Presentations give overview of the California Water Fix project, and an in-depth review of the Section 7(a)(2) consultation process
The California Water Fix is a proposal to build three new intake facilities in the north Delta along with two tunnels to convey water from the north Delta to existing facilities in the south Delta for export to serve water users of both the federal Central Valley Project and the State Water Project. The Bureau of Reclamation (Reclamation) and the Department of Water Resources (DWR) coordinate the operation of the projects, and are the lead agencies for the California Water Fix project.
Construction and operation of the new facilities requires compliance with Section 7(a)(2) of the Endangered Species Act, which requires that any federal agency that carries out, permits, licenses, funds, or otherwise authorizes activities that may affect a listed species must consult with the federal fish and wildlife agencies to ensure that its actions are not likely to jeopardize the continued existence of any listed species.
As part of the consultation process, the Bureau of Reclamation and the Department of Water Resources have written a Biological Assessment (BA) which summarizes the effects of the proposed actions on listed species and their designated critical habitats. Concurrently, NOAA’s National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) are evaluating the effects of the proposed CWF on listed species and their designated critical habitats and are working towards the development of a joint Biological Opinion (BO) in response to the BA. In addition to complying with federal endangered species regulations, DWR will seek compliance with state endangered species regulations by applying for an incidental take permit for longfin smelt under Fish and Game Code section 2081(b).
The biological opinion is currently in its draft form. The federal and state fish agencies have requested this independent science panel review to obtain the views of experts on the use of the best available scientific information being used in the development of the biological opinion and the state’s 2081(b) permit. The Delta Science Program has assembled a panel of independent reviewers to review and comment on the use of the best available scientific and commercial information as it pertains to listed species, and to provide a balanced and constructive review of the draft BO analytical approach, specific biological assessment analyses identified in the panel charge, and the approach to analyzing the effects to longfin smelt.
On April 5th and 6th, the science panel met to hear presentations from the agencies and their consultants on the approaches used for analyzing the effects of the California Water Fix project on salmonids, sturgeon, Delta smelt, and longfin smelt. Seated on the panel are Charles “Si” Simenstad, Research Professor, University of Washington (Chair); John Van Sickle, Ph.D., Environmental Statistics Consultant (Lead Author); Nancy Monsen, Ph.D., Civil/Environmental Engineering Consultant; Ernst Peebles, Ph.D., University of South Florida; Greg Ruggerone, Ph.D., Natural Resources Consultants; and Hannah Gosnell, Ph.D., Oregon State University. (Click here to read full biographies of the panel.)
This science panel review will be covered in two parts. In part one, the agencies give an overview of the project and the biological opinion process. Part two of the review, posting tomorrow, deals with the details of the analyses in process for the listed species; then the panel gives their initial findings.
Introductory remarks
Dr. Clifford Dahm, Delta Lead Scientist, began by noting that this review panel for the California Water Fix science is at the request of the National Marine Fisheries Service, the U. S. Fish and Wildlife Service, and the California Department of Fish and Wildlife.
“We’re very happy to facilitate this review and to help the agencies get a good scientific evaluation of the methods and approaches for developing the biological opinion and the analyses prepared for the incidental take permit,” he said.
“The vision of the Delta Science Program is that all Bay Delta water and environmental policies founded on the highest caliber science, and our mission is to provide the best possible unbiased scientific information for water and environmental decision making in the Delta,” he said. “We have in our enabling legislation, the Delta Reform Act which was passed in 2009, words that basically state what we are expected to do. It is that this mission shall be carried out by funding research, communicating scientific information to policy makers and decision makers; and we also promote independent scientific review, and that is what today and tomorrow is all about. In addition, we coordinate with Delta agencies to promote science-based adaptive management, so those are the actual words in the enabling legislation, who we are and what we’re expected to do.”
Officials of the requesting agencies then addressed the review panel. “This is obviously a project that has tremendous importance for the future of California’s water supply and for the future of the Bay Delta estuary,” began Maria Rea, NOAA Assistant Regional Administrator. “There has been almost a decade of working closely together within the five-agency family advising Department of Water Resources and the Bureau of Reclamation on how to propose to construct a North Delta diversion that has the potential to alleviate some of the effects of the South Delta that I think we’re all familiar with. This is a milestone into itself that we’re asking for a panel review of the biological opinion.”
Ms. Rea said the three fishery agencies are working closely together and are asking for the review. “Our responsibilities under the federal and state Endangered Species Act are now at the point where we step back from all the collaboration and we’re going to have to do a full independent and diligent review of the effects of this new project and come up with our own determinations under the laws that we have mastered. So, that’s the process we’re in now.”
She noted that this is the first of two panel reviews; there will be a second review of the actual formal draft biological opinion which will be completed later this summer. The purpose of this review is to get advice on the analytical approach that they will use. “What I want to highlight is some of the difficulty in using best available science and doing that in a way where we’re taking a snapshot of what that science is,” she said. “As we all know, the planet continues to evolve. There are many uncertainties in this very complex estuary. There is a lot more we would like to know about this estuary and so how do we, given that we have to make this formal opinion and a snapshot in time, fully evaluate and disclose those effects given those uncertainties and how do we set up an analytical approach that allows us to bracket uncertainties appropriately and capture the full range of possibly beneficial and adverse effects that are reasonably certain to occur again in this project?”
The briefing today includes the regulatory context of the process that the agencies are must work in. “The section 7 ESA context is really its own structured decision making process and the courts have told us, sometimes in great detail, exactly how to interpret the statute so we want to make sure that you understand the constraints that we have,” Ms. Rea said. “Regarding best available science, I will say just over the time I’ve been doing this, I see some of our science disagreements get into different emphasis on the word ‘best’ available science, or best ‘available’ science. You might want to think about that because clearly best available science means that you have statistical rigor and proof that you’re relying on scientifically peer reviewed literature and you have confidence intervals and a real sense of what you know and don’t know. Best available science, our attorneys will tell us, is really that we have to use everything we have at the time we’re writing the opinion and if there are things that we want to disregard then we need to be very clear about why we’re disregarding them.”
“So, we get into both using the peer reviewed literature, our statistical approaches to looking at model outputs and what they tell us and don’t tell us, but we also need to look sort of at qualitative frameworks, weight of evidence approaches, other kinds of approaches to look at, information that we have that may not pass that sort of high bar that you are used to in academia of sort of peer-reviewed literature,” she said.
“That’s something I want to highlight because I think to a degree you can advise us on whether or not this analytical framework we’ve set up does that in an appropriate way, that would be extremely helpful,” Ms. Rea said. “Also, I’ll just highlight that we’re talking about how we look at viability of these listed units, evolutionarily significant units, as a construct under Endangered Species Act, how we even talk about what it means to have a species under the Endangered Species Act. It’s all set forth for the authorities we work under.”
Kaylee Allen, Field Supervisor for the San Francisco Delta Fish and Wildlife Office with the US Fish and Wildlife Service then addressed the panel, reiterating the importance of considering the project in terms of the constraints of the Section 7 process so their advice will be the most useful in preparing the biological opinion. Ms. Allen also noted that the biological assessment analyzes both aquatic and terrestrial species, but they are only asking for a review of the aquatic species as those are the most controversial.
“It’s been a very long road,” she said. “The agencies have been involved for upwards, I think, of eight years now between the Bay Delta Conservation Plan and Waterfix. So, this is a milestone that we are to this point and we do look forward to your input on that.”
Carl Wilcox, policy advisory for the California Department of Fish and Wildlife, then addressed the panel. “This is a critical point for us,” he said. “This is the first time the department has ever included a peer review in the issuance of one of its 2081 permits or incidental take permits for a project. We normally do that in the context of natural community conservation plans which BDCP was at one time; now we’re in the straight incidental take permitting process which has different standards. It does look at minimizing, avoiding, and then mitigating any subsequent effects after we’ve gone through those steps to the fullest extent.”
One of the things the Department is struggling with regarding best available science are the tools they have for longfin smelt. “They are limited and they are rather coarse, but they are what we have to deal with,” he said. “The reason that we’re focused on longfin is that it’s a state listed species but it’s not federally listed so that’s where we have focused our requests for your input, expecting that as part of your review of the biological assessment and the analytical framework for the winter/spring run salmon and the delta smelt, that our issues will be addressed as part of that.”
Mr. Wilcox acknowledged that the adaptive management process isn’t fully lined out yet. “We expect that it will be part of the biological opinion review and permit review, and at that point, we’ll have an opportunity to look at that,” he said. “I just want to highlight that while there isn’t a formal process, there are lots of elements of adaptive management that are currently in place and that have been used over the years in formulation of the existing permits and biological opinions as they have developed over time based on the state of knowledge at the time. To me, as part of the adaptive management process, it really goes to where the decision is made and how they are made. Those decisions are made within the construct of the authorities that lie at least in part with the fishery agencies as well as the State Water Resources Control Board as part of water quality control.”
With the introductory comments then concluded, the informational presentations began.
Cal Water Fix: Project Overview
The first presentation was from BG Heiland from the Department of Water Resources who gave an overview of the California Water Fix project.
“With the WaterFix, we’re looking at two 40-foot tunnels to move water from the Courtland – Clarksburg area down to our facilities near Tracy,” Mr. Heiland said. “We are looking at a potential 9000 cubic feet per second capacity to move water. With the WaterFix, we’re looking at addressing some of the risks we have in operating in the South Delta.”
“We did change from our permitting approach,” he said. “We originally wanted to go with a habitat conservation plan under the BDCP and that included assurances for a 50-year term but we ended up shifting from a Section 10 habitat conservation plan to a Section 7 consultation and pursuing the biological opinion. This looks at not having any assurances for the long term and instead mitigating for our impacts.”
Since the public draft was released in 2013, there have been design modifications to reduce the impacts of the project; three new sub-alternatives have been introduced with different capacities, and a wide variety of their environmental analyses were updated, such as fish & aquatic habitat, water quality, effects downstream of the Delta on fisheries, air quality, health risk assessment, traffic and noise, geotechnical investigations, and the inclusion of additional NEPA determinations, he said.
The WaterFix replaces Alternative 4 from the public draft, and separates out the habitat restoration from the water facilities construction. With the WaterFix project, the Department is now looking at mitigating the impacts of the project, and the restoration is now being coordinated in a program called Eco Restore that is led by the Natural Resources Agency and supported by the Department, he said.
Three diversion facilities are now proposed between Clarksburg and Courtland. Proposed engineering improvements since the 2013 draft include reducing visual impacts at the intakes, changing to a gravity-fed system, thereby removing the permanent power lines that would have been required, reducing the tunnel material impacts at Staten Island, and reducing construction impacts at Italian Slough, and as well as reducing the number of launch and retrieval shaft locations in order to minimize impacts to the area. The intake facilities have been redesigned from concrete-lined to an earthen bay, reducing the amount of concrete that has to be processed and the number of piles that have to be driven, he said.
Just to give a little bit of context, these are not the largest tunnels ever built, Mr. Heiland said. “There are a wide variety of other projects that are bigger than what we are proposing with WaterFix.” Click here for comparison slide.
Mr. Heiland explained that the water comes down through the tunnels and is pumped into Clifton Court. “The existing Clifton Court forebay would be separated into two parts; the north section would receive water from Sacramento River and this would be considered fish-free water,” he said. “We would still be using the existing system that we have in place right now in the south Delta; however, we would expand that area to keep about the same volume that we currently have with Clifton Court.”
Mr. Heiland noted that the initial proposed operations are summarized in section 3.3.2. and real-time operations are summarized in 3.3.3. “The Department will continue to meet all regulatory requirements in the Delta and we will continue to use dual conveyance, which means we will pull either from the north or the south to move water within our existing water rights,” he said.
“To give you an example, we would have different flow scenarios for when we may use the north Delta versus south Delta,” he said. “When there was low water flow in the Sacramento River, say under 5000 cfs, we wouldn’t be able to divert any water out of the North Delta diversion facilities. As flow increased in the Sacramento River, there would be different triggers where we would potentially divert some of that water where in a dry year if there was 6400 cubic feet per second in the river, at maximum, we could only divert 384 cfs. Then as flow increases, we only have the maximum diversion capacity of 9000 once we hit 30,000 in the river. However, in wet years, that would bump up. There would have to be a minimum of 64,000 cubic feet per second in the river. There would be different flow criteria for which we would be able to divert off of the Sacramento River. That’s what the operational rules summarize, what we can and cannot do.”
Adaptive management is part of the project, he said. “We have a collaborative science and adaptive management program that goes into details in section 3.4.7. It would be established by a policy group which is made up of the Department, Reclamation, California Department of Fish and Wildlife, National Marine Fishery Service, and US Fish and Wildlife Service that would address the scientific uncertainty, where it exists, to the benefits, for the impacts, and for the construction and operations. It would help us inform and improve our design, our fish facilities and intake fisheries, our operations of facilities, and the habitat restoration and other mitigation under the biological opinions.” Mr. Heiland noted that it would only be implemented if take authorization is approved.
The monitoring and research program would continue, which includes the existing monitoring required under the existing biological opinions, any monitoring that would be required by the permits and authorizations for the construction of the new diversion facilities, and any monitoring related to the operations before operations start at the North Delta facility and after, Mr. Heliand said. He also noted that there is 2,300 acres of habitat restoration and 13,350 acres of habitat protection.
As for next steps, he said they were still going through the environmental review process and hope to have a final draft in the middle of the year. They are going through the Section 7 consultation and are expecting to get the biological opinion in the fall of this year; the processes for the Army Corps of Engineers Section 404 permit and the State Water Resources Control Board change petition have been started with public hearings anticipated this summer.
The Bay Delta Conservation Plan had included a lot of habitat restoration as part of the habitat conservation plan; this will now take place under the California Eco Restore program, he said. “The program will accelerate and implement a complex suite of actions, including more than 30,000 acres of restoration over the next 5 years,” Mr. Heiland said. “There would be 3500 acres of managed wetlands, 17,000 acres of floodplain restoration, 9000 acres of tidal and subtidal restoration and 1000 acres under Prop 1 and Prop 15 projects.” Mr. Heiland concluded by presenting a map showing the projects that have been either started or proposed for this year.
Endangered Species Act Overview: Section 7 process and biological opinion
Jana Affonso, Deputy Division Chief for the Pacific Southwest Region Ecological Services Program for the Fish and Wildlife Service and Regional Section 7 coordinator, and Eric Strange, Section 7 coordinator for the Central Valley Office, then gave a brief presentation on the the Endangered Species Act, Section 7 and biological opinion process.
Endangered Species Act Overview
Ms. Affonso began the presentation by noting that the Endangered Species Act focuses on protecting the species and natural environment. “Even way back in 1973, they were already thinking about how we can’t just talk about the species sort of simplistically; we have to think about the habitat and the environments that they exist in. NOAA and the Fish and Wildlife Service were given joint authority to implement the Endangered Species Act, with NOAA primarily for marine species and anadromous species; Fish and Wildlife service for terrestrial, with some exceptions but that usually is the rule.”
She then reviewed the key definitions. “Endangered species are any species which is in danger of extinction throughout all or a significant portion of its range,” she said. “Threatened species are any species which are likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Critical habitats are the specific areas with the essential physical or biological features that are essential to the conservation of those species.”
Conservation in the context of the Endangered Species Act means the use of all methods of procedures which are necessary to bring listed species, endangered or threatened, to a point at which the measures provided pursuant to the act are no longer necessarily – recovery and delisting, Ms. Affonso said. “We want to get these species off the list and ESA contains measures and procedures in order to do that. So, conservation is what it’s all about. We often use conservation and recovery sort of interchangeably in that sense.”
The purpose of the ESA is to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved or recovered and delisted. “The ESA has often been sort of criticized for being species centric, I think sometimes rightfully so,” she said. “But the powers that be way back in 1973 recognized the importance of conserving the ecosystems and to provide a program for the conservation as such listed species and their habitats. It is the policy of the Endangered Species Act for all federal departments and agencies, not such Fish and Wildlife Service and not just NOAA, to seek to conserve endangered and threatened species and to use their authorities and their resources in furtherence of the purposes of the Endangered Species Act.”
Section 4 addresses listing and recovery; it describes the procedure for putting species listing and delisting, contains the mandate for doing recovery plans for individual species, and describes the determinations the services must make, as well as the procedures for recovery and monitoring.
In terms of provisions particularly relevant from the perspective of section 7, Ms. Affonso noted that section 4d allows them to define protective regulations for threatened species. “NOAA and Fish and Wildlife do sometimes sort of implement this a little bit differently but the purpose is the same,” she said. “Certain activities that may sort of otherwise normally result in prohibited take, we can sort of exempt or say we’re going to allow these activities, they’re for the benefit of the species for conservation. They’re good for conservation although they make result in some take. We can allow that. That’s important for section 7 when we’re addressing the effects of federal action.”
Section 4f addresses recovery planning. “These are extremely helpful documents for section 7 practitioners,” Ms. Affonso said. “They describe the species background and life history, our recovery objectives, delisting criteria, and threat assessment that is often helpful for when we’re addressing the effects of federal actions, as well as recovery strategies and research monitoring. We’ll use these documents to help in consultation with federal agencies and applicants to try to incorporate our recovery actions into federal actions and recovery considerations. They are great when we have them.”
Section 7(a)(1) directs federal agencies to use their authorities in the furtherance of ESA section 7. “Notice the word “shall” – it’s not “may” or “could”. It’s not really optional,” Ms. Affonso pointed out. “Federal agencies are supposed to use their authorities for the purposes of conservation of listed species and their habitats by carrying out programs for conservation. We at NOAA and Fish and Wildlife Service stand ready to assist federal agencies and applicants in order to meet this mandate. We’ve done it in many creative ways but we’re always wanting to work with agencies on how to do that.”
Section 7(a)(2) states that each federal agency shall ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of the habitat of such species – i.e. critical habitat, she said. Section 7(d) puts a limitation on a commitment of resources by stating that after initiation of consultation federal agencies won’t do anything that would preclude options for avoiding jeopardy potentially until they have granted an exemption. “We won’t go out and do any groundbreaking, we won’t enter into any contract. We’ll sort of limit options on how to design a project to avoid jeopardy or adverse modification.”
Section 9 addresses prohibited acts. Section 9(a)(1)(b) states that it is unlawful for any person – not just federal agencies but anyone – to take any such species, Ms. Affonso said. “Take is further defined to include harass, harm, pursue, hunt, shoot, wound, etc., etc. I will note that this particular part of section 9 is only applicable for fish or wildlife. Section 9(a)(2) describes prohibited acts, and although it does not include the word “take” prohibitions, there are prohibited acts related to listed plants.”
“Harm” is the form of take often referred to when dealing with habitat modification or loss, she said. “Harm is an act which actually kills or injures fish or wildlife. It may include significant modification or aggravation where it actually kills the wildlife by significantly impairing essential behavioral patterns including breeding, spawning, rearing, migrating, feeding, or sheltering. I emphasize actually kill or injure because sometimes you could have habitat modification that doesn’t actually harm the species. It actually has to lead to that kill or injury and we must establish the causal link between that modification or loss and the injury or death of individual animals.”
Section 10 of the Endangered Species Act covers exceptions. Section 10(a)(1)(A) addresses “recovery permits” which are the permits that allow take of listed species for scientific purposes or to enhance propagation or survival. “We do a lot of these,” Ms. Affonso said. “We recognize the benefits for listed species. Sometimes there’s take associated with activities.”
Section 10(a)(1)(B) addresses habitat conservation plans, which was where the Bay Delta Conservation Plan was headed originally, she said. Section 10(j) covers experimental populations, which is any population established to further the conservation of the population that may be introduced to another area for recovery purposes, she said.
Section 7(a)(2) Consultation Process
Section 7(a)(2) covers the generalized consultation process. She presented a graphic of the process, noting that the process begins with determining if there are listed resources present, meaning species and/or critical habitat. “You define your geographic area, the area where the project is occurring, and we would give you a list and say these are the species and critical habitat that may occur in this area and may be affected. If the action is a major construction activity, the action agency automatically goes to prepare a biological assessment. Then, if not, they need to submit something to initiate consultation which describes the nature of the action and the nature of the effect.”
“The staff would go to informal consultation,” she continued. “After the action agency provides a biological assessment or some sort of an evaluation and they determine ‘I think our action is not likely to adversely affect listed species or critical habitat; we think the effects are wholly beneficial’ or ‘we think the effects are insignificant.’ Beneficial or contemporative positive effects without any adverse effects that could affect the species, we need to document. Insignificant is related to the size; it should never reach the scale where take occurs. Discountable are those that are extremely unlikely to occur. All of that fits under the “Not likely to adversely affect” scenario. Assuming we agree with your determination, we would provide a concurrence writing and you will be on your way.”
Formal consultation is initiated when there are likely to be adverse affects. The action agency submits an initiation package that by regulation must include a description of the action to be considered, a description of the specific area that may be affected, the listed species or critical habitat, description of the manner in which the action may affect the listed species or critical habitat, and analysis of cumulative effects, as well as any relevant reports such as the biological assessment, the NEPA documents, and any other relevant available information that the federal agency has.
“The federal agency requesting formal consultation shall provide the service with the best scientific and commercial data available, that is by regulation,” Ms. Affonso said. “It is so important for the action agency to provide that information as there may be available scientific and commercial information that the services aren’t aware of, or that aren’t available to the services, that maybe the action agency or the applicant has. That should be submitted with the consultation and initiation package to provide that adequate review of the effects of the action to the listed species or critical habitat.”
“Consultation does not start until the initiation package is complete,” she said. “Once the services receive the package from the federal action agency, we will do a review of it and make sure it has all of those components. The services may request additional information needed to begin formal consultation. We do that in writing, and we have to be very specific.”
Ms. Affonso then presented a graphic showing some generalized timelines. There is no set time frame for preconsultation technical assistance; it is as long as is needed to work with the federal action agency and the applicant to design a project that the services can consult on, she said. “Once the concurrence request comes in with the package, by policy the services have 30 days to respond, either with a concurrence that we agree with everything, or with that letter that we need more information. We try to stick to that but we don’t always do.”
Once formal consultation is initiated, the services have 90 days to complete the consultation; beyond that, they have an additional 45 days to issue the biological opinion. “Sometimes we agree to extensions, but that is between the federal agency and the services to determine,” she said.
The role of the action agency it that it must provide the best scientific or commercial data available and should be an active participant in the consultation, she said. “Even if there is an applicant, the federal agency action agency will always be at the table, as the action agency is going to have requirements,” she said. “After the opinion is issued, there is implementation of the required terms and conditions of the biological opinion; for instance, monitoring reporting on implementation and any change that occurs.”
The federal agency may designate a non-federal representative for routine activities associated with the consultation; that non-federal representative may be an applicant or a consultant. If the designated non-federal representative does prepare the biological assessment (BA), the federal agency shall furnish guidance and supervision and shall independently review and evaluate the scope and contents of the BA. “Essentially, federal agencies can’t just say ‘Go do it and you’re good to go.’ They still have to be an active participant even though they’re designating a representative. The ultimate responsibility for compliance remains with the federal action agency.”
An applicant is any person who requires formal approval or authorization, like a permit, from a federal agency before conducting the action, and they do have a role. “The federal agency determines the applicant’s status during consultation,” she said. “The applicants may submit information for consideration, review and comment on the draft opinion, and they are entitled to receipt of the final consultation document. They can apply for an exemption of 7(a)(2), may be responsible for complying with terms and conditions of monitoring reporting, and they can approve requests for greater than 60-day extension on the biological opinion.”
As for the role of the services, the services advises the federal agencies through consultation to identify and help resolve conflicts between listed species and proposed actions. “We must use the best scientific and commercial data available, whether we have it or whether you provide it; we must consider that and show that we considered it in our analysis,” Ms. Affonso said. “We’re an active participant in the consultation. We advise the action agencies and applicants on regulatory policy and biological information. We discuss the potential effects of the action and we discuss measures to reduce or avoid those effects. That may be in the context of ‘Hey federal action agency, can you design the project to avoid effects? We think if you do it this way we could actually reduce take or avoid altogether.’ Sometimes the action agency will incorporate that into their project. In other cases, we may sort of impost those measures in terms of conditions of biological opinion.”
“Our objectives in section 7 are to help federal agencies ensure that any action they authorize, fund, or carry out is not likely to jeopardize and not likely to reduce the conservation value of critical habitat for their recovery,” she said. “Critical habitat is a very important to recovery for listed species. Section 7 gives us that opportunity to address critical habitat. Our objectives are to produce consultations that are legally defensible. We don’t want to get sued any more than anybody else does. We try to be transparent about our analysis. We strive to be objective, replicable, and evidence-based.”
Biological Opinions
Erin Strange, Section 7 Coordinator for the California Central Valley office of the National Marine Fish Service, then walked through the different sections of the biological opinion. She said she had two reasons for doing so: first, to orient the panel to the biological opinion and its contents, and also for them to keep in mind when reviewing the biological assessment with regard to the level of detail and information required to be included in the biological assessment in order to support their evaluation of the project.
She began by presenting a slide of the general outline of a biological opinion, and briefly described the components. The introduction usually begins with the background section, which will likely describe the relationship of California Water Fix to the state and federal water projects, as well as some history about the planning that went into the Bay Delta Conservation Plan, she said.
The consultation history is where all the important points in the consultation are captured. “When we do our sufficiency review of the biological assessment, sometimes we’ll send a formal letter back to the action agency describing the deficiencies, we want to capture that here,” she said. “If there is additional information that they return to us, we want to capture that in this section. It’s a chronological story that we’re trying to capture here, all of the important milestones in the consultation history.”
The next section describes the proposed action. Ms. Strange noted that if possible, they would use the proposed action that’s included in the biological assessment, but oftentimes it lacks details needed to accurately analyze the impact to species. This section also lists the federal agencies involved in the proposed action; in the case of California Water Fix, the Bureau of Reclamation is the lead federal agency for the consultation and for the operations, the Army Corps of Engineers is the action agency for the construction, and the California Department of Water Resources is the applicant. “It’s important to capture that here as it becomes very important at the end of the biological opinion when we issue the incidental take statement because it’s there that we define who is responsible for what, essentially.”
“We describe the action itself, so we describe the purpose, the statutory authority of each of the agencies, where the action is occurring, how long it’s expected to occur, and then break down all the various elements of that action, focusing on the impact on the species,” she continued. “We include any interrelated and interdependent activities that would also be included in the project action, and then we evaluate the impact from those activities as well.”
One important component of the proposed action is the description of the action area. “Sometimes there can be some disagreement between the action agency and the consulting agency about what encompasses the action area,” Ms. Strange said. “Usually the federal agency that’s undertaking the action will think of it in terms of physical footprint of the project, but we really want to capture all of the effects from that action. For instance, if there is sedimentation, that could travel quite some ways downstream and impact fish miles and miles down the stream so that effect needs to be captured in the action area, as well. Something to just keep in mind as you are looking at the biological assessment.”
The analytical approach section which is where the services outline their overall approach to the assessment. “This is where we describe how all the various parts of the biological opinion work together in order to support our conclusion. We’ll talk about our assessment model which is based on exposure, response, and risk. We identify the evidence available to support our assessment, describe how we analyze the evidence, how we weighed the evidence and used it in our analysis, and clearly identify the assumptions that we’ve made, and identify uncertainties as well.”
The next section of the biological opinion describes the rangewide status of the species they are consulting on. “In this section, we’ll talk about population, structure, abundance, threats to the species, recovery goals and criteria,” Ms. Strange said. “We really want to convey the status of the species in context of its extinction risks. So, how poorly is it doing? We know it’s a listed species so it’s doing poorly but is its trajectory headed towards extinction? Or is it on the upswing so that we think it’s headed towards recovery? We really want to capture that in this status section.”
They then do the same thing with the status of the critical habitat. “We’ll discuss the entire critical habitat designation area for each species and we could go on describing the physical and biological features of that critical habitat which are essential for conservation of the species,” she said. “We have a recent rule on critical habitat that redefines some of the definitions that we use when we talk about critical habitat. In the biological assessment where they are talking about critical habitat, they mention PCE’s, which are Primary Constituent Elements. We also talk about essential features. Those are the terms that we used when the critical habitat was designated but with this new rule we are supposed to describe critical habitat in terms of physical and biological features. So that will be the term that we use in our biological opinion. They all are referring to the same things and the analysis doesn’t change.”
The next section describes the environmental baseline. “This is where we describe any past and present impact of federal, state, and private actions and other human activities within the action area. We’re just describing current conditions, what’s happening now? What’s the condition of the habitat? We also want to describe any anticipated impacts from other projects. So, it’s not just a list of activities that are going on. We really want to focus on what the potential impacts of consequences are to our species from those activities.”
The effects analysis is really the ‘meat’ of the biological opinion and the biological assessment which utilizes an exposure-response-risk model for both species and critical habitat, Ms. Strange said. “The exposure and response analysis really focuses on identifying the individuals that are likely to be exposed to a particular stressor that comes from the proposed project, explains the intensity and duration of that exposure, and then looks at the response to that exposure,” she said. “In doing so, we’re using best available science, the literature that’s available, any monitoring that’s occurred in the area to describe what our analysis is considering as far as best available science. Any prior experience that has been demonstrated with a particular structure and how the species responds to that, or that habitat responds to that. We have some limitations with our modeling and so we just need to clearly articulate what those limitations are and what assumptions we’re making to define any uncertainty that we have because of that and clearly articulate the relationship between exposure of the species or the habitat and their response. We’re looking at risk to the species, both at the individual level, the population level, and at the species as a whole.”
The real message is that they are considering survival and recovery, as well as considering critical habitat. “We’re looking at critical habitat from a perspective of survival and recovery of the listed species and we’re thinking about whether there’s an adverse modification or not,” she said. “The focus is on the value of that critical habitat for conservation of the species.”
“The last step in the exposure response risk analysis is to describe how we integrated the exposure and response and then clearly describe the consequences for the listed species and their critical habitat,” Ms. Strange said. “This is a crucial step in helping us later in the biological opinion process and the integration and synthesis section where we bring all this information together to then form our opinion about whether this project will jeopardize the species or adversely modify critical habitat.”
The next section of the biological opinion discusses cumulative effects, which are essentially the effects from non-federal projects as any federal projects are included in the environmental baseline. “This section can be kind of tricky,” she acknowledged. “It’s sometimes difficult to predict which actions will occur and won’t occur. We want to do our best here to capture any effects are reasonably certain to occur within the action area from future activities.”
The final step in the effects analysis is the integration and synthesis. “Here we describe our reasoning and the evidence that supports our conclusion and we tie together all the various sections – the status of the species and their critical habitat, the environmental baseline, the effects of the action, and the cumulative effects – we take all of that together in consideration, consolidate it, and make our determination about jeopardy for adverse modification.”
Ms. Strange clarified that “jeopardize” means to engage in an action that would reasonably be expected, directly or indirectly, to appreciably reduce the likelihood of both survival and recovery by reducing reproduction numbers or distribution of that species. “That’s our jeopardy standard for evaluating a project,” she noted. “For critical habitat, determinations on destruction or adverse modification are based on critical habitat as a whole – the whole area of the designation, not just the area where the action takes place and where the impacts are direct.”
“Small impacts can cause adverse modification if those impacts diminish the value of critical habitat so it’s not a scale issue,” she said. “For instance, if we had a section of winter and spawning habitat that we damaged, that could be an adverse modification even it’s a relatively small area. If we have made a non-jeopardy determination, we would be likely issuing an incidental take statement. Otherwise, we would be in formal consultation, so we are assuming there is some take that’s going to occur.”
The Incidental Take Statement is where exemption from incidental take is provided to the federal action agency. “In this section, we describe the amount or extent of the take that is expected from the proposed action. We provide reasonable improvement measures and these are designed to minimize the effect of the take. Each one of those reasonable improvement measures has terms and conditions. Those are conditions that are mandatory, not discretionary for the federal action agency.”
This section describes the amount and extent of take, the life stages that will be impacted, and how many individuals will actually be taken, if possible. “We also need to describe what type of take,” she said. “Is it harassing? Is it killing? There are a lot of different levels of take and we need to describe that here. The important point with describing take is that it must be measureable. If we can’t really estimate how many fish will be taken, then we will have to use a surrogate to describe that. For example, we might perhaps use a habitat parameter such as turbidity to quantify take and say that if Delta smelt is impaired by a certain threshold of turbidity they can stand but if it goes beyond that point then it affects their feeding behavior. So, in the incidental take statement, we might set a limit on turbidity. We identify where it’s monitored, when it’s monitored, and what that trigger level is. We would use that to explain the incidental take. It has to be measurable.”
“We also need to evaluate the effect of that take,” Ms. Strange said. “We’ve already evaluated whether the project jeopardizes the species but then once we have identified the take, we need to evaluate whether that will jeopardize the species as well so that is included in our evaluation of our overall determination of the project.”
The Incidental Take Statement includes any ‘reasonable and prudent alternatives’ which are designed to reduce the impacts of the incidental take. “A lot of times this will involve mandatory monitoring that the federal agency must undergo to track incidental take,” she said. “Another important point is that the reasonable and prudent alternatives cannot alter the basic design of the project – the location, the scope, and the duration. They can only be minor changes to the project. That is something that is designated in the ESA itself. If we have a jeopardy determination or an adverse modification determination, the services have to develop a reasonable and prudent alternative to the proposed action. We develop that in coordination with the federal action agency. The reasonable improvement alternative must avoid jeopardy, must be implemented in a consistent manner with the originally proposed action and consistent with the agencies legal authority and jurisdiction, and must be economically and technically feasible.”
The last section of the biological opinion is the services can make conservation recommendations. “It is ideal to have most of the conservation measures implemented integrated into the projects themselves upfront but sometimes there’ll be additional recommendations that we want to use to minimize or avoid impacts of the project and we would put those in this last section.”
Then, lastly, when reinitiation of the consultation is required. “Some instances where reinitiation of the ESA consultation will be required is if the amount or extent of take is exceeded, if new information reveals that the effects of the action are different than what we analyzed, if the species or habitat listing or status changes, or if a new species is listed or a new critical habitat designated that would be impacted by the action.”
Ms. Strange then highlighted the different sections in the biological opinion where climate change is integrated. “We include a range-wide status, and every 5 years, we have a status review for each of our species and climate change is a big part of that status review. Our scientists in our science center will determine how climate change is impacting our species now and they try to project how it will impact the species in the future. We incorporate that into the range-wide status section of the biological opinion.”
“If we know enough about climate change is impacting the environment within the action area that we’re analyzing, we’ll rate that in the environmental baseline section,” she continued. “Then, in the effects of the action, we want to look at will there be amplification from climate change. For instance, if we have water temperature impacts from the project will that be amplified by climate change in the next 10 years and we’ll want to include that in our evaluation.”
“In the integration and synthesis, we’ll look at climate change from an aggregate and synergistic perspective,” Ms. Strange continued. “For the incidental take statement, if we have a lot of uncertainty and we’re not sure what the climate change impacts might be for a long-term project, say we had a habitat conservation plan that was going to be 50 years, in the incidental take statement, we could incorporate some check-in points. We could say in 10 years we want to reevaluate the effects. We can know more about climate change and what’s happening at that point.”
“Then, in the conservation recommendations, we typically encourage the action agencies to include climate change in their long-term planning and permitting processes,” she concluded.
A brief overview of the California Endangered Species Act and Incidental Take Permitting
Shannon Little, an attorney with the California Department of Fish and Wildlife (CDFW), then gave a brief overview of the California Endangered Species Act, or CESA and the Department’s incidental take permitting process.
The California Fish and Game code identifies CDFW as the state’s trustee for fish and wildlife resources, and has jurisdiction over their conservation and management of fish and wildlife and habitat necessary for sustainable population of those species; the Department also a trustee agency role under the California Environmental Quality Act, and so the CDFW acts as a regulatory agency and also helps federal, state, and local agencies in a consultant role during environmental review; CDFW also implements projects, she said.
The California Endangered Species Act was originally modeled on the federal Endangered Species Act so there is a lot of similar language in CESA, including the statement that it is the policy of the state that all state agencies, boards, and commissions shall seek to conserve endangered species and threatened species, said Ms. Little, noting that conserve or conserving is defined in CESA as actions to bring a species to a point where they don’t need to be listed anymore.
There is a prohibition that no person shall import, export, sell, purchase, take, or possess any threatened or endangered species listed under CESA, she said. She also noted that the take prohibition under CESA extends to candidate species, which are species that have been proposed for listing and the Fish and Game Commission is considering whether to list them under the Act.
Ms. Little pointed out that the state definition of take is different than the federal definition. “It means to hunt, pursue, catch, capture, kill, or attempt to do any of those actions,” she said. “It doesn’t include the harm or harass; that’s under section 9.”
The Department of Water Resources will be seeking incidental take permits for the California Water Fix project to cover take of all state-listed species; that includes longfin smelt, winter-run and spring-run chinook salmon, and Delta smelt. There is a separate longfin smelt analysis because it’s only listed under the state law, but ultimately the permit application will at least have the information on the all state listed species that are proposed for coverage, she said.
“Incidental Take Permits are the most common ways that the state authorizes take,” she said. “There are many other mechanisms, but Incidental Take Permits are by far the most common.”
Currently, the Department of Fish and Wildlife is in the pre-application consultation; the Department of Water Resources hasn’t submitted an application yet to DFW, but they have been consulting with the Department for a long time. “The implementing regulations under CESA direct the department to consult with applicants to greatest extent possible so that when the application is submitted it will meet the requirements of the statute regulations,” she said. “Once an application is submitted the department has 30 days for a non-substantive review of that to ensure that it’s complete and has responded to all of the questions within the regulations about what needs to be in the application. After an application is complete, the regulations describe that there still could be requests for more information from an applicant, other information that will need to be developed. So, it’s an iterative process. The department has 90 to 150 days in which to review an application.”
DFW is the responsible agency under CESA. Ms. Little explained that the Department of Water Resources is the leading entity for preparing the environmental impact report for this project, but the Department also has an obligation to review and consider the CEQA document making its decision on the permit, and when they are in that role, they are considered to be the responsible agency.
Ms. Little noted there were many parts to the application, but the parts the panel is being asked to review is if the application includes an analysis as to whether and to what extent the project or activity for which the permit is sought could result in taking a species to be covered by the permit, and also an analysis of the impact of the proposed taking of the species. That includes looking both at the direct potential for take as it’s defined under the state law and then also a discussion of the impact of that proposed taking of the species which could be much broader, she said.
“The application is also required to include an analysis of jeopardy and for the states purposes, a consideration of this species’ capability to survive and reproduce and any adverse impacts that the taking on those abilities in light of known population trends, known threats to the species, and reasonably foreseeable impact on the species from other related projects and activities,” she said. “Like the federal statute, the applications are required to be based on the best available scientific and other information that is reasonably available.”
Ms. Little then turned to the issuance criteria that the Department’s criteria is ultimately based on and the findings that the department has to make, starting with the authorized take. “It has to be incidental to otherwise lawful activity, incidental in that it’s not the purpose of the activity in order to take the species but it’s for another purpose,” she said. “The crux of it is that the impacts that the authorized take must be minimized and fully mitigated and, in this context, the impact of the taking means all impacts on the species that result from any act that it caused to authorized take … Any number of other ways that a species could be impacted by the activity that is causing the take.”
“As part of the applications, the applicant will include proposed measures to meet those take standards and minimize and fully mitigate,” she continued. “A permit issued by the department may include some combination of what the applicant has proposed as well as other conditions that the Department deems necessary in order to meet the standard. But all measures included in the permit must be capable of successful implementation. That could include measures without an established track record of success so long as there’s a reasonable reason to believe that they could be used and be successful.”
“The applicant is required to assure funding to implement the required measures and also compliance and effectiveness monitoring of those measures,” Ms. Little said. “Finally, the ITP and the Department must make a finding that the issuance of the permit won’t jeopardize the continued existence of the species. That’s based on an analysis of the same factors that are in the application.”
Status update on the ESA consultation process for California Water Fix
Kim Turner, Assistant Field Supervisor with the Fish and Wildlife Service’s Bay Delta Fish and Wildlife Office then gave an update on where the California Water Fix is in the Section 7 process. She reminded that the Bureau of Reclamation is the action agency and the Department of Water Resources is the applicant; the Army Corps also has some jurisdiction.
“We acknowledge now that there likely will need to be some updates to the biological assessment and potentially updates to the biological opinion when the Corps is brought into the section 7 process,” she said. “Ultimately, Reclamation and DWR will be seeking formal consultation with the Fish and Wildlife Service and NMFS on project-related effects to aquatic and terrestrial species from construction, operation, and maintenance of the project. This peer review covers the aquatic species only, as the terrestrial species effects are pretty straightforward and noncontroversial and generally don’t require a peer review.”
The Bureau of Reclamation and the Department of Water Resources have prepared a January 2016 draft biological assessment which is what the panel, Fish and Wildlife Service and NMFS are reviewing as well. Ultimately, NMFS and the Fish and Wildlife Service will produce a joint biological opinion. The final biological opinion is the currently scheduled for the fall of this year with a draft being produced over the summer.
Currently, they are in early sufficiency review, said Ms. Turner. “The sufficiency review is about ensuring that there is adequate information to be able to complete our effects analysis and do a thorough analysis. This is all considered technical assistance; we’re not technically in formal consultation at this point in time. We do see some benefits of doing this early sufficiency review as far as time savings later as it allows us to continue to work collaboratively and to resolve some issues that might need to be resolved, whether it’s informational needs or issues related to events to the species in a more informal way and hopefully in a more efficient way, as well.”
The review began in late January. They are still looking for potential outstanding information needs relative to terrestrial and aquatic species analysis and identifying issues of the review for a timelier resolution, creating more efficiencies and continuing with the collaborative process. “We’re also taking an early look at the effects to Delta smelt and chinook salmon giving their diminishing environmental baseline and status of the species that we’ve watched over the last few years, especially related to the drought that we’ve experienced over the last four,” she said. “We are nearing the end of our review so hopefully in the next few weeks we will have completed our review and provided our final feedback to that action agency and the applicant as far as any additional information needs or concerns we have related to effects to the species.”
Reclamation will initiate formal consultation following the sufficiency review and resolution of any potential insufficiencies. The Fish and Wildlife Service and NMFS will prepare a joint draft biological opinion and there will be another peer review of that document, she said. “Ideally we want the review of the draft biological opinion so that we can incorporate all of that feedback into our final biological opinion that is currently tracked for fall,” she said. “Then we will finalize the joint biological opinion.”
Ms. Hunter then answered a question asked earlier about whether the RPA’s and adaptive management be part of the phase 2 review. “The reasonable and prudent alternatives, we don’t know if those are going to be part of this biological opinion because we haven’t done our jeopardy analysis and adverse model analysis to conclude that the project would end in jeopardy or adverse modification of the species at this point,” she said. “Ideally we’ve been working all along to create a project and to conduct a consultation that has an end result of a non-jeopardy and non-adverse modification so hopefully there will not be a RPA associated with this consultation and there will be a straightforward project and a straightforward analysis of this effects and they will have avoided jeopardy and adverse modification. Too soon to tell at this point in time; we really don’t have an answer for that.”
As for Eco Restore, it is basically the umbrella project that includes mostly the 2008 and 2009 required restoration associated with our biological opinion and that is part of the base modeling that was used in the consultation for California WaterFix, Ms. Hunter said. The 8000 acres and the additional acreage associated with the NMFS biological opinion is included already in the hydrologic modeling for the project itself. The other projects that are included in Eco Restore would likely be addressed under interrelated and interdependent, she said.
Some questions and answers …
One of the panel members asked Erin Strange about what triggers reinitiation of the biological opinion.
“There are basically four different instances where that might occur,” Ms. Strange replied. “If the extent or amount of take identified in the biological opinion and incidental take statement is exceeded, then that would trigger reinitiation. If the status of the species or the critical habitat has changed enough that it would influence the way that we would analyze the impact, or if a new species is listed or another critical habitat designation in the action area is in place, that would be a third instance. The fourth is if there are substantial changes in the effects of the action that we didn’t analyze originally, if those come to light because of some additional monitoring or modeling then that could trigger reinitiation as well.”
One of the panel members asks about the term “appreciably affect.” Could you quantify what that is and how does that incorporate uncertainty in the evaluation?
“This is kind of a million-dollar question,” replied one of agency representatives. “Appreciable, by definition, is measurable. It very much depends on the action and the scope and the extent of the effect … essentially, it’s anything that’s measureable. It’s sort of more than is discountable, it’s something you can actually measure.”
NMFS draft biological opinion analytical approach for salmonids and sturgeon
Cathy Marcinkevage, a biomodeler with the Central Valley Office of NOAA Fisheries, then discussed the approach NMFS uses to make their determination. “The biological opinion will present our analysis of the effects of the project,” she said. “Ultimately we’ll provide separate determinations of whether we expect the effects of the project to result in a determination of jeopardy that would appreciably diminish the likelihood of the survival and the recovery of the species, and also a determination of whether or not we expect the effects of the project to destroy or adversely modify critical habitat.”
Ms. Marcinkevage then highlighted some key definitions. “The jeopardy determination means to reduce appreciably the likelihood – not necessarily the certainty but the likelihood – of both survival and recovery,” she said. “We’re not just looking at survival; we’re also looking at recovery and that’s an important component. We can assess this by looking at reproduction numbers and distribution of a species.”
“For the adverse modification definition, the key components are that it depreciably diminishes the value of that critical habitat for the conservation of the species and we assess this by looking at the effects of the physical and biological features,” she said. “Ultimately, with our analytical approach, we’ll show how in making these determinations, we rely upon logical and supporting analyses, and that we have adhered to the requirements that are laid out in the ESA and that we used the best available scientific and commercial information available. The analytical approach shows how all the different part of our bi op work together to support a determination. It’ll indicate what evidence we used in making that determination and how that evidence was analyzed or weighted. We can identify any assumptions that we had to make to deal with limitation or uncertainties in that evidence. So, it’s the integration of all those different components put together to support our determination.”
General approach model for species consultation
Ms. Marcinkevage then presented a flow chart of the consultation process, noting that it is similar to the one shown previously of the Fish and Wildlife Service’s process, but has parts that are a little more detailed. “We echo some key components,” she said. “We have the characterization of the action when we get the consultation package, and it leads to a determination after looking at the effects of a project combined with the environmental baseline conditions. This is the general approach that we use in making a determination for the species. The jeopardy or no jeopardy determination. And then there is a similar approach for the determination of adverse modification or not of critical habitat.”
She then discussed the species approach in more detail. “When the consultation starts, you receive a consultation package that has the proposed action, so the first component is to characterize this action,” she said. “In characterizing the action, we look at the proposed action, deconstruct it into its different component parts and that allows us to see what the different effects are. We can identify what the environmental stresses are that result from those components and identify any interrelated or interdependent actions. It allows us to identify the action and see where we have threatened and endangered species co-occurring with that action area to identify what species we need to look at.”
Environmental baseline
Once the action is characterized, they analyze what the action is acting upon. “This is the reference condition effort,” she said. “We look at the range-wide status of the species; we look at overall status of the species which indicates what’s going on with the species, what the risks to its extinction are, and why it’s listed, and then we overlay the action area with that to describe what the environmental baseline is.”
The status of the species within the action area sets the reference condition that tells what the status and the condition of the species without the project effects, she said. It is an important component of the analysis because it is the foundation.
The guidelines for the regulations specify that the environmental baseline includes the past and present impacts of all federal, state, and private actions; any impacts of federal actions that are already in section 7 consultations; and any impacts of state or private actions which are happening at the same time as the consultation process.
Since operations are expected to last for several decades, it’s important for this analysis to not just identify the environmental baseline now, but also the future components of the environmental baseline, she said, presenting a graphic. “On the left side you have the past and then now, and the different components of the environmental baseline for this project. Then, in the future, we have those same components but it incorporates what their condition is in the future sense.”
“The importance of this baseline is kind of further underscored when thinking about the fact that the regulations say that the effect of the project is added on top of the environmental baseline,” she said. “When we do our analysis, we’re going to be looking at the effects and we’re going to be looking at the condition of the species in the future baseline but with those projects effects added on top of that. We’re going to be assessing all of these five different boxes when we do our determination of jeopardy and adverse modification.”
Application of the approach to species
The next step is to analyze the effects of the project on the species. “Our approach to this is to start with looking at the risks to the individuals,” Ms. Marcinkevage said. “Instead of just kind of diving in fully to looking at what the effects of the project may be on the population or on the species, we apply the logic to the individual level and then aggregate them. Our method for assessment is an exposure response risk assessment. Risk is a function of both the exposure and the response combined together.”
“Now we’re thinking about whether or not this project would further jeopardize the survival and recovery of a species, and ultimately, we would want to reduce the risk associated with that,” she said. “If you look at the equation: Risk = exposure + response, if you want to have that risk number be low, you either need to have the exposure or the response be low. There’s not much that we can really do in terms of reducing the response of a resource to a stressor – the response is the response. We can’t change much about the biology, but what we can do is reduce the exposure, reduce the co-occurrence and space and time of that stressor and that resource. If we’re trying to reduce the risk, that would be the most protective approach to reducing the risk.”
“It’s important to note that the baseline condition can affect the exposure and the response,” she said. “A small negative effect to a species in a really robust state may not ultimately affect its overall survival in a way, but that same negative response to a species that’s on the brink could lead to a jeopardy determination because the species just doesn’t have the capacity to absorb that change.”
The individual risk assessment analysis includes fitness metrics such as growth rate, survival probability, and reproductive success. “It’s in this step that we really assess for any given stressors: How many individuals are going to be exposed to that stressor? What is the duration and magnitude of that exposure? What’s the frequency of that exposure? What is the response of the individual? What scientific information do we have that supports our expectation of that response? Is there some other information to support that? This is where we lay out all of those qualifications and assumptions. This is a really critical component of the risk assessment and the overall species assessment because it’s the foundation to everything else that’s going to be built on. It’s important to be at least very transparent in laying out the logic on this in trying to get to be as accurate as possible.”
Ms. Marcinkevage presented an example of what she called a ‘show your work’ table, which shows how they have deconstructed the overall action into a different sub actions, how they have identified stressors and responses, and how that translates into the fitness metric. “We try to show your work here and educate how we’re incorporating that information together,” she said. “Ultimately, in the last column is what we’re trying to get out from this individual risk assessment, the probable change of fitness.”
The information is then aggregated up to assess the risk to the population. “We’re looking at survival and recovery and the regulations indicate that we should assess that by looking at the reproduction numbers and distribution of the species,” she said. “In looking at the populations is when it’s really beneficial to consider the life cycle of the species and to consider the life stages and what life stage these stressors may be acting on and to consider the transitions between life stages. There may be the same proportional effect to different life stages may result in a different probability of survival and recovery depending on what life stage that effect is happening in. That’s how we expect to look at the population level effects.”
These population effects are quantified with metrics for things such as population abundance, reproductive success, spatial structure, connectivity, diversity, and growth rate, she said. “There is guidance that lays out minimum abundance, productivity, special structure, and habitat capacity that’s required for a viable population, which is useful because these criteria translate well into the numbers reproduction distribution components that the regulations say should be used to assess in making a jeopardy determination,” she said.
“All of these different demographic parameters are very dependent upon habitat capacity, at least in the short term,” she said. “Ultimately, in order for our species to be viable and to have a high likelihood of recovery and survival, we want this diversity. We want life history diversity and run time diversity and genetic diversity because you want that variability or that bio complexity within the population to add to its ability to have resilience and to have more stability during external changes.”
“We refer to this as the portfolio effect and ultimately, when we look at jeopardy determination, we consider the effects of the project on the habitat capacity, on the diversity, and we ultimately want habitat conditions and operations that would support a diversity of life history strategies,” said Ms. Marcinkevage. “We want to protect not just the peaks of the different run times but those tails, too because those are important to the population and we want to contribute to genetic diversity. Another component of the BSP that I think is key is that it notes that each population or ESU is critical to the survival of that ESU. So, if there’s one population that is not deemed viable, that increases the risk of extinction for the species or ESU overall.”
The last step forming the jeopardy/no jeopardy determination is in the integration and synthesis step. “We take all of that information about the population viability and combine that with the species status, so baseline condition, along with the effects of interrelated and interdependent actions and cumulative effects, to determine whether or not there is a more than insignificant effect on the species and on its likely survival. That is ultimately our jeopardy/no jeopardy determination. Again, I’m stressing survival and recovery. Recovery is a really big thing. It’s very important and tends to get overlooked a little bit.”
In doing this determination, they try to be very transparent in laying out the logic for the determination. “We use a table like this that basically is a decision table that indicates why we would expect a certain action to adversely affect, or not, then whether or not we expect that action to jeopardize the species or not,” she said. “For each one of these different lines we could put in what specific sub action or response and even analytical results; we can support our decision of whether or not this is a true or false. That’s the approach for the species.”
Application of the approach to critical habitat
There’s a similar corresponding approach for critical habitat in making the adverse modification determination, she said. The action characterization, the definition, and the description of the assessment of the status of critical habitat both for the designated critical habitat area and within the action area helps to identify what designated critical habitat they need to be concerned about; it also identifies the quality and quantity of those physical and biological features as well as the value of that critical habitat for the conservation of the species, Ms. Marcinkevage said.
“Just like with the species approach, we take kind of a hierarchical approach to assessing critical habitat, as well,” she said. “The overall designated critical habitat area is a function of the value of the critical habitat of the component areas, so for instance, the watershed. The value for conservation of that watershed is dependent upon the quality and the quantity of the physical and biological features that are in that watershed, as well as the capacity for that watershed to develop those physical and biological features and that’s an important component. Critical habitat also looks at capacity or potential to develop those features.”
How would those stressors change the value for conservation of the species of those physical and biological features? “There’s a similar exposure risk response approach taken to this and ultimately we want to look at whether or not that stressor is going to affect the quality, quantity, or potential for the physical and biological features,” she said.
Ultimately, on the ‘show your work’ table, they determine what is the probable change of conservation value for that physical and biological feature; it can be a negative change or it can be a positive change. “We take that information on the effects of the stressors to the individual physical and biological features and again, we go through the integration and synthesis step, just as we did with the species and that’s where we combine all of that information, aggregate it along with the effects of the interrelated and interdependent actions and the cumulative effects. This is where we ultimately evaluate the value of the habitat – what results and what is the value of that habitat for the conservation of the species? This goes into our determination of adverse modification or destruction.”
Ms. Marcinkevage reiterated that the a determination of adverse modification or destruction of critical habitat isn’t just based on like a scale of effect or what’s happening in one particular area, but is based on the effect to critical habitat as a whole. “Even a small impact could be an adverse modification determination if it appreciably diminishes the value of that designated critical habitat throughout its range. Similar to the jeopardy determination, we have a table that we would use to step through and show the decision making process in educating why we expect this particular action to likely adversely affect and why, and then why we would expect that to be a destruction or adverse modification and why.”
Analytical methods
Ms. Marcinkevage presented a slide showing some of the different analytical methods used in making their determinations, noting that it isn’t necessarily an exhaustive list but it does list the key ones that provide the backbone for a lot of the different analyses. “I’ve put the arrows in to show the flow of results between these different analytical tools that show interdependency that is sometimes part of this,” she said. “We can use the information from these analytical tools to provide what we need for the individual risk assessment, the metrics of abundance, growth rate, reproductive success, and survival probability that we use in the individual risk assessment. How can we apply these methods and really mine the results to try to provide the information that we need to do that individual risk assessment?”
She acknowledged the need to be cautious about the limitations of each of the analytical methods, as well as the need to use good judgment when applying the weight of evidence for one method versus another. “That’s a big challenge and it’s something that’s very difficult to grapple with, and one of several challenges on this project. I ask for recommendations or suggestions on how we can best do that because that’s going to be key to us laying out the logic and making the argument for the determination that we have.”
She also said they were asking specifically for feedback on how to best approach looking at the effects of the North Delta intakes. There is several decades of data on the Delta, but nothing really on the North Delta with the new intakes, so they are looking for feedback on how to provide something that gives a good solid start for the analysis of the North Delta intakes until it is up and operational we can do adaptive management and get some finer studies done.
“We do want to kind of get some information on what are some of the critical functions we need to really look out for,” she said. “What should we be wary of? What are suggestions on how we can deal with the different types of uncertainty that we’re going to have to face in trying to assess the effects of this project on our species, especially with these new intakes.”
Another component of the charge was a question about conceptual models. The package of materials provided to the panel includes a conceptual model of juvenile salmonid survival through the South Delta that was developed by Steve Lindley at the Southwest Fisheries Science Center as part of the Collaborative Science and Adaptive Management Program for the Central Valley Project and the State Water Project. “We asked for feedback on this,” she said. “Not necessarily on this specific figure and its different components but would it be helpful and worthwhile for us to work on something similar that is Delta wide? Or something that is specific to the North Delta? How could we incorporate something like this to help us really lay out the argument and lay out the assumptions for our approach and our determination to ultimately help us better follow the logic path of how we expect this project to affect the survival and recovery of the species?”
Ms. Marcinkevage then concluded by saying as the others have said, “We do really very much value the feedback and recommendations that you’ll provide because we ultimately want to produce a biological opinion that is sound and logical and best use of the best information out there to get to what we need to do.”
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