03-15219. Revised Purpose for Trinity River Mainstem Fishery Restoration Program

AGENCY:

Fish and Wildlife Service and Bureau of Reclamation, Interior.

ACTION:

Supplemental notice of intent to prepare a Supplemental Environmental Impact Statement/Supplemental Draft Environmental Impact Report (SEIS/SDEIR).

SUMMARY:

The Fish and Wildlife Service (FWS) and the Bureau of Reclamation (Reclamation), along with the Hoopa Valley Tribe and Trinity County, California, are preparing a Supplemental Environmental Impact Statement/Supplemental Environmental Impact Report (SEIS/SDEIR) for the Trinity River Mainstem Fishery Restoration Program (Program). The purpose of the Program has been revised to be consistent with recent court findings on the Program.

DATES:

Two scoping meetings will be held to solicit public input on alternatives, concerns, and issues to be addressed in the SEIS/SDEIR. The meeting dates are:

• Tuesday, July 8, 2003, 3:30 p.m. to 6:30 p.m., Redding, California.
• Thursday, July 10, 2003, 7 p.m. to 9 p.m., Hoopa, California.

ADDRESSES:

Scoping meetings will be held at:

• Redding at the Holiday Inn, 1900 Hilltop Drive, Redding, CA 96002.
• Hoopa at Neighborhood Facilities Recreation Center, Highway 96, Hoopa, CA.

Written comments on the scope of the SEIS/SDEIR should be sent by July 18, 2003 to Mr. Russell Smith, Bureau of Reclamation, Shasta Dam Office, 16349 Shasta Dam Boulevard, Shasta Lake, CA 96019; telephone: [phone]; fax [phone]. Comments received after this date will be considered but may not be included in the resulting SEIS/SDEIR scoping report. Comments received in response to the March 25, 2002 Notice of Intent will remain under consideration.

FOR FURTHER INFORMATION CONTACT:

Mr. Russell Smith at the above address or by telephone at 530-275-1554.

SUPPLEMENTARY INFORMATION:

Previously, a Notice of Intent (NOI) was published in the Federal Register (67 FR 13647, Mar. 25, 2002) for preparing the SEIS/SEIR with a stated purpose of analyzing the effects of two biological opinions associated with the Program issued on October 12, 2000, one by the FWS and the other by the National Marine Fisheries Service of the Department of Commerce (NMFS), on Central Valley Project (CVP) operations and the effects of the Program on energy generation within the context of the state of deregulation and supply uncertainty for electricity within California. This NOI replaces the previous NOI and presents a purpose consistent with recent court findings on the Program.

A final environmental impact statement/environmental impact report (EIS/EIR) on the Program was issued in November 2000, and a Record of Decision (ROD) was executed on December 19, 2000. Central Valley water and power interests filed suit seeking to enjoin implementation of the ROD. On March 22, 2001, the court issued a Memorandum Decision and Order enjoining the Federal defendants from implementing certain flow related aspects of the ROD. Westlands Water District v. United States Department of the Interior, CIV-F-00-7124-OWW/DLB. In its Memorandum Decision and Order, the court found that the effects of reasonable and prudent measures in the two biological opinions as well as the effects on power in light of the California energy crisis were not adequately analyzed in the EIS/EIR. The lead agencies published a NOI on March 25, 2002, announcing plans to produce the SEIS/SEIR and soliciting public input and comment on the process. A scoping meeting was held in Redding, California on May 9, 2002. On December 10, 2002, the court released a Memorandum Decision and Order regarding Cross-motions for Summary Judgment. That memorandum provided detailed direction regarding the preparation of the SEIS/SEIR that was not available for the previous scoping effort, including direction on the purpose statement for the SEIS/SEIR, alternatives to be considered in the SEIS/SEIR, and a timeline for completion of the SEIS/SEIR, although an appeal is pending. The Federal agencies have decided that the purposes of the National Environmental Policy Act (NEPA) will be furthered by preparing to address these issues in the SEIS/SEIR and are soliciting public input and comment on this process.

The primary objective of the Program is to meet Federal trust responsibilities for tribal fishery resources and restore the fisheries in the Trinity River basin to the level that existed prior to the construction of the Trinity River Division (TRD) of the CVP. These actions are authorized by the Act of August 12, 1955, 69 Stat. 719; the Trinity River Basin Fish and Wildlife Management Act, Pub. L. 98-541 (1984), as amended, and the Central Valley Project Improvement Act, Pub. L. 102-575, Title XXXIV (1992) (CVPIA). The FWS and Reclamation are the Federal co-leads for purposes of complying with NEPA, along with the Hoopa Valley Tribe which is also acting in a co-lead capacity. Trinity County functions as the state lead agency for purposes of complying with the California Environmental Quality Act (CEQA).

The purpose for the November 2000 EIS/EIR was to restore and maintain the natural production of anadromous fish on the Trinity River mainstem downstream of Lewiston Dam. The purpose of the SEIS/SEIR has been amended, consistent with court orders on the Program.

The revised purpose for the SEIS/SEIR is to restore and maintain the natural production of anadromous fish in the Trinity River basin downstream of Lewiston Dam, including fishery restoration to pre-TRD levels, and to meet the U.S. Government's tribal trust obligations. Secondary consideration is given to: (a) Meeting the other restoration goals of the Act of October 24, 1984, Pub. L. 98-541, as amended, and (b) Achieving a reasonable balance among competing demands for use of CVP water, including the requirements of fish and wildlife, agricultural, municipal and industrial and power contractors.

The SEIS/SEIR will update information on alternatives described in the October 2000 EIS/EIR. These alternatives include: Existing Conditions, No Action, Mechanical Restoration, Percent Inflow (modified to address the court's concerns), Flow Evaluation, and Maximum Flow. It is anticipated that two additional alternatives will also be evaluated; a 70 Percent Inflow Alternative and a Lower Flow Alternative that seeks to use lesser amounts of water in conjunction with non-flow related restoration actions.

In 1980, the FWS completed an EIS which estimated fish population reductions of 60 to 80 percent since completion of the TRD and estimated the loss of fishery habitats in the Trinity River to be 80 to 90 percent. The 1980 EIS concluded that insufficient streamflows represented the most critical limiting factor for the restoration of the fishery. Based on this EIS, the Secretary issued a decision in 1981 which increased flows on an interim basis and directed the completion of a scientific study to assess the instream flows and other measures needed to restore the Trinity River fishery.

In 1983, an EIS on the Trinity River Basin Fish and Wildlife Management Program was prepared by the FWS (U.S. Fish and Wildlife Service, 1983). The environmental document analyzed habitat restoration actions, watershed rehabilitation, and improvements to the Trinity River Salmon and Steelhead Hatchery (TRSSH). The EIS clarified that the hatchery's purpose was to mitigate for the loss of the 109 miles of habitat upstream of Lewiston Dam; whereas, the restoration and rehabilitation projects were explicitly designed to increase natural fish production below the dam.

In 1984, the Trinity River Basin Fish and Wildlife Management Act (Pub. L. 98-541) was enacted. It formalized the existence of the Trinity River Basin Fish and Wildlife Task Force (Task Force), and directed the Secretary of the Interior (Secretary) to implement measures to restore fish and wildlife habitat in the Trinity River Basin. The Task Force was directed at implementation of a fish and wildlife management program “to restore natural fish and wildlife populations to levels approximating those which existed immediately prior to the construction of the Trinity Division.” In 1996, Congress reauthorized and amended the original Trinity River Basin Fish and Wildlife Management Act (Pub. L. 104-143). The 1996 amendments clarified that “restoration is to be measured not only by returning adult anadromous fish spawners, but by the ability of dependent tribal, commercial, and sport fisheries to participate fully, through enhanced in-river and ocean harvest opportunities, in the benefits of restoration * * .”

In 1992, Congress passed the CVPIA (Pub. L. 102-575, Title XXXIV) in order to protect, restore, and enhance fish, wildlife, and associated habitats in the Central Valley, including the Trinity River Basin. Specifically, the CVPIA provides at section 3406(b)(23) that “[i]n order to meet Federal trust responsibilities to protect the fishery resources of the Hoopa Valley Tribe and meet the fishery restoration goals of Public Law 98-541,” the Secretary is directed to complete the Trinity River Flow Evaluation Study (TRFES) initiated pursuant to the 1981 secretarial directive to develop 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.” The CVPIA also specifically provided for the Secretary to consult with the Hoopa Valley Tribe on the TRFES and, upon the Tribe's concurrence, to implement the restoration recommendations accordingly.

The FWS and the Hoopa Valley Tribe completed the Flow Study in June 1999. The draft EIS/EIR for the Trinity River Mainstem Fishery Restoration Program (TRMFRP) was prepared by the FWS, Reclamation, Trinity County, and the Hoopa Valley Tribe, and was completed in June 1999. The final EIS/EIR was completed in November 2000. A ROD selecting the alternative to be implemented for the TRMFRP was signed by the Secretary, with the concurrence of the Hoopa Valley Tribe, pursuant to section 3406(b)(23) of the CVPIA, and issued in December 2000. However, the EIR was not certified by Trinity County and it is not a finalized document under CEQA.

Subsequent to execution of the ROD, water and power interests in the Central Valley of California amended a previously filed lawsuit against the Federal agencies materially involved in either the decision making process for the ROD or the associated Endangered Species Act approvals for the TRMFRP (Reclamation, FWS, and NMFS), in Federal district court. Plaintiffs sought, and were granted a preliminary injunction for implementation of certain flow-related aspects of the ROD. The terms of the injunction limit the increase in flows in the Trinity River which may be implemented in the ROD, but allow the Secretary to proceed with all other activities approved by the ROD. Westlands Water District v. United States Department of the Interior, CIVF-00-7124-OWW/DLB (E.D. Calif., filed May 3, 2001).

On February 20, 2003, the court entered final judgment in the case, finding that the ROD for the Program, issued on December 10, 2000, and the associated biological opinions issued by FWS and NMFS, were unlawful in part. The court found that the ROD was in violation of NEPA in that it had an improperly framed purpose statement and the range of alternatives was inadequate. The biological opinions were found to exceed the agencies' authority under the ESA in that they required major modifications to operations of the CVP. Although the issue was not before the court, nor briefed by any of the parties, the court also found the government in breach of its general and specific Federal trust obligations to the Hoopa Valley and Yurok Tribes, as set out under CVPIA section 3406(b)(23) and related statutes. The case is now on appeal.

Our practice is to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request that we withhold their home address from public disclosure, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold a respondent's identity from public disclosure, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public disclosure in their entirety.

Dated: June 11, 2003.

Frank Michny,

Regional Environmental Officer, Mid-Pacific Region, Bureau of Reclamation.

Dated: June 11, 2003.

Mary Ellen Mueller,

Fisheries Supervisor, California and Nevada Operations Office, Fish and Wildlife Service.