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DFG Capitulates Yet Again: Claims OCAP BO is “full mitigation” for species loss: Ignores more rigorous requirements of state law

by Bill Jennings, Executive Director, CSPA

August 11, 2009 -- Anyone wondering whether the California Department of Fish and Game (DFG) has become a de facto subsidiary of the Department of Water Resources (DWR) need only examine DFG's recent Consistency Determination on Delta smelt to find the answer.  The Consistency Determination adds to the growing pile of evidence that Governor Schwarzenegger, Resources Secretary Chrisman, and DFG Director Koch have finally succeeded in placing the Department on the sidelines of fishery protection.

DFG's 16 July 2009 three-page determination found that the recent U.S Fish and Wildlife Service (USFWS) Biological Opinion (BO), issued pursuant to the federal Endangered Species Act (ESA), for the Operating Criteria and Plan (OCAP) for the State Water Project and Central Valley Project were consistent and met all the requirements of California's Endangered Species Act (CESA).   The two projects can export more than six million acre-feet of water from the south Delta and are responsible for the massive collapse of Central Valley fisheries.  The California Sportfishing Protection Alliance (CSPA) is responding by sending a Public Records Act request for all documents DFG used in developing the consistency determination.

The USFWS BO establishes minimum requirements necessary to prevent Delta smelt from going extinct.  It is not a recovery plan and includes only minimum actions necessary to prevent the species from tumbling into the irreversible black hole of oblivion.  However, CESA goes far beyond the minimum requirements of the ESA.  Under CESA, DFG may only authorize take of endangered, threatened and candidate species if all of the following conditions are met: (1) the impacts of the authorized take “shall be minimized and fully mitigated” to an extent “roughly proportional” to the impact of the authorized taking on the species; (2) the proposed mitigation measures “shall be capable of successful implementation”; and (3) the applicant “shall ensure adequate funding to implement” the mitigation measures “and for monitoring compliance with, and effectiveness of, those measures.”

Minimum requirements do not equal full mitigation!  Slight increases in outflow (above normal and wet years only) and requirements to create 8,000 acres of habitat (with speculative results) do not equal full mitigation.  Failure to construct required state-of-the-art fish screens to replace inadequate 1950s technology screens because water contractors refuse to pay for them is not minimization of take.  Failure to require monitoring of actual “take” of larval life stages and failure to establish population-level targets that trigger additional requirements does not equal minimization and full mitigation.  Establishing inadequate limits on reverse flows in Old and Middle Rivers that are far less stringent than those the agencies previously testified under oath were necessary (in State Board evidentiary hearings) does not equal full mitigation.  Ignoring routine violations of flow and water quality standards mandated by the 2006 Bay-Delta Plan, when the federal BO is predicated on compliance with those standards, does not equal full mitigation.

For years, DFG ignored the fact that its sister agency (DWR) lacked required “take” permits under CESA, even after they were hauled in front of a legislative committee to explain why they were failing to enforce CESA.  Finally, in October 2006, an exasperated CSPA sued DWR for not having a CESA permit.  On 23 March 2007, Judge Frank Roesch agreed with CSPA and issued a Writ of Mandate directing DWR to either obtain a permit or shut off the massive State Water Project export pumps.  DWR applied for a consistency determination.  DFG provided a list of required mitigation measures the Department believed necessary for full mitigation.  DWR said no.  DWR Director Lester Snow and DFG Director Ryan Broddrick were summoned to the Governor's office.  DWR withdrew its request for a consistency determination and filed an appeal of Judge Roesch's decision.  Long-time DFG veteran Ryan Broddrick, who had worked his way up the DFG ladder from Warden to Director, resigned in frustration.

Following Judge Wanger's decision that the existing federal Biological Opinions were grossly deficient and illegal, DWR said they would seek a consistency determination when new Biological Opinions were developed.  USFWS released the new BO for Delta smelt in December 2008.  Seven months later, as water agencies file multiple lawsuits against the federal BOs and populations of pelagic and salmonid fisheries continue to collapse, the new Director of DFG released a brief analysis claiming the federal BO is fully consistent with the more rigorous requirements of CSPA.  The National Marine Fisheries Service (NMFS) released its new Biological Opinion for salmon, steelhead, sturgeon and killer whales in June 2009.  CSPA is informed that DFG will shortly release a consistency determination for the NMFS BO.

To sum up, the Reasonable and Prudent Measures in the federal Biological Opinions represent minimum measures necessary to prevent species from going extinct.  They explicitly do not include measures necessary for fisheries restoration or full replacement of “taken” species.  CESA requires far more than the federal ESA.  It mandates, among other things, that fish losses be fully mitigated; i.e., replaced at roughly proportional levels to those killed by the project operations.  DFG, bowing to political pressure has now concluded that the weaker measures in ESA are fully consistent with the more rigorous requirements of CESA.      

DFG Consistency Determination