The Endangered Species Act (ESA) directs all federal agencies to work to conserve endangered and threatened species and to use their authorities to further the purposes of the Act. The purpose of the Act is to protect and recover imperiled species and the ecosystems upon which they depend. Protect means to not allow \u201ctake\u201d of listed species. If some take occurs despite best efforts, then \u201creasonable and prudent\u201d alternatives (RPAs) may be needed to protect the threatened or endangered species.<\/p>\n
The US Bureau of Reclamation and its partner the California Department of Water Resources (permittees) operate the federal Central Valley Project (CVP) and the State Water Project (SWP) under federal and state ESA \u201ctake\u201d permits issued in 2008-2009 biological opinions that included RPAs. The RPAs constrained water supply deliveries and other project operations during the past decade to protect listed salmon, smelt, sturgeon, and steelhead.<\/p>\n
Over the past decade, the parties have reinitiated consultation to revise take permits and RPAs. The initial motivation for reinitiation was that RPAs and take limits were not protecting or recovering the listed species. The US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) recognized that more stringent measures were needed. A series of draft opinions were developed with further protections, culminating with a July 1, 2019 draft jeopardy opinion from NMFS on Reclamation\u2019s proposed action as of that time. A jeopardy opinion occurs when an action is reasonably expected, directly or indirectly, to diminish a species\u2019 numbers, reproduction, or distribution so that the likelihood of survival and recovery in the wild is appreciably reduced.<\/p>\n
Reclamation updated its \u201cproposed action\u201d in response to the draft jeopardy opinion. \u201cIt must also be acknowledged that the current status of all these species continues to be imperiled, and that one of the objectives of the proposed action is to maximize the available supply of water for irrigation, municipal, and industrial deliveries.\u201d<\/em>1<\/a><\/sup> Reclamation doubled down. Reclamation\u2019s most recent proposed action includes some provisions of the 2008\/2009 biological opinions\u2019 RPAs and recent jeopardy draft BO. In response, the Services relented under pressure from the Trump administration, replaced technical staff with a new group of managers, and recently issued final non-jeopardy opinions.<\/p>\n The new proposed action from Reclamation can now go into effect without RPAs that would hinder Reclamation from maximizing water deliveries. The new Biological Opinions will govern project operations under a wide array of vague commitments to protect and recover listed species: some good, some bad, and some simply ugly.2<\/a><\/sup><\/p>\n So much is missing that is within state and federal governments\u2019 power and authority in the final approved Reclamation proposal. Here is a limited selection.<\/p>\n Reclamation\u2019s proposed action has been approved by the Services. The proposed action includes some good concepts for protective measures (though generally the requirements are vague, underfunded and not enforceable), and a suite of bad and downright ugly actions that will harm affected listed fish species. The overall mix will lead to much confusion, wringing of hands, blaming, ignoring of responsibility, initial lawsuits, and (if the initial lawsuits fail) further lawsuits when fish metrics fail to show improvement. Some actions will take time to implement, while some are already too little too late.<\/p>\n The Services should have issued jeopardy opinions with a suite of appropriate RPAs. That did not happen. Instead, the Services are allowing further risk of extinction to the listed species. The best example of this is allowing expected temperature-dependent egg mortality levels for Sacramento River winter-run Chinook salmon to occur in \u201cTier 3 and 4 years.\u201d Mortality due to allowed temperature exceedance was a major cause in the recent decline in the winter-run salmon population, one of the few species listed as \u201cendangered\u201d rather than the more common \u201cthreatened\u201d designation. The effect the salmon BO will allow is entirely avoidable and within the control of the state and federal agencies involved in permitting the CVP. NMFS has designated winter-run as a \u201cSpecies in the Spotlight<\/a>\u201d; it\u2019s more likely that it is now a \u201cTarget for Extinction.\u201d<\/p>\n The Endangered Species Act (ESA) directs all federal agencies to work to conserve endangered and threatened species and to use their authorities to further the purposes of the Act. The purpose of the Act is to protect and recover imperiled … Continue reading The Good (Well, as Good as it Gets)<\/h1>\n
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\nThis is long past due. However, the proposal is vague and limited in potential scope and funding commitment.<\/li>\n
\nMost measures that require new habitat in the new BO were prescribed in past BOs. Now there are new vague commitments. Some listed species (e.g., Delta smelt) have populations too small to benefit from new habitat.<\/li>\n
\nNew and updated old prescriptions, though vague, are badly needed, especially for converting the program focus from mitigation hatcheries to conservation hatcheries.<\/li>\n
\nThe BOs contain an estimated total of $1.5 billion dollars in proposed funding to support threatened and endangered fish survival and recovery through research and restoration actions. However, the proposed funding is not dedicated and is vague, particularly in that much of the effort and funding may go to prior commitments that have not been funded.<\/li>\n
\nProposed upgrades to the Delta Cross Channel Gates are helpful but vague. The Delta Cross Channel should be screened, as should nearby Georgiana Slough.<\/li>\n
\nThis action is OK but addresses only one of many predation hotspots for salmon and steelhead caused by human actions and man-made structures in lower San Joaquin River.<\/li>\n
\nThis is one positive action for listed spring-run salmon among many in NMFS\u2019s Central Valley Salmon Recovery Plan. All of the actions in the Recovery Plan should be included and funded. Deer Creek, a tributary to the lower Sacramento River, has a spawning run of wild spring-run salmon. Deer Creek does not have a project dam on it, but Deer Creek salmon pass through the lower Sacramento River and Delta. Deer Creek salmon and all other salmon-bearing tributary populations are thus affected by project operations.<\/li>\n
\nThis was constructed under prior commitments but failed.<\/li>\n
\nProactive coordination is fine and good, but the BOs contain no commitment to reduce diversions by senior Settlement and Exchange contractors or any others during droughts.<\/li>\n
\nMonitoring may inform mitigation. However, monitoring in itself is not mitigation. All recovery plan actions should be supported because CVP\/SWP operations and facilities have had major adverse effects on all Central Valley steelhead populations.<\/li>\n
\nThe commitment to fund actions on Battle Creek is long overdue, but the funding in the BO is inadequate by an order of magnitude.<\/li>\n
\nIt is important to acknowledge the importance of summer-fall habitat representing half of the smelt life-cycle, but the commitment in the BO is vague and likely ineffective as formulated. Rather than being used more often, the SMSCG should simply be removed. It has been a detriment to smelt, salmon, steelhead, and sturgeon populations since its use began in 1989.<\/li>\n<\/ol>\nThe BAD<\/h1>\n
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\nDrought mitigation in the BOs focuses on maintaining Shasta Reservoir\u2019s cold-water-pool. The proposed action drops mitigation actions for wet years such as Fall X2. The proposed action drops previous OMR constraints that provided some protection in drought years. The one-hand-giveth-while-the-other-taketh-away approach is an old tired gambit. The ostensible improvement at Lake Shasta eliminates numeric targets for Shasta carryover storage.<\/li>\n
\nThis is poor prescription because some listed species populations are so low that they are undetectable (e.g., Delta smelt). Larval life stages also go undetected. Past detection rates even for larger populations have been poor, and actions to reduce impacts have been gamed and trimmed to the bone. Real time detection does not protect primary productivity and food sources and other elements of critical habitats. The managers charged with managing have a long history of choosing water supply over fish protection.<\/li>\n
\nThis prescription does not protect listed winter-run salmon in droughts from thermal shock or dewatering of redds, which are the primary factors in recent low survival and production. Prior RPA and Recovery Plan requirements to fix problems with Spring Creek powerhouse (Whiskeytown Lake thermal curtain) and Shasta Dam warm water power releases are not included in the new salmon BO.<\/li>\n
\nA commitment to maintaining long-term monitoring programs and recognizing past and present science is needed. \u201cNew\u201d science funded and conducted by water contractors or federal\/state project operators will ensure any new science will be biased \u2013 foxes assessing their effects on the henhouse. The science and its presentation and analyses have become more and more controlled by water supply entities, and less and less by resource agencies. The BOs give more control of science to water suppliers. The revisions to the draft BOs are clear evidence of the new realignment of roles and new controls on science.<\/li>\n
\nThe BOs\u2019 performance measures for reverse flows are vague, ineffective, and unenforceable. Wild components of salmon populations were hard hit in droughts under previous BOs. \u201cSimilar\u201d levels of loss are not protective and will not promote recovery.<\/li>\n
\nThe BOs\u2019 performance measures for cold water management at Lake Shasta are vague, ineffective, and unenforceable.<\/li>\n
\nOMR rules have been one of the major restrictions on exports under the past BOs. The rules proved beneficial to the listed species survival (primarily reduced salvage and improved through-Delta survival of tagged salmon smolts). The new strategy would allow changes that would allow greater levels of exports under OMR reverse flow prescriptions. The poor survival of San Joaquin salmon under existing rules would remain poor or further decrease. Entrainment of young smelt (not measured under existing rules), an existing serious concern, would only worsen. Modeling entrainment risk has not worked and has not been verifiable. The main risks to smelt are pulling larvae into the central Delta with its poor habitat (not just to the south Delta pumps) and the destruction of their critical pelagic rearing habitat.<\/li>\n
\nThis is nothing new. There have been so many \u201cindependent\u201d review panels. I remember working with Pete Chadwick back in the mid-70s. He consulted on my projects on the Hudson River Estuary. He and his CDFG staff working on the Bay-Delta were on the cutting edge of estuary science. They trained the next generation and they in turn trained the next. Outsiders have only verified what CDFG already well understood. Same goes for NMFS and the USFWS, as well as UC Davis. Together as IEP they manage Bay-Delta and Central Valley science more than adequately with the help of a huge cadre of capable scientists among NGOs. Water agencies and other water suppliers just can\u2019t handle the truth, so they hire their own consultants and many outside \u201cindependent\u201d consultants.<\/li>\n
\nRamping rates do not work for eggs and fry salmon that are in gravel beds for up to several months. Reductions in flows from Keswick Reservoir after winter-run fry have left their nests (redds) in the fall strands up to 80% of new fall-run redds.<\/li>\n<\/ol>\nThe Ugly<\/h1>\n
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\nShasta operations in the 2014 and 2015 drought killed 90-95% of the egg production of winter-run salmon. The new Salmon BO would make that acceptable under the ESA. It would stretch the no-take standard to no take in more than two years out of three.<\/li>\n
\nMore planning for habitat restoration and facilities is not needed. Reclamation, DWR and other responsible agencies should get on with prior commitments. The history of foot-dragging on habitat restoration in the Central Valley is a worthy rival to the foot-dragging by PG&E in maintaining and upgrading its infrastructure.<\/li>\n
\nAs proposed the supplementation of sediment would come in the form of the discharge of warm, polluted agricultural drainage water full of non-native predatory fish into critical habitats of listed fish.<\/li>\n
\nReal time management will not work for rarer listed species like Delta smelt. This has been tried for three decades and has not worked. The adaptive managers will be the same managers who produced the revised non-jeopardy BOs. \u201cOperational flexibility\u201d is a buzzword for increased diversions, primarily Delta exports.<\/li>\n
\nMost of the \u201ceven greater protections\u201d will have to backfill the protections that these BOs took away. The Voluntary Agreements offer pennies on the dollar in terms of necessary flow through the Delta into the San Francisco Bay.<\/li>\n\n
\nNMFS and CDFW were just starting to get it right. NMFS\u2019s 2017 draft RPA for Shasta would have required stronger carryover storage requirements.<\/li>\n
\nThey were ready to start this program after promising initial feasibility studies. The foot draggers strung it out until Trump administration officials threatened in 2019 to arrest DWR personnel who were installing equipment to begin a pilot implementation.<\/li>\n
\nThere will be less of the needed restrictions under Reclamation\u2019s new plan.<\/li>\n
\nThere will be fewer planned upgrades to project facilities to protect fish than were promised under the previous BOs.<\/li>\n
\nNo longer apply.<\/li>\n
\nNo longer apply.<\/li>\n
\nNo longer apply.<\/li>\n
\nThis flow-salinity RPA protected longfin and Delta smelt in summer and fall of wet years.<\/li>\n
\nThey should have been revised to be more protective.<\/li>\n<\/ul>\n<\/li>\n<\/ol>\nWhat is Missing<\/h1>\n
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\nMissing from the BOs are controls of Spring Creek powerhouse warm water releases into Keswick Reservoir, modifications to hydropower operations, long term Shasta storage rules, and modifications of water contractor deliveries. Combinations of these actions would have alleviated winter run salmon recruitment failures in 2014 and 2015. Reclamation\u2019s approved proposal would allow such drastic recruitment failures in future droughts.<\/li>\n
\nReclamation has made no commitment to comply with state water quality standards or other state laws.<\/li>\n
\nCoordinated pulsed flows are needed to increase survival of hatchery and wild salmon. None are included in Reclamation\u2019s plan, with the possible exception of a pulse from Shasta when it is likely to spill anyway.<\/li>\n
\nRecovery, not just protection, is needed and is required by the ESA. These BO\u2019s do not address recovery plans. The ESA goes beyond simple mitigation. The ESA focuses on minimization of effects, enhancement, and recovery.<\/li>\n<\/ul>\nIn Conclusion: Ugly<\/h1>\n
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\nFor the complete USFWS and NMFS Biological Opinions and appendices, go to: https:\/\/www.fws.gov\/sfbaydelta\/CVP-SWP\/index.htm<\/a> ↩<\/a><\/span><\/li>\n<\/ol>\n<\/div>\n","protected":false},"excerpt":{"rendered":"