[env-trinity] Salmon Disaster

Dan Bacher danielbacher at fishsniffer.com
Thu Mar 9 08:33:18 PST 2006

CSPA Advisory 3/08/06

ESA Needs Your Help Now
CSPA’s 60 Day Notice on CESA Compliance To DWR

[1] Below you will find an urgent request from Mark Rockwell on  
behalf of the Northern Calif. Council, Federation of Fly Fishers that  
requests your support to help save a law that provides critical  
protection to species threatened with extinction. While I'm sure we  
all care about this in a general context, I would remind everyone  
that without this law, a number of critically important runs of  
salmon would have most likely been lost from the waters of our state  
as was the case for the spring-run salmon of the San Joaquin River.

The Sacramento winter-run and spring-run chinook salmon and all of  
the Central Valley's steelhead were listed under the ESA to provide  
government agencies the authority to stop the destruction of these  
runs and the habitat essential to their recovery. Due to this,  
positive strides have been made for these run that would most likely  
not have been the case if left to political pundits and policy makers  
that run our government.

CSPA urges you to review the material below and take IMMEDIATE ACTION  
to stand up for keeping this law in tact. We greatly appreciate  
everyone’s efforts to fight for our fish!

[2] Following the request below, please also find the Press Release  
CSPA issued on our 60 Day Notice of Intent To Sue DWR for failure to  
comply with the California Endangered Species Act. It demonstrates  
the importance of having acts that provide a safety net for all  
species including fish!

John Beuttler, Conservation Director
California Sportfishing Protection Alliance
1360 Neilson Street
Berkeley, CA 94702
Jbeuttler at aol.com


The Senate Environment and Public Works Committee may take action on  
an Endangered Species Act bill as soon as this month. We need your  
help to make sure the Senate supports the Endangered Species Act and  
ensure that no bill passes the Senate!
For over thirty years, the Endangered Species Act has been a safety  
net for wildlife, fish and plants on the brink of extinction. It has  
been successful in preventing the extinction of the American Bald  
Eagle, the gray wolf, the pacific salmon, as well as many other species.
However, the Endangered Species Act is under threat from special  
interests, and the politicians they give money to. The House of  
Representatives has passed a bill [Representative Pombo’s bill (HR  
3824)]that would significantly weaken protections for endangered  
species and habitat. The bill would eliminate habitat protection,  
abandon the commitment to recovering species on the brink of  
extinction, repeal protections against hazardous pesticides, and  
politicize the scientific decision-making process. In addition, it  
would set up a program that would require the federal government to  
use taxpayers dollars to pay developers for complying with the  
Endangered Species Act’s prohibition against killing or injuring  
endangered species.

It is now up to the U.S. Senate to save the Endangered Species Act!

It is critically important that Senators from across the country hear  
from their constituents that the American public supports the  
Endangered Species Act and the fish, plants and wildlife it protects  
in their state. Please join with Americans across the country by  
calling your Senators on Thursday, March 9th. Please ask your  
friends, relatives and colleagues to join you in calling. It only  
takes about 3 minutes of your time, but the results could last a  

ACTION: On Thursday, March 9th, call your Senators in support of a  
strong Endangered Species Act and urge them to oppose any efforts to  
change the Act.

PHONE NUMBER: Senator Feinstein, 1 202 224-3841. Senator Boxer, 1 202  
224-3553. e-mail: Feinstein, Feinstein.senate.gov/email.html and  
Boxer, Boxer.senate.gov/contact. (To find your Senator, visit  

Questions: Call Dr. C. Mark Rockwell at 530 432-9198, e-mail:  
summerhillfarmpv at aol.com

Media Release

California Sportfishing Protection Alliance
3536 Rainier Avenue, Stockton, CA 95204
Tel: 209-464-5090, Fax: 209-464-1028, E: deltakeep at aol.com

For More Information:Bill Jennings, 209-464-5067, Cell 209-938-9053
Michael Lozeau, 510-749-9102, Cell 415-596-5318


Today, Watershed Enforcers, the California Sportfishing Protection  
Alliance’s new environmental law enforcement project, placed the  
California Department of Water Resources (DWR) on notice that it  
intends to sue DWR for violation of the California Endangered Species  
Act (CESA) unless the agency acts within 30 days to cease its illegal  
take of listed species at the main intake pumps for the State Water  
Project or obtain long-overdue authorizations from the California  
Department of Fish and Game (DFG) for incidental takes provided by  
CESA.  The notice letter also includes DWR Director Lester Snow and  
four other administrators, acting in their official capacity
  The CESA prohibits any persons “taking” – including killing,  
possessing, or trapping – any threatened or endangered species unless  
specifically approved by DFG.  CSPA’s investigation found that,  
despite numerous agency findings, scientific studies and reports  
describing takings of threatened spring-run and endangered winter-run  
Chinook salmon and threatened Delta smelt, DWR failed to procure  
authorizations for such takes from DFG pursuant to the Fish and Game  
Code.  These violations at DWR’s Clifton Court Forebay, Skinner Fish  
Protection Facility and the Harvey O. Banks Pumping Plant have been  
ongoing for many years.

  “It is outrageous that, during a period of crashing populations of  
salmon and Delta smelt, the agency responsible for annually killing  
many thousands of endangered species has failed to comply with the  
most basic requirements of state law to mitigate and protect those  
fish,” said CSPA Executive Director Bill Jennings.   “It is also  
incomprehensible that DFG, the state trustee agency charged with  
protecting fishery resources, has allowed DWR to continue to ignore  
CESA pursuant to a wink and backroom handshake,” added Jennings.

In response to a 19 December 2005 Public Records Act request by CSPA,  
DWR admitted in a 11 January 2006 letter that it had no record of any  
consistency determinations or other authorizations from DFG  
addressing take of spring-run or  winter-run Chinook salmon or Delta  
smelt at any of DWR’s facilities.  These admissions are consistent  
with the testimony by DWR Director Lester Snow and DFG Director Ryan  
Broddrick before the Delta Resources subcommittee of the Senate  
Committee on Natural Resources and Water in late 2005.

Section 2080 of the Fish & Game Code prohibits take of a listed  
species without a permit, pursuant to § 2081, or a consistency  
determination, pursuant to § 2080.1.  An entity who has obtained an  
incidental take permit under the federal Endangered Species Act, 16  
U.S.C. § 1531 et seq. (ESA) may request a consistency determination  
from DFG.

However, the Director of DFG must make findings within 30 days that  
the federal ESA permit is “consistent” with the requirements of  
CESA.  The minimum requirements of CESA go substantially beyond  
minimal ESA requirements.  For example, unlike ESA, CESA requires  
that impacts of any authorized incidental takes be minimal, fully  
mitigated, not jeopardize the continued existence of a species and  
that all measures be capable of successful implementation and  
adequately funded.  Fish & Game Code  2081(2),(3) and (4).

“If DWR cannot comply with CESA within 30 days, we will file suit to  
enforce the protections mandated for California’s threatened and  
endangered salmon and threatened Delta smelt,” said Michael Lozeau,  
an attorney for CSPA.  “We owe it not only to the fish, but also the  
integrity of the Sacramento-San Joaquin Delta and its tributaries and  
all the Californians who depend upon it for their health and well- 

DWR’s State Water Project yearly pumps millions of acre-feet of water  
from the Sacramento-San Joaquin Delta for agricultural and municipal  
uses in Southern California.  The project’s powerful pumps cause  
reverse flows in the Delta and San Joaquin River and “take” some 58  
species and hundreds of thousands of fish, many of which are listed  
as threatened or endangered.  Recently, state and federal scientists  
have confirmed that populations of open-water fish in the Delta,  
including Delta smelt, longfin smelt, threadfin shad, young-of-the- 
year striped bass and their food supplies, have dropped  
precipitously.  An increase in the level of water exports is  
suspected to be a significant contributor to the declines.

  Although federal ESA permits have been issued, an independent  
CalFed expert panel recently concluded that the permits were not  
based upon “best available science” and the Inspector General of the  
U.S. Department of Commerce has found that the National Marine  
Fisheries Services violated its own procedural requirements in  
issuing the permits.  Further, mitigation for export pumping is  
largely predicated on an Environmental Water Account that causes  
redirected impacts by killing other listed species.

  Although the notice letter states that Watershed Enforcers does not  
intend to delay filing of a lawsuit at the end of the 30-day period,  
it offers to meet with DWR to discuss possibilities of resolving the  
dispute short of litigation.  Two law firms, led respectively by  
attorneys Michael Lozeau and Andrew Packard represent CSPA in this  

[CSPA is a 501(c)(3) public benefit corporation established as an  
advocate for fisheries, habitat and water quality.  It implements its  
mission by working within the administrative and regulatory processes  
and, where necessary, through litigation.  Watershed Enforcers is the  
enforcement arm of CSPA.

You can support CSPA’S conservation efforts by becoming a member.   
Donations are tax-deductible, greatly needed and appreciated. Send  
checks to CSPA at1360 Neilson Street, Berkeley, CA 94702-1116.  
Membership starts a $25. If you are a member, then you know of the  
good work we do, so sign up a friend and help fight for restore our  
fisheries! Questions? 510-526-4049.] 
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