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HomeMy WebLinkAbout2002-10-21 City Council (7)City of Palo Alto C ty Manager’s Re TO:HONORABLE CITY COUNCIL FROM: CITY MANAGER DEPARTMENT: UTILITIES DATE: SUBJECT: OCTOBER 21, 2002 CMR: 423:02 STAFF AND UTILITIES ADVISORY COMMISSION RECOMMENDATION TO SUPPORT NORTHERN CALIFORNIA POWER AGENCY IN TRINITY ¯ RIVER FISHERIES RESTORATION LITIGATION RECOMMENDATION Staff and the Utilities Advisory Commission (UAC) recommend that the City Council support the Northern California Power Agency (NCPA’s) ongoing due process litigation against the Department of Interior (DOI) regarding the adequacy of the Record of Decision (ROD) on the method of Trinity River fisheries restoration. Staff recommends that any further City Council action be informed by the U.S. District Courts ruling. PROJECT DESCRIPTION On August 5, 2002 the City Council discussed the Trinity River flow environmental impact statement litigation (CMR 360:02). At that meeting the City Council directed the UAC to work with staff to develop a deeper understanding of the issues related to this litigation and return to the City Council with a recommendation regarding a negotiation position. Staff provided information related to the litigation at the September 4, 2002 Utilities Advisory Commission meeting. NCPA staff and consultants as well as opposition groups were invited to that meeting and made presentations. The UAC voted ( 4-0 vote with Commissioner Dawes absent) to support the NCPA pursuit of due process litigation against the DOI to supplement the Trinity River Environmental Impact Statement (EIS). CMR:423:02 Page 1 of 4 Staff provided Council with the minutes of the Utilities Advisory Commission meeting in a September 23, 2002 CMR:397:02 in an effort to provide Council members with adequate time to review this complex matter. Council voted to implement staff’s recommendation of agendizing the Trinity River litigation support decision for October 21, 2002. DISCUSSION NCPA joined litigation against the DOI in January 2001. District Court Judge Wanger heard motions for summary judgment on August 20, 2002. He can rule on them at any time. Parties would then have 60 days to file appeals at the 9th Circuit Court of Appeals. The NCPA commission may need to decide its response within that 60 &iy period. Staff anticipates that Council will want to take action on whether to support participation in an appeal of the judge’s decision prior to NCPA’s commission vote on whether to pursue an appeal. NCPA made clear in its presentation to the UAC on September 4, that the litigation is required to force the parties to collaborate on a long lasting, incremental, science based approach to restoration of Trinity River fisheries. NCPA also clarified that the issue on Trinity River fishery restoration ROD litigation is not a case of power generation versus the environment but more a case of how to maximize the fishery restoration in a less risky and less damaging method than proposed in the ROD. NCPA clarified that the Trinity River would remain a managed fiver with controlled peak flood flows that are not large enough to scour the deep hole habitat in the fiver under any alternative including the current situation, the ROD and NCPA proposed altematives. The ROD flow regime would lead to the fiver filling in the deep hole habitat with gravel and sediment. The EIS had not performed a basic hydraulic analysis that would have pointed out this problem. As a managed fiver system, the Trinity would benefit from NCPA’s less risky, incremental action, science-based alternative. A recent extensive fish die-off in the lower Klamath River provides anecdotal evidence for the value of science-based monitoring and responsive actions on rivers as proposed by NCPA on the adjoining Trinity River. The amount of water being released on the Trinity River during the time of the fish die-off was equal to the ROD prescribed flow levels. The ROD would not have spared the fish. Trinity River flows contributed 37% of the Klamath flows at the confluence in September and have been steady for a couple of CMR:423:02 Page 2 of 4 months. Studies have not concluded as to the cause and possible prevention or reduction of the die-off. RESOURCE AND ENVIRONMENTAL IMPACT City Planning staff reviewed the Department of Interior’s ROD and analyzed the NCPA’s motion for summary judgment. Based upon a preliminary review of these documents due to limited time, City Planning staff considers the position supported by the NCPA, which calls for additional environmental analysis, to be justifiable. City Planning staff believes the Environmental Impact Statement/Report (EIS/EIR) should adequately address the impacts to the Central Valley Project resulting from the water diversion from the Sacramento River to the Trinity River. If these impacts are determined to be significant, the EIS/EIR should be supplemented and identify both the specific impacts and corresponding mitigation measures. Although not necessarily required for National Environmental Policy Act/ California Environmental policy Act (NEPA/CEQA) purposes, analysis of additional alternatives may identify a project alternative that restores the Trinity Basin fisheries and limits impacts to the Sacramento River fisheries. City Planning staff did not evaluate the adequacy of the biological analyses included in the ROD and EIS/EIR since Planning does not have the in-house technical expertise to perform that type of analysis. If Council requires that type of review, Planning staff recommends that the services of a qualified consulting biologist should be engaged. POLICY IMPLICATIONS This recommendation is consistent with the Council approved Utilities Strategic Plan to implement programs that improve the quality of the environment by following due process in an attempt to improve the global environmental solution of a complex problem. ATTACHMENTS 1. CMR: 397:02 Utilities Advisory Commission recommendation on Trinity River restoration litigation and scheduling the Council’s consideration of this issue 2. Klamath River Q&A (prepared by NCPA) CMR:423:02 Page 3 of 4 PREPARED BY: DEPARTMENT HEAD: CITY MANAGER APPROVAL: TOM KABAT Senior Resource Ori of Utilities BENEST City Manager CMR:423:02 Page 4 of 4 5 TO:HONORABLE CITY COUNCIL FROM: DATE: SUBJECT: CITY MANAGER DEPARTMENT: UTILITIES SEPTEMBER 23, 2002 CMR: 397:02 UTILITIES ADVISORY COMMISSION RECOMMENDATION ON TRINITY RIVER RESTORATION LITIGATION AND SCHEDULING THE COUNCIL’S CONSIDERATION OF THIS ISSUE RECOMMENDATION Staff recommends that the City Council agendize for October 21, 2002 consideration of whether to support the Northern California Power Agency (NCPA’s) litigation against the Department of Interior regarding the adequacy of the Record of Decision on the method of Trinity River fisheries restoration, !n order to provide its NCPA commissioner, Council Member Bern Beecham, with the direction on whether or not to support an appeal, if one is proposed, of the action coming from the judge’s ruling, when it becomes available on this issue. PROJECT DESCRIPTION On August 5, 2002 the City Council discussed the Trinity River flow environmental impact statement litigation (CMR 360:02). At that meeting the City Council directed the Utilities Advisory Commission (UAC) to work with staff to develop a deeper understanding of the issues related to this litigation and return to the City Council with a recommendation regarding a negotiation position. Staff provided information related to the litigation at the September 4, 2002 Utilities Advisory Commission meeting. NCPA staff and consultants as well as opposition groups were invited to that meeting and made presentations. A representative of Environmental Defense was given the opportunity to rebut the facts and arguments presented. CMR:397:02 Page 1 of 4 NCPA described its history of seeking a collaborative solution to Trinity River fisheries restoration based on taking incremental steps and monitoring the consequences, both intended and unintended. More actions would be implemented in pursuit of meeting restoration targets. Dr. Mike Harvey, an independent consultant hired by NCPA to review the Trinity River EIS said that the significant missing component in the Environmental Impact Statement (EIS) that lead to the Record of Decision (ROD) was the lack of a hydraulic model to indicate the consequences of the flows. Dr. Harvey indicated the importance of matching the ratios of gravel injection v~ith water flows to maintain a healthy river for the fish. He indicated the peak flows would scour the river and move gravel down the river to fill in the deep pools that are habitat for the fish. To replenish the gravel, the ROD flows would require an average of 20 truck loads per day all year during wet years. Paul Bratovitch, another independent consultant hired by NCPA to review the Trinity River EIS outlined 3 things for the UAC: 1) There is significant uncertainty with regard to how the Trinity River fisheries will respond to the ROD flows and the altered fiver, given the new 1997 theoretical construct of healthy alluvial fiver attributes. The responsibl~ approach would be a program of incremental, science-based improvements and subsequent monitoring of effects. 2)The four runs of Salmon and Steelhead on the Trinity River are not in peril. Returning fish populations are estimated at 39,000 fish, compared to prior to dam construction estimates of 18,000 fish. 3)The potentially significant adverse impacts on endangered fish in the Sacramento River fromthe ROD. The EIS says that the Central Valley Project could be re- operated to accommodate the loss of cold Trinity water that is now used to control fiver temperatures for endangered fish. Mr. Bratovitch pointed out that what is envisioned is an unexamined and significant loss of flexibility in operating the CVP to accommodate restoration in the Sacramento River and Bay Delta fisheries. Sprek Rosecranz of Environmental Defense spoke against the recommendation to support NCPA’s litigation. He pointed out that the only reason NCPA cared about the Trinity River ROD was because it has an adverse impact on hydropower production. The UAC voted ( 4-0 vote with Commissioner Dawes absent) to support the Northern California Power Agency (NCPA) pursuit of due process litigation against the Department of Interior (DOI) to supplement the Trinity River Environmental Impact Statement (EIS). CMR:397:02 Page 2 of 4 DISCUSSION In recommending the timing of the Council’s consideration of this issue, staff took into consideration the August 20, 2002 hearing on motions for summary judgement. Judge Wanger can rule on them at any time. Parties would then have 60 days to file appeals at the 9t~ Circuit Court of Appeals. The NCPA commission would need to decide its action within that 60 day window. Staff anticipates that the Council will want to take action on whether to support an appeal of the judge’s decision prior to NCPA’s commission vote on whether to pursue an appeal. Staff is hoping to schedule Council consideration after the judge’s ruling and before NCPA’s .commission meeting to vote on possible appeal. Without knowing when the judge will rule, staff suggests Council ask staff to agendize the item for Council decision tentatively on October 21, 2002. That timing increases the likelihood that Council will have benefit of the judge’s ruling by then. This also gives Palo Alto Planning Department staff time to review the environmental impact of any staff recommendation as requested by Council Member Kishimoto. Alternatively, Council could move in accordance with the UAC’s recommendation to support the NCPA pursuit of due process litigation against the Department of Interior to supplement the Trinity River Environmental Impact Statement. RESOURCE AND ENVIRONMENTAL IMPACT While the recommendation to schedule the Council consideration of this issue has no resource impact, there will be an analysis of both the resource and environmental impact provided with the staff report prepared for the October 21, meeting. POLICY IMPLICATIONS This recommendation is consistent with the Council approved Utilities Strategic Plan to implement programs that improve the quality of the environment by following due process in an attempt to improve the global environmental solution of a complex problem. ATTACHMENTS A: Draft minutes excerpt from September 4, 2002 Utilities Advisory Commission meeting regarding Trinity. B: Staff’s September 4, 2002 report to the Utilities Advisory Commission on Trinity CMR:397:02 Page 3 of 4 PREPARED BY: Senior Resource Originator DEPARTMENT HEAD: ctor of Utilities CITY MANAGER APPROVAL: Assistant City Manager CMR:397:02 Page 4 of 4 UNFIN SHED BUSINESS TRINITY Carlson: Now I understood that the~’e are going to be some NCPA people here. Ulrich: That’s correct. Carlson: So there are NCPA people here. We have Spreck Rosekrans from Environmental Defense. John, do you have any recommended order on how to do this? Would you like to introduce it? That sure sounds good to me. Ulrich: What I’m putting up [on screen] here is the request from the City Council to the Utility Advisory Commission through 2 motions. I just want you to be able to look at the request from the City Council. There are 2 motions that they made. They’re asking you, the Utility Advisory Commission, to review the Trinity issues and to come back to them with your recommendation on what to do about the Trinity River negotiations. The motions are there verbatim on the top. They are also part of the packet you received, so you may want to reflect back on those as you go through the evening. Since this is a bit of an unusual process tonight, I’ll suggest a methodology for going through it. I’ll have a few comments about the report. I will introduce Tom Kabat who will have some additional background information about Trinity. I will then also introduce members of the Staff from NCPA who will have additional information. The information will be complementary to each other and not be redundant. We’ll just kind of build on background so that you have a good understanding of our position -why we’re recommending it and why NCPA is continuing to move ahead with the litigation - and our support for it. Our recommendation will be to continue on the course that we’re making now, towards the appropriate conclusion. Following their prepared comments, you can then ask them or as they talk, ask questions of them for clarification or whatever you’d like and then I’d recommend members of the public have comments they’d like to make. Then as you see fit, enter into a dialogue, asking questions with members of the Staff and the public so you get a thorough understanding of all the issues, so you feel comfortable about making the decisions. If that’s acceptable process, I’ll move ahead with it. Carlson: Sounds fine. Let’s go ahead unless there are any comments. Page 8 of 46 Bechtel: Mr. Chairman. I’d like to ask a few questions perhaps of Council Member Beecham about the direction from the City Council. As I’m reading this, I was not there and I.have not had the opportunity to speak with the Council Members. particularly Council Member Morton who made the original motion. But it’s not real clear to me that exactly what we’re being asked to do. As I read it, there was an original motion. There was an amendment to the motion that perhaps took out the leaning towards the one issue, took out the support. So it remains that we are to recommend for a possible position on negotiation to enable us to fully support the Trinity River negotiations. I read the Council’s tone that they want to support negotiations of some sort. Is that how the end result of this motion came out? Beecham: The background of the motion is - as you see up there, the initial motion by Morton and Mossar - the City Attorney advised that because the way this had been agendized in that meeting, they could not express actual support of the Record of Decision making, so the motion was left at requesting the UAC to review the matter. The Council probably did at that time understand that there were negotiations. In fact, it is the case that there are not any direct negotiations between members that I know of. The Council may have in mind that the City of Palo Alto might make some recommendation. At this point, I’m not sure to whom that recommendation would be made. Also, as you know, there was a hearing on August 20 in court. My understanding is that the Judge heard arguments from both sides of the issue and has not made a ruling yet. So at this point also, the UAC does not know where the court may be going on this, which makes it more difficult to decide what one might negotiate. My suggestion is that the UAC look at the issues and advise Council on what you believe, in fact, are the important issues and what is relevant from various aspects of our community. Bechtel: Thank you, Bern. Carlson: I was also there at the meeting. There was a very frustrating segment for some of the Council Members. I’m interpreting the charge very broadly, that we should make a recommendation to the Council on what should be done about our participation in the litigation concerning this project. But let’s listen to everything and then we’ll have to decide exactly what kind of motion we want to make, if any. John, you want to go ahead with the introductions? Page 9 of 46 Ulrich: Sure, will be glad to. We provided you with quite a comprehensive report. You know some of the background and why we are purchasing power and a portion of it from the Trinity River. We wanted to make sure that everyone involved - and didn’t assume that everybody knew all the background - saw that information that’s included in ~he Appendices and in the document itself. We also wanted to give you information about what was said in the ROD and in the EIS. That material is all attached. What would be helpful would be for us not to go through each of the documents, but to give you a summary of the positions that we have - why we have them and the role that NCPA and Palo Alto has - so that you’re comfortable with what that entails. It would be difficult for me not to recommend that, the course of action that we have been discussing for some time is that, we do not want to get into a position of trying this issue at the local level, in the confines of this room or at the City Council. A tremendous amount of work on both sides and both parties have taken place over a number of years about the best use of the Trinity River - for many reasons. There’s a large number of people that have a vested interest and a stake in the outcome. I don’t think it’s appropriate for us to try to go through every issue on both sides and reach some sort of conclusion. What we’re trying to do is to say that we have been on the Trinity River, we have a contract and agreement with the Western Area Power Administration for close to 40 years, and we are very much interested in doing what is in the best interest of the environment. We have a long history of it. Many of the reasons that Palo Alto went into the Trinity River and into hydro are environmental reasons. The thought at the time, when you look back through the record, is that we put a tremendous amount of risk - in a sense, putting all of our eggs in a basket of hydroelectricity rather than diversification into nuclear power or other generation - for reasons, many of which were to take energy in a Clean way, and bring it to Palo Alto. The intention has always been and will be that we’re looking for energy resources that are appropriate. So I’m going to ask now and at the end that you consider very strongly recommending that we pursue the course that we are doing. This is the avenue that is given to everyone to pursue towards a conclusion - that allows all parties to have their say through the courts. That’s where we’d like to keep it. I’d like to have Tom Kabat give you just a little bit of a picture of what Trinity River is, in the sense of water, and how Palo Alto benefits, and what’s the impact to us and the environment. Page 10 of 46 Kabat: Thank you John. I think it’s working. This diagram I put up here just for some background just to show two attributes of the Trinity River decision and maybe give a background for folks to point to and make their cases as the evening rolls on. These two things are somewhat of a sketchy representation of a map showing the mainstem of the Trinity River in blue flowing out of Lewiston Dam right now and flowing along and meeting the Klamath River. And then the Klamath flows up north and out into the Pacific Ocean. Here’s Eureka as a geographic reference point. Also flowing into the Trinity mainstem are a number of un-dammed, uncontrolled inflows: creeks, tributaries, rivers, the north fork of the Trinity, the south fork of the Trinity and a number of other creeks, some of them relatively close to the Lewiston Dam. You’ll hear a lot of statistics about the flow in the Trinity River and the statistics typically quoted are the releases at that point at Lewiston Dam. So that’s what’s shown on this map. Outside the diagram, I’ll flip over and show Lewiston Dam, which is a regulating reservoir and dam and elevations up to 2500 feet down to sea level of some aspects of the Central Valley project. Back here is Shasta Dam topping out at about 1080 feet in the Sacramento River watershed and then there’s a ridge that defines the watershed. Rain on the west side of the ridge is headed towards the Trinity. Rain on the east side of the ridge is headed towards the Sacramento. That ridge is running invisibly across here. Shasta was built in the 40’s, Trinity Dam was built in the early 60’s and it captures water from the upper-Trinity watershed, stores it, releases it into Lewiston through the Trinity Power Plant. Lewiston is where the policy choice takes place - about where that water is going to flow. There’s that fork in the flow. The diversions we talk about are diversions from the Trinity River watershed over to the Sacramento River watershed. The diversions produce quite a bit of power per acre- foot compared to any other project in the Central Valley Project and you can see from the diagram why. The head on this power plant, the Trinity Dam Power Plant, varies from 200 to about 450 feet, but the head, the water pressure, as the water comes across and goes through 3 more power plants, it’s noticeably higher, 700 feet going into the Carr Power Plant, 620 feet going into the Spring Creek Power Plant and then it flows through the regulating reservoir as Keswick at an 80 foot head drop out to the Sacramento River and flows down the Sacramento River to the Bay- Delta. I’ve tried to show a plumbing diagram on one side, a map on the other and a border in between. Hopefully this will give some idea about where the policy issue is. One way to frame it is, where should the flows go? That’s what the ROD was apparently looking at. Another way to frame it is what Page 11 of 46 should be done to restore the fishery of the Trinity River? Is it all about flow, or are there other aspects? So I thought I’d lay out a little bit of that background, and turn it back to John. Carlson: Let me ask a couple questions here while you’ve got that map up there. My understanding is that the theory of the fishery is the problem; it’s not just how much water, but that the natural river - to be well adapted to salmon - needs floods to flush out the fine sediments that clog the bed. So a lot of water periodically is an important part of the stream regimen to make the salmon happy, is that right? It’s not just a couple acre-feet a day; it’s the big pulses. Kabat: I’m not an expert in that area. My specialty is along the plumbing side, but we do have some experts in the biology aspects and the river morphology who will be addressing that this evening. Carlson: Great. Ulrich: I promised Tom if he’d do that drawing, he Wouldn’t have to answer questions that are outside of his area. Carlson: That’s a great drawing. That’s a good graphic. Ulrich: You may want to refer to it. Do you have any questions of Tom on the plumbing question or would you like to come back to that at a later time? Carlson: Go ahead. Ulrich: I thought it would be helpful to put a picture to what is there. I will now introduce Jane Cirrincione who some of you have met. She’s the Assistant Director at NCPA and under her leadership, progress is being made on this area. She will give you a little bit of background and also introduce our next speaker. Carlson: Jane, welcome. Would you spell your name please to have mercy on the people trying to do the transcript? Cirrincione: Yes, you’re having a problem with my first name? Or would that be my last name? It’s "C-i-r-r-i-n-c-i-o-n-e". Thank you very much. Good evening. It’s nice to be here in your fair city this evening. Again, I am Jane Cirrincione. I’m Assistant General Manager at NCPA of Legislative and Regulatory Affairs and I drove here from Roseville today and came over the Dumbarton Bridge. I was very happy to go through the Don Edwards Wildlife Refuge. Prior to coming to NCPA, I actually spent .many years working on in Washington D.C. and part of that time was Page 12 of 46 spent working in the office of Congressman Don Edwards from San Jose, who - a few of you I’m sure will remember and my charge during that time in his office - was to work toward the goal of expanding that refuge, doubling the size of that refuge, adding additional 20,000 acres of wetlands and endangered species habitat to that refuge. Which was quite a challenge because, I don’t know if you know this, but it’s the nation’s only urban wildlife refuge. So it presented a many policy dilemmas in terms of balancing future economic development - believe it or not, there’s even still some farming in that area - and then our overarching goals of protecting endangered species. We were successful in finding an outcome and finding a solution that sort of met all of those needs. We’re still working in that direction, but we came to a result that was very positive for the environment. The only reason why I have asked you to indulge me in this background is to say that that’s something we’re hoping to do with the Trinity River as well. We have many competing demands and competing needs with regard to the Trinity River. NCPA’s role has been simply to say, "Look, there are many demands. We need a process that leads us to a policy that accounts for all of the demands, and not only that, but is tested and shown to be the right solution to get us the kind of restoration that we need and that is required on that waterway." I’m here tonight in part to assure you, and I know a couple of you are very familiar with this, that NCPA’s process that led to our position on Trinity was a very reasoned and sound process and our involvement in this litigation and our positions on this issue are not new or arbitrary at all. NCPA has a history on this issue, going back to 1994, where we have been participating on agency scoping processes, public comment processes, testifying, meeting regularly with agency officials and working again toward.that goal of a sound environmental solution on the Trinity. Our position ultimately on the ROD is to get to that very outcome, The resolution that our Commission passed at the end of 2000 that led to our taking the next step toward this litigation - the very first clause of that resolution - says that the Northern California Power Agency supports restoration of fisheries in the Trinity River. That is the first premise, underlying premise of our position and it was echoed throughout that resolution, which I believe al! of you have seen. Our concern is not so much with that outcome. Our concern is the process that’s been used to develop the Record of Decision, which is the current plan the Department of Interior has for work, for restoration activities on the Trinity. Much of our position on this has been misrepresented or overstated. Page 13 of 46 We simply support the restoration. We want a process that would get us to a sound plan. We hope to establish here that we’re not quarreling with the goal of restoration. We’re simply here to talk about the means by which we can achieve it. Our view, ultimately - and our position - is that there may be alternatives to the Record of Decision. The Record of Decision itself presents environmental problems and environmental dilemmas that have not been fully addressed or accounted for. And, as well, the science that’s been used so far is highly incomplete. We have brought experts in the field that have worked both with NCPA - but also have worked for the Department of Interior in the past - that can expound on that, explain where some of the fundamental scientific approaches here have broken down and why we need to go back and take a look at where those weaknesses are and how we can address those. Ultimately, what we have proposed is a plan that has 4- parts: incremental action, science based approach, pilot scale projects and a collaborative approach - where we can bring in all view points, all levels of expertise and bring this to the table on behalf of a sound and workable solution. This approach is exactly the same type of approach that’s been used at CALFED and in the Central Valley Project Improvement Acts, so this has a great deal of precedent that has not been brought to bear in the Record of Decision process. Moreover, our concerns and our approach have been echoed by our Congressional delegation and even, in part, by Senator Dianne Feinstein. Their concerns about the process that was used here were not brought to bear and were not addressed as the Record of Decision moved forward and was finalized. We have others here that can talk specifically about how these issues have been treated in the past, and on other waterways, and the kinds of issues you might want to be thinking about in that regard. I hope you find that our presentation tonight is helpful and aids you in your efforts to examine this issue a little bit more carefully. So thank you very much for having us here tonight. Carlson: Thank you. I’m sure all kinds of questions are popping up in everybody’s minds. They, re certainly are in mine right now. We’ll go through the presentations and then we’ll just call you back as necessary. Somebody else? Who’s next? Phipps: Yes, thank you. My name is Jeff Phipps. That’s spelled "P-h-i-p- p-s". I try not to say that too quickly because there are too many "f"s in there and it gets slurred. I’m an Independent Consultant working in water resource environmental issues. I’ve been working with NCPA on Trinity for 9 years, tracking it - so I have a long history. What I’mgoing to do is provide a very short history of NCPA’s participation and how we kind of Page 14 of 46 got to where we are now. just so that you can perhaps again have some context to it. Initially, I started following the Trinity in 1993 on behalf of NCPA before the EIS for the Mainstem Restoration Program got started. At that time, they had a task force that was responsible for developing a restoration plan and implementing the plan for restoration of the Trinity River, the Trinity River Basin, the whole basin. We started to engage in that discussion. They had a Technical Coordinating Committee that was open to all individuals to participate. It was a highly collaborative discussion on what they might be able to do in terms of year-to-year activities. So we began our involvement in that process. As they got into establishing some specific actions, then they said well we need to perhaps do some environmental documentation and they said we also need to address some flow-study environmental documentation coming out of the study, the flow evaluation study that was prompted by the 1981 Act. So they said, let’s roll it up into an EIS. At that time, while we continued to stay involved with the Technical Coordinating Committee in terms of the action planning on the river, we also became involved in that separate process, that was to perform the NEPA and CEQA documentation for the restoration program. We were active in that process, commenting on the scope, on the purpose and needs statement, on the various drafts, on the methodologies and we engaged both during the public meetings as well as separately from that with the agencies and with other stakeholders. During those processes, our theme was a consistent "we want full disclosure of the impacts of what we know and what we don’t know and what possibilities exist out there." We also emphasized the need for watershed wide consideration. There are a lot of interactions between the mainstem and all of the tributaries that Tom had drawn up there in black, in terms of not just the fishery resources, but the inputs to the mainstem river. So the watershed wide interaction was important. We also emphasized the need to bring in outside people that could bring not only their knowledge, but also a sense of independence to the discussion so that we can make sure we have that objective discussion. That process went on for many years. They had the Draft EIS and they had the Final EIS. We kind of saw the writing on the wall, saying they don’t seem to be listening to what we’re saying. Prior to the ROD, NCPA contacted and wrote to Interior expressing our concerns that we’re worried that if you implement the ROD in the direction that you’re going now, it will tie our hands and we’ll have to do things we don’t want to do. We’d like to sit down and talk about this. Page 15 of 46 At that point or subsequent to that, we continued to get no response to that. They didn’t even respond to our letter. At that point, we were discussing within NCPA what we should do. As we were discussing it, Westlands filed suit. At that point there were a lot of discussions within NCPA, and I’m not the lawyer so I can’t gdinto all the details, but it was decided that we would participate in that even though we might have slightly different objectives - although we don’t really know where Westland is coming from. But we felt that that was a venue that would allow us to open up the forum to, again, get the objectives that Jane talked about, a collaborative science-based incremental approach. However, even during the litigation process, when there were discussions going on, we had relationships with other stakeholders - and it was on our initiative, because this Technical Coordinating Committee that I’d talked about had been going on. But it was disbanded in December of 2000, because the ROD was supposed to pick up for what it had been doing. There was no replacement group for the Technical .Coordinating ¯ Committee to implement or develop restoration actions in the year 2001. So in our initiative we brought the stakeholders together and said we need to plan for what we can do with funding for 2002. We had 3 or 4 meetings and discussions to outline. It was a very good discussion amongst all the stakeholders including agencies. We presented that to the Trinity Management Council in June of that year and they said well that’s interesting, we’ll think about it, but we can’t take input from you for reasons that are probably associated with FACA concerns and elsewhere. But regardless, that effort to try to participate was rebuffed. They then instituted an initiative on their part to develop the plan for 2001 which we were able to participate in through the technical forums. That’s actually when we hired or brought on another Independent Consultant, Paul Bratovich, who’s here tonight. We hired him specifically to be able to act as an objective Scientist in the discussion of the possible restoration actions for that year. There were a couple of day meetings that Paul went to. Out of that was supposed to be a draft report by that committee. That group of probably 40 to 50 individuals started on it, but there were probably about 20 core people that were in involved with it, and Paul might be able to add a little to that. That report was never published and never made available and never forwarded to the TMC. The input from the agency consultants did refer to that group, but there was never a concurrence from that group as to the recommendations. But we did try to participate and did try to interject science into the process and we continued on that vein. There had been some other forums about monitoring, that again Paul participated in, to try to bring the objective science perspective. But unfortunately those two didn’t fully come to fruition in the end. Page 16 of 46 The reason I just wanted to provide that background is: we’ve been engaged, we’ve been trying to be constructive. But the bottom line is, we never got a response to our desire for collaborative, objective process. That kind of tied our hands and put us in a spot. Well, litigation is the only way to reopen this, to bring back the balance that we sought. Again, I can answer questions later on if you have any, on the history. Ferguson: Just a quick timing question on the lack Of government response. The letters went out apparently in January of 2000 plus or minus? Phipps: Lots of letters went out. Fer.quson: But the ones where you stopped getting responses? Was that early 2000? Late 2000? Phipps: We occasionally would get responses in terms of our comments to the like Purpose and Needs Statement. That was like in 1997. So we’d get responses like "thank you for your input. We’ll think about it. We’ll consider it." It got to be more serious when our draft, when we provided draft, comments to the Draft EIS, which I think is the one you’re referring to in January and they responded to those in the supplement to the Final. We felt that the responses were not sincere. They said, "Thank you. We’ve addressed that in the EIS" and we didn’t feel as though there was any desire to talk about it. It was just a response, but they did provide a response to that. The responses that we didn’t get was from Interior in terms of Secretary Babbitt saying we really want to sit down and open this up. We did not get a response to that - and that included some Congressional inquiries and requests of Babbitt as well that they didn’t get a response. Ferquson: Thank you. Phipps: Next I’m going to introduce Mike Harvey. He’s an Independent Consultant that has been brought on to help address some of the uncertainties with the science and the risk with the ROD. Harvey: My name is Mike Harvey. I’m from Colorado. I am an Independent Consultant. I was initially brought in to the Trinity Project about 3 to 4 years ago to review some of the science related to the Environment Impact Statement and then subsequently the ROD decision on the flows. I’ve worked in this field of river geomorphology for about 30 years. Over about the last 20 years, most of the work I’ve done have been related to restoration of river systems, primarily trying to answer the hard questions where there’s a conflict for water use, especially in the Page 17 of 46 Western United States. What do you get for so many acre feet of water for environmental purposes? In other words, what’s the link between flow and habitat and restoration of species? When I first looked at the EIS and the ROD and the subsequent recommendations, there are a number of things that came to the fore. First of all, obviously there had been a lot of science done on the Trinity over a long period of time. My initial conclusion though was that the science was done in a very localized area and there was a lot of professional judgment going into extrapolation of those results. In other words, there was no tool to extrapolate - other than professional judgment. Now there’s nothing wrong with professional judgment, but there are standard tools that we use in analyzing rivers. I’m now working currently for the Interior on restoration of the San Joaquin River, the middle of Rio Grande in New Mexico, among others. We use a standard sort of approach, analytical approach to evaluate the interactions between flows, sediment and ultimately habitat. The thing that I noticed was that that model wasn’t there for the Trinity. As a result all the science that had been done, there was no basis for prediction and there was no sound basis for extrapolation. As a result of that and following the ROD, my company Mussetter Engineering was hired by SMUD to actually put a hydraulic model together of the Trinity River from Lewiston Dam down to the North Fork trying to address some of the primary issues that relate flow and sediment to habitat. Fundamentally, this stretch of river that was shown on the diagram there - the real river part, as opposed to the plumbing part - is very complex. It can be divided on its physical characteristics into about 9 separate reaches. There are reaches in there that are truly alluvial; in other words, the characteristics of the river are purely the result of the interaction of the flows and the materials of which the flows interact. That’s the definition of an alluvial river. A lot of the rest of the reach is partially constrained by bedrock, which eliminates some of the degrees of freedom of adjustment for a river. Other reaches are purely dominated by bedrock in both the banks and the bed. Now this is a little bit of detail, but it is important - because the fundamental assumption in most of the ROD flows, or behind the ROD flows was this concept known as a "healthy alluvial river." Now, it’s an intuitively very attractive concept. What it’s predicated on is: "before we screwed it up, the river used to work. We had fish. Wehad flows. So all we really have to do is put that back together again, and all will be well." The problem with it - as attractive as the concept is - it means you can step beyond the question of having to answer the difficult questions - what really is the interaction between the river and its habitat and the species? Page 18 of 46 It’s intuitively attractive. It’s seductive in many ways .because you don’t really have to answer the hard questions. But unless a river is truly alluvial, then you violated one of the basic premises, in other words, that the form of the river results purely from the interaction of the flows and the boundary of materials, which are mobile. So we put a model together and we tested a number of things that weren’t tested. One of the primary problems is the issue of flushing flows. You brought this up before, Mr. Chairman. Now what’s the problem? The problem basically is that you don’t get the big flows on the mainstem anymore and your tributaries are uncontrolled. Some of the tributaries, especially below the dam, drain an area of very rotten granite that produces a tremendous amount of sand. The only way you can eliminate that sand problem is to mobilize the gravels. But here lies the conundrum: the dam also eliminates the gravel supply from upstream. If you look at and model the ROD flows, what you see is that critical discharge. Now with that discharge that mobilizes the gravels what is the basis of the ROD decision? We’ve determined from a couple of site-specific localities. Very good experiments that actually released flows tosee what.would happen and measured them. Unfortunately those are singular locations. If you use that without some basis of extrapolation, you don’t know what the impact is. Our model shows basically that the discharge is between 5-6 thousand CFS, which was identified as the critical discharge. Actually it’s detrimental to many of the reaches. It will transport a lot more gravel than is available. That’s problem number 1. All right. The mitigation to running out of gravel or not having it from upstream is you augment; you add gravel. The ROD has some estimates. Now those estimates are pretty large. As you’re aware I’m. sure the water years were broken up into 5 classes that went from critically dry to extremely wet and so the amount of augmented material varies correspondingly, zero in an extremely dry year and up to about 67 thousand tons or yards, cubic yards, in an extremely wet year. Now there are 3 things to ponder here. Let’s just take the extreme. It’s easier to talk about extremes. 67 thousand cubic yards. That’s about 6,700 ten-yard dump trucks. That’s about 20 truckloads per day for 365 days a year. That’s a lot of gravel. There are some issues. Where do you find it? How do you get it there? The other problem is, there has been some augmentation tried below Lewiston Dam. It hasn’t worked very well. Now if there had been a critical analysis done on it, it would have been pretty easy to see why. On the riffles, a discharge of about 6 thousand CFS will mobilize the gravels, but it mobilizes them into the pools. The ROD flows will not, with the current geometry, mobilize those gravels out of the pools. The only way you will Page 19 of 46 move this material downstream is to allow the pools to fill in, which destroys habitat. There’s a temporal issue here because we don’t have the really large flows that used to occur. The upper limit to the ROD flows will not achieve that goal. That could have been determined beforehand if somebody had modeled it. Finally, in terms of what an analysis should have shown and another example of it, is that it has accepted that flows alone will not recover or restore the Trinity. There are something in the order of 44 sites that have been identified as sites for mechanical disturbance, removal of vegetation and development of more complexity in what has become a very simplified river since the dam went in. Well, what has happened at some experimental areas is it shows that it won’t happen. You create a flow expansion zone and what happens? Sediment deposits out and just reforms the process. So what we really believe is some good science was done. It was local, but it’s not a prescription for restoration of this river system. We need to go beyond that. We need to look at it as an integrated system. I believe this has worked, and is where we’re headed. Thank you. Carlson: Let me try and summarize to make sure I understand what’s going on here. What you’re saying is that this proposal is not only very expensive, and nobody’s even mentioned dollars yet, but the problem is that it really won’t work, and on the Trinity itself- in some significant sections of the river, you believe - will actually make things worse for the target species. Am I summarizing things correctly? Harvey: You have a very accurate summary of what I said. Carlson: Thank you. Beecham: May I ask a question also? You used the extreme of the highest flow and explained in a sense how they may not work as planned. Are the moderate flows more useful as in terms of mobilizing gravel to appropriate areas, not necessarily dumping them in pools where it’s not so useful? Harvey: The problem with gravel transport is that it does require a minimum amount of flow to actually mobilize. You have a threshold condition and all of the flows prescriptions in the ROD do actually reach a point where they will mobilize gravels. The question is - how much gravel? So if you’re in a gravel-limited, supply-limited situation, it’s just a question of you move a small amount under lower flow regime and you’ll just move more under a higher flow regime, and you don’t have the balance. The habitat we’re dealing with is dependent on both mobilization and the redeposition and storage in the correct areas off the gravels. .Page 20 of 46 Beecham: Would it be possible to add gravel at the head of the alluvial reaches of the river, to at least put gravel in those locations appropriately? Harvey: Yes it would, but there’s always a problem with adding gravels. There’s a temporal issue. Even in a natural river, an individual gravel particle only moves a very small distance during a flood flow. So yes, you can do it, but y~)u’re going to have to wait quite a while to get the desired achievement. It’s a nice idea. You just put gravel into the river and you let the river distribute it. It will do it eventually, but it won’t do it in the short term. Fer.quson: Is that over months, or over years? Harvey: Over many years, because you assume they’re only going to get one flood per year on that system. So if you only have one flood per year, an individual particle of gravel only goes a relatively short distance. Fe__~guson: So what’s a reasonable number of years to conduct a good gravel experiment? 1? 5? Harvey: You’re going to have to look at 10 years or beyond. Fe__~guson: Thanks. Carlson: Commissioner Bechtel? Bechtel: In the background material we have, there’s also talk about problems that might arise if there was reduction to the flow to the Sacramento River watershed. I’m not sure if I heard you talk about that. Did you also consider and look at currently what’s happening there, and what would happen if in fact we reduced the flow - or actually increase or return the flow to the Trinity? Harvey: Nobody has looked at it from the point of view of the physical system. It has been looked at with respect to the biological system and I would defer that to Paul Bratovich who’s the next speaker. Bechtel: Thank you. Bratovich: Good evening. Thank you for your time tonight. My name’s Paul Bratovich. I am also an Independent Fisheries Biologist. I’ve been acting as a Fisheries Biologist for 20 years in California, and over the course of my experience, I’ve been involved in numerous restoration projects. The restoration projects have ranged from trout restoration enhancement projects in the High Sierra to restoration on our coastal Page 21 of 46 streams and rivers that flow directly into the Pacific to very large rivers in the Central Valley. Most recently I was the Lead Scientist and Principal Author in the development of a habitat restoration management and enhancement plan for the Lower American River, one of largest tributaries to the Sacramento Rivers. That plan is complete and it is being implemented. I am ongoing as the Lead Scientist and Principal Author for an implementation plan for the ~estoration of the Lower Yuba River just upstream to the American on the Sacramento, additionally one of the largest tributariesto the Sacramento River. I’ve been retained by NCPA for the past several years as Jeff mentioned. I reviewed and provided comment on the EIS/EIR. I’ve also filed declarations associated with the litigation. I would like to briefly discuss with YoU and raise to your attention 3 major issues, from a fisheries perspective, associated with the implementation of the proposed restoration plan for the Trinity River. Those 3 major issues are: the uncertainty associated with implementation of the plan as proposed, the current status of the fishery resources on the Trinity, and the effects to important fish resources including threatening endangered species on the Sacramento River and the Delta. Regarding the uncertainty associated with the restoration plan as proposed on the Trinity, Dr. Harvey did a very good job describing much of the uncertainty associated with the physical geomorphology aspects. But there’s perhaps even greater uncertainty associated with biological response, potential response to the implementation of the proposed restoration plan. As Mike mentioned, there’s been a lot of science done on the Trinity. There’s been a lot of fishery studies also done on the Trinity River, over 20 years worth of studies. Those studies have ranged from instream flow incremental methodology studies, microhabitat suitability studies - in other words, examining what depths, what velocities, what substrate, what kind of cover the small juvenile rearing fish use as well as what kind of conditions the adult fish spawn in. But it’s only been since approximately 1997 that we were able to unearth first reference to this theoretical construct regarding healthy alluvial river attributes. The greatest uncertainty of all from a biologic perspective is whether or not fish will actually respond to what is theoretically construed now as a healthy alluvial river attribute. Throughout my experience and my lead authorship and principal scientist in development of restoration plans, there has been one common theme and that common theme has been a very strong emphasis on monitoring and evaluation. Restoration projects are a very important element of good stewardship of our natural resources Page 22 of 46 and they remain a very important element on the Trinity River. However the responsible approach to restoration on the Trinity River is to construct a program that. provides the incremental science-based approach towards restoration. In other words, there’s been no evidence to indicate on the Trinity River that undergoing this restoration process, this mechanical intervention associated with the flow regime intended to maintain the natural alluvial attributes, actually will result in any response in the fish populations. We believe it is imperative to embark upon a process of a pilot demonstration projects with a very rigorous experimental design, in order to determine whether indeed fish actually will utilize these areas, or whether there will be any observable response whatsoever. The second major point is the status of the fish populations on the Trinity River. There are 4 runs of anadromous salmonids on the Trinity River: Fall Run Chinook Salmons, Spring Run Chinook Salmon, Coho Salmon and Steelhead. There have been many anecdotal reports about the current status of these fish populations and that they are potentially in peril of being extirpated and there’s absolutely no evidence to indicate that either. In fact, since 1977, the Hoopa Tribe and the California Department of Fish and Game have been conducting estimates of the annual number of fish returning to the Trinity River. The Trinity River Flow Evaluation Study, which was an underpinning document for the EIS/EIR and eventually the ROD, indicates that the best information available suggests that the Chinook Salmon populations averaged approximately 18, 800 fish per year before Lewiston Dam was constructed. That included both Fall Run and Spring Run Chinook Salmon populations. The EiS/EIR and the ROD terminated their scientific evaluation in approximately in 1995 regarding spawning stock escapement estimates. We followed the estimation procedure conducted by the California Department of Fish and Game and the Hoopa Valley Tribe to go ahead and analyze the last 6 years. Indeed the last 6 years average return of Fall Run population is over 27,000 fish and for Spring Run it’s over 11,000 fish Together, we have approximately over 39,000 fish - where the pre-dam estimate was averaging approximately 18,800 fish. Relative to "prior to construction", these fish are not depressed on their returns. In addition, there were no estimates for Coho Salmon or Steelhead below Lewiston Dam prior to construction of the dam, for one very good reason: Coho Salmon and Steelhead are small-tributary spawning fish. Historicallyl they evolved over the millennia to migrate up stream into the watershed, to spawn in small-tributary feeder streams where they remain for a year or more, rearing in cool headwater pools and utilizing the Page 23.of 46 mainstem primarily as an out-migrant corridor. Nonetheless, estimates were made of the total Coho Salmon and Steelhead populations Lewiston Dam prior to construction of the dam. Those estimates were approximately 5,000 Coho and 10,000 Steelhead annually. That’s the information from the last6 years. Estimatesin the Trinity River below Lewiston Dam are about 12,000 Coho and over 5,500 Steelhead. I merely want to impress upon you that anecdotal reports of these fish being in imminent peril of extermination are not based on quantitative estimates. It has to be recognized, however, that these estimates are in river- spawning fish. There is difficulty in segregating fish that originally came from the hatchery or from hatchery parental stock and ended up spawning in the river versus natural fish - you’ll hear about "natural fish." There’s no reliable estimation procedure to make that differentiation at this time, so it is a very complex and a very uncertain science, but nonetheless, these fish are not in imminent danger of peril of being extirpation. The third major concern - and a very, very serious concern from an environmental perspective - are the unstated, unaddressed, and inadequately mitigated potential significant adverse impacts to the Sacramento Rivers and the Delta fish resources. In fact, we have ¯ identified potentially significant impacts to all 4 of the salmon runs on the Sacramento River: Fall Run Chinook Salmon, Late Fall Run Chinook Salmon, Spring Run Chinook Salmon and the endangered Winter Run Chinook Salmon, The approach in the ROD is one simple statement: it says that these impacts will be avoided - mitigated - by reoperating the entire Central Valley Project and State Water Project Integrated System operations in California. No feasibility analysis was done to determine whether that was even possible to do. In fact one of my specialties is biological interpretation of hydrologic simulations for CVP operations. It is a much stronger perspective - and it is the Bureau or Reclamation’s - so the Department of Interior’s major concern regarding all elements of the Central Valley Project is to maintain operational flexibility for all beneficial uses. The reduced operational flexibility associated with implementation of these flows and reduced water flows into the Sacramento River associated with the currently proposed restoration plan is most likely to continue to have significant impacts to our important anadromous resources - including our endangered and threatened resources on the Sacramento River. Moreover, the NEPA/CEQA documents failed to identify potentially significant impacts to our threatened fishery resources in the Delta. Interestingly, the Fish and Wildlife Service, in their own biological opinion, did recognize that implementation of the proposed restoration plan would adversely affect Delta Smelt and Split Tail - the 2 fish resources Page 24 of 46 addressed by Delta inflows, or in this instance,.reduced Delta inflows due to implementation. And again, the mitigation proposed to avoid those impacts was simply to reoperate the Central Valley Project and the Integrated State Water Project of California with no assessment of whether indeed that was a responsible or even possible mitigation. So those are the 3 major points. The 3 major issues that we have regarding biologic aspects associated with this proposed implementation of the restoration plan as it.exists today - and what we ask for on the Trinity- is an incrementally based science approach, some pilot demonstration projects with rigorous statistically-oriented experimental designs to determine whether or not this is an effective approach, and a full assessment as to whether these impacts to our endangered and threatened resources on the Sacramento River and Delta indeed can be avoided. Carlson: Commissioner Ferguson? ~uson: I understand - from the text here that came to us - the Delta Smelt trade-off. But did I hear you correctly, that there was a count of salmon and other fish on the Sacramento side that are affected by this? Bratovich: It was, no, not exactly. When I was talking about fish numbers that was relative to the Trinity. The point being they are not in imminent peril. On the Sacramento River, it’s primarily due to reduced water availability from the Integrated Operations in Shasta Reservoir, and part of that is the increased water temperatures that would be expected to occur in the Sacramento River. I utilized the Department of Interior which includes Fish and Wildlife Service and U.S. Bureau of Reclamation and the Fish and Game Developed Water Temperature Mortality Model, and applied it to the Sacramento River associated with the hydrologic modeling with implementation of this Trinity decision, and found these potentially significant impacts. Carlson: Let me be sure I understand this part because this is pretty important. What you’re saying is that the Department of Interior says they’re going to somehow change the operations of the remainder of the Central Valley Project to protect the salmon in the Sacramento and fish in the Delta - but they haven’t fully modeled and said exactly how this will work. and how they’ll maintain the temperature and the flows and all of that? There’s no detail there, they just say they’re going to do it? Bratovich: That’s absolutely correct. The only thing I would add to your statement - you said they haven’t fully modeled - I think the answer is they have not modeled. They have not addressed the feasibility of avoiding these impacts. Page 25 of 46 Fe..E~.guson" When in the process did we raise these issues? Did these specific issues arise in ’94? Did they arise in ’98? Bratovich: Again, my involvement and identification of these issues was initiated in the review of the EIS/EIR associated with this, which the ROD was subsequently was based upon. I want to add one other thing. Not only would the Sacramento be affected, but when the statement of mitigation is so nebulous as to not identify what would be done and demonstrating that it would be effective. It didn’t even begin to address potential indirect effects, for example, when we have reduced water availability. Or cold water out of Shasta Reservoir. Or we have Delta water quality demands. There’s a trade-off between utilizing Folsom Reservoir on the American River and Shasta Reservoir on the Sacramento River. The potential indirect effects of changing operations on the American River were not even addressed. Phip_ps: Excuse me, let me answer Commissioner Ferguson,s questions the best I can. In terms of the "when did we raise theissues about the impacts on the Central Valley?" That was raised to the best of my recollection and it kinds of blends in all those years, but we raised it as part of the Draft EIS back in 1999, we raised the.questions along with SMUD saying, you’ve got to address that. It wasn’t at the beginning, because we’re still formulating alternatives. So it’s part of the Draft EIS. Carlson: We have a question from Commissioner Rosenbaum. Rosenbaum: I must have misunderstood something. As I understand the issue, the main purpose is to ensure there will be more fish in the river, and the tribes based on decades of observation seemed to feel there are fewer fish. You stated that there’s data suggesting there’s more fish. How do I explain this inconsistency? Bratovich: I can’t comment on what other parties assert. I looked at the data from 1977 to 2001 and did a statistical analysis. I did a linear regression and a nonlinear regression analysis on those trends~ What I can tell you is that the data speaks for itself. Now one part of the confusion is this issue of "native fish." I did mention that it’s extremely difficult to segregate in-river fish spawning - that originally were from hatchery - versus "native fish" To the best of my knowledge no one has a good idea of how to do that, and there are no reliable estimates on doing that. One of the issues that you will continue to hear is that "our native fish are in decline." To the best of my knowledge, I believe that to be primarily an emotional statement. I am unaware of data that supports that conclusion at this time. Page 26 of 46 Rosenbaum: I assume you can’t tell one fish from the other very conveniently, and the tribal members will be happy with the hatchery- spawned fish just as well as the native fish. You’re suggesting that they’re all wrong somehow in what they say. I assume they must have a set of experts who would corroborate their views - and you’re saying none of that is valid? Bratovich: Essentially, that is what I’m saying. What I’m saying is the underlying quantitative basis to support statements such as that we have been unable to unearth - and I’ve looked very hard. It is an inexact estimation. Much of the estimates come from our carcass counts, simple markery capture, experimentation of carcasses, dead spawned fish, red counts, surveys of the fish nest, weir trapping, upstream migration. trapping, flows influence - the ability with that, so I don’t wish to overstate my conclusion. But by the same token, I’m unwilling to accept unsubstantiated anecdotal reports. Rosenbaum: Thank you. Carlson: While I have you up here, as I recall, there was a significant augmentation of the flows several years ago. I’ve forgotten how many years ago, but quite a while ago. Has there been any measurable impact of that initial flow augmentation? Bratovich: That has not been determined. One of the important issues associated with fish population response is there are potentially numerous factors that effect populations in returning numbers of fish. Those factors range from upstream watershed conditions. Mike talked about sediment infusion, temperatures, predation, habitat availability, hatchery versus in- river spawning and, not insignificantly, out-of-basin or ocean conditions. So to do a simple relationship between flow regimes that have occurred - and returningfish populations 2, 3 and 4 years later- also doesn’t usually take into account the suite of variables that may indeed be influencing those returns. Of course, one major element I didn’t mention was harvest; it is widely recognized that one of the issues of concern is that native populations or depressed populations in a mixed stock fishery are proportionally harder- hit due to harvest, because of the proportional distribution of the numbers taken in a mixed fishery. There would be some concern associated what fish are being harvested - how many of those are native fish, and are they proportionately more subject to population depression than the other runs that are in greater numbers in the returning numbers of fish. However, we also did do a comparison of the average run sizes from 1996 to 2001, because - again - the EIS and the subsequent ROD terminated Page 27 of 46 their evaluation in the ’95 return. In looking at the 1996 to 2001 ¯ comparison of the averages, we found that only the Spring Run Chinook Salmon population showed a statistically significant difference in the average for the period prior to 1996 and after 1996. So that may be somewhat associated with your flow issue. For Fall Run and Coho, we found higher numbers of fish, but not significant than previously. For Steelhead, we found lower numbers, but not statistically significantly lower numbers. And for Spring Run, we showed for last 5 years populations being significantly but weakly higher than previous. Carlson__~: Any more questions? Commissioner Bechtel? Bechtel: Paul, in your judgment - and perhaps some of your colleagues’ - do you find the current environment (I use that term generally) on the Trinity and the Sacramento a healthy, thriving environment, fish-wise? Bratovich: Well, I spoke at some length, so I won’t repeat that. It is unknown what the true native contribution to the annual returning run sizes are on the Trinity. I don’t want anybody to misinterpret what I’m saying in that regard. A similar problem exists through the Central Valley. The Sacramento River, the American River, the Feather River, the Yuba River and some of the smaller tributaries. Part of the problem is that management practices over the past several decades have not included a rigorous evaluation of the hatchery contribution to the total returning runs of Chinook Salmon. So in order to say our native unadulterated fish is doing well - no one can answer that. When we look at total returns, our returns have increased over the past several years - even to the point that, in the Central Valley, they’ve increased the fishing limit on the Feather and the American Rivers because of the high anticipated returns, which have been a trend in the past few years. So total fish-wise, it’s a pretty good time to be a fish. There’s a lot of positive environmental things going on throughout the Central Valley, throughout the Coast and on the Trinity. We’re merely suggesting that there’s an additional element of monitoring, evaluation, demonstration and rigor - prior to irreversible commitment of resources. Carlson: Let me ask a follow up question to that. These experiments you’re talking about, which are a very interesting and powerful concept. If you really don’t know what’s going to happen, let’s start small, How many years would these take? Are we talking about 4-5 years? Are we talking about decades? What are we talking about? Bratovich: There are 2 major distinctions. As Mike mentioned, to do a good evaluation of a physical geomorphologic change, it could take a decade or more. To look at total population returns associated with Page 28 of 46~ alternative flow regimes also can take a decade or more. Primarily, most of the fish return is age-3 fish. When you have an action, it really isn’t until 3 years later that you really have an opportunity to determine - or hope to determine - whether there’s a response to that change in in-stream conditions. We also have a highly variable flow regimes in these rivers, including the Trinity River. Merely because there is a proposal for certain flows to occur- flows other than those often occur. There are storms. There are precipitations. There are run-off events. There’s variable hydrologic and climatologic conditions that results in variable flows. Given the inherent variability in the conditions that fish are exposed to during their spawning and early rearing phase, and in the extreme variability in ocean conditions (out-of-basin) and other watershed conditions that for a river-wide population response-wide evaluation program, it easily can take over a decade. Now, however, what I’m referring to on the incremental science-based approach is this theoretical construct of a healthy, alluvial river or stream. What does that mean? Jeff mentioned that I was retained for and participated in a couple of the workshops, the evaluation workshops. Recommendations for near term implementation as well as more of a long-term monitoring and evaluation program development -which again as Jeff mentioned - did not come to fruition in the publication of any report unfortunately, because the discussion at that workshop focused on the need for both river-wide and site specific monitoring and evaluation. Although the river-wide population response could take a decade or more, there are things that could be done immediately. A pilot demonstration project could be implemented associated with site specific restoration. For example, the underlying concept of the healthy alluvial stream has roughly 13 attributes that were identified, some of the them sort of global in nature. You know, a clean stream is a good stream, and some other things I don’t mean to denigrate whatsoever, because they’re fairly accepted considerations. However, the other premise is that with the regimented flow regimes that occur and the establishment of repairing vegetation, the act of sediment traps that create these berms, we have a channelized channel now. Not one that is sinuous and has a lot of complexity and diversity, but more straight in many sections because of the invasion of repairing vegetation associated with both the interactions of the sediment and the flow. The underlying premise is: what they call alternating point bar sequences are good, that a healthy alluvial stream is comprised of alternating point bar sequences, that these point bars provide hydraulic complexity and diversity, and that, if you build it, they will come. Well, why not include some demonstrations and pilot projects that include mechanical intervention, that construct some alternating point bar sequences, that Page 29 of 46 establish controls in like segments of the stream. As Mike mentioned there are at least 9. You can have a demonstration project, a control area and you can design a monitoring and evaluation project to determine are there more fish in these areas than the unaltered areas or not. The flows themselves are being proposed to maintain these kinds of areas, not necessarily construct them. As Mike mentioned, there are at least 44 sites that will require mechanical intervention- bulldozers, according to this proposed .implementation plan! Why not try to see if alternating point bar sequences result in higher densities of juvenile salmonids? Carlson: Bern, go ahead. Beecham: My understanding was, in the stipulation last year, that it was generally anticipated that the supplemental EIS would be complete within a year. Whether that was accurate at that time, I don’t know, but now the Department of Interior is indicating that it will be another 1 to 2 to 3 years to complete the supplemental. Is that inconsistent with what you’re talking about, or is their plan to do these kinds of issues? Bratovich: My understanding is that the supplemental EIS is required to address the issues, some of which I pointed out in filing of my declaration is a failure to identify potentially significant impacts on the Sacramento River and the Delta, and failure to identify feasible and implementable mitigation. Parts of the other elements I understand are not proposed necessarily to develop pilot or demonstration projects; it is to address shortcomings in the environmental documentation, as it currently exists. So I personally have no knowledge that there is any intent to do any pilot or demonstration projects and evaluate them. In fact, I believe it is quite the opposite. I believe they’re merely trying to address shortcomings in the existing environmental documentation. Beecham: So the stipulation to which all parties agreed was not providing for what you suggest tonight? Bratovich: To my knowledge, no. Jeff, do you have any other additional comment? Phipps: That’s my understanding. No. Carlson: Any more questions? Is that the last of the NCPA presentations? I do have one question, a procedural one. In terms of the litigation and the court case, are we doing in 2 hours what you spent weeks doing before the Judge or in the hundreds of pages that he read? Is that basically what’s happening here? So there has been very lengthy hearings before this Judge where you people testified and provided documents? Page 30 of 46 PhiDj3s: Unfortunately, no one here was party to those discussions although Paul Bratovich was one of the declarants, but it wasn’t, they didn’t have a give and take. It was more through declarations of positions, so they didn’t have the kind of discussion we are having now - although I’m sure the Judge asked questions. That was usually more questions-of- the-lawyers kind of thing. Then again, I don’t know, because I wasn’t part of that proceeding on that. Carlson: John? Ulrich: I would recommend we get input from others that are here, and then we can come back to questions or cover other areas that were not covered so far this evening. Carlson" Let’s go ahead. We have one person that wants to make a presentation and since there’s only one, Spreck Rosekrans, why don’t you come up and tell us why you disagree - and I’m not worrying about a 3- minute limit. Rosekrans: You didn’t warn NCPA on their 3-minute limit so I was hoping I might .... Carlson: No, no. If there were 50 people lined up behind you, I’d have a problem, but go ahead, please. Rosekrans: Let me first say that I’ve been tangentially involved in the Trinity for about 10 years, and only intimately really involved for the past couple of years since the ROD came out - and especially since the Hoopa Valley Tribe asked me to assist them with their litigation. I’m a technical person by nature. I got involved as an expert witness in other cases in the same Judge’s courtroom in Fresno. I especially followed the water and power operations on the Central Valley side. I’m not a Biologist, although I sort of follow biology in the Central Valley a little bit. I’m not capable of commenting on the biology and geomorphological issues in the Trinity Basin. I would have tried a little harder to get Tom Stokely or Mike Worcutt or maybe Scott McBain down here, if I’d understood that to be the breadth of the discussion tonight. I will, however, first respond a little bit to the things I’ve just heard - especially by Paul Bratovich. And I will try to wind up by answering Mr. Ulrich’s question - you know, why not just let this process run its due course? I appreciate that Paul is concerned about the environment in the Central Valley. The Winter Run, the Spring Run, Delta Smelt- they’re all endangered. But as for NCPA, had they shown that they cared about these fisheries in the Central Valley in other forums? Paul mentioned he Page 31 of 46 was principal author of a restoration plan on the American River that’s being implemented. A couple months ago, Leo Winternitz, who is the - I don’t know his exact title - Chair of the American River Water Forum (voice off microphone) Executive Director, th’ank you, came to me and said, "Spreck, we can’t get the water we need for our plan. It’s all being accounted for under the B2 Ruling" - which is another case I’ll get to in a minute - "as Westlands has gotten their way, we can’t get the water we need. We do nothing for fish and they count it as part of the environment’s limited pot of water." So I would disagree that his plan is being implemented on the American River. Furthermore, as far as the cold water needs of Winter Run and Spring Run - and they do need cold water. Their high elevation habitat has been cut off by the dams. Sure, there will be some impact when the Trinity water goes away. But Congress dedicated 800,000 acre-feet of water per year for the primary purpose of restoring anadromous fisheries in the Central Valley and the Bay-Delta. Westlands is litigating to take THAT water away. Where is NCPA? If you care so much about the Winter Run and the Spring Run, why don’t you get involved in that and do something, if that’s your issue? Or is it really power and the dollars associated with the power that’s the issue? Finally, the Delta Smelt issue, which I believe the Judge has commented on. The EIS did not account for changes in X2 that might occur as a result - I’m sorry, I’m speaking in code here. X2 is basically a measurement of Delta outflow that’s used in the spring. There are certain requirements. The biological opinion for the Trinity decision says that their concern - if we put more water down the Trinity and there’s more salt-water intrusion during spring months - we might have to re-consult. Now they didn’t say they’d do anything. Said they’d think about it. Well, in the past, when more Delta Smelt-than is allowed for under the so-called Red Light Limit in the biological opinion for the Central Valley Project, operations gets killed. Basically nothing happens, or the water users"get made whole" - water is bought and given to them. So the impacts recently of these endangered species action on Delta Smelt - at least to the water users - have been zero. They’ve been made whole. They’ve been bought out. There’s been no impact. So the impacts on the Bay-Delta on the Central Valley side are entirely overstated. Moreover, I note, the letter which I signed along with 13 other representatives of fishing groups and environmental groups, most of those groups do their work in the Central Valley in the Bay-Delta. They say we support the Trinity plan. Fish and Game, Fish and Wildlife and the Natural Marine Fishery Service supports the Trinity plan even though they’ve got conflicts in the Central Valley in the Bay-Delta system. I’ll note finally that Page 32 of 46 we’re talking here about moving about 25% of the Trinity’s flow - and you’re right, it’s at Lewiston, not downstream - but 25% of the Trinity’s flow at Lewiston under this plan be allowed to go down the river rather than diverted through those power houses. Looked this up on my computer the other day and I forget the number, but it’s about 2-3% of Bay-Delta outflow, but it’s a big piece of the Trinity system, water wise. It’s a small piece of the Bay-Delta system. And yes, I believe the Central Valley Project and the State Water Project can re-operate to meet the needs as best they can of species in the Central Valley and the Bay-Delta. Let me get back to the comments that I sort of prepared for tonight, I guess, Mr. Carlson. I wasn’t able to come to the City Council’s August 5th meeting, but I watched the videotape twice. You said you thought it was a complex issue and a close call, and not such a bad way to spend money on environmental concerns, at least compared to some other things you’ve seen. I don’t want to mischaracterize what you said, but I wanted to focus on what questions this Commission might really want to think about in terms of its intention to make a recommendation to the City Council. First of all, we did hear some doubt, or maybe more than doubt, cast on the validity of the Trinity River plan and I wish I could speak to that better. The so-called SMUD planwould restore the river channel with bulldozers. I don’t think that’s a viable solution. I would ask other experts, maybe someone who doesn’t work for NCPA, who’s paycheck doesn’t come from the NCPA, if the SMUD plan is viable, and ask them also for their comment on the plan that is in place. Is the science perfect? I’m sure it’s not perfect, but is it really a plan that is likely to be good for the Trinity River? Most folks I’ve talked to have said that it is. The only folks that I’ve talked to that said it isn’t are those who work for the NCPA, for SMUD and for Westlands. I have a handout that I’ll pass out that includes just a little brochure put together by McBain and Trust. It sort of describes the plan in some detail. When I was here at the City Council several months ago, I actually handed a copy of the EIS for the City Council to preview on CD and that was kind of a joke. But this is sort of a short, friendly brochure that you might find useful. I would also like to get back to something I know a little more about, and that’s power system impacts. We made a presentation in Santa Clara. Santa Clara came forth with some of the same arguments, but it was all by the Utility guy. He didn’t have the NCPA up there to help him. He made some of the same environmental arguments. He didn’t disagree with the Page 33 of 46 impacts that are associated with EIS in terms of the dollars. I think I saw Mr. Ulrich say something at the City Council meeting that Palo Alto’s share would be $5.7 million in hydropower impacts over all.the users. Palo Alto’s - my back of the envelope estimate - would be just a little over 10% of that. It would be interesting to know where a higher estimate comes from. I actually think that there are reasons to think that those impacts would be lower. In the packet, I’ll give you a letter that I wrote to the Bureau of Reclamation that basically says, you know there’s a mismatch between how flows, .how the seasons are made in the ROD which is based on a 90% hydrology, I think, on April Ist. So you take a conservative look at how wet it is on April 1st - not an average look - and you end up allocating less water in real life than you would when you did the modeling studies that led to the impacts to power and water supply that are in the EIS. So for that reason and maybe for some others, those impacts are maybe a little overestimated. I think they are generally in the ballpark. The NCPA folks tonight did not say anything about power system reliability. If you look at their declarations - and I believe it’s Mr. Dame and maybe a couple others and I get mixed up between the SMUD guys and the NCPA guys - they talk about people or they talk about severe power system outages that could result by not having this power available. I’ll note the EIS estimates the impact is 7 megawatts. That’s a pretty small number. That’s not based on any reduction in capacity at the Spring Creek and Carr power plant that go from the Trinity River down to the Sacramento River, but based on a 70 year hydrologic simulation through wet years and dry years that some of the reservoirs would have a little bit less hydraulic head. I’ll note the Federal Government has exception criteria in place that says if there’s an outage, we’ll do whatever we can at our hydro power plants to make sure or if there’s a threat of an outage, we’ll do whatever we can at our hydro power plants to make sure that this outage doesn’t occur. They have violated the environmental rules below Glen Canyon Dam to do this. The flows go up in a matter of minutes if there’s an outage in the system, or maybe it’s even seconds, and that’s been in .the case and it’s likely to be the case here. I haven’t heard anybody talk about outages tonight, but that’s a big piece of the case in the Federal Court that’s been raised again and again. Of course, with the small number of megawatts, there has been ample time for power users to go out and figure out how to make up whatever megawatts might be lost. So we’re not hearing about that tonight. That is a big part of what’s been said in Court. So I don’t know where the mismatch is. Why NCPA has not brought that up tonight? Maybe they’ll want to respond. I did talk about a little bit already about the environmental impacts in the Central Valley and the Bay-Delta. So, again, just anybody who’s an Page 34 of 46 advocate for fisheries in the Central Valley and the Bay-Delta supports the Trinity plan. The only ones who don’t and supposedly care about these fisheries are the ones who have a financial incentive in that water still coming through those power plants and into the Central Valley. Finally, I guess, the fundamental question: Is pursuit of this litigation a reflection of really going after due process and good science? Or is it an effort just to limit impact to the CVP power users? I contend that it’s the latter. Thanks. Carlson: Questions? Mr. Rosenbaum? Rosenbaum: Yes, you said you were going to tell us why you didn’t think we should just let the process continue through its normal course. Rosekrans: Well, June 28, I sent a letter to 100 City Councilmen signed by everybody saying, "Why don’t you guys withdraw from the litigation?" I note, first of all, the City Council in Palo Alto and Santa Clara and a lot of other cities didn’t even know about this litigation. So part of it was to say, "Gee, this litigation is going on. Are you sure it’s something you want to support?" I wish I had begun that process last January. What happened was that the tribe asked for more water this year. The Judge heard some arguments, and then heard from the Federal Government that the EIS is going to take longer than they first promised. The Judge said, "Hey we’ve got to do something here, so we’re going to move up the hearing schedule." As a result of that, I encouraged folks to write to Palo Alto to say, "Are you sure you want to be part of this?" Is this a case of, gee let’s just go before an impartial jury of our peers and figure out whether Colonel Mustard did it with a candlestick in the conservatory? I contend that it’s not. This is a courtroom in Fresno where Westlands Water District files, in all these cases, the first day possible. They tried to file this case before the ROD was signed. The Judge sent them away. But this is their home-court Judge, their home-court referee. The B2 case I referred to is now going to the Appeals Court, and we got some good rulings out of there. But we think we generally were not treated fairly and we’ll see what happens at the Appeals level. Again, if the real reason you’re suing is based on good science and you don’t think the right thing is being done - you don’t think people have been listened to - then pursuing litigation is the right thing to do. Page 35 of 46 If the other reason is that you don’t want power bills to go up in Palo Alto; you don’t want to have to pay more than $19/megawatt-hour for power like everybody else in the state and you’re really part of an effort to slow down the process to do anything to keep it from going forward - Westlands admits their strategy over everything is litigate, litigate, litigate just to slow everything down, if not, to stop it all together- if that’s your strategy, then I say, you un-pursue it. You ought to work with government totry to make the best of this plan. It’s generally a plan - in spite of what you. heard tonight - that’s gotten good reviews from scientists that I’ve heard. I’m sorry I can’t speak more to that myself. But that’s why you ought to withdraw, because I don’t believe the NCPA is really concerned about the science. I believe the Biologists that work for them, but at a political level, they use that as a smokescreen because they’re concerned about the dollars. Rosenbaum: Let me try to pursue this a little. Clearly, you spent an enormous time on this issue. It’s our understanding that whether or not the Palo Alto City Council were to decide to withdraw or not, this litigation is going to continue forward. Does Palo Alto withdrawing have only symbolic value? Why are you doing this? Rosekrans: My boss asked me that question. [Laughter]. At the time we wrote the letter, we had hoped that Santa Clara and Palo Alto would both withdraw. That looks like maybe half the megawatts at NCPA. I actually don’t know the answer to that question. When I asked NCPA how they make decisions, I did not hear. In fact, I made several phone calls over the last winter and spring to NCPA and never got a call back from anybody. We got a fax of some bylaws and that was it after 5.or 6 phone calls. Anyway, originally, yes we wanted Palo Alto and Santa Clara, two progressive cities with lots of megawatts of federal hydropower, to sway the NCPA into withdrawing. We also have talked to folks in Redding and Roseville that are a little less enthusiastic about it from what I know. Port of Oakland has got a small amount also. We talked to folks in Oakland and we also talked to SMUD and the SMUD Board we think was on the verge of withdrawing. They decided to stay in it through the August 20th hearing. Right now, we’re waiting for the Judge to rule. The Judge may make a ruling that essentially makes any action on the current litigation irrelevant. He may not. We don’t really know what he’ll do. But I’m guessing that Palo Alto will have something to say down the line. hope it’s not merely symbolic, but if it is, then so be it. But I’m hoping that I can go back to Santa Clara and say, "This is the way Palo Alto saw it", because the first thing they asked was, "Is anybody else withdrawing?". We’ll be able to get a positive statement out of Oakland after talking with some of their City Council Members. Healdsburg is a small piece. You Page 36 of 46 know, there’s only so many hours in the day and there’s a lot of folks to chase around, but ultimately, no, it’s more than symbolic - and I certainly wouldn’t be here if it were merely symbolic. Rosenbaum: Westlands is not going to withdraw, so the litigation will proceed. Rosekrans: That’s correct. If your view is that courts have impartial hearings - it doesn’t really matter who’s suing, it’s just the merits of the case - then Westlands will raise all those issues and you don’t have to waste money on lawyers. On the other hand, if youviewed that somehow the results of legal proceedings depend on whether even the so-called progressive cities, like Palo Alto, are involved, then what you do may make a difference. Rosenbaum: You’re suggesting that there’s a single Judge who is going to make the eventual decision. Rosekrans: At present, it’s all in his court, so to speak. Rosenbaum: So you’re thinking the Judge might be influenced by whether or not Palo Alto or some other potential litigants withdraw from the case. Rosekrans: I absolutely think that. Yes. Rosenbaum: All right. That would explain your interest. Maybe you can answer this question simply since I don’t know the answer. The Judge is going to make a decision? What is the decision that’s going to be made based on the August 20th hearing and how does that effect what happens thereafter? Rosekrans: Well, the most obvious decision is he could rule for the Tribe and the Federal Government and say, "Go do the ROD." Rosenbaum: He can say that the objections to the ROD are not valid. Rosekrans: He could, and I guess, I’ll admit I don’t think he’s going to do that. He could, on the other hand, say, "You need to redo these parts of the EIS, which involve the Delta Smelt," and I believe, some elements of the impacts to power - because remember when this law suit was filed, lights were going out all over the state. There was actually an outage in Fresno the day of the hearing - I don’t know anybody that subscribes to the conspiracy theory so I’m sure it’s just a coincidence. It’s PG&E down there. So right now, those are the Judge’s orders - more EIS or no EIS and go forward. But Courts have a way of going sideways and issuing partial decisions. So we may be back with some sort of more action on Page 37 of 46 this action. Of course, people can appeal or people cannot appeal. I don’t think the legal-action is over. If it was, maybe the NCPA wouldn’t even be here tonight. Rosenbaum: Thank you. Carlson: Any more questions from the Commissioners? That gets down to a discussion about "what should we do?" Unless, John, you want to summarize anything more here? Ulrich: Well, it may not be appropriate at this point. As I mentioned at the beginning, I made a recommendation to you, the same one we’ve had all along. From what I’ve heard this evening, there are very technical and very important issues that need to be continued to be considered, I don’t think it’s incumbent on us here to be able to make that kind of decision on how the water should flow. I believe that the only approach is to continue with the process that we have. We have to look out for the interest of the environment. There is considerable evidence - in listening to what’s brought forward here - that the EIS is deficient and that the ROD’s decision was not appropriate and that we need to continue to try to have the additional research done, so that truly there is a decision that benefits the environment as much as possible. That kind of discussion and decision will be very difficult for us to do here. My simple side says we should continue with what we’re doing. But you’ve got to obviously feel comfortable with that or a different outcome. I’d sure like to provide you with more answers to other questions that you might have. Carlson: Rick, go ahead. Fer.quson: Before we start our discussion, I had a couple of miscellaneous questions. I just wasn’t sure who was going to be the right speaker to direct them to. Ulrich Sure. Ferguson: Pardon me for breaking the sequence here. I’d like to know about the latest skinny on CALFED’s role here. We heard a lot about the Trinity story here and the reallocation from the Central Valley back toward the Trinity. There are much larger water allocation issues being dealt with in the CALFED process that’s alluded to in some of this documentation. Is there another larger process that’s going to determine even larger water allocations in the Central Valley - among farmers and the environment and so forth - that’s occurring in parallel with this? Maybe one of each of you. Page 38 of 46 Ulrich: Excuse me, Jeff, before you talk, could you just identify yourself? And if Spreck or anyone else gets up, if you’d also say that, it’s going to make it much easier to record? ~ My name again is Jeff Phipps. The CALFED process is going through a lot of planning and implementation to address water deliveries and environmental restoration. What’s going to come out of that? We don’t know. So as it effects Trinity, there’s going to be an interaction and they’re going to have to be considered and part of Paul’s concern, as a Biologist, is those total interactions are going to load up and make the flexibility of the Central Valley Project, reduce the flexibility and make it much more difficult to give you everything that you think you’re going to get out of this. And that’s what they need to look at. So CALFED needs to look at this as it integrates Trinity in. So yes, those questions are being addressed in the CALFED level. Carlson: Spreck, go ahead. Rosekrans: Spreck Rosekrans, Environmental Defense. The Trinity issue has been under study obviously far longer than the CALFED program. The CALFED program is centered around the environmental issues in the Central Valley and the Bay-Delta. That’s part of what’s the so-called "problem area" of CALFED. The solution area includes everywhere it gets water from, which includes the Trinityl CALFED is not addressing the biological issues on the Trinity. CALFED understands that’s been addressed elsewhere. But perhaps most importantly, if you look at CALFED’s studies and the 70-year hydrologic studies that involve water deliveries and temperatures for Winter Run and X2 and the primary issues that people work with, CALFED’s studies from the beginning have included scenarios on the Trinity River that are very much like what we see in the ROD. So CALFED has considered these impacts to the Bay- Delta throughout, and that’s always been understood. So the characterizations that I’ve heard later that ,’gee, this would mess up CALFED" - that’s simply not true. Fer.quson: My question is not so much whether this messes up CALFED. But my sense is if CALFED ever goes anywhere - and it has been around for well over a decade in one form or another - a decision on CALFED implemented by the Feds or implemented in California Legislation, might have the effect of trumping someone’s expectation or goal in the current Trinity debate. I’m just trying to get a sense for whether that’s a 1% or 10% chance that it’ll be trumping it, either way - more water or less water. Rosekrans: Actually, CALFED is not quite that old. It’ll be 8 years old on December 15th under that name. Well, the CALFED program began when the principles of the Bay-Delta (inaudible) was signed on December 15, Page 39 of 46 1994. Obviously the issue of the Bay-Delta and the Central Valley environments has been .... Fer,quson: We used to know it as the Peripheral Canal. But the point is, it involves so much more territory and so many other sources of water, that to the extent a decision is made there 1 year from now or 8 years from now, my question is -is that a decision that’s truly big enough and has a risk of trumping the assumptions on Trinity? Rosekrans: Well, I don’t anticipate CALFED having any single big master plan that says water here, dam there, restoration here going forward. CALFED has already come out with a ROD, which has governance principles and programs and sort of set things in process. CALFED may expand the Los Vaqueros Reservoir. It’s got restoration programs. It’s got fish screens. Some of these will go forward. Some will be funded. Some water conservation will be funded. It’s a lot of different pieces. I don’t think anybody thinks there’s going to be a master CALFED decision that’s going to come and would make you think you wishyou hadn’t done something on the Trinity River. I don’t think that’s going to happen. Fe_~F.guson: Thank you.. Carlson: One last question here. From everything I’ve heard, I still haven’t heard that there is any complete Central Valley operational plan that fits with the Trinity Record of Decision - where they’ve written down if we go ahead on the Trinity, this is exactly what we’ll do and this is who loses water and this is who loses power and this is how we’ll run the river. Am I right? Rosekrans: Spreck Rosekrans, Environmental Defense again. Certainly, not all the details have been worked out. But the water modeling using the "PROSIM" (with an "1") model is their attempt to model and characterize where the water would go, how much impact there is to Delta outflow, how much increase flow to Trinity there is, how much less water Westlands might get and even some of the other contractors. That certainly has all been modeled, all been studied. Down the line, policies may change, but that’s been analyzed. Then the "PROSYM" (with a "Y") model took those water values and much of the same thing on the power side. This is the kind of analysis that you’d normally expect in EIS. The California Energy Commission has acknowledged that it’s standard and accepted practice for studies of this kind. So while there are a few more decisions to be made, it’s largely been analyzed. Carlson: Discussion time, I guess, if there are no further questions. Commissioner Bechtel. Page 40 of46 Bechtel: I don’t think I have any questions of the people that have spoken to us and Staff and NCPA and Spreck Rosekrans of the Environmental Defense. They’ve both elucidated - and almost making me hallucinate - over the decision of how one deals with a complex issue like this. This is not the kind of science that I’m familiar with, but I do know that I do support what Spreck and the Hoopa Tribe want to do. That’s important. I do know at the same time, as well, is that we do have a problem. But I believe we’re dealing with that, and that will increase our rates. If you did ask our residents of Palo Alto, they would consider favorably a rate increase, if we have to purchase power from other than what we get from the Trinity. We do make money with our Utilities. We turn a profit. We are better than PG&E rates. All those things are very favorable, so it’s not necessarily a dollar issue. But I’m not sure whether we at the UAC orthe City Council can have really much impact on what the Judge will rule. I looked tonight hoping that he might have made a ruling that would have obviated the need to have a lot of discussion. But at least as of 5 o’clock tonight, there was nothing on Google, unless someone saw something. So I’m going to really defer perhaps to my colleague to my right, Mr: Rosenbaum, who at least as a Commissioner, probably with his experience on the Council, might be ableto frame some course of action for us that would allow us, that would be effective. I think we are a green city. Hopefully, we will be moving more towards a greener city. Byron Sher, our former resident, has already indicated his feelings with us moving. So replacing this power we’re getting from hydro, is not a real hard task. We’ll have to do it. It’s going to cost money. But I don’t know how to deal with the science question. I don’t know how to take one side or the other. That may be more important, certainly, than the power. I believe that’s why NCPA people spent a lot of time looking at the science and putting that before us. I think they made it harder for us to deal with, so I’m prepared to go with whichever ruling comes from the Judge. I’m not sure how I can frame a particular course of action tonight, so I’m going to defer that any course of action from us - any recommendations to City Council - to my colleagues. Carlson: Commissioner Ferguson. Fer.quson: Well, I struggled a little to interpret the meaning of the Council’s motions. My plain-English conclusion is that the Council hit this with relatively little preparation and briefing, and just asked us to kick it around - a lot more. I thought, as I prepared for the meeting tonight, that Page 41 of 46 there are a couple of general topic areas where our discussion of the facts in front of us might be helpful. One is "just the facts"- to the extent that we can glean facts by looking at the papers in front of us, or as some of us have participated in earlier NCPA meetings. I looked at tonight as an opportunity to see whether there was a gaping hole here somewhere. Or one side trumped up a bunch of stuff with a bunch of biased consultants - or not. I certainly didn’t see that here tonight. The second topic has to do with fairness and procedure. Is there some aggrieved party here? Whatever the facts say, the Palo Alto process is well known. It costs a lot of time and money all by itself. One of the things we go out of our way to do in Palo Alto is to make sure that everybody with a dog in the fight gets to talk about it. And talk about it. And talk about it. In this circumstance, we have a couple of issues - I’m not sure I’d sign onto all 3 of the issues that NCPA cited - but we have a couple of issues where I don’t believe we got our due process. Just as EDF and NRDC and other environmental interest groups use the process to reopen action, to get their final licks in, I think we’re entitled to do that as well here. But I don’t see any defect in the process or procedure here - other than the ones that we identified in the litigation. Now, it’s Westlands’ litigation, I agree.. We’re piggybacking on them. But even if we’d been upset on our own, independent of the position they’d taken, this is what you have to do to make sure that your particular factual question gets heard. We end up with strange bedfellows, yes. But EDF has strange bedfellows in its agreement with McDonalds Corporation to promote recycling on the one hand, while McDonalds mows down forests on the other. This strange bedfellows argument makes for good political theater, but it doesn’t get us very far. I don’t see, other than a little entertainment value, that there’s any fundamental unfairness here. There’s a symbolic question, which Commissioner Rosenbaum raised. I really think that’s what we end up handing back to the Council. That is, is there some important symbolic value here - aboutwhat Palo Alto does or doesn’t do, or says - when it makes a decision to do, or not to do? And here’s where I think NCPA at least had it right in their opening paragraph, and Jane mentioned that. I certainly believe, and I join with Commissioner Bechtel, that the restoration of the Trinity watershed and the fisheries are absolutely important. It’s a painful story, to read about the 50-year-old Bureau of Reclamation process, and what it took to get us back from 100,000 to 340,000 acre-feet in the release. That’s just something that needs to be fixed. I support that. My guess is that we’re going to end up north of 340,000 acre-feet, as a matter of releases. Page 42 of 46 The interesting technical question is how you balance that, how you trade that off, how much time it takes to measure the intermediate results, and so forth. I hope that’s the kind of thing that the Judge and the supplementary EIS starts to open up for discussion, because that’s going to be useful. That’s going to be good for the river. It’s going to be good for the power users. And it’s going to be good for keeping the peace in the community. So from the standpoint of symbolic decisions, I would be recommending to Council that (1) we endorse the goals of the restoration and that (2) we recognize that we can live with and manage flows that do in fact exceed the 340,000 nominal flow that’s being permitted by the Judge now, but that (3) we push for- whether it’s in this proceeding or in subsequent proceedings - the kind of experimentation we talked about, the kind of experimentation that’s part of the Palo Alto culture, the kind of learning process, the willingness to move from here and tack in another direction every 2 years, every 3 years, whatever it takes - as part of a 10-year plan, so we don’t make precipitous decisions. I am completely sympathetic with Spreck’s comments 2 meetings ago that the Indians have waited a long time. There’s a factual argument one can make about just what they waited for. But damage was done, and it’s important that we undo it. I just don’t think we can undo it in a year or two. A structure that permits better information to flow from our next step, is the structure we have to push for. I regret that the opening gambit in getting better information is a lawsuit, but that’s what’s in front of us now. The symbolism here that Palo Alto ought to reflect or adopt, is that we support the Trinity restoration, and we support common-sense acquisition of information over time - to make sure we don’t do undue damage to any party along the way, as we all learn more. Thanks. Carlson: Commissioner Rosenbaum. Rosenbaum: Commissioner Ferguson placed the issue, put the issue very well. I trust that the recorder got all his words, because I think those are the words that the Council would want to hear. But I’d be happy to make a specific motion to endorse the Staff position, being that we support the NCPA pursuant to due process litigation. Now I’ll make that as a motion and I’ll say a few words to it if there’s a second. Carlson: Is there a second to the motion? Bechtel: I’ll second. Page 43 of 46 Carlson: A motion is made and seconded. Rosenbaum: I know where my sympathies lie. It’s g~!~ing to think that the Westlands Water District is really worried about endangered species in the Sacramento Delta. I think Spreck is right when he says, he’s obviously right, that NCPA would not be involved if we were not concerned about power. We wouldn’t get involved in an environmental issue if it didn’t have some direct effect on us. On the other hand, I have confidence in the integrity of the consultants that we have hired. In a sense, they are hired guns, but I just have to believe that what they’re saying is based on their best analysis of the applicable science. So I find myself where I’m not in a position to question proceeding with the lawsuit, and I don’t think the Council is really in that position either. Now, I can offer some gratuitous advice to the Council. If as a Council- Member, I felt that the ROD was the correct decision, either based on prior knowledge of the Trinity River situation or on the current record, I would certainly vote to withdraw from this suit. What’s the point of being on the City Council if you can’t express your opinion in just this fashion? But I don’t feel comfortable doing that, and I trust that the Council will go along with the Staff position. Carlson: This is a very difficult issue for me. I actually read most of the EIS. I’ve got enough courses in geology and biology to just love reading the darn thing, and love listening to the people together tonight on all sides. This is a fascinating and incredibly complex and rich issue. There’s going to be more like this in this state in the coming years; this is not the first one. I am not convinced that the Department of Interior has fully thought out all the implications of this decision. They just hope they’ll be able to figure out how to run the Central Valley Project to take account of this, the changes in the Trinity. But it’s a long way from a detailed plan. That makes me very nervous. If this was purely an economic trade-off - this community spends a million or two dollars a year, we know that’s the cost as somewhere in that range, for a certain substantial improvement in the environment - that’s a no-brainer. Go for it. But for everything I’ve heard and read and studied, it’s a long way from that. It has a certain cost, and a significant risk of not working - or even worse, making things worse in a number of portions of the California environment - the Trinity itself, tl~e Sacramento River, the Bay-Delta and air pollution emissions. If we don’t use this hydropower, we’re going to replace it by burning natural gas in this state or coal somewhere else. Let’s face it, that’s what’s going to happen here, and that’s a cost. That’s why in this case, I agree, I will recommend supporting the Staff. And I must admit, a month ago, I didn’t think I’d do that. But these are some Page 44 of 46 very thoughtful presentations I heard tonight, and I really commend the NCPA and I commend everybody else. Ultimately, this is a gamble. But it’s a pretty big gamble in what NCPA is offering us before you take this kind of gamble. There are some things you can do pretty quickly to just try it, get out there, take some small portions of the screen and see what really honest-to-God works before you gamble not just one river, but probably more than one. The other rock that’s rolling towards us as part of all of these water issues in the state - it’s what I’m all too familiar with - and that’s the Colorado River. We haven’t even started to figure out how we’re going to handle the loss of the Colorado River water and how that’s going to cascade back on Bay-Delta, cascades back into Trinity. On this one, I am willing to letthe process continue, and let the Judge - who has spent I’m sure even more hours than I have - make a decision, and see what he does. I thank everybody that came here on this issue very much. Anybody want to say &nything more? In that case, I will call the motion. All in favor of the motion? All Commissioners: Aye. Carlson: Thank you. Can we have a 5-minute break and then quickly go through the other items? Ulrich: That would be fine because I would like to take a few minutes to thank everybody that came tonight. It was a long trip and Mr. Rosekrans and members from NCPA, did a fine job in explaining their views. I would like to ask - maybe you want to do this when you come back- would be to articulate your motion so that we can use that in our communication back to-the City Council. Normally I wouldn’t ask for that, but it would be important to do that so we’re able to represent and get exactly, specifically what your recommendation is. Carlson: Do you want to do that right now, Dick - or do you want to? Rosenbaum: My motion is very simple. It’s your language. I did suggest that the minutes would certainly be very helpful, particularly Mr. Ferguson’s comments prior to my making my motion. But specifically, I move that the UAC support NCPA’s pursuit of due process litigation against of the Department of Interior to supplement the Trinity River Environmental Impact Statement. Is that clear? Ulrich: Very clear to me. Page 45 of 46 //////END OF TRINITY SECTION I//// Page 46 of 46 TO: FROM: SUBJECT: AGENDA DATE: MEMORANDUM Utilities Advisory Commission ’ Utilities Department Trinity September 4, 2002 RECOMMENDATION This report provides background informatiom The UAC may take action on this item in making a recommendation to the City Council after review and discussion of this report, public comment and presentations by experts at the meeting. Staff recommends that the UAC support the Northern California Power Agency (NCPA) pursuit of due process litigation against the Department of Interior (DOI) to supplement the Trinity River Environmental Impact Statement (EIS). BACKGROUND On August 5th, 2002 the City Council discussed the City Manager’s Report, "Update On Trinity River Flow Environmental Impact Statement Litigation" (CMR 360:02). At that meeting the City Council directed the UAC to work with staffto develop a. deeper understanding of the~ issues related to this litigation and return to the City Council with a recommendation regarding a negotiation position1. This report outlines background information related to the litigation and also reports on recent events since the August 5t~ Council meeting. ~ MOTION: Council Member Morton moved, seconded by Mossar, that the Council continue to support the process of reconsideration of t~e Record of Decision (ROD), and request the Utilities Advisory Commission (UAC) to provide a recommendation for a possible position on negotiation to enable us to fully support the Trinity River negotiations. City attorney Calonne said the motion could not be voted on because it was not agendized. AMENDMENT: Council Member Morton moved, seconded by Mossar to remove support for the process of reconsideration of the ROD. MOTION AS AMENDED PASSED: 9 - 0. MOTION: Council Member Freeman moved, seconded by Kishimoto, to ask that the issue of Trinity River be agendized in such a way that all interested parties can participate and that Council can take action. MOTION PASSED 5 - 4, Butch, Morton, Mossar, Ojakian "no." From City Clerk’s Office Action minutes of Special Meeting August 5, 2002 This report provides support for staff’s recommendation to continue to support NCPA litigation against DOI. This report does not attempt to make the case for ¯ groups and individuals that oppose the litigation. Staff recognizes the complexity of this issue and the multiple impacts and viewpoints that include: Trinity Basin fishery restoration commitments Impacts on fisheries of the Bay-Delta, Trinity River and Sacramento River Lack of firm science on the actual controlling constraints on Trinity Basin fishery recovery Interactions between watershed, tributaries and mainstem restoration (Basin- wide solutions) Legal issues surrounding the Department of Interior compliance with the Federal Procedures Act, and with the National Environmental Policies Act Need for unbiasedparties to choose, implement and monitor restoration actions Cost and pollution implications.of replacement energy Electric system reliability impacts of hundreds of megawatts of lost generation capacity for a thousand hours or more each year Legal issues related to joint powers agencies in litigation ’ Legal issues related toco-litigant status Environmental analysis technical issues Maintaining Federal trust responsibility to the Hoopa and Yurok tribes. Members of the environmental community and Native American tribes have asked local political bodies to withdraw support for pursuing due process litigation. In recognition of these many complexities, staff respectfully requests that the UAC recommend that Council support an action to allow NCPA to represent Palo Alto in litigating this case first in the courts to determine the outcome of legal issues and then, only if the courts deem appropriate, in front of environmental experts at DOI or in a collaborative setting to find a more optimal environmental solution. DISCUSSION The attachments and discussion below provide an extensive set of background materials related to the Trinity River issue. The attachments are grouped into three categories. The first category provides general information not related to either position. The second category deals with materials and discussion related to supporting the adequacy of the EIS, the associated DOI Record of Decision (ROD) and requests to the City to forego the due process litigation being pursued by NCPA. The third category deals with materials and discussion related to questioning the adequacy of the EIS, the associated ROD and requests to the City to maintain its support of NCPA’s pursuit of litigation. I.Background Materials of general interest and not associated with either position a) Attachment I is a timeline of significant events related to this case. b)Attachment 2 describes City of Palo Alto support for the development of government owned hydroelectric power plants related to the planned Trinity Dam. Energy from those plants enabled Palo Alto to receive a federal power contract in 1964. c)Update on August 20t~, 2002 Hearing for expedited Summary Judgement At the hearing on August 20th for an expedited Summary Judgement, the judge heard each party’s presentation of arguments and did not take any action. A decision is expecte.d in the next 31J days although there is no legal deadline. Regardless of the outcome of the decision, it is expected to be appealed. II. Background Materials that support the adequacy of the EIS,~ the ROD and requests that the City change its position to follow due process Staff understands the basic tenets of the argument raised for withdrawing support from the litigation to include: ®The EIS and ROD are adequate and should be implemented without delay. ®There is no better alternative for Trinity River fishery restoration. ¯The power and economic impacts are small and affordable. o The litigation is in conflict with Palo Alto’s environmental record. Staff will rely on opponents of NCPA involvement in this litigation to make their case to The UAC and Council. b) Trinity River Record of Decision. This report (at http://www.ccfwo.rl.fws.gov/), issued in December 2000 by Department of Interior (DOI), outlines the actions DOI determined to be necessary and appropriate to restore and maintain the fishery resources of the Trinity River (Attachment 3). Sample Email from public. The City of Palo Alto receivedapproximately 40 identical emails from residents of Palo Alto and Stanford asking to withdraw support for the litigation (Attachment 4). c)Joint letter from fourteen environmental organizations to the City Council. The City Council received a letter from a coalition of 14 environmental and fishing organizations requesting that the NCPA, through its member cities, withdraw .from this litigation prior to the hearing for summary judgment scheduled for August 20, 2002 (Attachment 5). d) Position paper of Environmental Defense. An environmental organization, .Environmental Defense, provided the City Council a five-page position paper describing various environmental interests and a request for public power users to withdraw from the lawsuit (Attachment 6). III.Background. Materials that question the adequacy of the EIS, the ROD and requests that the City maintain its position to follow due process The issues related to the Trinity River litigation are multi-faceted and not narrowly focused around cost impacts of a change in Trinity River flows to electric customers. The cost impacts of a Trinity River flow change is one component among various elements needed to evaluate this issue. The following is a brief description of some additional issues grouped by category below. Reports: Update On Trinity River Flow Environmental Impact Statement Litigation (CMR 360:02). Staff provided an information CMR that summarized the reasons for Palo Alto.and NCPA involvement in this litigation, described Palo Alto’s environmental record, the resource impact of this issue and the policy implications (Attachment 7). b)August 14, 2002 NCPA Commission Staff Report. Attachment 8 is a staff report to the NCPA Commission stating NCPA’s underlying position in the case: "we strongly support implementation of an effective Trinity River restoration plan based on sound public policy. However, implementation of a plan that has not been shown to meet the intended objectives of the ROD, and that is certain to have adverse impacts on other sensitive waterways in the State, represents a unwise use of public resources, and presents an unacceptable threat to a reliable and renewable energy source in a still- uncertain electricity market. As the review of these concerns related to the ROD itself continues, NCPA and its members remain committed to advancing the goal of developing a workable plan for meaningful and long-lasting restoration of the fisheries and habitat of the Trinity River". (Attachment 8). 4 Litigation Related Issues: c) NCPA has identified that the EIS leading to the ROD violated the National Environmental Policy Act in the following 6 ways: i)DOI failed to adequately assess the Preferred Alternative’s impact on ESA-listed species in the Sacramento River and Delta, ii)DOI failed to adequately assess the impacts.of the mitigation measures mandated bythe Biological Opinions and iii)DOI failed to adequately assess the impacts of the Preferred Alternative on power system reliability. iv)DOI’s improper application of a narrowly-defined "healthy river" -standard to artificially restrict the range.of fishery-restoration alternatives considered under NEPA. v)DOI’s environmental assessment came too late vi)DOI’s alternatives that recognized the complexity and uncertainty of the science behind fishery restoration were not included. (for example an incremental action/science-based approach) The City is not a direct party to the litigation and therefore does not control NCPA’s withdrawal from this litigation. Regardless of NCPA’s position in the litigation the other two co-litigants would most likely continue to pursue the case on its merits. e)This is not a case of NCPA or energy vs. the environment. The Trinity River fishery will be restored in any case. That is not in dispute. The restoration effort will be paid for, in large part, by NCPA members. NCPA is trying to prevent a decision being made with based on inadequate EIS work that did not properly account for legitimate unintended environmental consequences and did not fully explore alternative means of fishery restoration. IfNCPA prevails, a more collaborative solution will be sought to restore the Trinity River fishery to the satisfaction of independent observers while minimizing cost and unintended consequences. NCPA points out that the ROD sets a negative precedent by allowing any EIS to reach conclusions without following legal requiremen.ts. This leads to less appropriate decisions that work against environmental interests and other public interests. ’ The precedent of a narrow EIS is not just a theoretical concern. Indeed the whole San Francisco Airport expansion, bay filling and wetland restoration issue revolves around the issue of how broad the EIS needs to be. h) NCPA requests for collaborative, independent and science based approaches to determining and implementing Trinity River fishery restoration were not followed. It is also not clear what the Trinity River fishery restoration targets are or how we will know when they are met. It is risky to manage multi- attribute projects (for parties with split incentives) without having targets.. i)NCPA feels that although the ROD claims to use an "adaptive management" approach to addressing Trinity fishery restoration it is merely referring to experimenting with altering only the timing of a large pulse flow of water each spring/su.mmer. That is, the approach recommended in the ROD is limited and one-dimensional. Whereas, NCPA’s proposal for adaptive management ora science-based approach to basin wide fishery restoration refers to a broader array of actions at relieving the constraints on fish populations. The litigation is intended to re-open the EIS to fix the flaws and to get DOI to consider an independent, collaborative and science-based approach to restoring Trinity Basin fisheries while minimizing costs and adverse unintended consequences. J)During the EIS process, NCPA proposed selection of independent environmental experts and monitoring bodies and a collaborative approach to fishery restoration. Those proposals were rejected by the Native American Tribes and the Fish and Wildlife Service controlling the EIS. Cost Impact Issues The cost advantage between the City and PG&E, which is presently about 40% is expected to close to about 15 to 20% in the post-2004 period. Central Valley Project (CVP) net generation provides Palo Alto with about 33% of its energy needs. The lost energy generation associated with the ROD on the Trinity is about.10% of the CVP’s current net generation. The 10% loss of CVP hydro generation does not reduce the costs that Palo Alto is required to pay Western. It will reduce the CVP delivered energy and increase the associated rate. Palo Alto will incur an additional cost to replace the lost energy. 1)However, the impacts may not be limited to this additional cost since it is not certain that restoration of the Trinity Basin fisheries would occur, in light of other non-flow pressure,s on it. Conceding the environmental review process for a sub optimal solution may make the CVP vulnerable to additional demands for generator bypass that could even more significantly erode hydropower production for little if any actual environmental gain. The 6 only remedy available in the federal rulemaking process is federal litigation under the Administrative Procedures Act. Not fol!owing this due process may have an unintended long-term impact that affects the availability and ¯ cost of other CVP plants. We have not estimated the probability or expected cost of additional adverse impacts from such a precedent. m) There are other environmental benefits to be achieved by succeeding at the litigation and having the EIS reopened. For example this could lead to the implementation of a collaborative, adaptive, fishery restoration method using only half as much increased flow. That may save $1 million per year for Palo Alto by preserving 2% of our portfolio as hydro power. That $1 million could be invested in upgrading an additional 4.5% of our portfolio to wind power. Together this would cost the same as the ROD (about $1.7 million/year) but would meet 6.5% of Palo Alto energy needs with renewables and still result in restored Trinity Basin fisheries: In comparison, the ROD is also aimed at restoring the Trinity fishery but it eliminates a 4% contribution from our portfolioand increases our costs by at least $1.7 millioniy~ar. Cost of replacement power generated from various sources: Palo Alt0’s share of the lost generation .amounts to 43,000 MWN normal year. The table below shows the cost of replacing the lost 43,000 MWh/year of hydro electric generation with various sources of power purchased at the midpoint of their estimated wholesale price ~anges. Wholesale Increased Cost Resulting Est. Impact on Midpoint Rate Rate Hike for monthly bill for Trinity flows 650 kWh (S/kWh)(S/Year)(S/Month) Brown Market costs $0.04 $1,700,000 2.3%$1.09 Wind $0.06 $2,400,000 3.3%$1.55 Small Hydro $0.06 $2,600,000 3.6%$1.67 Geothermal $0.06 $2,600,000 3.6%$1.67 Landfill Gas $0.07 $3,000,000 4.1%$1:93 Large Solar Thermal $0.10 $4,300,000 5.9%$2.77 Small Solar Thermal $0.22 $9,500,000 13.0%$6.12 Distributed Solar PV $0.27 $ 11,600,000 15.8%$7.47 Central Solar PV $0.29 $ 12,500,000 17.1%$8.05 Power Impact Issues o) The ROD quotes a misleading statistic to assert that the reduction of diversions has only a miniscule impact on power and electric reliability. The p) confusing Statistic is that the reservoir head levels with ROD implemented would have resulted in a mere 7 Megawatt (MW) reduction averaged across the months in instantaneous power generation capabilities. The 7 MW average monthly capacity reduction identified in the ROD is the statistic resulting from looking at monthly average reservoir elevation levels between two cases. It does not address the lost operational capability at the four power plants that would loose some water. Run time losses at four power plants: The reduced diversions of Trinity River water (about 307,000 acre-feet/normal water year) reduce the amount of water available to run four power plants. The reductions can be summarized as follows: Trinity Power Pulse Bypass Spring Creek Power Plant Judge Carr Power Plant Keswick Power Plant Total/Average Hours Of Plant Capacity MW-MWh lost Capacity Loss 100 140 14,000 900 180 162,000 1,010 154 155,540 2,000 18 36,000 747 492 367,540 These reductions can be viewed in the graph below showing lost generation capacity vs. hours of lost capability. ~100 500 1(~ 1500 2000 ~ per Year N lost ~on (Non~ Year) The reduction in the amount of energy generated is shown by the area under the stepped line. The height of the line represents the lost coincident generation and the horizontal axis represents the duration of the loss. The shortest duration loss is at the Trinity power plant (140 MW for 100 hours) when releases for pulse flows would bypass generators. The next loss is at Spring Creek Powerplant where there would be less water for generating. That would cut maximum generation by 180 MW for 900 hours or equivalently could cut 90 MW of generation for 1,800 hours etc. Also shown as the two lower stairs on the graph are losses at Judge Carr Powerplant and. Keswick Powerplant. The months during which lost hours of generation (energy and capacity) would occur vary depend on hydro conditions and CVP fiver system constraints. They would tend to concentrate in the spring and summer seasons and occur in the "shoulder peak" hours before noon and after 6 p.m. Replacing the lost generation could almost be accomplished through the construction and operation of seven more 49.9 MW steam injected gas turbine power plants like NCPA’S STIG plant that tend to run about 1,000 hours per year. The ROD uses a large denominator technique to minimize the appearance of power impacts. The ROD takes the reduced energy supply and divides by the statewide energy supply to find it is approximately 1/10th of one percent. The ROD does not use that technique to discuss fish population statistics. Attachment 9 describes how the California power market remains deeply troubled and the signs that the state could soon be facing a renewed energy crisis due to, among other reasons, canceling and delaying planned power - plants. Next Step Issues s) NCPA believes a compromise can be reached that will benefit the Trinity River and resident fisheries while also supporting clean hydroelectric power. IfNCPA and other co-litigants win the case, the DOI will supplement the EIS and there is a chance that a better collaborative solution will be found. If NCPA and other co-litigants lose the case, the DOI decision will stand and all requirements under the decision will be enforced. Whatever the ruling from the judge, there will likely be an appeal from one or more litigants on the losing side. 9 RESOURCE IMPACT ~ The ROD results in a 43,000 MWh/year energy loss for Palo Alto costing about $1,800,000 per year.to replace with conventional fossil fueled resources. This amounts to approximatelY 4% of the annual energy consumption and commodity budget. If this volume of lost renewable hydro energy were replaced with other renewable sources it would cost between $2,400,000 and $12,500,000 per year depending on the renewable resource chosen. POLICY IMPLICATIONS This recommendation is consistent with the Council approved Utilities Strategic Plan to (1) Preserve a supply dost advantage compared to the market price and (2) Implement programs that improve.the quality of the environment. Strategy (1) is pursued by attempting to maintain current levels of generation at nearly 500 MW of federal power plants for which Palo Alto already pays an 11% share of costs. Strategy (2) is pursued by following due process in an attempt to improve the global environmental solution of a complex problem. TIMELINE Motions for summary judgement were heard on August 20, 2002. The judge can role on them at any time. Parties would then have 60 days to file appeals at the 9t~ Circuit court of Appeals. ATTACHMENTS: 1. Timeline associated with the Trinity River issues 2. City Council minutes from the 1950’s related to Trinity 3. Trinity River Record of Decision (ROD) can also be found at http://www.ccfwo.rl.fws.gov/ 4. Sample Email from public 5. Joint letter from fourteen environmental organizations to the City Council 6. Positionpaper of Environmental Defense - Summary of Trinity River Issues and Requests of Palo Alto and other Public Power Users to Withdraw from Ongoing Litigation 7. "Update On Trinity River Flow Environmental Impact Statement Litigation" (CMR 360:02) 8. August 14, 2002 NCPA Commission Staff Report 9. Wall Street Journal Article, "California May Face Renewed Energy Crisis" 10 Prepared by:Tom Kabat, Senior Resource Planner~ Girish Balachandran, Assistant Director of Utiliti~ Approved by: of Utilities I1 ATTACHMENT 1 Attachment 1: Timeline associated with Trini River issues Date Event 611/1999 DOI and Hoopa Valley Tribe jointly publish Trinity River Flow Evaluation Final Report ("Final Flow Report"). 10/19/1999 1119/2000 1/20/2000 3/10/2000 5/8/2000 6/6/2000 6/28/2000 8/3/2000 8/23/2000 DOI issues Draft Environmental Impact Statement ("DEIS") identifying Final Flow Report recommendations as the "Preferred Alternative." Westlands Water District and the San Luis and Delta-Mendota Water Authority (collectively "Westlands") submit DEIS comment letter to DOI explaining that implementation of the Preferred Alternative requires initiation formal, consultation under Section 7 of the Endangered Species Act ("ESA") to avoid jeopardizing listed species in the Sacramento River and Delta. Westlands also notifies DOI that the DEIS will be inadequate if the formal consultation results in changes to the Preferred Alternative. NCPA submits comment letter notifying DOI that the DEIS is inadequate because it does not analyze the impacts of the Preferred Alternative on Sacramento River species listed as endangered or threatened under the ESA. Westlands sends DOI a 60-day notice of intent to sue for failure to initiate ESA formal consultation to ensure that the Preferred Alternative does not jeopardize listed fish species in the Sacramento River and Delta. DOI concedes that the Preferred Alternative requires initiation of ESA Section 7 formal consultation. DOI requests the United States Fish and Wildlife Service ("USFWS") and the National Marine Fisheries Service ("NMFS") to reinitiate formal consultation on the effects of the Preferred Alternative on Sacramento River and Delta ESA-listed species. California’s Independent System Operator ("ISO") declares a Stage One Electrical Emergency for the third consecutive day. ISO declares a Stage Two Electrical Emergency for the fourth consecutive day. United States Department of Energy’s Western Area Power Administration ("Department of Energy") notifies DOI of the need to re-examine the DEIS in light of the Preferred Alternative’s 10/12/2000 10/20/2000 10/25/2000 11/17/2000 12/7/2000 12/10/2000 12/11/2000 12/14/2000 12/19/2000 12/19/2000 1/17/2001 3/22/2001 ’3/22/2001 8/20/2002 impacts on power system reliability. USFWS and NMFS issue Biological Opinions ("BioOps") imposing "non-discretionary" Reasonable and Prudent Measures ("RPMs") to mitigate the impact of the Preferred Alternative on ESA-listed species in the Sacramento River and Delta. DOI publishes Final EIS ("FEIS") Notice of Availability. DOI rescinds FEIS Notice of Availability. DOI republishes FEIS Notice of Availability. ISO declares a Stage Three Electrical Emergency. ISO declares a Stage Two Electrical Emergency. ISO declares a Stage Two Electrical Emergency. Department. of Energy issues an order declaring an energy emergency in California and ordering electrical generation facilities to generate and transmit electric energy when, as and in such amounts, as may be requested by the ISO. ISO declares a Stage Two Electrical Emergency and invokes the Department of Energy order to obtain electricity to avoid a Stage Three Electrical Emergency. DOI Secretary signs the ROD ordering the implementation of the Preferred Alternative, as modified to include the RPMs required by the USFWS and NMFS BioOps. ISO declares a Stage Three Electrical Emergency, California experiences a Stage Three Electrical Emergency (i.e., rolling blackouts). Court grants the motions o, fplaintiffs NCPA, Westlands, and SMUD for preliminary injunction, finding, among other things, "An SEIS [Supplemental EIS], analyzing the effects of the two BioOps and the effect of implementation of th.e preferred alternative in light of the changed circumstances of California’s current energy crisis, was necessary." Hearing for expedited Summary Judgement (starts 30 day decision timeline.) ATTACHMENT Attachment 2 Palo Alto City Council Meeting Minutes from January 13, 1958 Trin~ity River Pro~ The Mayor called attentlom to the recent action Of the erthern California Municipal Electric Association~ of which the Ity of Palo Alto is a member, opposing the partnership plan for 0nstruction of the Trinity River Project as proposed by the Pacific! and Electric Company, and authorizing a committee to go to ~tonto attend the.Congressional Committee hearing on the ;~er. The Committee is composed~of the Mayor of Redding, the ~±ty Manager.of Alameda and the City Manager of Palo Alto who is .ecretary of. the Northern C~lifornia Municipal Electric Associati6n.i ¯ The resolution adopted by th~ Northern California Municipa~ ~!ectric Association on January T, 195~, was read, the resolution Continued on Next Page 958 iI! recording the unanimous opposition to the partnership proposal ofi the Pacific Gas and Electric Company and urging the Federal ment to proceed with the construction of the Trinity River Pro and its power geoerating facilities~and that favorable conside tion be given to any application of themember cities ~or the put. chase of a portion Of the~electrical-generating capacity of the Trinity River Project. The City Manager called attention to the factthat the California Municipal Utilities Association, to which the City of Palo Alto also belongs, had previously passed a similar A motion was made by Byxbee, Seconded "by N~vis% that the action of the Northern California Municipal Electric Associa~tion be approved and the City Manager be authorized to go to to represent the Northern California Municipal. Electric Associati~ at the hearing.. Councilman Marshall stated that he could not agree wlth the action in principle as he did. not approve of the Federal Govel merit being in the power business. Councilman R0dgers.questioned whether it would be in the bestinterests ofthe citizens of Palo Alto to support the measure and for Shis reason stated he would vote against the motion." Councilman Mitchell advise~hat as a citizen he did not favor the ~ederal Government bein~he.power business, but as a councilman representing the City he would vote for the motion. It was brought out in discussion that no action is re necessary t~ approve the City Manager’~ trip to Washington .as he has. already been authorized to go by the Northern California Munl- cipal Electric Association. A motion was made by Councilman Stephens that any action be deferred until it is known what action Congress takes on the matter. There was no second tothe motion. The.motion approving the action of the Northern Califo~ Municipal Electric Association and authorizing the City Managert0~ go to Washington to represent the Northerm California Municipal Electric Association at the.hearing was then carried by the follow- ing vote on roll call: .Ayes:Byxbee~ Cresap, Davis, Evans, Giffin, Mitchell, Naris, Por~er, Ruppenthal, Woodward. Noes: Marshall, R0dgers, Stephens. There being .no other business to come before the .Council, the meeting was declared adjourned at 8:50 P.M. Mayor ATTACHMENT 3 U.S. Department of the Interior Recordof Decision Trinity River Mainstem Fishery Restoration Final Environmental Impact Statement/Environmental Impact Report December 2000 I. IntrodUction and Statement of Decision ~he Trinity and Klamath Rivers in northem California once teemed with bountiful runs of |salmon and steelhead. Historically, hundreds of thousands of salmon and steelhead would _~_ enter the Klamath estuary and migrate upstream during several months of the year. After traveling through the lower 44 miles of the Klamath River, many Of these fish would turn south at the confluence of the Trinity River and continue their journey to the middle and upper Trinity River. Adult salmon and steelhead would spawn in the clean gravels of the mainstem Trinity and several of its tributaries. Millions of young salmonids would then emerge from the gravel between January and June and rear in the diversity of habita[s found in the river. The young of some species would begin their downstream migration to the Pacific Ocean within a few months of emerging from the gravel where they were spawned. Others remained in the river for a year or more before beginning their downstream migration. All of these fish would grow as they moved downstream through the Trinity, lower Klamath Rivers and Klamath estuary, undergoing physiological changes in preparation for life in the ocean. Suitable habitat and water quality were critical for the young salmon and steelhead during every stage of their outmigration in order for them to grow and become physically able to tolerate the transition to ocean life. After several years in the ocean fish return to the Klamath River as adults and once again begin the upstream migration to the Trinity River to spawn in their natal streams. These impressive fish stocks defined the life and culture of the Hoopa Valley and Yurok Indian Tribes, and reservations were established along the Trinity and lower Klamath Rivers in the mid- to late-1800s based in large part on the Tribes’ reliance on these resources. The abundance of the region’s, fishery resources also helped support the economy and way of life for the people of the region as a whole. The once majestic runs in the Trinity River experienced significant declines following the construction and operation of the Central Valley Project’s Trinity River Division (TRD) in the early 1960s. The TRD not only eliminated 109 miles of important salmonid habitat above Lewiston, California, but also exported to the Sacramento River as much as 90 percent of the waters flowing into the Trinity River at Lewiston, California. In authorizing the TRD, Congress believed water excess to the needs of the Trinity Basin could be diverted to tl~e Central Valley while still ensuring the preservation and propagation of the Trinity Basin’s fish and wildlife resources. Since the precipitous fishery declines, Congress has enacted several pieces of legislation directing the restoration of fish populations in the Trinity River. In addition to various multi-jurisdictional efforts over the years, the U.S. Fish and Wildlife Service (Service), in conjunction with the Hoopa Valley Tribe, completed the Trinity River Flow Evaluation Study Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 (TRFES) in 1999 which sought to determine instream flows and other measures necessary to restore and maintain the Trinity River’s fishery. This Record of Decision (ROD) culminates nearly twenty years of detailed, scientific efforts, conducted over the course of the past four Administrations, and documents the selection of actions determined to be necessary and appropriate to restore and maintain the anadromous fishery resources of the Trinity River. These actions, and other potential alternative actions, have ¯ been described and fully evaluated pursuant to the National Environmental Policy Act of 1969, as amended (NEPA), and the California Environmental Quality Act (CEQA) in both a draft and the Final Environmental Impact Statement/Environmental Impact Report (FEIS/EIR) (October 2000b), herein incorporated by reference. The Service, the Bureau of Reclamation (Reclamation), the Hoopa Valley Tribe, and the County of Trinity, California jointly prepared the DEIS/EIR and the FEIS/EIR. The necessity for these actions results from the various statutory obligations of the Department.as well as the federal trust responsibility to the Hoopa Valley and Yurok Indian Tribes. For the reasons expressed in this ROD, the Department’.s agencies are directed to implement the Preferred Alternative as described in the FEIS/EIR and as provided below. This alternative best meets the statutory and trust obligations of the Department to restore and maintain the Trinity River’s anadromous fishery resources, based on the best available scientific information, while also continuing to provide water supplies for beneficial uses and power generation as a function of Reclamation’s Central Valley Project (CVP). In making this decision, the information and analyses contained in the FEIS/EIR have been reviewed and considered in detail, including; 1) the various alternatives considered to achieve the statutory and trust obligations imposed upon the Department, 2)the environmental and other factors relevant to making this decision, 3) the mitigation available to reduce or eliminate negative impacts which could result from this decision, 4) the comments received on both the DEISiEIR and the FEISiEIR, and 5) the Biological Opinions from the Service and the National Marine Fisheries Service (NMFS), also incorporated by reference, which evaluate the impacts of implementing the Preferred Alternative to species listed pursuant to the Endangered Species Act. Sufficient legal authority exists to implement this decision. This decision recognizes that restoration and perpetual maintenance of the Trinity River’s fishery resources require rehabilitating the river itself, restoring the attributes that produce a healthy, functioning alluvial river system. Therefore, the components of the selected course of action include: Variable annual instream flows for the Trinity River from the TRD based on forecasted hydrology for the Trinity River Basin as of April 1st of each year, rangirig from 369,000 acre-feet (af) in critically dry years to 815,000 af in extremely wet years; Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 2 Physical channel rehabilitation, including the removal of riparian berms and the establishment of side channel habitat; Sediment management, including the supplementation of spawning gravels below the TRD and reduction in fine sediments which degrade fish habitats; Watershed restoration efforts, addressing negative, impacts which have resulted from land use practices in the Basin; and Infrastructure improvements or modifications, including rebuilding or fortifying bridges and addressing other structures affected by the peak instream flows provided by this ROD. The selected alternative also includes an Adaptive Environmental Assessment and Management (AEAM) Program. The AEAM Program, guided by a Trinity Management Council (TMC) established as part of this decision and by sound scientific principles, will ensure the proper implementation of these measures, conduct, appropriate scientific monitoring and evaluation efforts, and recommend possible adjustments to the annual flow schedule within the designated flow volumes provided for in this ROD or other measures in order to ensure that the restoration and maintenance of the Trinity River anadromous fishery continues based on the best available scientific information and analysis. This ROD and its attachments: 1) provide background information about the necessity for and development of the chosen action; 2) describes the alternatives considered in reaching the decision, including the environmentally preferred alternative; 3) summarizes the key provisions of the decision; 4) presents the rationale for and critical issues considered in making the decision; 5) describes mitigation measures available (and other environmental commitments) to avoid or minimize environmental harm that may result from implementing the decision; 6) reviews the public involvement process conducted during these efforts; and 7) discusses comments received on the FEIS/EIR. II. Background A. Historic Trinity River ~nd its Resources Historically, the Trinity River achieved attention and fame for its abundance of salmon and steelhead: Annual salmon runs in the Klamath Basin, including the Trinity River as its largest tributary, once reportedly totaled approximately 500,000 salmon. At the peak of the salmon cannery industry, which dominated the area at the turn of the 20a century, approximately 141,000 Salmon were harvested and canned within the Klamath estuary (Snyder 1931).Various investigations made prior to construction of Lewiston and Trinity dams provide estimates of the historic numbers of fish in the Trinity. Estimates of the number of fall chinook salmon that migrated above the North Fork Trinity River before construction of the dams range from Record of Decision- Trinity River Mainstem Fishery Restoration, December 19, 2000 3 approximately 19,000 to over 75,000 (TRFES, 1999) (see FEIS/EIR, Appendix B for further details of the fishery resources of the Trinity). The fishery and other resources of the Trinity River and the lower Klamath River Basins defined the life and culture of area Indians since time immemorial. Salmon and other fish historically provided the primary dietary staple for the Indians in the area; prior to non-Indian settlement in the basin, reports indicate that local Indians consumed over 2 million pounds of salmon annually. . The fishery resources supported commercial and subsistence economies for the Indians and also played a significant role in their religious beliefs. Fishery resources of the area have been characterized as "not much less necessary to the existence of the Indians than the atmosphere they breathed." Blake v. Amett, 663 F.2d 906, 909 (9t~ Cir. 1981) (quoting United States v. Winans_, 198 U.S. 371,381 (1905)).. As previously described by the Department’s Solicitor, a specific, primarypurpose for establishing the reservations of the Hoopa Valley and Yurok Tribes in the mid- to late-1800s-which are bisected by the Trinity and lower Klamath Rivers, respectively-"was to secure to these Indians the access and right to fish without interference from others" in order to preserve and protect their fight to maintain a self-sufficient livelihood from the abundance provided by the rivers (Memorandum from Solicitor to Secretary, Fishing Rights ¯ of the Yurok and Hoopa Valley Tribes, M-36979, at 15, 18-21 (Oct. 4, 1993)), B.- Planning and Construction of the CVP’s Trinity River Division Over time and with the increase of populations and development in California, particularly in the Central Valley, efforts focused on the Trinity River as a resource to supplement the needs of other areas of California. Initial plans to divert Trinity River water to the Sacramento River were included in the California State Water Plan in the 1930s, but later dropped. Proposals were reinitiated in the late 1940s, and the Department provided to Congress reports and findings on a proposed plan of development in the early 1950s. These reports indicated that more than 1.1 million af Of inflow occurred on average from the upper Trinity River Basin above Lewiston. Based on these reports, Congress concluded that water "surplus" to the present and future water ¯ needs of the Trinity and Klamath Basins-then estimated at approximately 700,000 af and considered "wasting to the Pacific Ocean"--could be diverted to the Central Valley "without detrimental effect’to the fishery resources." (H.t(. Rep. No. 602, 84th Cong., 1st Sess.. 4-5 (1955); S. Rep. No. 1154, 84 Cong., 1st Sess. 5 (1955)).. In fact, the underlying reports suggested that development of the Trinity River Division, and the resulting diversions, would not only maintain but also improve fishery conditions in the Trinity River, with as little as 120,500 af of water per year from above Lewiston dedicated to the fishery. Based on these understandings, Congress passed legislation authorizing the Trinity River Division (TRD) on August 12, 1955 (Pub. L. No. 84-386) (1955 Act). Although Congress authorized the TtLD as an integrated component of the CVP, section 2 of the 1955 Act specifically directed the Secretary of the Interior to ensure the preservation and propagatibn of fish and wildlife in the Trinity Basin through the adoption of appropriate measures. C. Impacts Caused by the TRD and Early Efforts to Address those Impacts Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 4 Unfortunately, construction and operation of the TRD resulted in unintended, yet severely detrimental impacts to the Trinity River and its fish populations. Early studies suggested that low flows could possibly sustain spawning populations of salmonids below Lewiston (Moffet and Smith 1950, USFWS and CDFG 1956). These and other early studies focused more on chinook salmon spawning populations than on other species or lifestages, and did not entirely account for the geomorphic changes that would occur under a reduced flow in the mainstem. Relying upon these early studies, TRD diversions to the Central Valley averaged nearly 90 percent of the upper Trinity Basin inflow for the first ten years of full TRD operations, with the TRD exporting on average 1,234,000 af annually from the 1,396,000 aftotal average inflow into Trinity Lake (formerly Clair Engle Reservoir). Construction of the two dams on the Trinity River, Trinity and Lewiston Dams, also resulted in the loss of all upstream spawning and rearing habitat. As subsequent studies have shown, the TRD also caused the rapid degradation of fish habitats below the dams, through the elimination of gravels from above the dams necessary for ¯ spawning habitat and the inability of the substantially reduced and static flows from the TRD to flush fine sediments from the existing gravels. The resulting channelization of the river (in which riparial~ vegetation encroached upon the channel, trapped fme sediments, and formed fossilized berms) further degraded available habitats. At the same time that fish were forced to use a much smaller amotmt of area, the quality of habitat below Lewiston began to decline almost immediately following completion of the dams. Gravels necessary for spawning habitat were trapped above the dams. Deep pools that were essential for holding adults began to fill with fine sediment. Since flows were no longer sufficient to move fine sediment from tributary flows out of the mainstem, gravel and cobble became compacted with sand and silt rendering spawning gravels unsuitable for salmon reproduction. As sand accumulated along the banks of the river~ the shape of the Trinity below Lewiston changed from a meandering alluvial river with large cobble bars to a narrow, steep-sided channel. Moderate flows that resulted from tributary floods resulted in greatly increased water velocity in the mainstem without resultant increases in useable habitat because most flow was contained within the main channel and not connected with the historic floodplain. Within a decade, salmon and steelhead populations declined significantly. Various efforts (including the formation of a task force of federal, state, tribal, and local agencies) began evaluating the effects on the Trinity River’s fishery resources and the likely causes for these declines. The Service completed an EIS in 1980 which estimated fish population reductions of 60 to 80 percent since completion of the TRD. Subsequent studies have also indicated extensive reductions in fish populations (see Appendix B of the FEIS/EIR). The 1980 EIS attributed this severe and rapid depletion of fish populations to three causative factors: inadequately regulated harvest, excessive streambed sedimentation, and insufficient streamflows. The latter two elements impact key components of salmonid habitat. In fact, the EIS estimated the loss of fishery habitats in the Trinity River Basin to be 80 to 90 percent. Thus, shortly after construction of the TRD, the Trinity River no longer provided the abundant resources and pristine area that the public treasured and resident Tribes depended upon for physical and spiritual sustenance.. Degradation of Trinity River fishery habitat was one of the reasons for listing of Southern Oregon/Northern California Coast (SONCC) coho salmon (Oncorhynchus kisutch) as threatened Record of Decision - Trinity River Mainste.m Fishery Restoration, Dec_~ember 19, 2000 under the Endangered Species Act (May 6, 1997, 62 FR 24588). The 1980 EIS recognized that all factors attributed to salmonid losses must be addressed. Tribal harvest, commercial harvest and sport harvest have been restricted over time. The 1980 EIS also concluded, however, that insufficient streamflows represented the most critical limiting factor and that increasing flows was a necessary first step to the restoration of the Trinity River fisheries. Contemporary legal opinions of the Department considered the ability to increase ¯ streamflows in light of the 1955 Act and concluded that section 2 of that Act requires that the instrearn flow needs of the Trinity Basin must be met first prior to exporting water to the Central Valley (e.g., Memorandum from the Solicitor to Assistant Secr, etary - Land and Water Resources, Proposed Contractwith Grasslands Water District (December 7, 1979)). D. 1981 AndrusDecision The 1980 EIS did include interim flow recommendations, but also recommended a more complete analysis. Former Secretary of the Interior Cecil D. Andrus considered the findings of the 1980 EIS as well as the statutory and tribal mast responsibilities involved. With respect to the trust obligations of the Department, Secretary Andrus found that: the Hupa and Yurok Indians have rights to fish from the Trinity and Klamath Rivers... These rights are tribal assets which the Secretary, as trustee, has an obligation to manage for the benefit of the tribes.. The Secretary may not abrogate these rights even if the benefit to a portion of the public from such an abrogation would be greater than the loss to the Indians. Secretarial Issue Document, .Trinity River Fishery Mitigation, at 3 (January 1981) (1981 SID). The Secretary also found that the trust obligation "includes both a duty to preserve the mast assets and to make them productive." The Secretary concluded that the statutory and trust obligations of the Department compelled the restoration of the Trinity River anadromous fishery to pre-TRD levels. Therefore~ Secretary Andrus directed the Service to completea 12-year study which would assess the effectiveness of flow and habitat restoration efforts and make recommendations on measures necessary to address the fishery impacts attributable to the TRD consistent with the Department’s obligations. E. Congressional Direction to Address.the Impacts At this same time, Congress also turned to the growing problems facing the Trinity River and its dwindling fishery resources: The first step came in 1980 with the passage of the Trinity River Stream Rectification Act (Pub. L. No. 96-335) which aimed to control sand deposition problems resulting from the degraded Grass Valley Creek watershed, a tributary of the Trinity River, and the inability of the low annual mainstem flows to flush these sediments through the system. In 1984, Congress passed the second, more critical step - the Trinity River Basin Fish and Wildlife Management Act (Pub. L. No. 98-541). Tlae 1984 Act made findings similar to those in the 1980 EIS and recognized that TRD operations substantially reduced instream flows in the Trinity Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 River, resulting in degraded fish habitat and consequently a drastic reduction in anadromous fish populations. The 1984 Act directed the Secretary to develop a management program to restore fish and wildlife populations in the Basin to levels approximating those that existed immediately before TRD construction began. The program would include measures to rehabilitate fish habitats in the mainstem Trinity River and its tributaries below Lewiston Dam, increase the effectiveness of the Trinity River Fish Hatchery, and monitor fish and wildlife populations and the effectiveness of rehabilitation efforts. The program would also include any other activities necessary to achieve the restoration goals. Amendments to the 1984 Act redefined its restoration goals so that the fishery restoration would be measured not only by returning anadromous fish spawners, but also by the ability of dependent tribal and non-tribal fishers to participate fully in the benefits of restoration through meaningful harvest opportunities. (These restoration goals were reaffirmed through enactment of the Trinity River Fish and Wildlife Management Reauthorization Act of 1995, Pub. L. No. 104-143, May 15, 1996). Congress provided the third step with the passage of the Central Valley Project Improvement Act (CVPIA) in 1992. The CVPIA listed among its purposes the need "to protect, restore, and enhance fish, wildlife, and associated habitats in the Central Valley and Trinity River Basins" and the need "to address impacts of the Central Valley Project on fish, wildlife, and associated habitats." Although the CVPIA includes several provisions related to the TRD, the primary Congressional direction occurs in section 3406(b)(23). Pending completion of the TRFES and implementation of it recommendations, Congress set the minimum flow volume in the Trinity River at not less than 340,000 afbased on the supplemental Secretarial Decision signed by former Secretary of the Interior Manuel Lujan in 1991. The Trinity provision of the CVPIA specifically directed the completion of the i 2-year study (TRFES) called for by Secretary Andrus "in a manner which insures the development of recommendations, based on the best available scientific data, regarding permanent instream fishery flow requirements and [TRD] operating criteria and procedures for the restoration and maintenance of the Trinity River fishery." Upon concurrence of the Secretary and the Hoopa Valley Tribe, the provision Congressionally mandates the Secretary to implement the recommendations from the study accordingly. That statute also provides that if the secretary and the Hoopa Valley Tribe do not concur, the flows in the Trinity River may be increased by an. Act of Congress, appropriate judicial decree, or agreement between the Secretary and the Hoopa Valley Tribe. F. Trinity River Flow Evaluation Study Following the 1981 Secretarial Decision, the Service developed a plan of study and began the TRFES. Four annual flow volumes were to be evaluated under the TRFES: 140,000 af, 220,000 af, 287,000 afand 340,000 af. Release schedules for each of the water volumes were to be assessed for their ability to meet criteria necessary to restore and maintain the fishery resources of the Trinity River. The TRFES report was also to recommend specifically what actions should be continued, eliminated or implemented to mitigate fish population declines attributable to the TRD. Flow evaluation studies were conducted annually between 1983 and 1994 by Service biologists ’ Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 7 " in Lewiston. Scientists and technicians from several agencies and tribes working under direction of the 1984 Act coordinated with TRFES biologists toimplement recommendations developed during the TRFES annual studies. The Service and Hoopa Valley Tribe released the TRFES in June 1999. Their report concluded that the flow "alternatives" identified for study in the 1981 Secretarial Decision cannot meet the biological and geomorphic habitat requirements necessary to restore naturally produced salmonid .. populations in the mainstem Trinity River. The TRFES recommended specific annual flow releases, sediment management, and channel rehabilitation to create and sustain a dynamic alluvial channel that will provide the necessary habitat. The Preferred Alternative, as described in the FEISiEIR and summarized in this ROD, adopts the recommendations contained in the TILFES, is based on the extensive scientific studies contained in the TRFES, and is the most practical and scientifically based restoration strategy. This ROD represents the culmination of over .two deCade~ of,efforts aimed at understanding the necessary instream flow and physical habitat restoration requirements in order to restore the Trinity River anadromous fishery. Statutory requirements since 1955, based in large part upon the federal government’s trust obligations to the Hoopa Valley and Yurok Tribes, require the restoration and maintenance of the Trinity River anadromous fishery resources to pre-dam levels. It is clear that restoration must provide for a meaningful fishery, not only for the Tribes, but also for commercial, sport, and recreational fishermen. These important resources represent both tribal trust and public treasures from which all should benefit : to restore the faith of our tribal beneficiaries and to improve the economic well-being of the Trinity Basin and North Coast as a whole. III. NEPA/CEQA Process NEPA requires federal agencies to analyze and disclose the environmental effects of their proposed actions. To ensure full compliance with NEPA, the Service initiated the environmental review process to develop and assess alternatives aimed at restoring the Trinity River mainstem fishery by publishing ~ Notice of Intent (NOI) to prepare an EIS in the Federal Register on October 12, 1994 (59 Fed. Reg. 25141). Shortly thereafter, Trinity County initiated the concurrent CEQA process by forwarding a Notice of Preparation (NOP) of an EIR to the State Clearinghouse on November 16, 1994. The Service and Trinity County served as the designated lead agencies for NEPA and CEQA purposes, respectively, for this joint environmental review because of their particular roles in developing the TRFES and in permitting certain actions in Tri-nity County. Reclamation and the Ho0pa Valley Tribe also served as co-lead agencies because of their respective interests in this action. In developing this environmental review, the joint lead agencies relied extensively on the participation of thirteen local, state, and federal agencies (either cooperating, responsible, or trustee agencies) as well as involvement by the Yurok and Karuk Tribes. This review also used six technical teams--led by representatives of the Service, Reclamation, Western Area Power Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 8 Administration (WAPA), U.S. Army Corps of Engineers (Corps), and the Bur.e.au of Land Management (BLM)--to address key issues involved in this decision. This review provided for significant public involvement throughout the process. Numerous public meetings occurred over the past six years to scope the process; recommend potential alternatives to be evaluated; identify critical issues, including potential environmental impacts from implementing various alternatives and other areas of concern; and to inform the public ¯ about the continuing progress for this review. Various issues and concerns identified included: fishery resources, Tribal trust obligations, CVP agricultural as well as municipal and industrial (M&I) water supply and reliability, vegetation and wildlife resources, water quality and in-river temperature, water’management, CVP power generation, recreation and recreation economics, socio-economics, land use, Trinity River flooding, aesthetics (related to reservoir drawdown), ocean sport and Commercial fishing, and upland watershed rehabilitation. On October 19, 1999, the Service announced the availability of the DEIS/EIR and the commencement of the public comment period (64 FR 56364). The public comment period included a series of NEPA/CEQA public hearings held in Redding, Sacramento, Eureka, and Weaverville in November and December. Although the public comment period was originally -’ scheduled to end on December 8, 1999, the Service twice extended the time for public comments (64 FR 67584, 64 FR 72357) to January 20, 2000. A substantial number of letters and postcards commenting on the DEISiEIR were received from 6445 people and organizations (1009 letters and 5436 pre-printed postcards). A list of the commentors and the response of the agencies to the comments were presented the FEIS/EIR. On November 17, 2000 the Service announced the availability of the FEIS/EIR (65 FR 69512). See Appendix A for details of the public involvement process and responses to comments on the FEIS/EIR. IV. Alternatives In accordance with NEPA and CEQA, the FEIS/EIR identifies a range of reasonable alternatives, based on public input, scientific, information, and professional judgment. The FEIS/EIR examined the affected environment and the environmental consequences for numerous alternatives: 1) No Action Alternative; 2) Maximum Flow Alternative; 3) Flow Evaluation ~ Alternative; 4) Percent Inflow Alternative; 5) Mechanical Restoration Alternative; 6) State Permit Alternative, and the 7) Preferred Alternative. These are described in detail in the FEISiEIR. In addition, all alternatives were compared to the No Action and Existifig Conditions scenarios, as required by NEPA and CEQA, respectively. The FEIS/EIR considered but rejected other alternatives, also described in detail in the FEISiEIR and summarized below. No Action Alternative: represents ongoing activities and operations and the anticipated furore condition of the affected environment in the year 2020 in the absence of project implementation. Flow releases to the Trinity River under current operations would remain unchanged which are 340,000 af annually. Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 Maximum Flow Alternative: would use. all of the Trinity River inflows above the Trinity Dam to restore the river ecosystem through managed flows with no water exported to the Sacramento River system. Flow, Evaluation Alternative: is based on the recommendations in (he TRFES and includes increased variable annual instream flow releases from Lewiston Dam, a coarse sediment introduction program, 47 new channel projects (mechanical channel rehabilitation), and implementation of an adaptive management program. Percent Inflow Alternative: would approximate natural flow patterns, at a reduced scale, by releasing water into the Trinity River at a proportion of the rate it flows into the Trinity Reservoir. Mechanical Restoration Alternative: would .use the same water management as the No Action Alternative (i.e., 340,000 af), but would include Constructing 47 new channel projects; mechanically maintaining these new projects a~ well as existing projects, dredging 10 pools in the Trinity River mainstem (most likely on an annual basis), and initiating a watershed protection program. State Permit Alternative: would use the minimum flow levels as provided in the i955 Act and specified in Reclamation’s seven California water permits issued in 1959. Under this alternative, Trinity River instream flows would be reduced from the No Action levels of approximately 340,000 af of water per year to 120,000 af. Preferred Alternative: consists of the Flow Evaluation Altemative which includes increased variable annual instream flow releases from Lewiston Dam, a coarse sediment introduction program, 47 new channel projects (mechanical channel rehabilitation), and implementation of an adaptive management program. Additionally, this alternative includes a watershed restoration program identical to the watershed protection efforts identified in the Mechanical Restoration Alternative. Other Alternatives: Other alternatives were suggested in scooping for the draft EIS. Pages 2-35 through 2-42 of the draft EIS described eight alternatives considered but not forwarded for further consideration. The alternatives of harvest management, improving fish passage facilities, trucking fish around the dams, predator control, increased hatchery production, pumped storage, and channel augmentation using Weaver Creek were eliminated because they would not achieve the fishery restoration objectives. The alternative of removing Trinity and Lewiston Dams was not considered a viable alternative because of the environmental impacts, forgone benefits, and costs associated with dam removal. Other alternatives were suggested in public comments on the draft EIS/EIR and were evaluated in developing the FEIS/EIR. The Sacramento Municipal ¯ Utility District (SMUD), provided comments that recommended additional mechanical manipulations and alternative flow schedules. The SMUD alternative was evaluated and analyzed using the same fishery resource model as the other alternatives contained in the Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 10 FEIS/EIR. As shown in the FEIS/EIR (starting at page D2-37 and also in the specific responses to SMUD’s comment letter) the SMUD alternative would require a significant amount of additional annual mechanical restoration in the channel, with associated increased costs, and would not substantially increase natural production above that anticipated under the Mechanical Restoration Alternative. As described in the FEISiEIR(pages D2-35 through D2-38), the other suggested alternatives were either minor variations of alternatives already examined or would not meet the physical and biological objectives necessary for recovery of the fishery resources of the ¯ Trinity River and thus did not warrant further consideration in the FEIS/EIR. Environmentally Preferred Alternative: The Preferred Alternative has been chosen as the Environmentally Preferred Alternative. The Preferred Alternative will restore the diverse fish habitat necessary to restore the anadromous fishery of the Trinity River. This alternative also causes the least damage to the biological and physical environment and best protects, preserves, and enhances historic, cultural,- and iiatutal resources. Implementation of the Preferred Alternative will not jeopardize the continued existence of any listed species under the Endangered Species Act, or destroy or adversely modify the critical habitat for any listed species under the Endangered Species Act. Additionally, the Preferred Alternative also includes a watershed management plan as well as measures to minimize and mitigate impacts (as outlined in section V(G) and Appendix C). For these reasons, the Preferred Alternative is the Environmentally Preferred Alternative. V. Components of the Decision For the reasons expressed in this ROD, the Department’s agencies are directed, through the Trinity Management Council, to implement the Preferred Alternative as described in the FEIS/EIR and to implement the reasonable and prudent measures described in the NMFS and Service Biological Opinions. The Preferred Alternative incorporates the recommendations developed in the TRFES and evaluated under the Flow Evaluation Alternative, coupled with the additional watershed protection efforts identified in the Mechanical Restoration Alternative. Although the Secretary retains ultimate authority over this program, by this Record of Decision, the Trinity Management Council is established which will guide overall implementation of the man.agement actions of the Implementation Plan. Reclamation and the Service, as the Secretary’s representatives on the Trinity Management Council, will be responsible for assuring that the restoration is carried out in a timely manner and that progress reports are submitted to the Department and to the Congress. On behalf of the Secretary, Reclamation and the Service should identify sources of funding necessary to implement the restoration program (FEIS/EIR at pages C-16 and C-17). As with all other federal programs, implementation is contingent upon Congress appropriating funds. The suite of actions which make up the Preferred Alternative ~s designed to restore the Trinity River mainstem fisheries and avoid or minimize potential adverse effects. Implementation of the fishery restoration program will involve several components that will be implemented over time. Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 11 The Implementation Plan contained in the FEISiEIR (FEISiEIR pages C-1 through C-39) describes in detail the activities which comprise this comprehensive program for Trinity River mainstem fishery restoration and is adopted as part0f this decision. Sufficient information exists for implementation of certain actions under this decision, and adjustments may be made to certain elements of the fishery restoration plan based on continuing scientific monitoring and studies called for in the Adaptive Environmental Assessment and Management Program (AEAM). The Trinity Management Council, will consult on these actions with the Hoopa Valley ¯ and Yurok Tribes and other responsible Federal, State and local jurisdictions, and tirivate landowners as appropriate. The main elements of this Decision its Implementation Plan are summarized below: A. Variable Annual Flow R.egime Reclamation will provide annual instream flows below Lewiston Dam according to the recommendations provided in the TRFES and adopted in the FEIS/EIR Preferred Alternative, The total volume of water released from the TRD to the Trinity River will range from approximately 369,000 af to 815,000 .af, depending on the annual hydrology (water-year type) determined as of April 1st of each year (see Table 1, Figure 1, and ROD Appendix B). Therecommended flow regimes‘ link two essential, purposes deemed necessary to restore and maintain the Trinity River’s fishery resources: 1) flows to provide physical fish habitat (i.e., appropriate depths and velocities, and suitable temperature regimes for anadromous salmonids), and 2) flows to restore the ri,~,erine processes that create and maintain the structural integrity and spatial complexity of the fish habitats. The environmental effects of implementing this flow program have been thoroughly analyzed in the FEIS/EIR; no further environmental compliance is currently anticipated for implementing the flow program. Under this decision and the NMFS and Service biological opinions, Reclamation’s Operating Criteria and Procedures for the TRD have been modified to implement the Preferred Alternative’s flows (FEIS/EIR pp C1-C7). Based on subsequent monitoring and studies guided by the Trinity Management Council, the schedule for releasing water on a daily basis, according to that year’s hydrology, may be adjusted but the annual flow volumes established in Table 1 may not be changed. Maximum releases from Lewiston Dam will not exceed 6,000 or 8,500 cfs depending upon the completion of specific infrastructure modifications discussed in Section V.E. Water- year Class Critically dry Dry Normal Wet Extremely wet Volume (Acre-feet) 369,000 453,000 647 000 701,000 815,000 Peak Flow (cfs) 1,500 4,500 6,000 8 500 11,000 Peak Flow Duration (days) 36 5 5 5 5 Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 12 Table 1. Volume, Peak Flow and Peak Flow Durations for proposed Flow Schedules for Five Water-Year Types Figure 1. Flow Hydrograph for Five Water-Year Types (taken from DEIS, p. 2-19) B. Mechanical Channel Rehabilitation The Trinity Management Council will guide restoration and maintenance of channel morphology characteristics modeled based on pre-darn Trinity River channel morphology characteristics. This r~storation, which will be implemented in phases over time, wil! require removal of riparian berrns at 44 project areas, the establishment of side channel habitat at 3 sites and the use of increased flow releases to maintain habitat and promote the creation of alternate bar sequences. Additional environmental planning and environmental compliance steps will be performed as necessary in order to acquire all the necessary permits and other authorizations prior to implementation of this portion of the Preferred Alternative. C. Sediment Management The Trinity Management Council will guide a program to balance the recruitment of coarse and fine sediment of the upper river that has been disrupted by the construction and operation of the Record of Decision - TrinityRiver Mainstem Fishery Restoration, December 19, 2000 13 TRD. Lewismn and Trinity dams trap all coarse sediment supply above Lewiston (gravel and cobble necessary for spawning and rearing habitat). A gravel supplementation program will be implemented in the reaches below the dam. Restoration of fluvial processes will require continued input of coarse sediment as gravels are moved and redeposited from increased flows creating necessary dynamic habitats. Required coarse sediment introductions are anticipated to average 10,300 cubic yards annually but could range from 0.to 67,000 cubic yards in any one year depending upon the water year type (Table 2). Reclamation will continue operation and maintenance of fine sediment !sand) catchment ponds on Grass Valley Creek to prevent free sediment from reaching or remaining in the mainstem and degrading spawning and rearing habitat. Additional environmental planning and environmental compliance steps will be performed as necessary to acquire all the necessary permits and other authorizations prior to implementation of this ~ortion of the Preferred Alternative. Water Year Coarse Sediment. Introduction (~fd~/year) Extremely 31,000-67,000 Wet Wet 10,000-18,000 Normal 1,800-2,200 Dry 150-250 Critically 0 Dry Table 2. Annual coarse sediment replacement estimates for the Lewiston Dam to Rush Creek Reach. Actual volume will be determined by modeled and measured transport each year. - D. Watershed Restoration The Trinity Management Council will guide an upslope watershed restoration program to address the problems of excessive sediment input from many of the tributaries of the Trinity River resulting from land use practices. The watershed protection program of the Preferred Alternative includes road maintenance, road rehabilitation and road decommissioning on private and public lands within the Trinity River basin below Lewiston Dam, including the South Fork Trinity River basin. Approximately 80 percent of the lands within the Trinity basin are federally managed of which the USDA Forest Service administers approximately 95 percent and the Bureau of Land Management administers five percent. Of the remaining 20 percent privately-owned land in the basin, approximately half (10 percent of the total) are industrial timberlands, with the remainder being small private holdings. Additional environmental planning and environmental compliance steps will be performed as necessary in order to acquire all the necessary permits and other authorizations prior to implementation of this portion of the Preferred Alternative. E. Infrastructure Improvement Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 14 Since construction of the TRD, human encroachment into the historic flood plain has occurred. Since infrastructure modifications represent a high priority activity for initiating flow changes, Reclamation will take appropriate steps in a timely manner to ensure that affected bridges, houses, and out-buildings are structurally improved or relocated or otherwise addressed before implementing recommended peak releases for Wet or Extremely. Wet water years (8,500 and 11,000 cfs, respectively). Additional environmental plarming and environmental compliance steps will be performed as necessary to acquire all the necessary permits and other authorizations ¯ prior to implementation of this portion of the Preferred Alternative. F. Adaptiv.e Environmental Assessment and Management Program The Trinity Management Council will establish and guide implementation of an AEAM Program to monitor the physical and biological results of the implementation plan and guide the refinement of the flow schedules and other activities contained in this Decisiordrestoration plan to ensure that the ultimate goal of restoring the fishery resources of the Trinity River is achieved. Appendix C of the FEIS/EIR contains a detailed description of the AEAM. The focus o.f the AEAM organization is the Trinity Management Council and an AEAM Team consisting of a Technical Modeling and Analysis Group and a Rehabilitation Implementation Group. The organization includes a support staff (AEAM Team) of engineers and scientists charged with assessing the Trinity River fishery restoration progress. The AEAM Team will coordinate independent scientific reviews of the AEAM organization and may recommend management changes based on annual assessments of the evaluation of rehabilitation and flow schedule activities. See FEISiEIR Appendix pages C-19 though C-29 for a detailed description of the organization and roles and responsibilities of the Trinity Management Council. The Trinity Adaptative Management Working Group, a stake holder group whose participation in the program is described on page C223 of FEIS/EIR, will be chartered under the Federal Advisory Committee Act Nothing in this ROD is intended to preclude watershed restoration and monitoring, provided funding is available, below the confluence of the Trinity and Klamath Rivers. Because the TRFES and ROD focus on the Trinity River mainstem and Trinity Basin, watershed restoration and monitoring that benefit Trinity River fisheries below the confluence of the Trinity and Klamath Rivers may be considered by the Trinity Management Council. G. Measures to Minimize and Mitigate Impacts Since there may be some short-term impacts resulting from modifying river flows, channel rehabilitation, watershed protection measures, and infrastructure modifications, the Trinity Management Council will guide efforts to minimize or eliminate potential impacts prior to implementation. These are described in detail in the FEIS/EIR, listed in ROD Appendix C, and summarized below. Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 15 The reasonable and prudent measures identified in the NMFS and Service Biological Opinions will be implemented in an effort to avoid unauthorized take of listed species on the Trinity River, Sacramento Valley and Delta. The Service will coordinate with the NMFS regarding surveys for threatened coho salmon presence prior to implementation of habitat rehabilitation on the Trflfity River. The NMFS and Service will coordinate work windows for these projects, as needed. All permits or other authorizations will be acquired and other environmental compliance requirements will be satisfied, as necessary, prior to initiation of any program activities. Surveys for nesting northern spotted owls and bald eagles will occur in suitable habitat within a 0.5 mile radius of a project site prior to beginning work activities utilizing motorized equipment or chain saws. If a nesting owl is detected within a 0.25 mile radius, scheduled work activities will not.occur from February 1 through July 9; if a nesting eagle is detected within a 0.5 mile radius, scheduled work activities will not occur from January 1 through August 31. Similar surveys will occur for watershed protection and restoration efforts in upland areas. Measures will be taken to minimize any increased sedimentation!turbidity in the mainstem from mechanical disturbance, such as leaving a small berm at the edge of the charinel to trap .sediments until all other work is completed. Turbidity and other Clean Water Act standards, as identified by the Water Quality Control Plan for the North Coast Region, will be monitored and maintained. If standards are not met, construction activities will cease until such a time that operations or alternatives can be completed within compliance standards. Construction of most project sites will involve removal of riparian vegetation at encroached berm areas. Construction of these channel rehabilitation sites, as presented in the FEISiEIR, will include areas that are re-vegetated with willow, cottonwood and/or other shrub/tree species at more appropriate locations on the floodplains of the rehabilitation sites. Ultimately, natural revegetation and more proper riparian function will also occur at project sites as flow regime changes are implemented. The lead agencies have executed a Programmatic Agreement (PA) under Section 106 of the National Historic Preservation Act with the Hoopa Valley Tribe, the State Historic Preservation Officer for California, and the Advisory Council on Historic Preservation. Under the terms of the PA, efforts will be undertaken to identify historic properties that may be affected by actions to be taken under the Preferred Alternative, and measures will be identified and implemented to avoid, minimize, or mitigate potential adverse effects upon those properties. The segment of the Trinity River between Cedar Flat and Lewiston Dam (river miles 47.5 to 111.9) is a component of the National Wild and Scenic Rivers System ("System"). The primary outstanding remarkable value of this section of the Trinity River is recreational. Mitigation measures intended to address public safety from river flows that are too high or too low will be implemented as part of the Preferred Alternative (see ROD Appendix C). VI. Rationale for Decision Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 16 As expressed above, the guiding principles for this decision emanate from various Congressiona! mandates as well as the federal government’s trust responsibility to the Hoopa Valley and Yurok Indian Tribes. From the inception of the TRD, Congress directed this Department to ensure the preservation and continued propagation of the Trinity River’s fishery resources and to divert to the Central Valley only those waters surplus to the needs of the Trinity Basin. With the drastic declines in anadromous fish and associated habitats following the TRD’s construction .and operations, Congress subsequently passed a series of legislative initiatives directing the .. Department to determine and implement flows and other measures necessary to restore and maintain thes.e populations to levels which existed prior to the TRD’s inception. These statutory restoration and preservation directives also comport with the Department’s trust responsibility to the Hoopa Valley and Yurok Tribes. These Tribes have federally recognized fishing rights which require sufficient water to make their fishing rights meaningful. The Department has a trust obligation not only to protect these, trust assets but also to make them productive. Thus, the Department must manage these assets for the benefit of the Tribes so that they can enjoy a meaningful fishery--for ceremonial, subsistence, and commercial purposes. Because of the depressed fishery conditions subsequent to the TRD, however, the Tribes have been increasingly restricted from the enjoyment of their trust resources. In light of these obligations, the Service, with vital support from the Hoopa Valley Tribe, conducted an extensive scientific effort to determine the appropriate flows and other measures necessary to restore and maintain the Trinity River’s anadromous fishery. In section 3406(b)(23) of the CVPIA, Congress sought the final resolution of these issues in order to meet the federal trust responsibility and to meet the goals of prior legislation, calling for the completion of the scientific efforts initiated by Secretary Andrus and for the implementation of recommendations, based on the best available scientific information, regarding permanent instream fishery flow requirements and TRD operating criteria and procedures necessary for the restoration and ¯ maintenance of the Trinity River anadromous fishery. These statutory and trust responsibilities form the basis for the FEIS/EIR’spurpose .and need for this action--to restore and maintain the natural production of anadromous fish below the TRD. All alternatives and issues raised during the environmental review process were fully considered and analyzed in making the decision set forth in this ROD. This ROD adopts the analysis contained in the FEIS/EIR and selects the Preferred Alternative as the necessary and appropriate action which best meets the statutory and trust obligations of the Department to restore and maintain the Trinity River’s anadromous fishery resources. The following text summarizes the rationale for choosing this alternative and the critical issues considered in making this decision. The best available scientific information indicates that restoring the attributes associated with a healthy alluvial river--such as alternative bar sequences, effective sediment transport, and dynamic riparian communities--will best achieve the restoration and maintenance of anadromous fish populations in the Trinity River. Restoring these geomorphic attributes will restore the diverse habitats that salmon and steelhead need to survive and successfully reproduce. Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 17 This will in tum lead to healthier and more sustainable salmonid populations (and other species) in the Trinity River Basin. Based on the information and analysis in the FEIS/EIR, full implementation of the Preferred Alternative is necessary to restore the diverse fish habitats in the Trinity River below Lewiston Dam. Improved habitat conditions will in turn benefit rearing and juvenile life stages and improve juvenile emigration throughout the Trinity system and will also benefit anadromous ¯ species in the lower Klamath River Basin by providing increased juvenile outmigration flows and lower water temperature. These improved habitat conditions are expected to result in greater production and substantial increases in anadromous fish populations. Spawner escapement estimates for chinook and coho salmon and steelhead range from 64-74 percent of the Trinity River Restoration Program (TRRP) goals following implementation of the Preferred Alternative- -approximately eight times greater than the estimate for the No Action Alternative. These increases in fish numbers are expected to ultimately result inself-sustaining anadromous fish ’ populations in the Trinity River, providing a meaningful, viable fishery for the Hoopa Valley and Yurok Tribes as well as non-Indian fishing interests along the North Coast. For these reasons and others noted elsewhere, the Preferred Alternative represents the appropriate action necessary to restore and maintain the Trinity River’s anadromous fishery in accordance with the Department’s statutory and trust responsibilities. In addition to the statutory and trust obligations imposed on the Department regarding the restoration of the Trinity’River’s fishery, the FEISiEIR considered several additional factors critical in making this decision, including: compliance with the Endangered Species Act; continued TRD integration for CVP consumptive water use and power generation; socio- economic impacts; impacts to other wildlife; flood control; and additional statutory and other considerations. ESA: Section 7(a) of the Endangered Species Act places an affirmative obligation on federal agencies to take actions that conserve endangered or threatened species, in addition to the general prohibition on federal activities which would jeopardize the continued existence of listed ipecies or would destroy or adversely modify those species’ critical habitats. When federal agencies ¯ propose actions which may affect a listed species, agencies must consult with either the Service or the NMFS to ensure that the proposed action will comply with the mandates of the ESA. Consistent with these responsibilities, Reclamation and the Service formally consulted with the appropriate agencies on the potential effects of implementing the Preferred Alternative to threatened and endangered fish and wildlife species in the Trinity River basin and the Sacramento River/Delta system in the Central Valley. The Service’s Biological Opinion concluded that implementation of the Preferred Alternative is not likely to jeopardize threatened delta smelt and threatened Sacramento splittail or adversely modify critical habitat for delta smelt. The Service also has concurred with the determination that implementing the Preferred Alternative will not likely adversely affect the bald eagle and northern spotted owl. Incidental take a~sociated with implementation of the Preferred Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 18 Alternative of the threatened delta smelt and Sacramento splittail may be affected in a manner or extent not analyzed in the March 6, 1995 Biological Opinion on the Long-term Operation of the CVP and SWP; however, a reasonable and prudent measure to minimize the effects of incidental take due to implementation of the Preferred Alternative was developed. Implementation of this measure is non, discretionary. The NMFS Biological Opinion finds that implementation of the Preferred Alternative is not . likely to jeopardize Southern Oregon/Northern California coast (SONCC) coho salmon in the Trinity River, Sacramento River winter-run chinook salmon, Central Valley spring-run chinook salmon, or Central Valley Steelhead. The NMFS has also determined that implementation of the Preferred Alternative, as proposed, is not likely to destroy or adversely modify designated critical habitat for these species. The NMFS does anticipate that SONCC coho salmon habitat adjaeent tO and downstream of the channel rehabilitation projects associated with the Preferred Alternative may be temporarily degraded during construction. Construction of these projects, Which will create a substantial amount of additional suitable habitat, may temporarily displace an unknown number of juvenile coho salmon but is not expected to result inan unauthorized take. Because implementation of the proposed action is expected to result in substantial increases in coho salmon populations, implementation of the Preferred Alternative is not expected to appreciably reduce the likelihood of both survival and recovery of SONCC coho salmon in the wild. Similarly, because the expected outcome of implementation of the proposed action is greatly improved fish habitat conditions (including necessary coho salmon habitat), the value of critical habitat for both the survival and recovery of SONCC coho salmon will not be appreciably diminished. The NMFS does not anticipate that the implementation of the proposed action will result in incidental take of Central Valley spring-run chinook or Central Valley steelhead, but does anticipate the Preferred Alternative will result in a minute increase in the level of Sacramento River winter-run chinook incidentally taken due to elevated water temperature in all years except critically dry years. In critically dry years, Reclamation would be required to reinitiate consultation pursuant to the existing Winter-run CVP-OCAP to develop year-specific temperature control plans. Implementation of reasonable and prudent measures specified in the NMFS BO to minimize the effects of incidental take are non-discretionary and will result in minimizing impacts of incidental take of SONCC coho salmon and Sacramento River winter-run chinook salmon in all years including critically dry years. As described above, implementing the Preferred Alternative also will entail the development of more specific plans to implement non-flow related recommendations. These project proposals will serve as biological assessments for the proposed actions, providing necessary details about the actions and their impacts on affected listed and candidate species. Project-specific biological opinions will take into account the environmental benefits that accrue from the fishery restoration Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 19 program. As a result, the Service and NMFS anticipate that implementation of the overall fishery restoration program will streamline the ESA compliance process and, as actions are taken that benefit listed species, will ultimately reduce and, upon recovery of the listed species, eliminate " the need for additional ESA compliance requirements. TRD integration with CVP: The Preferred Alternative provides for the continued operation of the Trinity River Division of the CVP, including the continued export to the Central Valley of a ¯ majority of the waters flowing into the TRD (averaging 52%) and the continued generation of power. The Preferred Alternative, however, also conforms to the legal and trust mandates for the restoration and protection of the Trinity fishery whicti restrict the amount of water authorized for exportation to the Central Valley. Since full operation of the TRD began in 1964, an average of 74% of the basin’s inflow to the TRD (about 988,000 af) has been exported annually. In some years, approximately 90% of the annual inflow was diverted to the Sacramento basin. In recent years (1985-1997), annual exports have decreased to an average of 732,400 af; under the No Action alternative they were assumed to average 870,000 af. Currently, releases to the Trinity River are not less than 340,000 af annually. Under the Preferred Alternative, the TRD would be operated to release additional water to the Trinity River, and the timing of exports to the Central Valley would be shifted to later in the summer to help meet Trinity River instream temperature requirements. The Preferred Alternative would, on average, increase releases to the Trinity River by 75% above No Action levels. Long-term average water exports to the Central Valley would be 630,000 acre feet, or a reduction compared to the No Action alternative of approximately 240,000 acre feet (28 percent). Dry-period annual exports would be reduced by 160,000 acre feet (30 percent) compared to average dry period exports under the No Action alternative (see Table 3-3 in the DEIS). Analyses conducted for the FEISiEIR indicate that compared to the No Action alternative long- term average annual CVP deliveries may decrease by approximately 90,000 acre feet (2 percent), with reductions during the dry period projected to average 160,000 acre feet (4 percent). Annual Delta exports through the Tracy Pumping Plant were modeled to be reduced by 60,000 acre feet (2 percent) over the long-term average and 90,000 acre feet (4 percent) during the dry period. The reduction in available surface water supplies is anticipated to result in increased pumping of groundwater in areas where such pumping is economically viable given land use, crop mix, and groundwater quality. In some areas, the FEIS/EIR anticipated that water users may choose to pump additional groundwater in areas that are in an existing/projected area of overdraft; such additional pumping would be expected to result in localized groundwater elevation declines and land subsidence compared to the No Action alternative. In some areas where additional groundwater pumping is not. assumed to be feasible, either because of economic considerations or ordinances which limit additionaI groundwater extraction, some lands may be fallowed at least on a temporary basis. Although not the basis for this decision, improvements in water supply reliability to the Central Valley and in particular to south-of-Delta agricultural interests are being addressed in a separate Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 20 forum. On August 28, 2000, 18 Federal and State of California agencies, including the Department of the Interior, issued a Record of Decision for implementation of the CALFED Program. The CALFED Program was established to develop a long-term comprehensive plan that will restore ecological health and improve water management for beneficial uses of the San Francisco Bay/Sacramento-San Joaquin Delta (Bay-Delta) system. One of the goals of the CALFED Program is to improve the water supply reliability for the State of California’s farms and growing cities that draw water from the Delta and its tributaries, including 7 million acres of highly productive farmland. As part of the CALFED Record of Decision, the CALFED agencies anticipated that implementation of a variety of water management tools called for in the CALFED Program "will result in normal years in an increase to CVP south-of-Delta agricultural water service contractors of 15 percent (orgreater) of existing contract totals to 65 to 70 percent." (CALFED ROD at 41). In the course of developing these target water allocations, and consistent with language contained in House Report 106-253, on the Energy and Water Appropriations Bill = Federal Fiscal Year 2000, certain CALFED agencies considered the potential that the Trinity River decision may affect CVP allocation as part of the CALFED Process, and concluded that it will not affect these targeted allocations to CVP south-of-Delta agricultural water service contracts. Ibid. Implementation of the Preferred Alternative will have some impacts to power generation. The Preferred Alternative minimizes effects to CVP power generation to the extent practicable, while allowing for both fisheries restoration within the mainstem of.the Trinity River and meeting Tribal Trust obligations. The total installed CVP capacity of approximately 2000.megawatts equates to four percent of California demand in 1999 and three percent of projected 2010 demand. The Trinity River Division (TRD) accounts for 25 percent of the total CVP installed capacity (approximately 497 megawatts is generated by the TRD), which equates to approximately one percent of current California demand, and less than one percent of projected 2010 demand. Upon fu!l implementation of the Preferred Alternative, average annual CVP power generation would be reduced in the Trinity River Division, would be slightly reduced in the Shasta Division, and would remain approximately the same at Folsom, Nimbus and San Luis Powerplants. The Trinity River FEIS/EIR(using modeling results produced in cooperation with WAPA - see FEISiEIR page 2-123, Table 3-49) identifies an average potential decrease in capacity of seven MW (compared to the average capacity of 1603 MW under No Action; a percentage change of less than four tenths of one percent of the total power capacity associated with the CVP) attributable to the Preferred Alternative.1 Modeling simulations in the FEIS/EIR also indicate that the Preferred Alternative would reduce the average long-term energy production of the CVP by 318 GWh, approximately 6 percent, which equates to a reduction in the statewide electrical energy supply of approximately one tenth of one percent as a result of implementing the Preferred Alternative. 1In certain rare circumstances, this decrease may be as high as 85 MW as a result of potential bypass operations, as discussed below. Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 21 Within the larger context of demand for electricity in the State of California, the reduced generating capacity .associated with implementation of the Preferred Alternative is minimal when compared to the new generating capacity either under construction or fully approved for construction within the state. As of November 2000, according to the Western Systems Coordinating Council, approximately 3,700 megawatts (which represents more than the total generation capability of the entire CVP) of new powerplants, in the form of six individual projects, are either under construction or have gained full regulatory approval in California. An ¯ additional approximate 7,500 megawatts of new powerplants have applications under review, and a further 2,000 megawattsof new powerplants have recently initiated the application process. As additional plants come on line, the CVP’s total contribution as a percentage of California’s overall demand for electricity will decrease. The Preferred Alternative includes peak releases of 11,000 cfs in extremely wet years and 8,500 cfs in wet years. Full implementation of the Preferred Alternative will be delayed due to the need to replace bridges and make other infrastructure modifications, which currently limit flows to no greater than 6,000 cfs. This is expected to take at least two years, thus allowing time for additiona! capacity.to come on line before the Preferred Alternative can be fully implemented. ’ Until infrastructure modifications can be implemented to increase the capacity of the channel, additional water may be available for power generation in wet and extremely wet years. Rainfall and run-off to support increased reservoir levels and power generation would typically be greater throughout the CVP system in such above-normal precipitation years. Additionally, operating criteria will be established to allow WAPA to respond to any emergency situations in accordance with their obligations tO the North American Electric Reliability Council,-including exceptions for responding to various emergency situations consistent with Presidential Memorandum dated August 3, 2000, directing federal agencies to work with California to develop procedures governing the use of backup power generation in power. shortage emergencies.. These operational criteria are similar to those currently in place at Glen Canyon Dam that were implemented earlier this year. The analysis contained in the FEISiEIR shows that the. net decrease in the value of CVP power production is estimated to be $5,564,0002 annually under the Preferred Alternative when compared to the No Action alternative, a 3 percent decrease. When compared to modeled existing conditions, the net decrease in the value of CVP power production was estimated to be approximately $9,029,000 annually. The difference in the value of reduced power generation between the No Action and Existing Conditions, when compared to the Preferred Alternative, is mostly attributed to increased efficiency in deliveries to preference power customers, assumed to occur in the No .Action alternative as a result of not renewing Contract 2948-A with PG&E in 2Output from the CVP is predominately peaking in nature, since the system is energy constrained during adverse water conditions. Generating capacity from the CVP was valued based on the assumption that any change in the CVP’s capacity would be offset by the construction of replacement generating capacity of a similar nature such as a combined-cycle combustion turbine. Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 22 2004. The other source of this difference is attributable to changes in delivery schedules of CVP water under the No Action alternative when compared to both Existing Conditions and-the Preferred Alternative. High allocation customers would be subject to increases of $1.25 per megawatt-hour in average power cost, or $0.00125 per kilowatt-hour at the retail level. Average customers would likely see increases of $0.21 per megawatt-hour, or $0.00021 per kilowatt-hour at the retail level, as compared to the No Action alternative. Costs to the average customer are estimated at $0.33 per megawatt-hour or $0.00033 per kilowatt-hour, and $3.90 per megawatt- ..hour or $0.0039 per kilowatt-hour for preference customers when comparing the Preferred Alternative to Existing Conditions. Historically, Reclamation has occasionally made low level releases at Trinity Dam to assist in meeting downstream water.temperature requirements during particularly dry years. During such releases, all of the water that would normally pass through the power turbines is bypassed, and the generators are shut down. Such bypasses have been implemented when storage has dropped below a range of from 750,000 to 1,000,000 af, depending on specific conditions, and have occurred in the July through October time frame. In modeling such bypass releases, the analysis was conducted on a "worst case" basis. Modeling of the Preferred Alternative indicates that in the 69 year period of record, bypass operations could have occurred in up to 26 months, during the July through October period, generally in critically dry years. Bypass operations could eliminate an average of 85 MW of firm load carrying capacity in any month that bypass operations occur for the July through October period. Applying the replacement capacity value used in the analysis of costs in the EISiEIR, the net impact associated with the loss of this capacity would be approximately $3,200,000 for the four month period. This additional cost, above existing costs related to implementing the Preferred Alternative, would be incurred in any year with the potential for bypass operations, because such potential eliminates the reliable use of the Trinity Power plant during the four month period. In contrast, modelir~g of the No-Action and Existing Conditions indicates that in the 69 year period of record, bypass operations could have occurred in up to 38 months, more Often than the Preferred Alternative. In addition, Trinity Public Utilities District power costs could increase as much as $107,000 annually. These increased costs could result in minor cost increases to individual power users. However, Congress recently passed legislation which may offset any potential increased costs to Trinity Public Utilities District by providing $540,000 annually to the Trinity Public Utilities District. Energy and Water Appropriations Act - FY 2001. It is important to note that the power costs discussed above may be greater (or less) than the costs identified in the NEPA documentation given different assumptions, which are in part driven by the continued uncertainty related to market deregulation and natural gas price fluctuations, but the relative impacts between the alternatives analyzed remain unchanged. Socio-economic impacts: The Preferred Alternative is intended to minimize adverse economic and social effects across the Trinity River Basin, Lower Klamath River Basin and the Central Valley Basin. The Trinity/Shasta regional economy would be positively affected by increases in Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 23 spending associated with increases in water-oriented recreation.. Socio-economic benefits also occur from the Mendocino Coastal Area northwards, specifically job growth in the commercial fishing and seafood processing sectors. In contrast, the San Francisco Coastal Area, Sacramento Valley, San Joaquin Valley and Tulare Basin showed adverse economic and employment effects as a result of reduced water deliveries to agricultural contractors. The economic sectors most impacted would be miscellaneous retail, retail and wholesale trade, farm machinery and equipment, and cotton production. As discussed above, implementation of the Preferred ¯ Alternative is estimated to reduce CVP power generation by approximately 6 percent, resulting in an increase in power costs to CVP power customers. Impacts to Other Wildlife: Other beneficial impacts to vegetation and wildlife include significant restoration of pre-dam riparian conditions along the Trinity River, increases in suitable habitat for the foothill yellow-legged frog, western pond turtle and the willow flycatcher, and long-term increases in wetland acreage. :However, ground disturbing activities and construction of channel rehabilitation sites may result in loss of vegetation, special-status plant populations,.or federal and state listed species. Therefore, site specific environmental reviews will be conducted prior to ground disturbance or construction. If special-status plant populations or federal and state listed species are present, actions shall be taken to avoid effects (e.g., delay Construction until after riparian nesting species fledge). In addition, there would be no significant impacts to riparian vegetation, wildlife, and wetlands anticipated in th~ Lower Klamath River Basin/Coastal Area. Infrastructure Impacts: Peak releases associated with the Preferred Alternative would increase from 2,000 to 11,000 cfs in May in extremely wet years, on average one out of every eight years. These flows would result in several developed and undeveloped properties being impacted as well as necessitate the replacement of four bridges (Bucktail Bridge, Poker Bar Bridge, Salt Flat Bridge, and Treadwell Bridge). Appropriate infrastructure modifications will be completed to avoid or address any anticipated impacts to property prior to increasing peak flows in wet and extremely wetlyears, as detailed above. Additional Statutory and Other Considerations: Implementation of the Preferred Alternative will also comply with all additional pertinent federal and state laws, including the Fish and Wildlife Coordination Act (FWCA), the National Historic Preservation Act (NHPA), the Wild and Scenic Rivers Act, and the Environmental Justice Executive Order 12898. Site-specific environmental reviews and permitting will be conducted and obtained as necessary. Other Alternatives Considered in the FEIS/EIR: The other alternatives either fail to achieve the restoration and maintenance goals required by theDepartment’s statutory and trust obligations or have other considerations that weigh against their selection. Analyses conducted for the TRFES and the FEIS/EIR as well as recent history provide substantial evidence tha~ the No Action and State Permit alternatives do not meet the purpose and need for this action. Instead, these alternatives would perpetuate and even exacerbate the degradation of available fish habitats to the continued detriment of the Trinity River and its fish stocks. Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 24 The analyses also show that the Percent Inflow and Mechanical Restoration alternatives lack the ability to restore and maintain Trinity River anadromous salmonids successfully. Although these alternatives offer marginal benefits for fishery restoration, each fails to address adequately the mechanisms which led to the current plight, i.e., the geomorphic impacts to ttie riverine environment resulting from severely reduced and relatively static flows from the TRD. The Mechanical Restoration alternative would continue the present minimum flow of 340,000 af from the TRD, a figure which represents the third-lowest flow on record prior to the TRD, and ¯ rely 0n constructing certain channel rehabilitation projects (also included in the Preferred Alternative and the Percent Inflow alternative) and maintaining these sites mechanically (e.g., with heavy machinery). Not only have these essentially static and severely reduced flows proven harmful to the Trinity fishery to date, but reliance on perpetual mechanical restoration efforts would also prove harmful through the continuing physical disturbance of the riverine environment. Conversely, the Preferred Alternative would maintain these improved habitats more naturally, through the managed, variable flow regime, which would flush the free sediments . which clog spawning gravels and prevent future riparian encroachment. The Percent Inflow alternative does offer a varied flow regime from the TRD based on the basin’s annual hydrology, but this more limited annual flow for Trinity needs (40% of inflow above Lewiston) greatly hinders the ability to prevent continued degradation of the environment in the majority of water years. This likely result is particularly true for dry and critically dry water years---40 percent of the time--in which only 325,000 af or 165,000 af, respectively, would be released to the Trinity River. Thus, neither ofthese alternatives provides the tools necessary to meet the Department’s statutory and trust ob.ligations or to protect and ultimately recover ESA-listed species. Although the Maximum Flow Alternative scored better than the Preferred Alternative in terms of estimated population increases, the Maximum Flow Alternative would exclude or excessively limit the Department’s ability to address the other recognized purposes of the TRD, including water diversions to the CVP and power production in the Trinity Basin. The best available science presently indicates that the Department’s statutory and trust obligations can be achieved while still meeting Congressional intent to have the TRD integrated with the CVP to the extent that diversions to the CVP do not impair in-basin needs. For all of these considerations, particularly the Department’s statutory and trust obligations, implementing the Preferred Alternative represents the necessary and appropriate action in order to restore and maintain the Trinity River’s anadromous fishery. As expressed above, the statutory directives and trust responsibility require the restoration of a meaningful, viable fishery from which the Hoopa Valley and Yurok Tribes can exercise their federally reserved fishing rights and the non-Indian eommercial and sport fishers can also share in the benefits of these efforts. Based on the best available scientific information, this alternative meets these statutory and trust obligations, providing the best means to achieve the restoration objectives while continuing to operate the TRD as an integrated component of the CVP. This alternative is considered to be the environmentally preferable alternative in that this alternative causes the least damage to the biological and physical environment and best protects, preserves, and enhances historic, cultural, and natural resources. Further, by selecting this alternative for implementation Record of Decision- Trinity River Mainstem Fishery Restoration, December 19, 2000 25 .. ~!:i’:..:::;-~itlq its associated monitoring and m{iigation measures~ all practicable means to avoid or :iii ’::. ~: " minimize environmental harm from¯ the alternative selected hav~ been adopted. "VIi.: Tribal Concurrence, ¯ ¯" ."’ In accordance with CPVIA Section 3406(b)(23)(B), this decision and the underlying recommendations were reviewed with the Hoopa Valley Tribe through the Tribal Chairman and the Tribal Council. By Tribal Resolution # 00-94 dated December 18, 2000, the Hoopa Valley .. Tribe formally concurred in and agreed with the underlying recommendations and this decision. ¯ Hoopa Valley Tribal Council : . " ’Date / .::: " The Department’s agencies are directed-to ~mplement this~ decision, as". outlined in this Record of Decision, and described in "detail in the FEISFEIR. ~abbitt Secretary of the Interior: ... Appendix B: Appendix C, Appendix D. Public Involvement;a~d Responses to comments on the FEIS/EIR Lewiston Dam Releases to the Trinity River . Measures to Minimize and Mitigate Impacts Associated with Implementation. of the ¯ Preferred Alternative.. : ": Hoopa Valley Tribal Resoluiion # 00-94 Rec6rd Of Decision - Trinity River Maihstern Fishery Restoration, December 19, 2000 :. . ."::{’: ’ ’ :i .. " : References Hoopa Valley Tribal Resolution, 2000. Moffett, J.W. and S.H. Smith. 1950. Biological Investigations of the Fishery Resources of Trinity River, California. Special Scientific Report No. 12. US Fish and Wildlife Service. 71pp National Marine Fisheries Service. 2000. Biological Opinion for the Trinity River Mainstem Fishery Restoration EIS and its effects on Southern Oregon/Northern California Coast Coho Salmon, Sacramento River Winter-run Chinook Salmon, Central Valley Spring-run Chinook Salmon, and Central Valley Steelhead. October 12, 2000, 55pp. Snyder, J. O. 1931. "Salmon of the Klamath River, California." Fish Bulletin No. 34. California Department offish and Game. U.S. Department of the Interior, Memorandum from the Solicitor to Assistant Secretary - Land and Water Resources, Proposed Contract with Grasslands Water District. December 7, 1979. U.S. Department of the Interior, Secretarial Issue Document, Trinity River Fishery Mitigation, January 1981. U.S. Department of the Interior, Secretarial Decision, May 1991. U.S. Department of the Interior, Memorandum from Solicitor to Secretary, Fishing Rights of the . Yurok and Hoopa ValleyTribes, M-36979, Oct. 4, 1993. U.S. Department of the Interior. 2000. CALFED Bay-Delta Program Programmatic Record of Decision. August 28, 2000, 1199pp. U.S. House of Representatives. 1955.84th Congress, 16 May, H. Rept. 602. U.S. Fish and Wildlife Service and California Department of Fish and Game. 1956. "A Plan for the Protection of Fish and Wildlife Resources Affected by the Trinity River Division, Central Valley Project." 76 pp. U.S. Fish and Wildlife Service and Hoopa Valley Tribe. 1999. Trinity River Flow Evaluation Final Report. June 1999, 513pp. Record of Decision - Trinity River Mainstem Fishery Restoration, December 19, 2000 27 U.S. Fish and Wildlife Service. 1980. Environmental Impact Statement on the Management of River Flows to Mitigate the Loss of the Anadromous Fishery of the Trinity River, California. Volumes I and II. U.S. Fish and Wildlife Service, Division of Ecological Services. Sacramento, CA. UoS. Fish and Wildlife Service, U.S. Bureau of Reclamation. 2000. Biological Assessment For Those Actions In The Preferred Alternative Of The Proposed Preferred Trinity.River Mainstem Fishery Restoration Program That May Effect Listed Species And Their Critical Habitat. June, 2000.36pp. UIS. Fish and Wildlife Service. 2000a. Reinitiation of Formal Consultation on the Effects of Long-term Operation of the Central Valley Project and State Water Project as Modified by Implementing the. Preferred Alternative in the Draft Environmental Impact Statement/Environmental Impact Report for the Trinity River Mainstem Fishery Restoration Program. Also, a request for Consultation on the Implementation of this Alternative on the Threatened Northern Spotted Owl, Northern Spotted Owl Critical Habitat, and the Endangere.d Bald Eagle within the Trinity River Basin and where applicable, Central Valley reservoirs. October 12, 2000.39pp. U.S. Fish and Wildlife Service. 2000b. Final Environmental Impact Statement!Environmental Impact Report for the Trinity River Fishery Restoration. October 2000. Record of Decision -Trinity River Mainstem Fishery Restoration, December 19, 2000 28 Appendix A. Public Involvement and Responses to comments on the FEIS/EIR. I. Public Involvement The EIS/EIR was undertaken to evaluate and disclose the potential environmental benefits and adverse impacts resulting from proposed actions to restorethe fishery. The DEIS/E!R was prepared with the support of the Hoopa, Kamk, and Yurok Tribes and thirteen local, state and federal agencies (either cooperating, responsible, or trustee agencies). The effort to collect, analyze and present technical information was further complemented by six technical teams lead by representatives of the Service, Reclamation, Western Area Power Administration (Westem), U.S. Atrny Corps of Engineers (Corps), and the Bureau of Land Management (BLM). The Service, as the designated lead agrncy under NEPA, beganthe public process on October 12, 1994 when it published a Notice of Intent (NOI) to prepare an EIS in the Federal Register (59 FR 25141). Shortly thereafter, Trinity County, the responsible CEQA agency, followed this action by forwarding a Notice of Preparation (NOP) of an EIR to the State Clearinghouse on November 16, 1994.. Soon after the publication of the NOI, a series of joint NEPA/CEQA scoping meetings were held in Willows, Weaverville, Hoopa and Eureka, California between October 27, 1994 and November 3, 1994. Public input received during the meetings’and subsequent follow-up letters helped the agencies identify potential environmental impacts and areas of concem. These concerns included: fishery resources, Tribal trust obligations, Central Valley Project (CVP) agricultural and municipal and industrial (M&I) water supply and reliability, vegetation and wildlife resources, water quality and inriver temperature, water management, CVP power generation recreation and recreation economics, socioeconomics, land use, Trinity River flooding, aesthetics (related to reservoir drawdown), ocean sport and commercial fishing, and upland watershed rehabilitation. As the DEIS/EIR was being prepared, additional pubhc meetings were held between March 25 and April 4, 1996 in Orleans,, Eureka, Hoopa, Weaverville, Willows, Fresno, Sausalito, California and Coos Bay, Oregon. This series of meetings provided the public.with additional opportunities for comment and included a discussion of preliminary TRFES recommendations, EIS/EIR alternatives, impact areas and analytical methods. In addition, the meetings provided updates on the projedt schedule and recent legislative actions. A second round of public meetings were held on October 28, 29 and 30, 1997, at Hoopa, Weaverville, California and Sacramento, California respectively, to provide an update on the alternatives and information on preliminary analysis results. In addition, a public workshop was held in Weaverville on February 17, 1998, to present information on proposed significance criteria that had been developed to help in identifying the significance of the various impacts. A-1 A series of newsletters mailed out to a large number of interested parties in_January 1996, September 1996, and October 1997 provided additional information. Distribution of news and information concerning the DEIS/EIR was supplemented in the fall of 1998 when the Service posted an Intemet web page at http://www.ccfwo.rl.Service.gov/ccfwo/treis.htm. Trinity County also provided electronic access to information concerning Trinity River activities by maintaining a public list server known as "env-trinity" available through subscription to majordomo@igc.apc.org. " On October 19, 1999, the Service published a notice in the Federal Register announcing the availability of the draft EIS/EIR and the commencement of the public comment period in ~e Federal Register (64 FR 56364). In addition, news releases and articles announcing the availability of the DEIS/EIR were published in several area newspapers including the Trinity Journal, Sacramento Bee, San Francisco Chronicle, Eureka Times-Standard and the San Jose Mercury News. The document was made available for public review at libraries and other public places in California and in Coos Bay, Oregon and Portland, Oregon. In addition, 692 hard copies of the document along with 408 copies of the Executive Summary and 204 electronic versions of the DEIS/EIR on CD-ROM were distributed to interested individuals, organizations and agencies. A complete series of technical appendices were also included as part of the CD ROM and hard copy versions of the appendices were also made available to the public and interested agencies on request. The public comment period included a series of joint NEPA/CEQA public hearings held in Redding, Sacramento, and Eureka on November 16, 18, and 23, 1999, respectively. In addition, the Trinity County Board of Supervisors held a CEQA hearing in Weaverville, California. These meetings provided the public with an oppommity to submit both written and oral comment to the lead agencies. The comment period was originally scheduled to end on December 8, 1999. However, on December 2, 1999 the Service extended the comment period until December 20, 1999 (64 FR 67584). Public meetings were again held in Sacramento, California on December 6, 1999 and inWeaverville, California on December 7, 1999. On December 27, 1999 the Service published a notice in the Federal Register which reopened the public comment period until January 20, 2000 (64 FR 72357). Public notices regarding the hearings and extensions were also published in the aforementioned newspapers and the Redding Record Searchlight. In response to the public outreach effort, the lead agencies received a substantial number of letters and postcards commenting on the DEIS/EIR. In total, the lead agencies received written comments from 6445 people and organizations (1009 letters and 5436 preprinted postcards). A list of the commentors and the response of the agencies to each of those comments was presented in the FEIS/EIR. On November 17, 2000 the Service announced the availability of the Final EIS/EIR (65 FR 69512). II. Responses to Comments on the FEIS/EIR Several hundred letters were received after publication of the FEIS pertaining to individuals’ preference for alternative implementation, implementation funding, and Executive Order 12898. No infomaation A-2 was received that would alter the conclusions contained in the FEIS/EIR or in the Service’s and NMFS’s biological opinions. Additional responses are provided below on the issues raised for clarification purposes. Issue: Alternatives for Implementation The Department received 423 letters requesting the Secretary implement the Maximum Flow Alternative or if the Preferred Alternative is selected ~d funds not appropriated for implementation, provide in the Record of Decision for an increasein flows to those of the Maximum Flow regime. The Department also received 123 additional letters supporting only the MaximumFlow Alternative, and 25 letters supporting increase flows, but not specifying how much of an increase. The Department also received 43 letters supporting the Preferred Alternative but only in its current form without modification expressing the sentiment that by agreeing to export 53% of the water from the Trinity River to the Central Valley, a compromise has been struck. Several of the letters mentioned the need to appropriate funding so increased flows and implementation could occur. Several also mentioned the Trinity Management Council, and that it should be lead by someone who is unaffiliated with Northern California water issues, and who would be highly respected by the environmental conservation community. The Department received two letters opposing implementation of the Preferred Alternative. The letters assert that the Department’s analysis was biased in certain respects and failed to adequately consider a number of issues, including the Sacramento Municipal Utility District’s proposed alternative, impacts to species listed under the ESA, lost power generation and acquisition of replacement power supplies, and that circumstances surrounding California’s deregulated energy market necessitate preparation of a supplemental EIS/recirculation of EIR. Response: Individuals’ preferences for the Maximum Flow Alternative, the Preferred Alternative and the SMUD proposed alternative are duly noted and in general have been addressed previously in the FEIS. The Preferred Alternative has been adopted for implementation for the reasons stated above. It should be noted that implementing the Maximum Flows regime would also require extensive funds due to the bridges and structures that would need to be relocated along with the estimated $23 to 72 million it would take to retrofit Trinity Dam for those releases. With regard to t_he comment about current electrical energy issues in California, it should be noted that implementation of the Preferred Alternative will not have any immediate impac.ts to.power supplies in California and that, as recognized above, substantial new supplies are expected to be developed in California over the next few years. Moreover, the issues raised through the comments will not result in impacts to a significant extent not already considered in the FEIS/EI~ A-3 As a whole, the Preferred Alternative best meets the purpose and need to restore and maintain the Trinity River fishery in accordance with the Department’s statutory and trust obligationS. The Preferred Alternative also presents a balanced approach that allows the continued integration of the TRD to the extent consistent with Congressional mandates and based on the best available scientific information The selection of the Preferred Alternative flows from sound scientific reasoning and thorough analysis of all of the alternatives. -Issue: Executive Order 12898 Several letters included comments pertaining to Executive Order 12898 - "...requires agencies to identify and address disproportionately high and adverse human health or environmental effects of their actions on minorities and low-income populations and commtmities as well as the equity of the distribution of the benefits and risks of their decisions." These letters expressed the view that the current Iransfer of water is a violation of law. Response: Comments noted. This Decision directs the Preferred Alternative to be implemented which, as described in the FEIS, is consistent with Executive Order 12898. A-4 AppendixB. Lewiston Dam Releases to the Trinity River (FEIS, pages C-37 and C-38) Date 01-Oct thru 15-Oct 16-Oct thru 21-Apr Attachment 1 Lewiston Dam Releases to the Trinity River Extremely Wet 450 300 Wet 450 3O0 Normal 450 3OO Dry 450 300 22~Apr 23-Apr 24-Apt 25-Apr 26-Apr 27-Apr 28-Apr 29-Apr 30-Apr 01-May thru 05-May 500 500 500 500 500 500 500 1,500 1,500 1,500 5OO 5OO 500 - 5OO 50O 5OO 5OO 2,000 2,000 ’~,ooo 500 500 500 500 500 500 500 2,000 2,500 2,5O0 300 300 300 300 300 900 1,500 2,500 3,500 ,4,500 06~May 07-May 08-May 09-May 10-May I 1-May 12-May 13-May 14-May 15-May 16-May 17.-May 18-May 2,000 2,000 2,000 2,000 2,000 2,00O 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,500 2,500 2,500 2,500 2,500 2,500 2,500 2,500 3,000 1,000 6,000 8,500a 8,500a 4,000 6,000 6,O00 6,000 6,000 6,0O0 5,784 5,574 5,373 5,178 4,991 4,811 4,637 4,306 4,121 3,943 3,773 3,611 3,455 3,307 3,164 3,028 ¯ 2,897 2,773 2,653 2,539 Critically Dry 450 3O0 300 900 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 B-1 19-May 20-May Date 21-May 22-May 23-May 24-May 25-May 26-May 27-May 28-May 29-May 30-May 31-May 01-Jun 02-Jun 03-Jun 04-Jun 05-Jun 06-Jun 07-Jun 08-Jun 09-Jun 10-Jun 11-Jun 12-Jun 13-Jun 14-Jun 2,000 3,000 Extremely Wet 4,000 6,000 8,500a 11,000a 11,000a 11,000a 11,000a 11,000a 10,444a 9,889a 9,333a 8,778a 8,222a 7,667a 7,111a 6,556a 6,000 6,000 6,000 6,000 6,000 5,664 5,359 5,071 4,798 8,500a 8,500a Wet 8,500a 7,666a 6,833a 6,000 6,000 6,0.00 6,000 6,000 5,690 5,322 4,977 4,655 4,354 4,072 3,809 3,562 3,332 3,116 2,915 2,726 2,550 2,385 2,230 2,086 2,000 4,469 4,307 Normal 4,151 4,001 3,857 3,717 3,583 3,453 3,328 3,208 3,092 2,980 2,872 2,768 2,668 2,572 2,479 2,389 2,303 . 2,219 2,139 2,062 2,000 2,000 2,000 2,000 2,000 ¯ 2,430 2,325 Dry 2,225 2,129 2,037 1,950 1,866 1,785 1,708 1,635 1,564 1,497 1,433 1,371 1,312 1,255 1,201 1,150 1,100 1,053 1,007 964 922 883 845 808 774 1,500 1,500 Critically Dry 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,500 1,497 1,433 1,371 1,312 1,255 1,201 1,150 1,100 1,053 1,007 964 922 883 845 808 774 B-2 15-Jun 16-Jun 17-Jun 18 -Jun Date 19-Jun 20-Jun 21-Jun 22-Jun 23-Jun 24-Jun 25-Jun 26-Jun 27-Jun 28-Jun 29-Jun 30-Jun thru July 9 4,540 4,295 4,064 3,845 Extremely Wet 3,638 3,443 3,257 3,082 2,916 2,759 2,611 2,470 2~337 2,212 2,093 2,000 . 2,000 2,000 2,000 2,000 Wet 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,000 Normal 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,000 2,000 74O 708 678 649 Dry 621 594 568 544 521 498 477 450 450 450 450 450 10-July 11-July 12-July 13-July 14-Jul 15-July 16-July 17-July 18-July 19-July 1,700 1,500 1,350 1,200 1,,050 950 85O 750 675 600 1,700 1,500 1,350 1,200 1,050 950 850 750 675 600 1,700 .1,500 1,350 1,200 1,050 95O 85O 75O 675 6OO 450 45O 450 450 450 45O 450 450 450 450 740 708 678 649 Critically Dry 621 594 568 544 521 498 477 450 450 450 450 450 ’450 450 450 450 450 45O 450 450 45O 450 B-3 20-July 550 550 550 450 450 21-July 500 500 500 450 450 22-July to 30-Sep(450 450 450 450 450 Acre-Feet 815.2 7,01.0 646.9 452.6 368.6 (Thousands)(721.1)b (671.3)b ~ ~.eleases restricted to 6,000 cfs or 8,500 cfs until appropriate infrastructure improvements have occurred. bAma~al ~locations that reflect a maximum Lewiston Dam release of 6,000 ft 3/s until floodplain improvement projects are completed. " B-4 Appendix C. Measures to Minimize and Mitigate Impacts Associated with Implementation of the Preferred Alternative Table 1 displays the project implementation impacts/issues and minimization and mitigation measures which Reclamation and the Service have committed to perform under this Record of Decision followed by additional explanation. ¯ Table 1. Impacts and Preferred Altemative Mitigation Commitments Impact/Issue The channel rehabilitation projects would result in short- term Trinity River turbidity impacts. Impacts to recreation activities from turbidity associated. v~ith the construction of the channel rehabilitation sites. Potential violations of temperature objectives and carryover storage criteria established in the Sacramento River winter run chinook salmon Biological Opinion. Violate state temperature objectives established for the Trinity River. Impacts to Delta smelt and Sacramento splittail as a result of changes in Delta inflow to export ratios. Mitigation Commitment A 401 water quality certification would be obtained from the NCRW.QCB, and a construction procedure would be developed to meet the Basin Plan turbidity requirements. Monitoring would be conducted as specified by the NCRWQCB, and efforts would be taken to reduce levels if they are 20 percent or more over background (e.g., isolating the work area and/or slowing or halting construction until the 20-percent level is achieved). Notify individual diverters with state diversion permits within 2 miles downsl~eam of any mechanical channel rehabilitation activity at least 2 days in advance of activities likely to produce turbidity. Implement NMFS biological opinion Reasonable and Prudent Measures and Terms and Conditions. " Consultation with NMFS would occur pursuant to Trinity River coho salmon biological opinion. Bypassing the Trinity Power plant could offset impacts to temperature in the Trinity River by pulling colder water from lower in the reservoir. Implement Service biological opinion Reasonable and Prudent Measures and Terms and Conditions. C-1 Ground disturbing activities could result in a loss of vegetation and special-status plant populations. Direct mortality of. foothill yellow-legged frogs or egg masses, adult western pond turtles and hatchiings, or willow flycatcher nests and young during construction of the channel rehabilitation sites. .The mechanical channel rehabilitation projects could impact wetland resources. Impacts to public safety from river flows that are too high or too low (i.e., outside the preferred range for boating). Increased flooding of Trinity River structures and/or residences. Conduct site-specific environmeutai reviews prior to mechanical ground-disturbing activities. Such reviews shall, when appropriate, include surveys for federal and state endangered, threatened, and proposed species, or for other species if required by permitting agencies (e.g., USFS). If such species are present, actions shall be taken to avoid impacts. Develop and implement a revegetation plan for all ground-disturbing activities (excluding channel rehabilitation sites). Revegetation.shall use plant species found adjacent to the impact area or from similar habitats, subject to landowner andor agency concurrence. Replacement ratios and monitoring plans, if determined necessary, will be developed in cooperation with the Corps, Service, and CDFG. Conduct site-specific environmental reviews prior to mechanical ground-disturbing activities. Such " reviews shall, when appropriate, include surveys for federal and state endangered, threatened, and proposed species, or for other species if required by permitting agencies (e.g., USFS). If such species are present, .actions shall be taken to avoid impacts (e.g., delay construction until after willow flycatcher chicks fledge). Conduct pre-construction delineation of wetland areas at sites that may contain wetlands. Consult with the Corps on potential impacts and appropriate mitigation, if any, to wetland resources. Post signs at river access points showing daily flows. Offer a toll-free telephone number so recreationists can call to obtain daily flow information. Post daily flows on the Internet. Reclamation will take appropriate steps in a timely manner to ensure that affected bridges, houses, and out-buildings are structurally improved or relocated or otherwise addressed before implementing recommended peak releases for Wet or Extremely Wet water years (8,500 and 11,000 cfs, respectively). C-2 Impacts to cultural resources. Spawning gravel placement and other heavy equipment work associated with the alternatives would result in PM10 impacts as a result of fugitive dust. Conduct cultural resource surveys of project areas (including areas of ancillary activities, such as staging areas, gravel mining areas, etc.) prior to ground disturbance. Areas conta.ining cultural resources shall be demarcated and activities plarmed to avoid these areas. If cultural resources cannot be avoided, unavoidable impacts on significant resources would be mitigated for in a manner that is deemed appropriate. Mitigation for significant resources may include, but is not limited to, data recovery, public ifitetpretation, performance of a Historic American Building Survey or Historic American Engineering Record, or preservation by other means. Implement a. dust conla’ol program, which includes: watering of stockpiles," roads, etc. as necessary, and identify an individual to monitor dust control and to respond to citizen complaints, if any. In order to minimize and mitigate the effects of project implementatiqn to listed species, the NMFS and the Service included reasonable and prudent measures and terms and conditions as part of their respective biological opinions (National Marine Fisheries Service, 2000; U.S. Fish and Wildlife Service, 2000). The NMFS biological opinion listed the following reasonable and prudent measures as necessary and appropriate for the Service and Reclamation to implement in order to minimize impacts of incidental take of SONCC coho salmon and SacramentoRiver winter-ran chinook salmon. As contained in the NMFS biological opinion, the following reasonable and prudent measures are necessary and appropriate to minimize impacts of incidental take of SONCC coho salmon and Sacramento River winter-rtm chinook salmon. The USFWS and Reclamation shall: Implement the flow regimes included in the proposed action (as described in TRMFR DEIS, page 2-19, Table 2-5) as soon as possible; Ensure that the NMFS is provided the opportunity to be represented during implementation of the Adaptive Environmental Assessment and Management Program; o Ensure that the replacement bridges and other infi’astmcture modifications, needed to fully implement the proposed flow schedule, are designed and completed as soon as possible; C-3 Periodically coordinate with the NMFS during the advanced development and scheduling of the habitat rehabilitation projects described in the TPdVI~R DEIS; Complete "the ftrst phase of the channel rehabilitation projects" (USFWS and BOP,, 2000) in a timely fashion; Implement emergency consultation procedures during implementation of flood control or "safety of dams" releases from Lewiston Dam to the Trinity River; In dry and critically dry water year types, Reclamation and USFWS shall work cooperatively with the upper Sacramento River Temperature Task Group to develop temperature control plans that provide for compliance with temperature objectives in both the Trinity and Sacramento rivers. The USFWS and Reclamation must comply with the following terms and conditions, which implement the reasonable and prudent measures described above. These terms and conditions are non- discretionary. Following completion of the Record of Decision addressing the proposed action, Reclamation shall immediately implement the components of the proposed flow Schedule (as described in the TRMFR DEIS, page 2-19, Table 2-5) equal to or less than 6,000 CFS, and implement the entire flow schedule as soon as possible (i.e., after infrastructure modifications are completed); 1.b.As necessary infastmcture modifications are made, Reclamation shall incrementally implement higher Trinity River flows (consistent with the proposed flow regime), e.g., potentially releasing up to 8,500 CFS after some bridge modifications, but prior to completion of the "Bucktail" and "Poker Bar" bridge replacements (see USFWS and BOR, [2000]); Reclamation shall provide two reports per year detailing flows rele~ed into the Trinity River below Lewiston Dam; reports will be provided to the NMFS (1655 Heindon Road, Arcata, CA 95521) by August 31, and March 31, annually; The USFWS and Reclamation shall provide the opportunity for full NMFS participation on the technical team (’designated team of scientists’ [USFWS and BOR 2000], ’technical modeling and analysis team’ [TRMFR DEIS]) offering restoration program recommendatio .ns, and on the Trinity Management Council policy group (described in the TRMFR DEIS and USFWS and BOR [2000]); The replacement bridges and other irLffastmcture modifications needed to fully implement the proposed flow schedules shall be completed by the end of calendar year 2002 (consistent with the schedule outlined in USFWS and BOR [2000]); C-4 The USFWS and/or Reclamation shall meet with the NMFS annually in March to coordinate during the advanced development and scheduling of habitat rehabilitation projects, including ¯ mainstem, channel rehabilitation projects, sediment augmentation program, and dredging of sediment collection pools; oao The USFWS and/or Reclamation shall provide for review of individual mainstem channel rehabilitation projects via the technical team (’designated team of scientists’ [USFWS and BOR 2000], ’technical modeling and analysis team’ [TRM~R DEIS]) or equivalent group, and provide a written recommendation to the NMFS whether the projects are similar to those described in the TRM2FR DEIS and should be covered by this incidental take statement; if the technical team determines that these projects and their impacts to aquatic habitat are substantially different than described in the TRMFR DEIS and USFWS and BOR (2000), the technical team will recommend to the NMFS that additional ESA section 7 consultation is appropriate; The USFWS and Reclamation shall complete the "first phase of the channel rehabilitation projects" (USFWS and BOR 2000) (i.e., ’24 channel projects’ [TRMFR DEIS]) within 3 years of issuance of the Record of Decision; 6.a.-Reclamation shall initiate emergency consultation procedures during implementation of any flood control or "safety of dam" releases, pursuant to 50 CFR §402.05; oao Be prepared to make use of the auxiliary bypass outlets on Trinity Dam as needed, and pursuant to reinitiation of ESA section 7 consultation regarding Sacramento River Winter-ran chinook salmon, to protect water quality standards; associated actions may include modification of the export schedule of Trinity Basin diversions to the Sacramento River. 7,b.In years that Reclamation has reinitiated consultation pursuant to criteria established in the Winter-run chinook salmon CVP-OCAP BO, evaluate drawdowns of Trinity Reservoir below the 600 TAF minimum end-of-water year carryover level to the extent needed to avoid significant temperature-related loss of the early life stages of winter-nm chinook salmon (> 10% as predicted by Reclamation’s Salmon Mortality Model). Implementation of drawdowns below the 600 TAF minimum end-of-year carryover level in Trinity Reservoir shall be determined by Reclamation, USFWS, and NMFS on a case-by-case basis in dry and critically dry water years. As contained in the Service biological opinion, the following reasonable and prudent measures are necessary and appropriate to minimize the impacts of the Preferred Alternative: 1)Reclamation shall minimize the effects of reoperating the CVP resulting from the implementation of the Preferred Alternative within the Trinity River Basin on listed fish C-5 in the Delta. In order to be exempt from the prohibitions of section 9 of the Act, Reclamation must ensure compliance with the following terms and conditions, which implement the reasonable and prudent measures described above. These terms and conditions are non-discretionary. To implement Reasonable and prudent Measure number one Reclamation must implement the following: 2)If Reclamation in its annual operations planning process detects that implementation of the Preferred Alternative will result in an upstream (eastward) movement of X2 in any month between February 1 through June 30 of 0.5 km, Reclamation shall incorporate within its operating plan measures that can and will be implemented to minimaz" e or eliminate such upstream movements.. Since there may be some short-term impacts resulting from channel rehabilitation, watershed protection measures, and infrastructure modifications, the Trinity Management Council will guide efforts to minimize or eliminate potential impacts prior to implementation. The FWS will coordinate with the NMFS regarding surveys for threatened coho salmon presence prior to implementation of habitat rehabilitation on the Trinity River. The NMFS and FWS will coordinate work windows for these projects, as needed. Surveys for nesting northern spotted owls and bald eagles will occur in suitable habitat within a 0.5 mile radius of a project site prior to beginning work activities utilizing motorized equipment or chain saws. If a nesting owl is detected within a 0.25 mile radius, scheduled work activities will not occur from February 1 through July 9; if a nesting eagle is detected within a 0.5 mile radius, scheduled work activities will not occur from January 1 through August 31. Similar surveys will occur for watershed protection and restoration efforts in upland areas. Measures will be taken to minimize any increased sedimentation/turbidity ~ the mainstem from mechanical disturbance, such as leaving a small berm at the edge of the channel to trap sediments until all other work is completed. Turbidity and other Clean Water Act standards, as identified by the Water Quality Control Plan for the North Coast Region, will be monitored and maintained. If standards are not met, construction activities will cease until such a time that operations or alternatives can be completed within compliance. Construction of most project sites will involve removal of riparian vegetation at encroached berm areas. Construction of these channel rehabilitation sites, as presented in the FEIS, will include areas that are re-vegetated with willow, cottonwood and/or other shrub/tree species at more appropriate locations on the floodplains of the rehabilitation sites. Ultimately, natural revegetation and more proper riparian function will also occur at project sites as flow regime changes are implemented. The lead agencies have executed a Programmatic Agreement (PA) under Section 106 of the National Historic Preservation Act with the Hoopa Valley Tribe, the State Historic Preservation Officer for C-6 California, and the Advisory Council on Historic Preservation. Under the terms of the PA, efforts will be undertaken to identify historic properties that may be affected by actions to be taken under the ’ Preferred Alternative, and measures will be identified and implemented to avoid, minirnm" e, or mitigate potential adverse effects upon those properties. The segment of the Trinity River between Cedar Flat and Lewiston Dam (river miles 47.5 to 111.9) is a component of the National Wild and Scenic Rivers System ("System"). This segment is administered ’by the National Park Service (NPS) for purposes of review under Section 7 of the Wild and Scenic Rivers Act. The primary outstanding remarkable value of this section of the Trinity River is recreational. Mitigation measures intended to address public safety from river flows that are too high or too low will be implemented as part of the Preferred Alternative. With these measures, the NPS has determined that implementation of the Preferred Alternative would not have a direct and adverse effect on the values for which the river was designated into the System~ Within the larger segment administered by the NPS, are segments administered by the US Forest Service (USFS) and the US Bureau of Land Management. (BL1V0. Both agencies determined that implementation of the Preferred Alternative, as proposed, would not result in direct and adverse effects to the river. All other permits or other authorizations (e.g. Section 404 permits for bridge replacement) will be acquired and other environmental, compliance requirements will be satisfied, as necessary, prior to initiation of any actions under the Preferred Alternative. C-7 ,f ATTACHMENT Attachment 4: Sample email from public Dear I urge you to withdraw your ongoing lawsuit blocking the restoration of the Trinity River. Former .Secretary of the Interior Bruce Babbitt signed a plan to restor.e the river in 2000, after more than 20 years of study. This plan continues to be supported by the current Administration. I ask Palo Alto to support it as well. Native Americans, including the Hoopa Valley Tribe, live along the Trinity and have traditiona y depended on a healthy river and salmon fishery. The Trinity is also a vital resource for non-Native communities and a popular destination for visitors from other areas of California and across the country. Palo Alto’s opposition to Trinity River restoration is inconsistent with its reputation as an environmentally conscious city. Under the restoration plan, Palo Alto will maintain access to more than 90% of the federal hydropower that it currently receives as part of its supply mix. Continued access to CVP hydr0power ensures that Palo Alto customers will still enjoy far lower rates than most Californians. California’s rivers and fisheries need help. I urge you to support this opportunity to restore the Trinity River. Thank you for your consideration of these views. Sincerely, ATTACHMENT 5 Environmental Defense } CalTrout Natural Resources Defense Council } Friends Of the River } Sierra Club } Bay Institute ~Natura! Heritage Institute ~ Planning and Conservation League Butte Environmental Council, Sacramento River Preservation Trust California Sport Fishing Alliance ,. Clean Water Action ,Mono Lake Committee Pacific Coast Federation of Fishermen’s Associations June 28, 2002 Mayor Victor Oj akian Palo Alto City Council P.O. Box 10250 Palo Alto, CA 94303-0862 Re: Trinity River Litigation Dear Mayor Ojaldan and Honorable City Council Members: The undersigned organizations ask that the City of Palo Alto withdraw its support of litigation related to the restoration of the Trinity River. Since i963, Central Valley Project operations on ttie Trinity River have significantly damaged the riparian ecosystem and the river’s salmon fishery. After more than 20 years of study, in 2000 former Secretary 0fthe Interior Brace Babbi{t signed a’ plan t6 restore the Trinity River. This p!an continues to be supported bythe current Administration. We ask that Palo Alto support it as Well. As you may know, Palo Alto, through its membership in the Northern California Power Agency, has intbrvened to block this federal-Tribal plan to restore the river. Preliminary conversations with someNCPAmember cities have insinuated that other (unnamed) members are largely., responsible for thiseffort.Such finger pointing is not acceptable. All cities that are members of the NCPA bear respdiasibility for.its actions. In supporting this litigation, Palo Alto has allied itself with the Westlands Water District and.opposes the federal government, Native Americans, environmentalists and fishermen. We have already asked the Sacramento Municipal .Utility District tO withdraw from this litig)ition, we are now asking.the NCPA, through its member cities, to withdraw before the.summary judgement hearing scheduled for August 20, 2002. ’ ~. Native.Americans, including the HoopaValley Tribe, live alotig the Trinity and have traditionally depended on a healthy river.and salmon fishery. TheTrinity is also a vital resource for non-Native communities and.a popular destination for visitors from other areas of California. and across the country. The legal and teehnic.al issues raised bythe NCPA and other plaintiffs are a smokescreen. The case is simply a straggle betweenthose wishing: to retain a relatively small amount of!ow-priced federal hydroP0wer and those wishing to restore what. was once one of california’s most magnificent rivers. Under the plan toresto~:e the Trinity River, the Central Valley Project wiil still divert more than one half of the river’s flow from the Trinity watershed for electricity production. This ¯ compromise is more than fair to Palo Alto and other."preference power" customers, who will continue to receive significant benefits from the low rates for CVP hydropower..On average, Palo Alto will still receive about. 92% .of the benefits that it has historically derived from CVP ’ hydr0power. It should be noted, of course, that thevastmajority of power users in California i. do not have access to low-cost federal hydropower at all. Environmental and Fishing Organizations" Letter Regarding Trinity River Litigation June28, 2002 Page 2 - Thank you for considering .this request. For further information, please contact Spreck. " Kosekran~s 0f Environmental Defense (510-658-8008, spreck@edf.org) orByronLeydecl~er of ¯ CalTrout (415-383-4810, bwl3 @attbi.com). Sincerely, Friends of the River. Barr~) Nelson " Natural Resources Defense Council Fran Spivy-Weber Mono Lake Committee Clean Water Action Richard Izmirilin~ California Sport Fis.hing Alhance Spreck Rosekrans Environmental Defense ¯ ~~ader Fracific Coast Federation for Fishermen~s Associations Dan SulhVan Sierra Club ¯ Nick’Di Croce/ Byron Leydecker California ’Trout Barbara Vlamis/ Lynn Barris Butte Environmental Council John Merz Sacramento River Preservation Trust Gerald H..Meral Planning and.Conservation League The Bay Institute. C. Wise National Heritage Institute Commissioner Bern Beecham UtilityDirector John Ulrich Assistant Director of Utilities Girish Balachandran ATTACHMENT 6 . find~n;g tb:e .ways: ~,h.at work Background1 Summary of Trinity River Issues and Requests of Palo Alto and Other Public Power Users To Withdraw from Ongoing Litigation The pre-legislative history of Trinity Division from the early 1950s, the authorizing legislation in 1955 and every piece of subsequent legislation has uniformly mandatedthe preservation and protection of fish and wildlife resources in the Trinity River Basin. The condition of those resources affects economic and recreational activity throughout the entire North Coast of California from San Francisco Bay into Southern Oregon, as well as in the Lower Klamath River and Trinity River Basins. The 1955 legislation provided for construction :of Trinity and Lewiston Dams, Whiskeytown Lake, as well as power.producing and ancillary facilities. Trinity Dam was completed in 1963. Although Congress was told before the legislation was enacted that just.56 percent of the river’s water would be diverted (a. representation tha~ has never has been amended), the Bureau of Reclamation immediately started diverting 90 percent of the river’s water. The impact of this diversion upon fish and wildlife resources was and continues to be devastating. As early as 1966 a major decline in fish populations was apparent, and task forces were established to develop remedies. Considerable subsequent federal legislation has provided for numerous restoration activities. Some 36 years - 39 since the dams were completed - and about $200 million later, fish populations in the Trinity River, including those produced in hatcheries, hover just above 10 percent ofpre-dam population levels, including hatchery fish. ’The River’s Nativ~ Coho salmon are listed under the Endangered Species Act. In mid-2000, an Environmental Impact Statement and Report was completed. I.t incorporated a "flow evaluation" study that took 15 years to complete. In December 2000, four years after the deadline set by the Congress and then President Bush, the Interior Secretary and the Hoopa Valley Trl~e signed a "Record of Decision", which, among other things, would allow the Trinity River .to retain 47% of its natural flow. 1 The text in this section was prepared in part by Byron Leydecker, member Board of Governors, California Trout, and volunteer founder, Friends of the Trinity River. Trinity. River Issue Summary July 30, 2002 ~ Page 2 The decision was immediately attacked in federal court by the Westlands Irrigation District. The Northern California Pbwer Agency joined this litigation against the decision as an Intervenor. The NCPA includes a number of municipal utilities, including Palo Alto. The Sacramento Municipal Utilities District (SMUD), another public utility, has also intervened in this litigation. The initial ruling of the federal court in 2001 was to enjo.in the Central Valley Project from fully implementing provisions of the Decision, especially those allocating more water to the tiver, pending additional studies, that were to be completed within 2 years. In April of 2002, the Hoopa Valley Tribe asked for additional flows per the Decision, since 2002 was a wetter year than 2001 had been. The judge allowed some increase in flow for 2002, though less than the amount the Tribe had requested. Also, upon hearing that the additional studies would take longer than originally projeet_ed, the judge ordered an expedited Summary Judgment hearing for August 20, 2002. Position of Native American Trib,gs~ Commercial and Sport Fishing Interests and Environmental Groups 2 Native American Tribes, Commercial and Sport Fishing Interests and Environmental Groups broadly Support the Trinity River Decision and contend: o The EIS process was fair and analyzed a broad.range of reasonable alternatives; *The "SMUD altemative’Y,, which would use a fleet of bulldozers to restore the river channel on an ongoing basis, is not viable (further explanation provided in attached memo from Tom Stokely, EIS .lead forTrinity County). The EIS process adequately analyzed impacts to power, water supply and environmental issues, including effects on endangered winter run salmon and Delta smelt, in the Central Valley and Bay Delta (for documentation, see the attached summary "Incorrect Specific Assertions by NCPA on Trirdty Record of Decision" by BryonLeydecker of CalTrout); The EIS accurately reflects that implementation of the Trinity River Decision would have a negligible effect on electric system reliability (the projected average reduction in capacity of 7 MW is less than .02% of the peak demand in California in 2001); o The Record of Decision reached a.compromise that was more than fair to water and power users (The majority of.the Trinity’s flow would still be diverted out of the Trinity watershed and into the Central Valley, resulting in a 1% reduction in the export of water from the Delta and a 6% reduction in Central Valley Project hydropower production.); The issues raised by the litigants ~are not substantive and are intended to prevent the restoration plan from being implemented to prevent any effect at all to water delivery and hydropower production; ~ This "position summary" is the characterization of Environmental Defense and has not been explicitly reviewed by other interests that support the Trinit~ Decision. Trinity River Issue Summary July 30, 2002 Page 3 The total benefit of Central Valley Project hydropower to NCPA cities and other: prgference power customers is conservatively estimated to be in excess of $80,000,000 per year (the additional amount these agencies would need to pay ~br long-term power if CVP hydropower were not available.) This windfall benefit will be only slightly reduced if the Trinity Restoration plan is implemented; Public entities that receive low-cost federal hydropower should acknowledge the . Trinity River restoration plan serves a broad public interest should support this plan. The NCPA cities and SMUD should withdraw support, of any litigation that opposes the plan. The NCPA and other litigants have claimed that the Trinity River EIS does not adequately address environmental impacts in the Central Valley and Bay-Delta. It should be noted that no environmental or fishing group, including those who focus their efforts in the Central Valley and Bay-Delta, or governmental fish protection agency have taken this view. A partial list of the places where the EIS does address the environmental issues in the Central Valley and Bay-Delta, provided by Tom Stokely of Trinity County, is attached. _~e__quests for Public Power Users to Withdraw ¯ In May of2002, the Hoopa Valley Tribe asked SMUD to withdraw from the litigation. The Tribe’s letter was followed by similar le~ers from Environmental Defense (5-29-02), 11 Environmental and Fishing Groups (6-19-02), Congressman Mike Thompson (6-25- 02). and 10 California Legislators, including Senator and former Palo Alto Mayor Byron Sher (July 3, 2002). After an "Action Alert" email campaign generated over 1000 emails to SMUD Board members, the campaign was stopped atSMUD~s request. SMUD’s involvement has been explained in two local press pieces (attached). SMUD may vote on whether to withdrawduring closed session on August 1, 2002. NCPA cities have received fewer formal requests to .withdraw support of the l~iwsult. On June 28, 2002, 14 environmental and fishing groups sent over 100 letters to the Mayors and City Councils of 11 NCPA cities, inc!uding Palo’Alto~. There was only 1 official response to these requests: a form letter from the City of Alameda. Some NCPA cities did take notice of this issue when representatives of environmental and fishing groups and the Hoopa Valley Tribe appeare.d at Council Meetings and when the "Action Alerts" reached their email accounts (unlike the SMUD action alert, only city residents in each 3 Letters were signed by representatives of Environmental Defense, CalTrout, Natural Resources Defense Council, Friends of the River, Sierra Club, Bay Institute, Natural Heritage Institute, Planning and ,Conservation League, Butte Environmental Council, Sacramento River Preservation Trust, California Sport Fishing Alliance, Clean Water Action, Mono Lake Committee, Pacific Coast Federation of Fishermen’s Associations. Letters were sent to the cities of Palo Alto, Santa Clara, Alameda, Lompoc, Healdsburg, Redding, Roseville, Gridley, Biggs, Lodi and Oakland. Trinity River Issue Summary July.30, 2002 Page 4 NCPA city, who are also Environmental Defense Action Alert me mbers, were asked to email their city councils, so the volume of email was rnu~h lower.) Santa Clara was the first and only (so far) NCPA city to consider this matter. After hearing one view from their own staff and another from Native Americans, environmentalists and fisherman, they voted 7-0 to continue to support the litigation. Palo Alto’s Options ¯ At present, the City’s position is a de facto support of the lawsuit that opposes the restoration plan. Since the Trinity River is of broad environmental concern to parties-both within Palo Alto and throughout California, the City Council should be able to hear from other all parties as well before reaching a decision.. Palo Alto has s.everal options: ,Vote to withdraw from the litigation; ®Vote to support the litigation; , *Commit to its own independent review of the Trinity River EIS process (and " possibly future environmental issues involving CVP hydropower production); Take no action at this time. Attachments TrinityRiver Mainstem Fishery Restoration EISiEIR Table ES-1 (October 2000) The environmental documentation for the restoration plan is thousands of pages. Table ES-1 summarizes some of the key findings. The relevant comparison for each item is the "Flow Study" to the "No Action" alternative. Power impacts are near the very bottom of th’e last page of the table. Letter from 14 environmental and fishing groups to Palo Alto (June 28, 2002) Central Vall,ey Project: Summary of Benefits (Environmental Defense) This summary does a conservativeI back-of 4he,envelop estimate of what the effects would be for NCPA power Cities. Note that Palo Alto has the highest per capita allocation of federal hydropower and thus the greatest per capita benefit of these low prices. ¯ Hoopa Valley Tribe Editorial Opinion (Eureka Times-Standard, June 19, 2002) Written by Mike Orcutt of the Hoopa Valley Tribe, who was also interviewed by the Palo Alto Weekly ’; ’ Bush Administration Statement of Support (Sue Ellen Woodridge letter to Representative. Mike Thompson, May 16, 2002) Hoopa Valley Tribe letter to Sacramento Municipal Utilities District (May 15, 2002) Trinity River Issue Summary July 30, 2002 : Page 5 Representative Thompson letter to Sacramento Municipa! Utilities District (June 24, 2002) California Legislators (including District 11 Senator Byron Sher) letter to Sacramento Munic~al Utilities District (July 3, 2002) Sacramento Bee Editorial Opinion (June 29, 2002) Sacramento News & Review A_rticle (July 4, 2002) Trinity County Memo regarding "Adequacy of Environmental Analysis for Trinity Ri’~er Record of Decision" (July 15, 2002) "Incorrect Specific Assertions by NCPA on Trinity Record of Decision", summary prepared by Byron Leydecker of CalTrout (July 15, 2002) "Trilaity lawsuit reaches Palo Alto,s shores ", Palo Alto Weekly (~luly 19, .2002) ATTACHMENT 7 City. of Palo Alto. City Manager’s Report TO:HONORABLE CITY COUNCIL FROM: DATE: TITLE: CITY MANAGER DEPARTMENT: UTILITIES AUGUST 5, 2002 CMR:360:02. UPDATE ON TRINITY RIVER FLOW ENVIRONMENTAL IMPACT STATEMENT LITIGATION This is an informational repor~ and no Council action is’ required.. ¯ DISCUSSION The Trinity River flows fi:om its watershed: in Trinity County to its confluence with the Klamath River about 60 miles downstream. From there, the Klamath flows about 40 miles to the Pacific. Since the completion of the Trinity Darn’in 1964, a significant fraction of the water flows from the Trinity River were diverted at Lewiston to the Sacramento River to achieve environmental goals, provide for hydropower generation and to serve the muMcipal and agricultural water needs of California. Trinity River flows .are the sum of the controlled watershed, r.,eleases at Lewiston (under dispute) plus the uncontrolled inflow from a number of downl, river streams. From the mid 1960’s .through the 1980’s, Trinity River diversions to the Sacramento River decreased Trinity River releases at Lewiston to about 10% of natural flows; Recognizing a need to manage water resources and balance increasingly competing environmental priorities, the Department ..,of Interior (DOI) increased Trinity River releases to about30% in 1984. Since then, DOI has prepared another Environmental Impact Statement (EIS) to’ assess proper flow and other measures to restore the’health of the Trinity River fishery and to balance competing quaiifyifag interests. The Northern California Power Agency (NCPA) commented extensively in the EIS process requesting consideration of environmental CMR:360:02 Page 1 of 4 impacts of the Trinity River flows on the Sacramento River, and consideration of impacts on electric system re!iability..These requests were not met. That EIS resulted in DOI issuing a December .2000 Record of Decision (ROD) requiring Trinity River releases to increase again to average 48% of flows at Trinity Dam." The ROD’s decrease of.diversions to the Sacramento River by an additional 25~,000 acre-feetper year Sver the current .approved flows would cause a loss. of generation of 250 MW for about !,200 hours per year (294,000 MWh/year) to the Central Valley Project hydroelectric system. NCPA, on behalf of all Of its members, joined litigation with Sacramento Municipal Utility. District (SMUD) and Westlands Water District against the DOI seeking .to set aside the December 2000, ROD and to reopen the EIS to evaluate power impacts and the reduction of flows in the Sacramento River and Bay Delta. NCPA’S reason for joi.ning the litigation brought against the DOI’s ROD on the Trinity River is based on the concern that the DOI ignored environmental issues raised by NCPA and others during the development of the ROD. The DOI ignored the ROD’s impacts on endangered species in the Sacramento River and Delta. The DOI also failed to assess the impacts of the ROD on power system reliability. NCPA believes that the ROD should be set aside until the EIS is updated to address environmental and power system reliability concerns and that the DOI consider a wider range of restoration alternatives.. The case is se~ for a Hearing of.Parties’ Motions for Summary Judgment on August 20, 2002. The City’s hope is that a better alternative will be found for improving the health of both rivers and of the Delta, as well as .minimizing both the adverse air quality impacts and~ powersystem reliability impacts 0f losing hydro generation. The SMUD, NCPA members’ staffs, NCPA Commissioners and NCPA member-city elected officials are currently receiv{ng emails and letters as part of an organized campaign urging that member cities; forego their rights in court and withdraw from the litigation over the Trinity River. Palo Alto has an outstanding environmental record, r.eflecting the pro-environmental focus of most of our citizens. Palo Al~o is one of the more environmentally responsible utilities in the nation. An example ~f that is our voluntary submission to a review of our Public .Benefits programs by the Natural Resource Defense Council. The City has implemented several Conservation pr6grams over the years that have resulted in energy savings. As ’recently as !ast year, .during the energy crisis, the City Council approved CMR:360: 02 Page 2 of 4 accelerated spending on energy efficiency programs that both improved reliability and improved the environment. That same environmental consciousness holds sway at the NCPA. The positions and actions of NCPA are.driven by its Commission, which is composed of representatives of each of the cities and other elective bodies that are its members, including Palo Alto. The NCPA commission unanimously supported NCPA’s participation in the TrinitY River litigation through enactment of an agency resolution (#00-12) on.November 30, 2000... NCPA an’d its members rdcognize the important role we play as stewards of the environment, and recognize our legal duty and public responsibility to protect threatened and endangered species - it is our objective ~to ensure that a proper scientific review is conducted to ~erve as the basis for a restoration plan that can best achieve this goal. Stgff recognizes the complexity of accurately and impartially, evaluating competing environmental interests as evidenced by widely disparate estimates of power impacts, reliability impacts, and environmental impacts. Due to the inherent complexity, Staff feels that it is appropriate to not withdraw support for the case but to continue into the courts to allow experts to explain the different points of view in detail. RESOURCE IMPACT The ROD results in a 35,000 MWh/year energy loss for Palo ’Alto costing about $1,500,000 per year to replace with conventional fossil fueled resources. This amounts to approximately 3% of the annual energy 9onsumption and commodity budget. If this volume of lost renewable energy were replaced with renewable sources it would cost between $ t,600,000 and $6,000,000 depending on the renewable resource chosen. POLICY IMPLICATIONS This recommendation is consistent with the Council approved Utilities Strategic Plan to (1) Preservea supply cost advantage compared to the market price and (2) Implement programs that improve th~ quality of the environment. Strategy (1) is .pursUed by attempting to maintain current levels of generation at 250 MW of federal power plants for CMR:360:02 Page 3 of 4 Which Palo Alto already pays an 11% share of costs. Strategy (2.) is pursued by following due process in an attempt to improve the global environmental solution of a complex problem. PREPARED BY: " TOM KABAT. Senior.Resourc~ Originator DEPARTMENT HE -A_D:. CITY MANAGER APPROVAL: EMIL~ HARRISON Assistant City Manager CMR:360:02 Page 4 of 4 ATTACHMENT 8 CALIFORNIA POWER AGENCY Commission Staff Report ITEM N 0.__~ August 14, 2002 TO:The NCPA Commission SUBJECT: Update on Trinity River Litigation Background ¯NCPA is an intervener in htigation currently pending before the U.S. District Court for the Eastern District of Cahfomiawith the goa! of having the Department of Interior’s (DOI) December 2000 Trinity River Record of Decision (ROD) set aside due to violations of existing federal laws governing appropriate environmental review and comment for implementation of such restoration plans. Sacramento Mtmicipal Utility District and Westlands Water District are also plaintiffs in the case. In the ROD, DOI had called for a substantial increase in Trinity River flow levels with the goal of enhancing fishery populations and habitat. However, it was clear that the ROD fell far short of having appropriate science-based support for a flow-based restoration plan as proposed. Moreover, as noted above, the scope of scientific review and public comment conducted in preparation of the ROD violated several requirements of the National Environmental Policy Act. In March 2001, the court agreed with our position, and issued a preliminary injunction, or a "stay" on the implementation of the ROD pending completion of a Supplemental Environmental Impact Statement (SEIS) to address the shortcomings of ROD’s initial Environmental Impact Statement. Earlier this year, the Hoopa Valley and Yurok Tribes made a motion for summary judgment arguing that a change in hydrology and an easing of the ~tate’s power crisis warranted a revisiting of the court’s earlier decision regarding the stay, and called for an increase in flow levels in the Trinity River in accordance with the ROD. The Court-agreed to a partial increase in flows, 0nly to the extent that current or future water or power supplies are not impacted. Noting frustration with pezceived delays in the SEIS, the Court lifted the prior preliminary injunction, allowing the case to proceed. ~ ,, Current Status The case is scheduled to be heard before, the court on August 20, 2002, with.potential for a ruling "from the bench" that day, or more likely, within 30 days of the heating. It is expected that the decision in the case - regardless of the outcome ’ will be appealed. At this writing, DOI is proceeding with its SEIS, which is still in its scoping phase. NCPA testified in a May 2, 2002, scoping hearing conducted by DOI as a part of this process, SR: I~0: 2- August 14, 2002 Page 2 Some NCPA member cities have been approach.ed by advocates on environmental and Native American issues calling for NCPA’s withdrawal from the case. As a result, in recent weeks it has been erroneously alleged that NCPA opposes restoration of the Trinity River. As you know, our Agency’s record tmequivocally demonstrates our long-standing commitment to environmental protection and enhancement - .and our underlying position in this case remains clear, we strongly support implementation of an effective Trinity River restoration plan basedon sound public policy. However, implementation of a plan that has not been shown to meet the intended objectives of the ROD, and that is certain to have adverse impacts on other sensitive waterways in the state, represents a unwise use of publie resources, and presents an unacceptable threat to a reliable and renewable energy source in a still-uncertain electricity market. As the review of these concerns related to the ROD itself continues, NCPA and its members remain committed to advancing the goal of developing a workable plan for meaningful and long’lasting restoration of the fisheries and habitat of the Trinity River. Next Step.~ NCPA staff and counsel will brief the Commission regarding the August 20, 2002, heating before the court. submitted, FRASER :er Prepared by: JANE DUNN CIRRINCIONE Assistant General Manager " ’ Legislative & Regulatory Business Unit /cap ATTACHMENT 9 McNally Temple Associates, Inc. Klamath River Q&A Draft 1 October 10, 2002 1:52 PM Klamath River Q&A Why are NCPA member agencies interested and concerned with the fish die=off in the lower Klamath River? []Activities in the lower Klamath River directly impact our ongoing and continuing support to the fishery restoration of the Trinity River Basin. []The deaths occurred downstream of the confluence of the Trinity River into the Klamath River, and may have included returning Trinity River adults (Trinity River fish use the lower 50 miles of the Klamath River-- where the deaths occurred -- as the migration path to the Trinity River). []Also, returning fish that are not killed may be weakened, preventing subsequent successful spawning and incubation within the Trinity River Basin. []The die-off appears to reflect inadequate scientific and management decision-making processes, which essentially mirrors our position in the litigation on the Trinity River Record of Decision. Other stakeholders, including fishery groups, agree with NCPA on the need for a more open and collaborative scientific discussion. Did the ongoing litigation regarding the Trinity River Record of Decision contribute to the conditions that led to the fish die off? []No. The litigation did not and will not effect the late summer and early fall flows in the Trinity River and thus did not contribute to the conditions that led to the fish die-off. []The temperatures and habitat conditions provided by the flows within the Trinity River are well within the desired range for returning adults. Is the die-off part of the natural processes? []No one knows -- the cause of the die-off is, or will soon be, under investigation. []We know that there are a large number of returning adult fish in the Klamath system and that the system was, and may still be, over-burdened given the climatic and hydrologic conditions. However, we don’t yet know how.this year’s returning population compares to other year’s returns. []Regardless, we need to take prudent action to protect fish from conditions that may prevent their continued migration and spawning, in support of the continuing restoration program. We need to understand and explore future actions within the Klamath system to prevent future die-offs of this magnitude. McNally Temple Associates, Inc. Klamath River Q&A Draft 1 October 10, 2002 1:52 PM Would increasing Trinity River flows alleviate conditions within the lower Klamath River? The cause of the problem in the lower Klamath was not a result of poor conditions or management of the Trinity River flows, and the benefits of increased flows from the Trinity River system were uncertain and potentially problematic. It appears that additional flows down the Trinity River into the lower Klamath at this time would not be beneficial. Moreover, the problem within the Klamath River system is not a result and thus not a responsibility of Trinity River Division of the CVP. Any increases in Trinity River flows would come out of storage that may have fishery ramifications within the Trinity River basin in the future. What are NCPA member agencies doing to assist in resolving the issues? []We are encouraging DOI agencies to fully explore the scientific facts and issues behind the die-off, and to explore solutions to prevent future die-offs of this magnitude. []We specifically requested that objective scientists beyond those from the lead agencies be included in the evaluation and formulation of potential solutions, to ensure that all bases are covered. -2-