Conservation News
NCCFFF Work
by Dougald Scott
NCCFFF Work
by Dougald Scott
In a recent e-mail, Dougald Scott updated me on what he's been up to with the SCCFFF. With his scientific background and experience as a teacher, I think it was wise of him to put his efforts into their conservation programs. - Publisher
The NCCFFF Steelhead Committee is keeping me really busy. The delisting cases are now in Judge Wanger's hands and we should get an opinion in the next month or so. I'm really encouraged by his recent decision to restrict the amount of water pumped out of the Delta ()www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2007/08/31/national/a204124D79.DTL&hw=wanger&sn=001&sc=1000.
I'm now concentrating on problems on the Tuolumne. The Don Pedro Dam is up for FERC re-licensing and we're looking to increase summer flows for steelhead (which the irrigation districts claim don't exist there). Also, San Francisco PUC is upgrading their whole system from Hetch Hetchy to the City, and has produced a massive draft EIR. This project will have impacts on the Tuolumne, Delta, and Alameda Creek (east of Freemont), and I have yet to read the EIR.
Final arguments in the Modesto Irrigation District, et. al. steelhead delisting case were heard yesterday [8/20/07] in Fresno Federal District Court. There are actually two steelhead delisting cases pending, so I'll begin with a brief history.
In 2003 Modesto Irrigation District and a number of other southern Central Valley (CV) districts (the IDs) filed a suit in federal court against NMFS claiming that they had illegally listed CV steelhead as "threatened." They based their complaint on two major points: 1) NMFS included only wild steelhead in the ESU and did not include hatchery fish; and 2) the listing included only steelhead and not resident O. mykiss. NCCFFF and a number of other conservation organizations were interveners supporting NMFS in the suit. Judge Wanger filed his decision on 5/12/04. He granted the IDs' motion on the hatchery issue, which meant that hatchery fish must be included in the ESU (this was based on the Alsea 2001 decision, which has now been reversed). However he denied the IDs' motion pertaining to not including resident O. mykiss in the ESU, because "the issue remains unclear." The judge left the "threatened" listing in place, and directed NMFS to review and revise the listing to meet legal standards.
After a six month extension and the publication of a "Request for Comment on Alternative Approach to Delineating 10 Evolutionarily Significant Units of West Coast O. mykiss" in November of 2005, NMFS made its final listing for steelhead on January 5, 2006. In this listing they designated steelhead as Distinct Population Segments (DPSs) of the O. mykiss ESUs. The DPSs included only steelhead and not resident O. mykiss, and was based on their marked separation as a consequence of physical, physiological, ecological, and behavioral factors.
On January 13, 2006 the MIDs filed a notice of intent to sue NMFS over the new DPS listing of CV steelhead. Their complaint was filed in April of 2006 and argued that the CV DPS listing was illegally applied. Basically their claim came down to resident O. mykiss and hatchery fish not being included in the DPS (the Coleman and Feather River hatchery programs were included in the DPS, but the MIDs wanted all hatchery fish included). NCCFFF joined the suit as interveners with Steve Mashuda of Earth Justice representing us. Briefs from all sides were filed. This is the case for which final arguments were heard on August 20th.
In the meantime, March 20, 2006, the Pacific Legal Foundation filed a complaint against NMFS on behalf of several California Grange and Forestry organizations (referred to below as "Grange"). They claimed that NMFS illegally listed steelhead under the ESA in all five of the California DPSs. Their success in this case would mean a delisting and loss of ESA protection for all steelhead in California. Their complaint was very similar to MIDs'; hatchery fish and resident O. mykiss are not included in the DPSs (although they did emphasize the hatchery issue a little more). NCCFFF also joined this suit as interveners, again with Steve Mashuda representing us. Briefs from all sides were filed and final arguments were heard in Fresno on January 8, 2007. The judge said he would return a decision. From his comments during the arguments, I had a fairly positive feeling about the decision going our way.
Shortly thereafter, the MIDs asked the Court to stay a ruling in the Grange case and consolidate the two cases because they both involved challenges to steelhead listings and raised the issue (with different degrees of specificity) of the propriety of NMFS's use of the DPS policy to list only steelhead populations. The judge granted the consolidation in late March 2007 (over objections of NMFS and interveners). So at present, we are not aware of the judge's decision in the Grange case because it was delayed due to the consolidation.
Briefs for the MID case were filed through this spring and summer, and final arguments were heard August 20th in Fresno. Once criminal matters (child porn and drug cases) were heard, the judge spent about an hour on this case. Under questioning from the judge, the IDs argued that NMFS did not use the best science available in coming up with DPSs. They said that there is no difference between steelhead and resident O. mykiss and kept repeating that if the two forms interbreed when mature they must be included the same DPS/ESU. The judge's responses seemed favorable to our side in that he acknowledged that NMFS was trying to accommodate for possible interbreeding populations and still provide ESA protection for a distinct segment of the population that is in serious trouble. He observed that if resident O. mykiss don't go to salt water and steelhead do... why aren't they separate? The IDs didn't push their hatchery claim as that issue has pretty well been put to rest in recent months. Both Steve Mashuda and NMFS effectively argued that the best science supported the DPS concept, and that steelhead are the cornerstone of all O. mykiss populations and essential for their survival. Steve pointed out that including resident O. mykiss in the DPS would not change the listing result because abundance is only one of four criteria NMFS used determine the threatened status (the four criteria are: abundance; population growth rate; population spatial structure; and diversity). He also had the last word where he pointed out that ESA protection is critical to the survival of steelhead, and in fact, all O. mykiss populations having a connection to the sea. The judge then said "the matter is admitted."
My overall impression of the hearing was positive. It seemed to me that the judge sees the need to protect the steelhead segment of the O. mykiss species, and will leave the listing in place, at least temporarily until more scientific data become available. Steve said that he wasn't sure how the judge would rule, but it will probably take weeks to months for his decision in both cases. In the meantime keep in mind that CV steelhead are still listed as threatened and thus qualify for commensurate ESA protection. These protections extend to all juvenile O. mykiss below dams, because one cannot distinguish between resident and anadromous O. mykiss juveniles. Keep the pressure on those who would try to take habitat away from steelhead!