Endangered Species: Federal Actions to Protect Sacramento River Salmon
(Letter Report, 08/15/94, GAO/RCED-94-243).
During the past 15 years, the population of winter-run chinook salmon
returning to spawn in the Sacramento River has declined by 99 percent.
The salmon was classified as an endangered species in January 1994. As a
result of this listing, the National Marine Fisheries Services must
advise federal agencies on how to modify actions that could harm the
salmon and must enforce the Endangered Species Act's provisions
prohibiting the "taking" of salmon. This report identifies major actions
that the Service has taken to protect the salmon. These actions affected
the Central Valley Project and nonfederal irrigation districts that
divert water from the Sacramento River.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: RCED-94-243
TITLE: Endangered Species: Federal Actions to Protect Sacramento
River Salmon
DATE: 08/15/94
SUBJECT: Anadromous fishes
Endangered species
Water resources development
Noncompliance
Environmental law
Marine resources conservation
Fines (penalties)
Injunctions
Interagency relations
Federal/state relations
IDENTIFIER: Sacramento River (CA)
Sacramento-San Joaquin Delta (CA)
Central Valley Project (CA)
California State Water Project
Hamilton City (CA)
Redding (CA)
California
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Cover
================================================================ COVER
Report to the Honorable
Vic Fazio, House of Representatives
August 1994
ENDANGERED SPECIES - FEDERAL
ACTIONS TO PROTECT SACRAMENTO
RIVER SALMON
GAO/RCED-94-243
Sacramento River Salmon
Abbreviations
=============================================================== ABBREV
CVP - Central Valley Project
ESA - Endangered Species Act
NMFS - National Marine Fisheries Service
GAO - General Accounting Office
Letter
=============================================================== LETTER
B-257500
August 15, 1994
The Honorable Vic Fazio
House of Representatives
Dear Mr. Fazio:
Over the last 15 years, the population of winter-run chinook salmon
returning to spawn in the Sacramento River has declined by 99
percent. In an emergency ruling in August 1989, the Department of
Commerce's National Marine Fisheries Service listed the salmon as a
threatened species under the Endangered Species Act; when the salmon
population continued to decline, the salmon was reclassified as
endangered in January 1994.\1 As a result of this listing, the
Service's major responsibilities include (1) advising those federal
agencies whose actions may adversely affect the salmon on how to
modify their actions to minimize any adverse impacts and (2)
enforcing the act's provisions prohibiting the "taking" of salmon.\2
In response to your interest in information on the Service's efforts
to protect the salmon, we identified major actions the Service has
taken. These actions affected (1) the Central Valley Project, a
multipurpose water resource project operated by the Department of the
Interior's Bureau of Reclamation and the primary federal activity
with the potential to affect the salmon, and (2) nonfederal
irrigation districts that divert water from the Sacramento River.
--------------------
\1 An endangered species (which may also include a subspecies or a
distinct population) is any species at risk of extinction in all or a
significant portion of its range; a threatened species is one that is
likely to become endangered in the foreseeable future in all or a
significant portion of its range.
\2 "Taking" a species is defined as using any means "to harass, harm,
pursue, hunt, shoot, kill, trap, capture, or collect, or to attempt
to engage in any such conduct."
RESULTS IN BRIEF
------------------------------------------------------------ Letter :1
Major actions taken by the Service have included advising Reclamation
of changes needed in the way it operates its Central Valley Project
to minimize the project's impact on the salmon and enforcing the
act's prohibition of the taking of salmon against two irrigation
districts.
In both 1992 and 1993, the Service advised Reclamation that the way
it operated the Central Valley Project would adversely affect the
salmon and identified changes in the project's operations needed to
protect the salmon. The major changes generally involved setting
requirements for storing cold water in upriver reservoirs, managing
the water temperature in the salmon's spawning areas, removing
impediments to the salmon's upstream passage, and adjusting the
project's operations in the Sacramento-San Joaquin River Delta to
reduce diversion of juvenile salmon into inappropriate waterways.
Nevertheless, in 1992 the project's operations resulted in an
unexpected loss of salmon because (1) the Service's requirements for
the project's operations did not anticipate the heavy rainfall and
resultant inflow to the Delta that occurred, (2) it was unclear which
agency was responsible for monitoring water flow and salmon
conditions, and (3) Reclamation was unable to maintain the
agreed-upon maximum water temperatures. Based on the 1992
experience, the Service revised its requirements and clarified
changes that were needed for the project's 1993 operations.
According to Service and Reclamation officials, the project's 1993
operations were carried out in a manner consistent with the Service's
amended requirements.
To enforce the prohibition on the taking of salmon, the Service
initiated action against two irrigation districts. One district was
restricted from pumping water during salmon migration because its
fish screens, installed to divert salmon from the pumps, were
ineffective. The other district was fined because its diversion of
water from the river resulted in the prohibited taking of salmon.
Both irrigation districts subsequently reached agreements with the
Service on the actions they needed to take to prevent further
enforcement actions by the Service.
BACKGROUND
------------------------------------------------------------ Letter :2
The objective of the Endangered Species Act (ESA) is to protect plant
and animal species whose survival is in jeopardy; its ultimate goal
is to restore these species so that they can live in self-sustaining
populations without the act's protection. The National Marine
Fisheries Service (NMFS) is responsible for implementing the act's
provisions for most protected marine and anadromous species,\3
including the endangered Sacramento River winter-run chinook
salmon.\4
The ESA requires that all federal agencies ensure that their actions
are not likely to jeopardize the continued existence of protected
species or adversely modify habitat critical to their survival. To
this end, federal agencies must consult with NMFS when any activity
they permit, fund, or conduct could affect an ESA-protected marine
species. Depending on the nature of the agency's proposed activity,
consultations between NMFS and the agency may be informal or may
result in a formal opinion in which NMFS reviews the potential
effects of the proposed actions on the protected species or its
critical habitat (known as a "biological opinion"). If NMFS issues a
biological opinion, a federal agency may still be allowed incidental
taking of a protected species as a result of its actions.\5 However,
if NMFS concludes that a federal agency's proposed action will
appreciably reduce the likelihood that a species will survive and
recover, it issues a "jeopardy" biological opinion. In a jeopardy
opinion, NMFS can suggest reasonable and prudent alternatives to
minimize and mitigate the taking of a species to remove the potential
for jeopardizing its continued existence.
The ESA also prohibits the taking of a protected species and
establishes civil and criminal penalties for such actions. However,
the act allows NMFS to issue permits that allow the incidental taking
of protected species by private entities. To obtain a permit,
applicants are required to take appropriate conservation measures to
maintain habitat and to enhance and protect the species. The ESA
prohibits NMFS from issuing a permit if doing so would appreciably
reduce the likelihood that the species will survive and recover in
the wild.
The operations of Reclamation's Central Valley Project (CVP) are the
primary federal activity that can potentially affect the winter-run
salmon. Located in central California, the CVP is Reclamation's
largest water resource project. It consists of numerous dams,
reservoirs, canals, and pumping and power-generating facilities. The
CVP is a multipurpose project designed to serve agricultural,
municipal, and industrial users; provide water quality, flood
control, and hydroelectric power; and protect wildlife. Major CVP
pumping facilities are located in the Sacramento-San Joaquin Delta
(Delta), where the CVP's operations are managed cooperatively with
the pumping facilities of California's State Water Project.
Nonfederal irrigation districts also operate along the Sacramento
River, and their operations can also potentially affect the salmon.
The largest of these districts, the Glenn-Colusa Irrigation District,
diverts water from the Sacramento River near Hamilton City,
California, about 200 miles upriver, to irrigate 175,000 acres,
including 25,000 acres in three federal wildlife refuges. Similarly,
the Anderson-Cottonwood Irrigation District is located further
upriver near Redding, California, the primary spawning area of the
salmon, and diverts water used to irrigate 10,000 acres.
--------------------
\3 Anadromous species ascend rivers from the sea for breeding.
\4 Under the ESA, the Department of the Interior's U.S. Fish and
Wildlife Service is responsible for protecting freshwater and land
species.
\5 The ESA and its implementing regulations define "incidental take"
as taking that results from but is not the purpose of an otherwise
lawful activity.
SALMON PROTECTION HAS AFFECTED
THE CVP'S OPERATIONS
------------------------------------------------------------ Letter :3
Reclamation's operations in the CVP were the federal activities most
affected by NMFS' actions to protect the salmon.\6 In April 1991,
NMFS and Reclamation initiated formal consultation to determine
whether these operations were jeopardizing the winter-run salmon.\7
In its resulting biological opinion, NMFS (1) concluded that
Reclamation's proposed 1992 operations would jeopardize the survival
of the winter-run salmon and (2) identified alternatives to ensure
the protection of the salmon. On the basis of this biological
opinion, Reclamation agreed to a number of changes in the CVP's
operations.\8 These changes included requirements for storing cold
water in upriver reservoirs, managing water temperature in spawning
areas, removing impediments to the salmon's upstream passage, and
managing the water project's operations in the Delta to keep salmon
from being diverted into inappropriate waterways. In the biological
opinion, NMFS also recognized that some salmon would still be lost
during the CVP's operations. NMFS therefore authorized Reclamation
to incidentally take "a small percentage of the total migrant
winter-run chinook salmon" during the project's 1992 operations.
During these operations, problems arose as a result of conditions and
issues that had not been anticipated or dealt with adequately in
NMFS' biological opinion, and salmon were lost. For example, (1) the
short-term increase in rainfall and the inflow into the Delta were
greater than forecast, (2) the limit on the incidental taking of
salmon had not been quantified, (3) it was unclear which agency was
responsible for monitoring water flow and salmon conditions, and (4)
Reclamation was unable to maintain the agreed-upon maximum water
temperatures:
NMFS' biological opinion assumed that the prevailing critically dry
conditions would continue, but rain subsequently fell during
February and March 1992. As a result, some of the operating
conditions NMFS had established for dry conditions no longer
applied, and the biological opinion did not address the
operating conditions needed to deal with the unforecasted
increase in the water supply in the Delta.
In March 1992, Reclamation obtained NMFS' concurrence with
Reclamation's plans to deliver additional water to the CVP's
customers. However, several weeks later NMFS and Reclamation
learned that the increased pumping had created some unexpected
changes in the water flows in the Delta. As a result, juvenile
salmon, which have limited swimming ability, were carried along
by the flow, and up to 20 percent of the 1992 winter-run salmon
were lost at the pumps.\9 According to NMFS officials, the
20-percent loss was more than the "small percentage" the Service
had authorized Reclamation to take, and the change in water
flows due to the increased pumping in the Delta should have
triggered a reopening of the consultations. According to
Reclamation, however, it first learned that the number of salmon
taken might be higher than anticipated at the same time NMFS
learned of this problem from a state fisheries agency. By that
time, most of the large loss had already occurred.
According to NMFS officials, the biological opinion did not
specifically require Reclamation to monitor changes from what
was described in the opinion regarding water delivery rates,
water conditions, or the CVP's operations. In addition,
officials from both Reclamation and NMFS agreed that neither
agency was sufficiently knowledgeable at the time about how
changes in water flows would affect the migration of the salmon.
NMFS' biological opinion called for the temperature of the river
water in a portion of the spawning grounds not to exceed 56
degrees Fahrenheit between April 15 and September 30, 1992. To
meet this condition, Reclamation needed to make timed releases
of cold water from the CVP's reservoirs upriver from the
spawning grounds. However, because of unseasonably warm
weather, this temperature standard was not met during parts of
June through September. A Reclamation official stated that
Reclamation's analysis had indicated that the temperature
standard would be achieved. However, a NMFS official said that
Reclamation's procedures for managing the water temperature had
not been flexible enough to meet contingencies.
Reclamation and NMFS officials stated that this experience in 1992
enabled them to develop better criteria for the CVP's 1993
operations. In February 1993, NMFS issued a biological opinion
covering the project's operations in 1993 and subsequent years. This
opinion incorporated 20 different potential operational environments
that Reclamation had developed following the 1992 experience. NMFS
established conditions addressing each of the operational
environments and clarified the circumstances under which
consultations would need to be reopened. For example, the opinion
identifies specific operational environments that should trigger a
reopening of consultations about maintaining the desired water
temperatures in the salmon's spawning grounds.
According to NMFS, Reclamation complied with the agreed-upon
conditions for operations in 1993 and through May 1994. More
specifically, Reclamation reinitiated consultations with NMFS when
required to do so, and pumps were shut down in the Delta for a number
of days in February and March 1993 to avoid exceeding the allowable
take of winter-run salmon. Also, according to a Reclamation
official, the agency currently attempts to maintain the water
temperature of the spawning grounds one-half degree below the
required standard to afford a greater degree of flexibility.
--------------------
\6 We also identified eight other instances of consultations between
NMFS and federal agencies, but NMFS determined that none of the
proposed federal actions would jeopardize the winter-run chinook
salmon.
\7 Before 1991, Reclamation had conferred with NMFS on limited
aspects of the CVP's operations affecting the salmon's survival. In
April 1991, Reclamation requested formal consultation with NMFS on
the impact on the winter-run salmon of the CVP's overall operations.
Reclamation's action followed a February 1991 request from NMFS and a
March 1991 notice from the Sierra Club Legal Defense Fund of its
intent to file a lawsuit against Reclamation for violations of the
ESA.
\8 NMFS' consultations with Reclamation on the CVP's operations also
applied to the State Water Project's operations in the Delta, since
the projects are managed cooperatively.
\9 Reclamation and California's Department of Water Resources believe
that NMFS' methodology for estimating salmon losses likely overstated
the losses at the Delta pumps. In April 1994, NMFS and other
agencies involved in monitoring the losses agreed to reevaluate the
data and introduce any changes in the methodology for estimating
losses for the 1995 season.
NMFS' PROTECTIVE ACTIONS ALSO
AFFECTED OTHER ENTITIES
------------------------------------------------------------ Letter :4
NMFS' actions affecting nonfederal entities have included instituting
legal proceedings against the Glenn-Colusa Irrigation District and
assessing a $50,000 fine against the Anderson-Cottonwood Irrigation
District. In both districts, pumping for irrigation was resulting in
illegal taking of winter-run salmon.\10 NMFS also fined two private
fishermen for illegally taking winter-run salmon on the Sacramento
River.
--------------------
\10 We also identified six instances in which NMFS determined that
actions proposed by nonfederal entities would not threaten the
winter-run salmon.
NMFS' ACTIONS AFFECTING THE
GLENN-COLUSA IRRIGATION
DISTRICT
---------------------------------------------------------- Letter :4.1
The Glenn-Colusa Irrigation District is a large privately operated
diverter of water on the Sacramento River. The district contracts
with Reclamation to divert water from the river to farmland in Glenn
and Colusa counties. The district's peak irrigation season is from
April to October. Because the district's pumping facilities had
historically presented a hazard to migrating salmon, the California
State Department of Fish and Game installed a fish screen in 1972 to
keep fish away from the pumps. However, the district's pumping
operations continued to cause significant losses of fish--including
the winter-run salmon--primarily because the juvenile salmon were
being pinned or battered against the screens by the current during
pumping.
In December 1989, the district applied to the U.S. Army Corps of
Engineers to renew a dredging permit in order to maintain the river
channel leading to its pumping facility. The Corps, in turn,
consulted with NMFS before renewing the permit, as required by the
ESA. Following the consultation, NMFS issued a biological opinion in
May 1991 concluding that the Corps' approval of the dredging permit
would jeopardize the survival of the winter-run salmon. NMFS
identified reasonable and prudent alternatives for the district to
consider, including the installation of new fish screens. NMFS also
said it would allow some incidental taking of winter-run salmon by
the district provided the new fish screens operated as expected.
The district, however, contended that the state was responsible for
replacing the screens. It said that in any case, it could not afford
the estimated $26 million cost of the screens. NMFS informed the
district that until an agreement was reached and a permit issued for
the incidental taking of salmon, the district could violate the ESA
by continuing to pump. Alternatively, NMFS proposed that the
district decrease its pumping to lessen the risk that the juvenile
winter-run salmon would be pinned against the fish screens while
migrating past the pumping facilities.
After further discussions, the district notified NMFS that it would
not limit its pumping, and NMFS referred the matter to the Department
of Justice for legal action. In August 1991, Justice filed suit
against the district and sought an injunction to prevent further
pumping. A federal district court granted a temporary restraining
order. It subsequently found the district to be in violation of the
ESA and granted a permanent injunction against any pumping until the
district reached an agreement with NMFS. Subsequently, NMFS and the
district resumed discussions and reached an agreement. Under the
agreement, the district has resumed pumping at a reduced level and,
with NMFS' approval, has installed an interim fish screen.
A long-term solution to the problem of fish screens at the district's
pumping facility was addressed in the Central Valley Project
Improvement Act of 1992 (P.L. 102-575). The act authorized
Reclamation to fund 75 percent of the cost of any new screens.
Reclamation is currently preparing an environmental impact study to
identify a permanent solution to the problem and received $2.75
million in fiscal year 1994 to begin work on the project. The
district, as required by a court order, is to contribute $5.5 million
to a fund for constructing new fish screens.
NMFS' ACTIONS AFFECTING THE
ANDERSON- COTTONWOOD
IRRIGATION DISTRICT
---------------------------------------------------------- Letter :4.2
The Anderson-Cottonwood Irrigation District operates two water
diversion facilities on the upper Sacramento River near Redding,
California, the primary spawning area of the winter-run salmon.
Because young salmon cannot swim well, they can be drawn by the
current toward the district's irrigation pumps. One of the
district's two diversion facilities does not have either (1) a fish
screen or (2) a bypass system that would allow fish drawn through the
pumps into the irrigation canal to return to the river.
In 1990, California proposed the installation of a fish screen,
funded by the state, at the unscreened diversion facility, but the
district and the state could not agree on some details of the
proposal. Subsequently, in September 1991, the state filed suit
against the district, in state court, to enjoin the district from
diverting water until it implemented measures to avoid the incidental
taking of winter-run chinook salmon, as prohibited by the California
Endangered Species Act.\11 Concurrently, the state had been
collecting data on the extent to which the illegal taking of
winter-run salmon was occurring at the district's diversion facility.
On the basis of the state's data and NMFS' expectation that the
illegal taking would continue, in December 1991 NMFS notified the
district that it was violating the ESA and initially levied a
$700,000 fine. The amount of the fine was based on 28 violations at
the maximum penalty of $25,000 per violation for each of the 28 days
on which illegal taking had been documented. NMFS levied the maximum
penalty, according to officials, because the district could have
prevented or reduced the illegal taking by cooperating with the state
and allowing construction of the fish screen. The district
subsequently negotiated with NMFS to reduce the amount of the fine to
$50,000, and the district agreed to install a fish screen.
--------------------
\11 When the state trial court refused to issue an injunction to halt
pumping by the district, the state appealed. The court of appeal
ordered the trial court to grant a preliminary injunction, holding
that taking an endangered species, under the state act, includes the
killing of fish incidental to lawful irrigation activity.
NMFS' ACTIONS AFFECTING
PRIVATE INDIVIDUALS
---------------------------------------------------------- Letter :4.3
In November 1992, responding to a tip from some fishermen, NMFS cited
a professional fishing guide and his customer for catching winter-run
salmon in violation of the ESA and levied fines totaling $3,750.\12
According to NMFS officials, the Service took this enforcement action
to send a strong message to other fishermen who might be fishing in
the salmon's spawning grounds.
--------------------
\12 A photograph taken by one of the fishermen provided NMFS with
evidence of the illegal take.
AGENCY COMMENTS
------------------------------------------------------------ Letter :5
We discussed the information contained in this report with the Branch
Chief-Protected Species of the Southwest Region of NMFS' Office of
Protected Resources and the Deputy Director for Administration and
other officials of Reclamation's Mid-Pacific Region. These officials
generally agreed with the factual information presented. On the
basis of their comments, we made changes where appropriate. As
agreed with your office, we did not obtain written comments on a
draft of this report from the agencies and organizations we
contacted.
SCOPE AND METHODOLOGY
------------------------------------------------------------ Letter :6
We conducted our review between January and March 1993 and between
January and May 1994 in accordance with generally accepted government
auditing standards. To determine how NMFS' actions to protect salmon
affect federal and nonfederal entities, we examined NMFS' files on
the winter-run salmon and met with NMFS officials. To obtain
information about the specific problems threatening the winter-run
salmon at federal and state pumps in the Delta and at the
Glenn-Colusa Irrigation District's facility in Hamilton City,
California, we visited the facilities; met with NMFS, Reclamation,
and state water and fisheries officials; and met with district
representatives knowledgeable about conditions at the district's
facility. We also interviewed representatives of several
environmental groups and reviewed public records of the federal
government's legal action against the district.
---------------------------------------------------------- Letter :6.1
As agreed with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
from the date of this letter. At that time, we will send copies to
the Secretaries of the Interior and Commerce and to the Directors of
the Bureau of Reclamation and the National Marine Fisheries Service.
We will also make copies available to others on request.
Please contact me on (202) 512-7756 if you or your staff have any
questions. Major contributors to this report are listed in appendix
I.
Sincerely yours,
James Duffus III
Director, Natural Resources
Management Issues
MAJOR CONTRIBUTORS TO THIS REPORT
=========================================================== Appendix I
RESOURCES, COMMUNITY, AND
ECONOMIC DEVELOPMENT DIVISION,
WASHINGTON, D.C.
--------------------------------------------------------- Appendix I:1
Paul Grace
Thomas Heck
SAN FRANCISCO REGIONAL OFFICE
--------------------------------------------------------- Appendix I:2
Anndrea H. Ewertsen
Judith K. Knepper
Steven G. Reed