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NOAA Advocacy under ESA

On March 31, 2022, the Delta Independent Science Board (ISB) met to discuss: “How the State Water Project and Central Valley Project comply with the Endangered Species Act.”  Cathy Marcinkevage, Assistant Regional Administrator in the California Central Valley Office of the National Oceanic and Atmospheric Administration, NOAA Fisheries division, provided an overview of the federal Endangered Species Act (ESA) and the ESA Section 7 consultation process between NOAA and the Bureau of Reclamation regarding the effects of the Central Valley Project (CVP).

During questions, the ISB’s Dr. Robert Naiman asked if NOAA has “…the legal clout to require dams and other water diversions to install fish passage facilities.”  He provided context, observing: “…[N]one of the dams within the Delta’s watershed have fish passage facilities, and yet you have endangered species that could use the habitat above the dam, assuming you can get them through…” Naiman also noted: “In the Pacific Northwest and elsewhere, there have been a lot of retrofits for fish passage facilities as well as retrofits for regulating water temperatures in the rivers.”

In response, Ms. Marcinkevage spoke to NOAA’s authorities pertaining to fish passage at CVP dams.

First, she mentioned NOAA’s technical criteria for fish passage at intakes at diversion dams’ structures, for example the specifications along the surface of a fish screen: “We do have passage criteria for projects in terms of sweeping velocity and things like that.

Second, she identified NOAA’s authorities under the Federal Power Act to prescribe fish passage at hydropower facilities (which all major Central Valley dams have).  However, this law does not pertain to federal dams, including the CVP dams.

Third, she said that NOAA, under the Federal Endangered Species Act (ESA), can be an advocate during ESA consultation with federal agencies: “With Section 7, we can try to advocate and get projects to do things within our needs.” [Emphasis added]

This is where we take issue with Ms. Marcinkevage.  Under the ESA, NOAA is clearly more than an advocate.  The agency has the principal regulatory authorities and responsibilities to protect and recover ESA-listed anadromous fishes.

NOAA’s job in a Section 7 consultation includes analysis of a project (action) as proposed, which Ms. Marcinkevage described: “But our job there is to analyze the project as it has come to us and identify its likelihood of jeopardizing the species.”  However, the ESA consultation process often also requires changing the details of the proposed project if necessary so that the project complies with the ESA.

Furthermore, NOAA must analyze the effects of a proposed action in the much broader context of the past and present baseline effects, to which a proposed action’s effects are added.  The baseline geographic reach and scale of the CVP are vast.  The CVP was and continues to be a major source of “stressors” that led to the ESA listing of multiple salmon, steelhead, sturgeon, and smelt species, including most of California’s anadromous fishes.

In addition to the large-scale hydrologic influences exerted downstream of the CVP impoundments, CVP dams were constructed with no fish passage facilities.  As a result, part of the CVP baseline is complete blockage of anadromous fish for decades, extending to the present.  Without access, vast amounts of habitat capacity and habitat diversity of anadromous fishes have been lost.

Dr. Naiman noted that endangered fishes could potentially use the habitat above the dams. Dams constructed with no fish passage are not unique to California, and the biological consequences they impose are well understood.  Salmon populations blocked from their historical habitat suffer devastating losses of abundance, productivity, and spatial diversity. These well-known facts were most likely what prompted Dr. Naiman’s question about NOAA’s legal authorities to require fish passage.

The ISB can and should be asking if it is possible to recover the salmon populations by “fixing” rim dam infrastructure and operations, and lower river and Bay-Delta habitats and water diversions, without fish passage past rim dams.  Stated another way, is recovery even possible in the absence of restored passage to historical anadromous habitats above the dams?

Ms. Marcinkevage suggested that NOAA can “work out” with the action agency alternatives to a proposed action that blocks or impairs fish passage:

“Now, as we do that [analyze the project], if we were to find that this project will continue to be a barrier or impose a barrier that will impede passage, we could work out an alternative that would prevent that.”

To date, nowhere in California’s Central Valley has NOAA performed an evaluation of a dam, found it to be a barrier to anadromous fish passage, and worked out a solution to the blockage of fish migration.  As Dr. Naiman observed, none of the major dams within the Delta’s watershed provide fish passage.

Clearly, NOAA has ESA authority to require alternatives to avoid jeopardy.  Exercise of this authority gets closer to Dr. Naiman’s question about the agency’s “legal clout” to require fish passage facilities.  Ms. Marcinkevage’s response did not differentiate between reasonable and prudent measures (RPMs), and reasonable and prudent alternatives (RPAs) in an ESA biological opinion.  RPMs are voluntary on the part of the action agency, while RPAs are NOAA-enforceable, and could include fish passage requirements.

Ms. Marcinkevage expressed a frank opinion about how to go about creating fish passage over CVP dams:

“But there’s something to not wanting to come in and being the completely authoritarian with the heavy regulatory hand to impose something that, frankly, can’t be done, but rather work out a more workable solution.”

Has NOAA concluded that passage over the CVP dams can’t be done?  The 2009 salmon Biological Opinion for the CVP included an RPA that required fish passage at Shasta and Folsom reservoirs.  It was that requirement that leveraged NOAA, in 2017, to conduct a test in Shasta Reservoir.  The test released juvenile salmon in the McCloud Arm to understand their ability to transit Shasta Reservoir during a wet water-year’s higher flows.   ~70% of the test fish reached the Dam.  A much lower transit success (~1%) occurred in a second experiment undertaken during an average water-year.  These are hardly unexpected results, given the enormity of Lake Shasta.  In order to capture emigrating juvenile salmon with high efficiency, head-of-reservoir collectors (rather than collectors at the dams) are sometimes deployed in Pacific Northwest reservoirs, although the reservoirs are much smaller than Shasta.

In 2019, the Trump administration stopped NOAA’s fish passage efforts at Shasta in their tracks.  The bogus Trump 2019 BiOp for the CVP eliminated the RPA that required fish passage.  And Trump’s Forest Service administrators ordered NOAA to not use Forest Service land for fish passage actions.  Now, NOAA will be conducting further studies in 2022 or 2023 to evaluate head-of-reservoir collection of downstream-migrating juveniles where the McCloud River enters Shasta Reservoir.  Though these studies are as yet voluntary, there is a fair likelihood that the forthcoming new salmon Biological Opinion will restore the fish passage RPA.

Notwithstanding NOAA’s preference to avoid a “heavy regulatory hand” under its ESA authority, the agency is entrusted with legal responsibilities to protect and recover listed species.  Enacting “collaborative,” less controversial mitigation alternatives at Battle Creek led to 20 years of delay in removing, or putting fish ladders over, only some of the small hydropower dams on Battle Creek that PG&E has now decided to abandon.  And in any case, recovering listed Central Valley salmon species without fish passage to major watersheds upstream of Central Valley rim dams is unlikely.

NOAA’s Recovery Plan for ESA-listed Central Valley salmon calls for at least three viable and spatially-diverse winter-run Chinook populations to recover the species.  If that’s to be accomplished, fish passage investigations at Shasta Dam need to be carried out and completed with haste.  The alternative is for the public to enlist the judicial system to provide the “heavy hand” needed for effective application of the ESA to protect our public trust resources.