 is a critically dry or dry year, or 300,000 acre feet if 2012 is a below normal or above normal year.  The Court determined that this water loss would impact long-term water supply reliability for both domestic and agricultural users, and that there would be further impacts to groundwater recharge programs, with resulting direct environmental impacts to groundwater levels, groundwater quality, and energy use.  The Court further reasoned that such water supply reductions would cause economic impacts to farmers and could have socioeconomic impacts on agricultural communities, although the magnitude of any such economic and/or socioeconomic impacts given the “very good” water year in 2011 was unclear.

With respect to the benefit of the Fall X2 Action on the delta smelt, the Court found that the “scientific evidence in support of imposing any Fall X2 action is manifestly equivocal.  There is essentially no biological evidence to support the necessity of the specific 74 km requirement set to be triggered in this 'wet' water year.  The agencies 'still don't get it.'  They continue to believe their 'right to be mistaken' excuses precise and competent scientific analysis for actions they know will wreak havoc on California's water supply.”

In balancing the hardships, the Court found that the record supported a requirement that the location of X2 in the fall not be allowed to shift east of the confluence of the Sacramento and San Joaquin Rivers.  Specifically, the Court found that positioning the location of X2 at 79 km would significantly reduce the water supply impact (from 300,000 acre feet or more to 90,000 acre feet), and would serve the stated objective of the Service to collect delta smelt population data to determine whether the Action might benefit the species.  The Court balanced the imperiled status of the species, the “equivocal and highly disputed support” for the Fall X2 Action, and the “even weaker and unjustified support” for positioning the location of X2 at the 74 km marker, against the “substantial and damaging water supply impact of doing so,” and determined that positioning the location of X2 at the 79 km marker achieved equity. 

In sum, the Court’s decision provides that the Fall X2 Action may not be implemented at 74 km as proposed by the Service and Reclamation; rather the federal agencies may only require the location of X2 to be held at 79 km this fall.  The underlying case, which the court decided (pdf) in plaintiffs favor, is currently on appeal to the Ninth Circuit.

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The journal Conservation Biology recently posted a forthcoming article on their website that I co-authored with Drs. Dennis Murphy and Kenneth Cummins entitled, A Critical Assessment of the Use of Surrogate Species in Conservation Planning in the Sacramento-San Joaquin Delta, California (U.S.A.). The principle purpose of the article is to assess the use of surrogate species in the Sacramento-San Joaquin Delta. Specifically, we examined “the use of surrogate species, in the form of cross-taxon response-indicator species,” that is, “one species from which data are used to guide management planning for another, distinct species.” In the Delta, we explain that “there has been increasing reliance on surrogates in conservation planning for species listed under federal or state endangered species acts, although the agencies applying the surrogate species concept did not first validate that the surrogate and target species respond similarly to relevant environmental conditions.” We note that, during the same period when there was increasing reliance on surrogates in the Delta, “conservation biologists demonstrated that the surrogate concept is generally unsupported by ecological theory and empirical evidence.” Further, we contend that “[r]ecently developed validation procedures may allow for the productive use of surrogates in conservation planning, but, used without validation, the surrogate species concept is not a reliable planning tool.” The article may be purchased from the publisher, here. Or, if you are interested in obtaining a copy, please contact me, here.

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As reported on June 15, 2011 by John Ellis and Mark Grossi of the Fresno Bee, the United States District Court for the Eastern District of California denied a motion for temporary restraining order that sought to order the Department of the Interior to lift pumping restrictions in the Sacramento-San Joaquin Delta.  Judge Wanger ruled that the pumping restrictions were necessary to protect migrating fall-run Chinook salmon, explaining that under the Central Valley Project Improvement Act (CVPIA) the Bureau of Reclamation (BOR) must protect all fish, not just endangered species.  The San-Luis and Delta Mendota Water Authority and Westlands Water District had argued that under the CVPIA, BOR is obligated to export and store as much water as possible when the Delta is in excess water conditions, which they argued it will be until early July due to the high amount of snow and rain California has received.  The water agencies further argued that  fall-run Chinook are not protected under the Endangered Species Act.

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On May 11, Representatives Nunes, Denham, and McCarthy introduced H.R. 1837 (pdf) "to address water-related concerns on the San Joaquin River, and for other purposes."  A section by section analysis is available here (pdf).

Title I of the bill includes a number of proposed amendments to the Central Valley Project Improvement Act (CVPIA), 106 Stat. 4706.  Among other things, it eliminates non-native fish including striped bass from the list of "anadromous fish" that are protected by the CVPIA and it facilitates water transfers.  This title also:

• specifies that all Endangered Species Act (ESA) requirements will be met for operation of the Central Valley Project (CVP) and State Water Project (SWP) if they are operated in a manner consistent with the 1994 Bay-Delta Accord,
• directs the Secretaries of the Interior and Commerce to issue biological opinions for CVP and SWP operations that are no more restrictive than the provisions of the Bay-Delta Accord,
• preempts any state requirements for the protection of ESA listed species that is more restrictive than the requirements of this section, and
• preempts any state restriction imposed on take or harvest of nonnative species.

Title II of the bill repeals the San Joaquin River Restoration Settlement Act.  Further, it requires the Secretary of the Interior to recognize hatchery-spawned species when making any determination under the Endangered Species Act that relates to anadromous fish in the Sacramento and San Joaquin Rivers and their tributaries.  In a prior blog post, we reported on a bill introduced by Representatives Cardoza and Costa, H.R. 1251, entitled the More Water for our Valley Act, which would also alter restrictions on CVP and SWP operations.

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On May 5, 2011, an ad hoc panel appointed by the National Research Council (NRC) issued a report titled “The Review of the Use of Science and Adaptive Management in California’s Draft Bay Delta Conservation Plan” (pdf). The NRC is a division of the National Academies, and the panel it appointed developed the report in response to requests from the Department of Commerce and the Department of the Interior. The report provides an independent scientific assessment of the draft Bay Delta Conservation Plan (BDCP) issued November 18, 2010 .

In general, while recognizing the BDCP’s potential as a tool for helping to solve California’s chronic water problems, the panel found the draft BDCP to be incomplete and unclear in a variety of ways. As an initial matter, the panel identified the lack of an effects analysis as a crucial missing element from the draft plan. The panel further determined that a lack of clarity existed with respect to whether the BDCP is an application for the incidental take of listed species, or a comprehensive conservation strategy intended to restore ecological functions and improve water supply reliability. The panel also noted that, even if the BDCP is limited to an application for an incidental take permit, it still lacks an analysis of water conveyance alternatives and the reasons why such alternatives are not being utilized.

In addition, the panel opined that many scientists have recognized that significant environmental factors, other than water exports, have potentially large effects on fish listed under the Endangered Species Act (ESA) in the Delta. The panel also noted that there remains considerable uncertainties regarding the degree to which different aspects of flow management in the Delta, especially salinity management, affect survival of the ESA-listed fishes. Accordingly, the panel supports the concept of a quantitative evaluation of the significance of these stressors, ideally using life-cycle models, as part of the BDCP.
 

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On April 20, 2011, the Pacific Fishery Management Council (Council) issued its final management measures for the 2011 salmon fisheries season. The report, titled Preseason Report III: Analysis of Council-Adopted Regulatory Measures for 2011 Ocean Salmon Fisheries (pdf), covers the period of May 1, 2011 through April 30, 2012, and is the last in a series of three preseason reports prepared by the Council’s Salmon Technical Team to guide salmon fishery management off the coasts of Washington, Oregon and California. The report will be submitted to the National Marine Fisheries Service (NMFS) to be approved and implemented by NMFS pursuant to the Magnuson-Stevens Fishery Conservation and Management Act. The Council expects that the measures will go into effect May 1, 2011.

The report indicates, among other things, that an ocean harvest is permitted in 2011 for Sacramento River fall run (SRFR) Chinook salmon. Based on an estimated SRFR Chinook population of 729,900 adults, the management measures provide for an escapement of 377,000 fish. Accordingly, based on this data, the harvest rate for SRFR Chinook for the 2011 season appears to be approximately 49%, or 352,900 fish.

According to the biological opinion (pdf) issued in April 2010 regarding ocean salmon fisheries, the SRFR Chinook salmon harvest is mixed-stock, meaning that winter-run Chinook may be caught along with fall-run. Given that winter-run is listed as an endangered species under the Endangered Species Act (ESA), and that winter-run could be caught as part of the SRFR Chinook harvest, the Council’s decision to authorize a harvest rate of 49% is particularly noteworthy. However, according to the report, the Council’s 2011 regulations meet or exceed the level of protection required by all consultation standards for the salmon species listed under the ESA.

The report is the culmination of the preseason process undertaken by the Council to develop recommendations for management of ocean fisheries. The salmon management measures are adopted pursuant to the Salmon Fishery Management Plan, which describes the goals and methods for salmon management.
 

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On March 30, Representatives Cardoza and Costa introduced a bill in the U.S. House of Representatives, H.R. 1251, entitled the More Water for our Valley Act.  The purpose of the bill is to "provide congressional direction for implementation of the Endangered Species Act as it relates to operation of the Central Valley Project and the California State Water Project and for water relief in the State of California."  To accomplish this purpose, the bill would modify certain existing restrictions on Central Valley Project and State Water Project operations until March 1, 2015, which were developed by the U.S. Fish and Wildlife Service and National Marine Fisheries Service as reasonable and prudent alternatives that accompanied biological opinions issued by those agencies.  In addition, the bill would authorize further modifications to be made by the Secretary of the Interior upon recommendations of the National Research Council Committee on Sustainable Water and Environmental Management in the California Bay-Delta provided those recommendations would provide a net benefit to listed fish in the Delta and would not reduce water delivery capability.  Furthermore, the bill would require the Secretaries of the Interior and Commerce to implement an action plan to provide further benefits to the listed fish.

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On March 29, 2011, the United States District Court for the Eastern District of California entered a final judgment in the litigation challenging the 2008 biological opinion issued by the U.S. Fish and Wildlife Service (Service) regarding the effects of the Central Valley Project and State Water Project on the delta smelt. Previously, the Court issued a memorandum decision (pdf) holding that the biological opinion is unlawful and remanding it to the Service for further consideration. Under the judgment (pdf), the Service is required to complete a new delta smelt biological opinion consistent with the Court’s memorandum decision by October 1, 2011, except that the Service does not need to make express written findings regarding the Reasonable and Prudent Alternative (RPA) – if one accompanies the biological opinion – by this deadline. Such written findings, including that the RPA is (1) consistent with the purpose of the underlying action, (2) consistent with the action agency’s authority, and (3) economically and technologically feasible, are required by November 30, 2011. The judgment also requires the United States Bureau of Reclamation to complete its review of the RPA (if any) under the National Environmental Policy Act (NEPA) by December 15, 2011. In addition, the judgment incorporates by reference the terms of the recent interim remedy agreement governing operations of the water projects through June 30, 2011, which we described here. 

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The U.S. Fish and Wildlife Service has announced it will accept comments through April 9, 2011 regarding a status review of the longfin smelt (Spirinchus thaleichthys).  In a press release (pdf) announcing that the Service is now accepting comments, the Service states that, based on the status review, it will issue a final 12-month finding by September 30, 2011, that will address whether the listing may be warranted under the Endangered Species Act (ESA).  The Service has twice previously made determinations not to list the species under the ESA, most recently in a determination (pdf) published in the Federal Register on April 9, 2009.  As we explained in a prior post, the Service agreed to issue a 12-month finding by September 30, 2011, as part of a settlement agreement with the Center for Biological Diversity and the Bay Institute.

The longfin smelt has a range from Monterey Bay, California to Prince William Sound, Alaska, and there are two known, landlocked populations.  Across much of that range, longfin smelt are abundant.  But abundance data indicate that the San Francisco Bay-Delta population has declined substantially.

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On February 10, 2011, EPA Region 9 issued an Advanced Notice of Proposed Rulemaking for Water Quality Challenges in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary ("Advanced Notice") (pdf).  EPA is not proposing any specific Clean Water Act ("CWA") rulemaking at this time.  Instead, EPA proposes to assess "the effectiveness of current programs designed to protect water quality and aquatic species habitat in the San Francisco Bay / Sacramento-San Joaquin Delta in California . . . ."  Fact Sheet (pdf).  According to EPA Region 9 Administrator Jared Blumenfeld, EPA is soliciting public comment to assist EPA in "trying to identify gaps in state and federal water quality programs" that may affect, among other things, aquatic species such as salmon and delta smelt that have been listed as threatened or endangered under the federal Endangered Species Act and/or the California Endangered Species Act.

According to Blumenfeld: "In particular, we are looking at the effects of pesticides, ammonia and selenium on the estuarine habitat.  Pesticides – whether applied indoors or outdoors to control rodents, insects and weeds – can reach the Delta and harm fish and humans alike.  Ammonia from sewage treatment plants and fertilizers adds excessive nitrogen to the water, inhibiting the growth of plant plankton at the base of the food web.  Selenium is a naturally occurring element, but irrigation runoff and oil refinery discharges can increase its concentrations to toxic levels."

According to EPA, further study is needed because "[p]resent water quality in the Bay Delta Estuary reflects the cumulative and interactive effects of multiple physical, chemical and biological stressors, including sewage flows, storm water discharges, agricultural return flows, urban and agricultural pesticide application, water diversions, habitat degradation and non-native species."

EPA intends to use the comments to make recommendations for future actions that compliment other actions in the Delta, such as the Bay Delta Conservation Plan, the Delta Actions Resolution jointly adopted by the State Water Resources Control Board and the Central Valley and San Francisco Regional Water Quality Conrol Boards, and the recent, controversial wastewater discharge permit (pdf) issued by the Central Valley Regional Water Quality Control Board which imposes more stringent limits on the discharge of ammonia from the Sacramento Regional Wastewater Treatment Plant into the Sacramento River.

Comments can be submitted at the Federal Rulemaking Portal (www.regulations.gov) identified by docket EPA-R09-OW-210-0976 or by sending hardcopy to Erin Foresman, U.S. Environmental Protection Agency, 75 Hawthorne Street, San Francisco, CA 94105.

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In a letter to the President's Council on Environmental Quality (CEQ), 18 members of Congress urged the Obama Administration to "ensure that NMFS, EPA, the Department of the Interior, USDA, and DOJ work together" to strengthen the modeling and to use the best scientific and commercially available information to re-evaluate existing biological opinions (BiOps) and to inform forthcoming BiOps for EPA pesticide registrations.

The members of Congress claim that the existing BiOps, which prohibit the application of certain pesticides to cropland within certain buffer zones adjacent to streams, rivers, wetlands, and floodplain habitat to protect threatened and endangered salmon and steelhead, "will force family farmers out of business and devastate rural communities and trade throughout the districts we represent, while crippling our food production capacity for the foreseeable future."  According to the authors, the BiOps issued to date expand existing buffer zones to such a great extent that "it would affect millions of acres in the Northwest and California, including a staggering 61 percent of farmland in Washington state and 55 percent in Oregon."

The 18 members of Congress argue that the consultation process between the National Marine Fisheries Service (NMFS) and EPA for the first of the pesticide BiOps (issued in November 2008) was flawed because it lacked transparency, consultation with the agricultural community, and the opportunity for public comment.  More fundamentally, they argue that NMFS's consultation for all three of the existing BiOps ignored the best available scientific and commercial data on the prevalence of the pesticides in salmon spawning waterways.

The letter's authors cite a September 2008 letter from EPA's Director of Pesticide Programs to NMFS, which criticized the July 31, 2008 draft BiOp for failing to disclose NMFS's rationale for its determination that use of chlorpyrifos, diazinon, and malathion will jeopardize the continued existence of dozens of listed salmonids in California, Oregon, Washington, and Idaho.  In the September 2008 letter, EPA also complained that it could not meaningfully discuss the proposed Reasonable and Prudent Alternative because the BiOp "fails to identify a level of exposure to these pesticides that would not result, in NMFS['s] opinion, in jeopardy to the species."

As explained in more detail below, the letter's authors are especially concerned that the administration orchestrate future interagency consultations as well as consultations with the agriculture industry and other stakeholders because EPA faces a host of other court-mandated deadlines to determine whether other pesticide registrations may affect listed species, and if so, to consult.

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Following the release of an incomplete draft of the Bay Delta Conservation Plan (BDCP), numerous stakeholders issued statements outlining their perspective on the status of the planning effort.  Statements were issued by a number of public water agencies that have provided most of the funding for the planning effort to date including Westlands Water District (pdf), Kern County Water Agency (pdf), Metropolitan Water District (pdf), and the State Water Contractors (pdf).  They were also released by other interested stakeholders, such as the Bay Institute and Environmental Defense Fund.  In response to the statement by Westlands Water District, in which the agency indicates it is withdrawing support for the BDCP, the U.S. Department of the Interior issued this letter (pdf).  In light of these statements, the fate of the BDCP remains unclear.

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The Bay Delta Conservation Plan (BDCP) is a long-term conservation strategy designed to improve the status of species and natural communities covered by the plan and provide the basis for the issuance of endangered species permits for the operation of the state and federal water projects in California.  For a number of years, federal and state agencies, numerous public water agencies, and non-governmental organizations have worked to develop the BDCP.  On November 18, an incomplete draft of the BDCP was released to the public amid controversy as reported by numerous news outlets including the New York Times and the Sacramento Bee.  Stakeholders with diverse interests expressed varying degrees of dissatisfaction with the BDCP, which is being developed at the same time that the current restrictions on the state and federal water projects are being challenged in numerous lawsuits filed in federal and state courts.

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The National Research Council (NRC) announced the formation of an ad hoc panel to review the Bay Delta Conservation Plan (BDCP).  The NRC explains that "[t]he panel’s review will be related to but be conducted separately from the on-going, more broadly focused NRC study entitled 'Sustainable Water and Environmental Management in the California Bay-Delta.'"  Provisional appointments to the panel, including Dr. Henry J. Vaux of the University of California, Berkeley as Chair, are provided here.  There is a 20 day public comment period on the appointees that commenced on November 12, 2010.

The NRC indicates that the draft BDCP is currently scheduled for release on November 24, 2010.  As we reported here, it is uncertain when a draft BDCP will be released.  The ad hoc panel is scheduled to meet December 8 - 10, 2010 in San Francisco, California, at the same time that the Committee on Sustainable Water and Environmental Management in the California Bay-Delta is meeting.  There is substantial overlap between the list of provisional appointments and the standing Committee.

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According to an article published in the Wall Street Journal this week, the Bay Delta Conservation Plan will be subject to further delays that will preclude the planned released of a draft in November 2010.  The Bay Delta Conservation Plan (BDCP) is intended to service as a Habitat Conservation Plan under the federal Endangered Species Act and Natural Communities Conservation Plan under the California Fish and Game Code.  If approved, it would provide authorizations for operation of the Central Valley Project and State Water Project, which provide water to approximately 25 million Californians.

The delay reported will likely affect the timing of any review of the draft BDCP by the National Research Council (NRC).  As we previously reported here, the NRC agreed to appoint a panel to complete an independent review of the draft BDCP by April 2011, provided it receives the draft by November 24, 2010.

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As we previously reported, representatives of the Federal government asked the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta to consider amending its existing task by agreeing to conduct a review of the draft Bay Delta Conservation Plan (BDCP).  In a letter (PDF) dated September 10, 2010 and addressed to representatives of the Departments of the Interior and Commerce, the National Research Council agreed to provide a "short report" assessing the adequacy of the use of science and adaptive management in the draft BDCP.  The Council indicates in the letter that the task will be carried out by a specially appointed panel that will include many but not all members of the Committee on Sustainable Water and Environmental Management in the California Bay-Delta.  The letter further indicates that if the National Research Council receives the draft BDCP by November 24, 2010 it will deliver its report by April 30, 2011.

In the letter, the Council states that it will follow its usual procedure in appointing the panel to review the draft BDCP and provide an opportunity for notice and comment regarding nominees to serve on the panel.  The Committee's next meeting is scheduled for December 8-10, 2010 in San Francisco.

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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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