Agency Submitted Flawed Species-Impact Report

SACRAMENTO (CN) The National Marine Fisheries Service failed to use the best scientific methods available to assess to the potential affect a pair of proposed construction projects would have on endangered fish in the project areas, a federal judge ruled.

The ruling by U.S. District Judge Oliver W. Wanger in the Eastern District of California came in answer to a series of cases filed by the San Luis and Delta Mendota Water Authority, the Westlands Water District; State Water Contractors; Kern County Water Agency and Coalition for a Sustainable Delta; and the Metropolitan Water District of Southern California, among others.

Although Wanger concluded that the NMFS' analysis of affects of the two projects, known as the Central Valley Project and State Water Project, was deeply flawed, he declined to grant the plaintiffs' summary judgment.

The environmentalists filed their lawsuits in order to protect several species listed under the Endangered Species Act, including the Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, Central Valley steelhead, Southern Distinct Population Segment of North American green sturgeon, and Southern Resident killer whales.

They were also highly concerned about the potential impacts they believe the two projects could have on California's water supply.

In addition, all of the lawsuits share the common assertion that the Biological Opinion rendered by federal regulators violates the Endangered Species Act and the Administrative Procedure Act.

In addition to NMFS, defendants include the U.S. Department of Commerce, the National Oceanic and Atmospheric Administration (of which the National Marine Fisheries Service is a part), the U.S. Department of the Interior, and its sub-agency, the United States Bureau of Reclamation.

Pointing out flaws in the Biological Opinion, Wanger found that the government's conclusions regarding the spring-run and winter-run Chinook salmon "failed to utilize the best available scientific methodology, because population data was available at the time the [report] was issued that would have permitted NMFS to perform the straightforward population adjustment required to conform to standard, generally accepted practices for fisheries population measurements utilized in their field of expertise."

In another example of error, the NMFS offered no reason as to why the steelhead figures were not analyzed separately from the salmon. Plots included in the Biological Opinion that analyzed the loss of salmon versus average monthly export levels of the salmon suffer from the same flaws.

In short, judge Wanger found that "some of NMFS' analyses rely upon equivocal or bad science" to impose actions contained in a Reasonable and Prudent Alternative report "without clearly explaining or otherwise demonstrating why the specific measures imposed are essential to avoid jeopardy and/or adverse modification. Given the potential serious impacts of these measures, the agency must do more to comply with the law."

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