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Rebuttal to arguments in opposition to AB 1806: A letter by John Beuttler, Conservation Chair, CSPA

July 28, 2008

Miriam Ingentio, Consultant
Senate Appropriations Committee
State Senate, Room 2206
Sacramento, CA 94248-0001

Miriam: Below are arguments made by the opposition to AB 1806 during previous committee meetings, or in written comments. We responded to them to the Senate Natural Resources Committee staff and feel it is unfortunate that there is so much misunderstanding of AB 1806 and what it proposes to do to begin the recovery and restoration of the Delta's fishery resources.

1. The SWRCB has already imposed environmental and water quality terms and conditions for Delta water operations pursuant to all the legal authorities that address public trust resources identified in AB 1806.

Reply: The water quality terms and conditions set by the water board do not address the vast majority of the direct and indirect fish impacts caused by the project, nor are these terms and conditions designed to do so. In fact both the projects have been recently cited by the Board for being consistently out of compliance and frequently in violation of the water quality standards. The general environmental conditions have some fishery benefits, but they are not designed nor do the function as mitigation for killing millions of fish annually by the projects. 

2. Federal ESA, smelt arguments: Judge Wanger has invalidated the biological opinion, resulting in 35% water cutbacks which mitigates for the projects impacts on Delta smelt.

Reply: Those cut backs were necessitated to keep Delta smelt from jeopardy of extinction. They don't mitigate for the direct and indirect smelt losses, but only reduce the project's impacts on the fishes habitat. 1806 would take this into consideration, but it is not mitigation for losses, it is only trying to protect critical habitat to prevent the extinction of the fishery. It does little to address the losses to other important species of this in the Delta or its tributaries. 

3. Federal ESA, salmon: Judge Wanger has invalidated the biological opinion, and proceedings are underway to determine whether additional cutbacks are needed.

Reply: Same as #2 only this deals with Winter- run salmon. It doesn't offset all the losses the fishery suffers from project impacts. It simply reduces project impacts on species listed under the ESA, but it does not address impacts to all the fisheries not so listed.

4. CESA and ESA, Biological Opinion: The federal agencies are revisiting the operations of the 2 projects in light of the Wanger cases, and will impose a new operational strategy in order to comply with the state and federal environmental laws. These laws take into account both direct and indirect impacts.

Reply: Not an accurate statement, ESA and CESA only govern biological opinions for species listed under those laws, they do not provide protections under CEQA or NEPA which would deal with all of the project's impacts to all of the fish and wildlife of the Delta and its tributaries. There are a number of delta fisheries not protected under state and federal ESA that are in serious trouble included, fall, and late fall runs of salmon that just had their sport and commercial seasons closed. Numerous other non-salmoinds such as sturgeon, striped bass and American shad are also severely impacted by the projects.

5. The BDCP Environmental review process has recently commenced under this effort to create a long-term strategy to improve the Delta ecosystem through an array of restoration and water system improvements.

Reply: The BDCP deals only with ESA protected species and how to conserve their habitat. In addition, It is a work in progress and we have no certainty that it will be completed, or adopted by the fish and wildlife agencies. Even if it should go forward, it does not deal with non-listed species many of them close to extinction.

6. California Endangered Species Act: The Alameda County Superior Court directed the SWP to comply with CESA (CSPA-Watershed Enforcers v. DWR). Compliance will come through new state and federal biological opinions.

Reply: Only partially true. The litigation was stayed contingent on DWR obtaining a CESA permit and properly mitigating for its impacts to Delta smelt. The court ruled CESA requires mitigation for impacts to listed species not just biological opinions that prevent jeopardy. The revised biological opinions will only deal with Delta smelt.

7. The FERC Relicensing Settlement Agreement for the Oroville facilities: DWR and State Water Contractors have agreed over next 50 years to implement habitat improvements in the Feather River watershed to create new spawning habitat.

Reply: That is a positive action that would be considered under 1806. Since it only deals with salmon habitat in one river, it will not mitigate for the project's impacts on all of the estuary's fisheries, let alone for the losses associated with the building and operating of Oroville dam.

8. Fish Mitigation Agreement: State Water Contractors spend more than $60 million annually to replace "fish for fish" any key species that are entrained by the water projects and to underwrite Delta studies and monitoring. Federal CVP contractors pay a per acre-foot Restoration Fund charge for fishery and habitat programs and the federal CVP Improvement Act of 1992 reallocated 800,000 acre-feet of CVP project yield to fishery purposes.

Reply: This agreement does not provide mitigation for all of the SWP's impacts on the system's fisheries even though amendments to do so have be repeatedly requested. It does not address any of the CVP impacts. It provides only for direct losses of salmon, steelhead, and striped bass. It doesn't mitigate for sturgeon, American shad, Black Bass, Small Mouth Bass, threadfin shad and many other important species in the delta including Delta smelt, Longfin smelt and Sacramento perch to name a few native species in real danger of extinction.

The Central Valley Project Improvement Act, which is in part funded by CVP contractors, was never intended to completely offset the project's fishery impacts. It has failed to even come close and has not met the goal set by Congress to double the anadromous fisheries of the estuary by 2002. However, AB 1806 would take the current level of mitigation performed by both projects under consideration. The process established by the bill is designed to evaluate current mitigation in light of all the project impacts, acknowledge all appropriate mitigation and to set proper mitigation requirements. Establishing such a transparent process is critical to ensure successful mitigation obligations. That's why we've encouraged the state and federal fishery agencies and the CALFED Science Board to participate in this process.


John Beuttler Conservation Director