CSPA Alert: Save The ESA/CSPA Press Release

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
510-526-4049
Jbeuttler [at] aol.com
 
NATIONAL CALL-IN DAY: CALLYOUR SENATOR ON MARCH 9TH
IN SUPPORT OF THE ENDANGERED SPECIES ACT!

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 lifetime.

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 http://www.senate.gov)
 
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 IMMEDIATE RELEASE:  March 7, 2006
For More Information:Bill Jennings, 209-464-5067, Cell 209-938-9053
Michael Lozeau, 510-749-9102, Cell 415-596-5318
 
CSPA ISSUES NOTICE OF INTENT TO SUE DEPARTMENT OF WATER RESOURCES FOR ILLEGAL TAKE OF ENDANGERED SPECIES
 
 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-being.”

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 action.

[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.]