[env-trinity] Comments to NOAA

Fri Oct 22 16:30:33 PDT 2004

I today - the final day for public comment - sent the following comments on
Endangered Species Act Consultation Addressing Coordinated Operations of the
Central Valley Project, State Water Project, and the Operational Criteria
and Plan ("OCAP") to the National Marine Fisheries Service.  The comments
relate particularly to the Trinity Division of the Central Valley Project.

 October 22, 2004

Via Email and Facsimile 

Mr. Rodney McInnis, Regional Administrator

National Marine Fisheries Service

501 West Ocean Blvd., Suite 4200

Long Beach, CA 90802-4213

Attention:   Mr. James Lecky

Re:       Endangered Species Act Consultation Addressing Coordinated
Operations of the Central Valley Project, State Water Project, and the
Operational Criteria and Plan ("OCAP") 

Dear Mr. McInnis and Mr. Lecky:

On behalf of the more than 2,000 members of Friends of Trinity River and the
more than 6,000 members of California Trout, Inc., we write to express our
continuing concern over the ongoing Endangered Species Act ("ESA")
consultation between the U.S. Bureau of Reclamation ("Bureau") and the
National Marine Fisheries Service ("NMFS") on the coordinated operations of
the Central Valley Project ("CVP"), State Water Project ("SWP"), and the
June 30, 2004 Long-Term Central Valley Project Operations Criteria and Plan
("OCAP").  

Despite NMFS's refusal to allow CALFED or members of the public to have any
role in reviewing drafts of your Biological Opinion, a number of unofficial
drafts have been circulating around California's water community, including
a recent draft BO that finds "no jeopardy" as to all listed species under
NMFS' jurisdiction.  It is our understanding that this proposed
determination of "no jeopardy" is based in part on several critical errors
in your staff's treatment of the Trinity River Division of the CVP.

For example, we understand that NMFS has mischaracterized the environmental
baseline of the Trinity River.  We refer you to the following instructions,
which are provided in the Endangered Species Act Consultation Handbook,
Procedures for Conducting Section 7 Consultations and Conferences
(USFWS/NMFS, 1998):

Therefore, a section 7 analysis of the project's effects on listed species
is done in the same way as new projects.  When analyzing these water
projects, as well as water contract renewals for Bureau of Reclamation
(Bureau) programs and ongoing discretionary operations of Bureau and Corps
of Engineers water facilities, use the same approach as for other types of
section 7 analyses.

- The total effects of all past activities, including effects of the past
operation of the project, current non-Federal activities, and Federal
projects with completed section 7 consultations, form the environmental
baseline;

- To this baseline, future direct and indirect impacts of the operation over
the new license or contract period, including effects of any interrelated
and interdependent activities, and any reasonably certain future non-Federal
activities (cumulative effects), are added to determine the total effect on
listed species and their habitat. (Emphasis added.)

Clearly, it is the effect of past operations that are relevant, not the
operations themselves. Yet, we understand that NMFS is blurring this
distinction, and including within the proposed baseline not only these
effects, but the operations themselves.  Under the handbook quoted above,
the result of the operations' impacts are clearly part of the baseline, but
the operations that produced those impacts should have no bearing on future
operations.  Because, as directed by the Consultation Handbook, the
consultation "is done in the same way as new projects," including those past
operations in the baseline is inappropriate.  

Because you characterize the environmental baseline as including past
operations (and not just the present condition resulting from past
operations) you reach the conclusion that the proposed action is to provide
ADDITIONAL water to the Trinity River.  Obviously, the purpose of the
proposed action is to withdraw water from the Trinity River.  Just because
the action agency proposes to take less water than it did in the past, does
not mean they are adding water to the river as a new project.  This error is
only made possible by your mischaracterization of the environmental
baseline.  We submit that avoidance of this twisted logic is precisely why
the Consultation Handbook directs you to consider the environmental baseline
as if it were a new project.

Because of this basic mischaracterization of the environmental baseline, you
end up concluding that there is no take of SONCC coho; that the CVP is a net
benefit to SONCC coho; and that there are, therefore, no terms and
conditions necessary to minimize take.  This is a blatant obfuscation of the
federal government's responsibilities under the Endangered Species Act.  We
remind you that you have an obligation to avoid and minimize take of listed
species as long as you can do so without making major changes to the
proposed action. 

Actual take of SONCC coho will continue to occur for a variety of reasons
directly related to the proposed action, and there are a variety of ways to
minimize this take.  For example, safety of dam (SOD) releases take SONCC
coho salmon.  You cannot ignore this take by simply implying that the
Trinity River Restoration Program (TRRP) will result in an improved
condition.  A SOD release in the spring of 2004 caused the lethal take of
hundreds of juvenile coho salmon on the Trinity River.  You must acknowledge
this take, factor it into your jeopardy analysis, and find ways to minimize
it.  Additionally, by completely ignoring take such as this, you end up not
giving take authority under the Incidental Take Permit, and the action
agency will be liable for unauthorized take.

Additionally, the 2004 Trinity Management Council Subcommittee's Trinity
River Restoration Program Evaluation Final Report describes a variety of
shortcomings in the TRRP's implementation.  The Subcommittee also provides
recommendations for getting the TRRP back on track to fulfill the intentions
of the Trinity Flow Evaluation Report and the TRRP ROD.  The recommendations
include getting back on schedule with physical restoration projects that
would minimize the take by SOD releases.  Therefore, you should consider
making at least some of the Subcommittee's recommendations Terms and
Conditions of the Incidental take Permit

You also claim that you cannot address the effects of Trinity Hatchery
operation due to lack of time.  We would argue that a lack of time is
irrelevant, and that you must consider the hatchery's effects in order to
complete a jeopardy analysis.  At the minimum, you should make the
initiation of consultation on the hatchery a condition of the Incidental
Take Permit, not a Conservation Recommendation.  

The draft biological opinion also does not explain what it means to use a
90% exceedence forecast instead of a 50% forecast in determining water year
types.  A 50% forecast is fair if you are trying to balance the needs of
fish and water users; a 90% forecast arbitrarily favors water users.  The
level of exceedence used to set annual water deliveries is discretionary and
you at least need to provide a rationale for choosing 90%.  Over time, a 90%
forecast will reduce the effectiveness of the TRRP, which, viewed one way,
will create take of SONCC coho.  

Thank you for considering these comments.

Sincerely,

Byron W. Leydecker,

Chairman, Friends of Trinity River

Consultant, California Trout, Inc.

Byron Leydecker

Chair, Friends of Trinity River

Consultant, California Trout, Inc.

PO Box 2327

Mill Valley, CA 94942-2327

415 383 4810 ph

415 519 4810 ce

415 383 9562 fx

bwl3 at comcast.net

 <mailto:bleydecker at stanfordalumni.org> bleydecker at stanfordalumni.org
(secondary)

http://www.fotr.org

http://www.caltrout.org

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