by Dan Bacher 

(Stockton) The California Fish and Game Commission on Wednesday, June 29 chose Oct. 1, 2011 as the “effective date” for implementation of the marine protected areas (MPAs) in Southern California under the controversial Marine Life Protection Act (MLPA) Initiative. 

“In a 4-1 vote, Commissioners selected this day to better inform affected ocean users of the new regulations in the South Coast Study Region, which spans from Point Conception in Santa Barbara County to the U.S./Mexico border,” according to a news release from the California Department of Fish and Game. 

Commissioners Richard Rogers, Michael Sutton, Jack Baylis and Jim Kellogg voted for the October 1 date, while Commissioner Daniel Richards voted against it. 

On Dec. 15, 2010 the Commission adopted regulations to create a network of “marine protected areas” (MPAs) in this study region. Developed under the privately funded Marine Life Protection Act (MLPA) Initiative, this network of 49 MPAs and three special closures covers approximately 354 square miles of state waters and represents approximately 15 percent of the region. 

“The regulatory package is being prepared for the Office of Administrative Law (OAL) and the date selected today allows time for OAL review and approval, finalizing the lawmaking process,” the DFG stated. 

A coalition of fishing groups opposed the selection of the October 1 date, noting that “process of developing Marine Protected Areas in the South Coast study area was significantly flawed.” 

“The Commission acted without the required statutory authority to act,” said George Osborn, spokesman for the Partnership for Sustainable Oceans (PSO). “It violated the Coastal Act and it violated the California Environmental Quality Act. The process mandated by the MLPA was subverted by the MLPA ‘Initiative’ and by the creation and actions of the BRTF.” 

Osborn emphasized that public records “clearly demonstrate that members of the the BRTF engaged in private meetings not open to the public or noticed to the public, in which policy matters were discussed and decided upon before the so-called ‘public’ meetings of the BRTF. We believe the process was illegal and violates California statutes. The MLPAI was anything but ‘open and transparent as is so often proclaimed.” 

When the Commission adopted the South Coast regulations in December, the coalition expressed its concerns and stated it may have to resort to the courts for satisfaction. 

“This is is exactly what we have done,” said Osborn. “The litigation is pending in San Diego Superior Court. We have raised legitimate and serious claims and after five months in court the Commission has taken now action to try to dispute these claims.” 

Osborn urged the Commission to instruct the staff to recommend an effective date for the South Coast MPA regulations that “allows time for the court to reach its ultimate decisions of the case before the regulations would otherwise become effective and enforceable.” 

The coalition of fishing groups has won three court decisions in a row in its litigation against the MLPA Initiative, Osborn added. 

Yurok Tribe: Commission fails to affirm tribal rights 

In the afternoon session of the same meeting, the Commission by a 4-1 vote approved a controversial “preferred alternative” that “failed to affirm traditional tribal gathering in the North Coast Study Region of the Marine Life Protection Act (MLPA) Initiative,” according to a statement from the Yurok Tribe, the largest Indian Tribe in California with 5,500 members. 

Commissioners Richard Rogers, Michael Sutton, Jack Baylis and Jim Kellogg voted for the alternative, while Commissioner Daniel Richards voted against it. 

In spite of voting for the “preferred alternative,” Kellogg declared, “I’m for Option Zero. Things are fine the way they are.” 

According to “Option 1,” tribal members would have to use a state fishing license in addition to a Tribal ID for those sixteen or older and be limited by state regulations. 

“I cannot accept the part about the fishing license,” said Yurok Tribal Chairman Thomas O’Rourke Sr. “The Fish and Game has taken an unjust and patronizing step. No one can separate these resources from our culture.” 

Option 1 states “tribal gathering to continue in SMCAs (not SMRs), by specific tribal users, where a factual record can be established that shows ancestral take or tribal gathering practices by a federally-recognized tribe in that specific MPA (marine protected area), and by allowing only those tribes to take specified species with specified gear types.” 

The Northern California Tribal Chairmen’s Association and the Inter-Tribal Sinkyone Wilderness Council, which represent all of the recognized tribes in the study region, proposed a motion that would have affirmed traditional tribal harvest managed by individual Tribal governments. 

The motion states: “Consistent with the tribal gathering general concepts described in Option 1…Traditional, non-commercial tribal uses shall be allowed to continue unimpeded within the proposed SMCAs and SMRMs in the MLPA’s North Coast Study Region for all federally recognized tribes that can establish that they have practiced such uses within a specific SMCA or SMRMA.” 

“We’ve said from the beginning tribal rights are nonnegotiable,” Chairman O’Rourke Sr. affirmed. “We’ve said that because we are in charge of our destiny.” (http://www.indybay.org/newsitems/2011/06/29/18683327.php). 

Tribal members at the meeting indicated that they would continue to gather as indigenous people have done for thousands of years, regardless of the Commission’s decision. 

“Even if traditional gathering is banned, we will still continue to gather,” said Georgiana Myers, Yurok Tribal member, during the public comment period prior to the Commission vote. 

To protest proposed restrictions on coastal gathering proposed under the MLPA Initiative, members of the Yurok, Hoopa Valley, Karuk and other Tribes on Saturday, June 18 gathered seaweed, mussels and clams at three beaches on the North Coast. 

“Our message is ‘Don’t mussel us out,’” said Dania Rose Colegrove, Hoopa Tribal Citizen and organizer for the Coastal Justice Coalition. “We’re here to stay – we’ve been gathering here for thousands of years.” 

She pointed out the hypocrisy of the MLPA’s “marine protected areas” restricting tribal gathering and fishing, while doing nothing to stop ocean industrialists from destroying the marine ecosystem. 

“How is it that the MLPA doesn’t protect the ocean from big oil, wave energy projects, water pollution, military testing and all of the people who want to mess up the ocean, the people with big money,” Colegrove emphasized. “Now the North Coast has been opened up to military testing by the Navy.” 

A broad and unified coalition, ranging from fishing industry representatives to environmental groups, from county governments to Native American governments, supports the decriminalization of the traditional tribal harvest of coastal resources. Representatives of fishing groups, environmental organizations and Tribes from throughout Northern California spoke in support of protecting traditional tribal gathering and the proposal by the Northern California Tribal Chairmen’s Association and the Inter-Tribal Sinkyone Wilderness Council during the public comment period.

The “preferred alternative,” along with two alternatives including “Option Zero, will now undergo review under the California Environmental Quality Act (CEQA). The Commission is planning to adopt the final plan for North Coast marine protected areas in early 2012. 

For more information about the Klamath and Coastal Justice Coalitions, go to: http://www.klamathjustice.blogspot.com. 

MLPA Initiative Background: 

The Marine Life Protection Act (MLPA) is a law, signed by Governor Gray Davis in 1999, designed to create a network of marine protected areas off the California Coast. However, Governor Arnold Schwarzenegger in 2004 created the privately-funded MLPA “Initiative” to “implement” the law, effectively eviscerating the MLPA. 

The “marine protected areas” created under the MLPA Initiative fail to protect the ocean from oil spills and drilling, water pollution, military testing, wave and wind energy projects, corporate aquaculture and all other uses of the ocean other than fishing and gathering. 

The MLPA Blue Ribbon Task Forces that oversaw the implementation of “marine protected areas” included a big oil lobbyist, marina developer, real estate executive and other individuals with numerous conflicts of interest. Catherine Reheis Boyd, the president of the Western States Petroleum Association who is pushing for new oil drilling off the California coast, served as the chair of the MLPA Blue Ribbon Task Force for the South Coast. 

The MLPA Initiative operated through a controversial private/public “partnership funded by the shadowy Resources Legacy Fund Foundation. The Schwarzenegger administration, under intense criticism by grassroots environmentalists, fishermen and Tribal members, authorized the implementation of marine protected areas under the initiative through a Memorandum of Understanding (MOU) between the foundation and the California Department of Fish and Game (DFG). 

Tribal members, fishermen, grassroots environmentalists, human rights advocates and civil liberties activists have slammed the MLPA Initiative for the violation of numerous state, federal and international laws. Critics charge that the initiative, privatized by Governor Arnold Schwarzenegger in 2004, has violated the Bagley-Keene Open Meetings Act, Brown Act, California Administrative Procedures Act, American Indian Religious Freedom Act and UN Declaration on the Rights of Indigenous Peoples. 

MLPA and state officials refused to appoint any tribal scientists to the MLPA Science Advisory Team (SAT), in spite of the fact that the Yurok Tribe alone has a Fisheries Department with over 70 staff members during the peak fishing season, including many scientists. The MLPA Blue Ribbon Task Force also didn’t include any tribal representatives until 2010 when one was finally appointed to the panel.

by Dan Bacher 

The counts of Sacramento splittail and Central Valley chinook salmon “salvaged” in the state and federal pumping facilities on the Sacramento-San Joaquin River Delta continue to rise. 

The latest data from the Bureau of Reclamation reported 8,538,859 splittail, a native minnow, and 35,202 salmon “salvaged” from January 1, 2011 to June 26, 2011. 

The number of splittail salvaged to date is greater than in any previous years since the federal and state governments started keeping records on splittail in 1993. Splittail numbers historically have boomed in wet years when good spawning conditions are available in flooded areas of the Yolo Bypass and elsewere in the Delta and Central Valley. 

The second biggest year for splittail salvage was in 2006, with 5,421,470 fish reported to date. The third biggest year as in 1995, with 5,333,673 fish reported by June 26. 

“The carnage continues,” summed up Bill Jennings, chairman/executive director of the California Sportfishing Protection Alliance, after reviewing the latest data. 

Also reported during the same time period were 66,198 striped bass, 59,614 bluegill, 45,942 white catfish, 17,390 channel catfish, 43,502 threadfin shad, 62,603 American shad, 1,632 steelhead, 4 longfin smelt and 51 Delta smelt. 

It is important to note that the overall loss of fish in and around the state and federal pumping facilities is believed to be anywhere from 3 to 30 times the “salvage” counts, depending upon species, according to “A Review of Delta Fish Population Losses from Pumping Operations in the Sacramento-San Joaquin River Delta,” prepared by Larry Walker Associates in January 2010 for the Sacramento Regional County Sanitation District (http://www.srcsd.com/pdf/dd/fishlosses.pdf). 

The Walker Associates study cited a 1996 report by DWR and DFG concluding that for every salmon salvaged at the fish protection facilities, more than three are lost to predators or are lost through the fish screens. The report also stated that these loss rates “demonstrate a serious problem.” 

“The same 1996 report stated that over a 15-year period (1979 to 1993), 110 million fish were reported to have been salvaged at Skinner Fish Facility, the fish protection facility at the SWP,” the report stated. “These salvage statistics greatly understate the total number of fish entrained, since they do not include the number of fish lost to predators or lost through the fish screens. In fact, recent estimates indicate that 5-10 times more fish are lost than are salvaged, largely due to the high predation losses in and around water project facilities.” 

In 2008, Wim Kimmerer, a prominent ecologist and Delta researcher, estimated that approximately 30 times more delta smelt are entrained than are salvaged. 

“In 2008, the United States Fish and Wildlife Service (USFWS) also reported that high entrainment rates during winter months are suspected as a contributing cause of the early 1980s delta smelt decline and the pelagic organism decline or ‘POD,” the report noted. 

In 2005, federal and state biologists began documenting a dramatic decline in four pelagic (open) water species – Delta smelt, longfin smelt, threadfin shad and young striped bass. The scientists pinpointed three major factors behind the decline – changes and increases in water exports, toxic chemicals and invasive species. More recently, scientists have claimed that ammonia discharges from sewage treatment plants also play a role in the decline of the pelagic fish species. 

As the pelagic species have collapsed, so have Sacramento River chinook salmon. Central Valley fall-run salmon collapsed to record low population levels in 2008 and 2009, prompting the closure of ocean recreational and commercial fishing seasons. While higher numbers of fall chinook are projected this year by federal scientists, the winter and spring-run chinook populations continue to decline. 

by Dan Bacher 

The federal government has counted 109 Chinook salmon going over the Red Bluff Diversion Dam on the Sacramento River since June 15, down from last season’s count of 162 fish to date. 

The U.S. Fish and Wildlife Service reported 10 salmon on June 26, 11 salmon on June 25 and 12 salmon on June 24. 
Red Bluff Diversion Dam, on the river about 2 miles southeast of Red Bluff, diverts water from the Sacramento to the Corning and Tehama-Colusa canals. 

However, Bill Poytress, supervisory fishery biologist for the Service, cautioned that this is too early in the salmon season to determine any trend in the run this year. 

“The numbers of salmon counted are typically low until mid August,” said Poytress. “Right now we’re seeing a mixture of early fall-run fish, late winter-run salmon and some spring-run fish. The counts are not a very good indication of what the season’s total will be until August when the fall run numbers go up.” 

On the average, 11 percent of the season count would have typically passed through the dam gates by July 15 and 26 to 27 percent by August 15. September was historically one of highest months for salmon counts, but the dam gates have been lowered in September in recent years. 

“It it hard to make conclusions at this time,” added Poytress. “The dam gates are up for a shorter period than they were historically, plus there is a lot of variability in the timing of the runs.” 

Fishermen are disappointed, but hopeful 

So far this season, overall fishing has been tough for recreational and commercial salmon fishermen in northern and central California, with the exception of some short spurts of good action off Monterey and Bodega Bay. Salmon fishing was closed off the coast of California and southern Oregon in 2008 and 2009 due to the unprecedented collapse of the Central Valley fall-run chinook run – and this is the first year when a normal recreational and commercial season has been in place. 

Federal and state officials blamed the collapse on “ocean conditions,” while fishermen, Tribes and environmentalists pointed to increased water exports out the Sacramento-San Joaquin Delta, declining water quality and Central Valley dam operations as key factors behind the dramatic decline of fall-run Chinook. 

Federal biologists have forecasted an ocean abundance of 730,000 Sacramento River fall run Chinook in 2011, far above the number needed for optimum spawning this fall of 122,000‐180,000 fish. Unfortunately, the Central Valley winter run and spring run Chinook populations continue to decline. 

“The numbers of fish passing the dam to date are disappointing, but it is probably too early to conclude anything about this year’s fall run,” said Dick Pool, administrator of Water 4 Fish and Secretary Treasurer of the Golden Gate Salmon Association (GGSA). “As we get into mid to late July, the numbers should become more meaningful, since the vast majority of fish will be fall run.” 

“The ocean salmon season so far has also been disappointing,” emphasized Pool. “The bad news is that anglers have not seen many larger chinooks so far this season. The good news is that there are lots of shakers (undersized) fish showing, pointing to a good season in 2012. My hope is that like last year, good numbers of larger fish will show off Duxbury Reef, Bodega Bay and other areas outside the Golden Gate starting around mid-July.” 

Fish passage improvement project slated for completion by 2012 

The gates will be closed on the diversion dam for only about 2-1/2 months this year for agricultural purposes and then will open the remainder of the year “to provide unimpeded fish passage for salmon, steelhead and sturgeon,” according to Pete Lucero, U.S. Bureau of Reclamation spokesman. Lucero said it is anticipated that this will be the last year for filling Lake Red Bluff. 

“The new Red Bluff Pumping Plant is expected to supply the needed diversions after May 2012,” said Lucero. “Also, for construction purposes, Lake Red Bluff will operate one foot lower than past years. 

On March 23, 2010, Secretary of the Interior Ken Salazar and Bureau of Reclamation Commissioner Mike Connor broke ground at the Red Bluff Diversion Dam as part of the largest Department of the Interior (DOI) economic stimulus project in the nation. 

The ground breaking marked the beginning of construction of the Fish Passage Improvement Project at the Red Bluff Diversion Dam, a $5.25 million cooperative agreement that is part of the $109 million going to Red Bluff under the American Recovery and Reinvestment Act (ARRA), according to a news release from DOI. 

“Through the use of economic stimulus funds, we are protecting the region’s farming economy and jobs while helping to provide safe passage for fish,” Secretary Salazar said. “This is a win-win project for both people and the environment and represents a vital component of the Obama Administration’s effort to help the people of the Central Valley and other areas in California.” 

The construction was authorized as part of the Central Valley Project Improvement Act (CVPIA). Reclamation’s partner, the Tehama-Colusa Canal Authority (TCCA), received the $5.25 million in ARRA funds to construct an interim screened pumping plant to deliver irrigation water while the gates are raised, thus providing unimpeded fish passage, according to Kendra Barkoff of the Department of Interior. 

Barkoff said a construction contract for the bridge and siphon was awarded for $21.45 million and a supply contract for pumps and motors was awarded for $6.96 million. An additional $76.2 million in ARRA funds will be provided at a later date to construct a permanent pumping plant. 

Total project cost estimated at $230 million 

The Project will be completed in multi-phases by Reclamation, TCCA, and the State of California. The total Project cost, estimated at $230 million, is being paid for partially by the $109 million in ARRA money. Construction of the Project began in summer 2010 and is expected to be completed in 2012. 

The Red Bluff Diversion Dam’s gates are lowered to form Lake Red Bluff, which enables the gravity diversion of water from the Sacramento River into the Tehama-Colusa and Corning Canals to irrigate 150,000 acres of high-value cropland, more than half of which are planted in permanent orchards. 

“However, when lowered to provide irrigation water, the gates block threatened and endangered salmon, steelhead and green sturgeon, as well as other fish species, from reaching their spawning grounds,” noted Barkoff. 

The 24 hour recording number for fish counts over the diversion dam is 530-527-1408.

by Dan Bacher 

My dad Alfred, who worked for decades as a civil engineer for CalTrans, used to complain to me about the stupidity of past efforts by the US Army Corps of Engineers to remove trees from levees along the Sacramento River and Delta waterways. 

Not only was this unsightly and bad for fish and wildlife, but he told me, as we were driving around the California Delta to fish for catfish and stripers, how removing the trees actually weakened the levees! He passed away in 2005, but if he was still alive, he would be very happy to hear that a lawsuit was filed to stop yet another hare-brained scheme by the Corps to remove trees from California levees. 

Friends of the River, the Center for Biological Diversity and Defenders of Wildlife filed a lawsuit in federal court on June 20, the day after Father’s Day, challenging the implementation of a U.S. Army Corps of Engineers program in California requiring removal of all trees and shrubs from levees despite clear evidence that this vegetation provides important habitat for endangered fish, birds and other species, and its removal may actually reduce levee safety. 

This destructive program is being implemented under the Obama administration, an administration that is pushing the privatization of ocean fisheries through the “catch shares” program, backing the construction of a peripheral canal to export more water from the Sacramento-San Joaquin River Delta and fast-tracking the FDA approval process for genetically engineered salmon. 

“This misguided program would further fragment remnants of Central Valley riparian forest that are essential habitat for endangered species and also provide scenic beauty and recreational enjoyment of the rivers,” said Bob Wright, senior counsel for Friends of the River. “The Corps must abide by environmental laws and make environmentally informed decisions. We will pursue this case vigorously and as rapidly as the court allows.” 

“After Hurricane Katrina, the Corps made major changes to its nationwide levee program, including new standards in 2009 banning vegetation within 15 feet of levees, without consideration for regional differences,” according to a joint press release from the three groups. “Although many levees were designed to include streamside vegetation to enhance the habitat lost by the re-engineering of rivers and streams, the Corps took steps to cancel all exceptions to the requirement that all levees be cleared, without evaluating the impacts on endangered species or their habitats in California.” 

“The Corps adopted a new standard requiring removal of all vegetation from levees without environmental review, consideration of regional differences or scientific support,” said Jeff Miller with the Center for Biological Diversity. “Not only is there little proof trees or well-managed vegetation threaten levees in California, the Corps’ own research shows trees stabilize and strengthen levees. The Corps must incorporate ongoing scientific research before proceeding.” 

Miller said the changes could significantly affect endangered species in the Central Valley and Southern California that rely on vegetation along levees for habitat, such as chinook salmon, steelhead trout, green sturgeon, giant garter snake, least Bell’s vireo, riparian brush rabbit, southwestern willow flycatcher and valley elderberry longhorn beetle. 

Central Valley fall-run chinook stocks collapsed to record low population levels in 2008 and 2009, due to a combination of massive water exports out of the California Delta, declining water quality and poor ocean conditions. Although there has been an upswing in the federal government’s ocean salmon abundance estimate this year, the endangered Sacramento River winter-run chinook and spring-run chinook populations continue to decline. Removing riparian vegetation along Central Valley levees will result in higher water temperatures and increased sedimentation that are deadly to imperiled fish populations. 

Delta smelt, longfin smelt, green sturgeon and other Delta fish species have declined to record low population levels in recent years also, again spurred by water exports to corporate agribusiness and southern California water agencies. 

“In many Southern California coastal streams, least vireos and flycatchers nest in riparian vegetation; longhorn beetles inhabit elderberry trees, and protected fish swim in rivers along Central Valley levees,” according to the groups. “Riparian vegetation reduces sedimentation harmful to anadromous fish and provides important shade that reduces water temperatures, which is critical for salmonids and other aquatic species.” 

The groups contend the Corps ignored its legal obligation to analyze the impacts of this new program under the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement before adopting the decision. They also say the Corps ignored its requirement, under the Endangered Species Act (ESA), to consult with federal wildlife agencies for the impacts on threatened and endangered species. 

“Levee safety can be achieved without clearcutting some of the surviving riparian forests in the Central Valley and destroying habitat for struggling species like salmon, steelhead trout and willow flycatchers,” emphasized Kelly Catlett, a California representative of Defenders of Wildlife. 

The Corps for decades allowed retention and encouraged planting of trees and shrubs on Central Valley levees in cooperation with federal and state agencies because little other riverbank or riparian habitat remains for endangered species and other wildlife. “The Corps acknowledges vegetation removal may harm endangered species habitats, but instead of undertaking necessary consultation with wildlife agencies has tried to shift the burden of implementation and environmental compliance to local agencies and flood-control districts,” the groups stated. 

A call to the Corps of Engineers office in San Francisco regarding the agency’s rationale for the removing the trees hadn’t been returned at press time. 

However, virtually everybody other than the Corps, ranging from state agencies to environmentalists, is opposed to the clear cutting of state state’s levees. Major flood-control associations in the Central Valley and Bay Area, where most of the state’s levees are located, as well as a dozen flood-control agencies, many state resource agencies, and federal and state lawmakers in California, have objected to or formally expressed concerns about the program. 

Among the concerns are that compliance and subsequent environmental mitigation would be extremely costly; diverting limited funding to clear levees will prevent or hinder projects to fix structural or seepage problems; existing vegetation provides erosion control and removing it could increase risk of scouring and slope failure and compromise levee integrity. The state Department of Water Resources estimates the compliance cost at $7.8 billion. 

The California Department of Fish and Game and Department of Water Resources have stated that implementation would “reduce public safety in California, result in extensive and unnecessary environmental damage, and remove the Corps’ responsibility to assist state and local maintaining agencies in ensuring the integrity of California’s levee system.” 

The agencies object to “attempting to address complex technical, financial, legal and institutional problems with a highly prescriptive, one-size-fits-all approach to vegetation management.” 

Hopefully, this lawsuit by the three environmental groups will stop the U.S. Army Corps of Engineers from its “slash and destroy” policy of removing all trees and shrubs from levees on Central Valley and other California rivers. Kudos to Friends of the River, the Center for Biological Diversity and Defenders of Wildlife for filing this much-needed litigation to stop the clear cutting of California levees! 

For more information, contact: Bob Wright, Friends of the River, (916) 442-3155 x 207; Jeff Miller, Center for Biological Diversity, (415) 669-7357; and Kelly Catlett, Defenders of Wildlife, (916) 313-5800 x 110.