The Western Environmental Law Center (WELC) has notified the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NMFS) of the organization’s intent to challenge its Shasta River Safe Harbor program in federal court.
On behalf of Friends of the Shasta River and the Environmental Protection Information Center, WELC asserts NMFS violated the Endangered Species Act (ESA) “by authorizing, approving, causing or otherwise carrying out agency actions that jeopardize the continued existence of coho salmon in the Shasta River, a species listed under the ESA as threatened with extinction.”
WELC stated in the notification letter NMFS issued enhancement of survival permits under the Shasta River Safe Harbor Agreement to 11 ranches, two irrigation districts and the California Department of Fish and Wildlife (CDFW) in 2019.
In 1999, NMFS and the U.S. Fish and Wildlife Service adopted a safe harbor policy, which states if a landowner enters into a Safe Harbor Agreement and adopts “voluntarily conservation measures” that benefit a listed species, the landowner will not be liable for take if “the covered species later become more numerous as a result of the property owner’s actions.”
“The Shasta River Safe Harbor Agreements represent a fundamental misuse of the (ESA) and its permit provisions,” said Sangye Ince-Johannsen, attorney at WELC, in a statement. “We intend to challenge a number of legal deficiencies underlying NMFS’ decision to enter the agreements and grant the permits to the landowners. At bottom, it just doesn’t pass the straight-face test to say that permits that allow landowners to continue to harm and kill threatened salmon somehow ‘enhance the survival’ of the species or provide a ‘net conservation benefit.’”
WELC stated NMFS issued flawed biological opinions (BiOps) limiting the action area to the “covered areas” under the Safe Harbor Agreement and did not consider juvenile coho salmon rearing habitat, tailwaters of private landowners and the irrigation districts.
“In both BiOps, NMFS unlawfully subsumed permittees’ existing and ongoing diversions and releases into the environmental baseline rather than analyzing their effects as causing or contributing to jeopardy. The permittees’ existing and ongoing diversions constitute part of the action because the permits grant immunity from liability for take caused by these diversions,” the letter read.
WELC further asserts in the 2020 BiOp NMFS expects 80 percent of permittees’ voluntary conservation measures to be completed within five years, and the time frame ignores the three-year life cycle of coho. WELC stated it is unclear if any benefits from conservation measures will “materialize in time” to benefit the survival of coho salmon.
WELC also claims that the 2020 BiOp measurements for temperatures were flawed, as the river warms as it flows from upstream monitor stations. The letter further states the adoption of water flows “are adequate at most for the survival of only some individuals, and not adequate to protect the survival or recovery of the population as a whole.”
“Agencies first need to recommend and implement science-based flow and temperature standards sufficient for coho recovery in the Shasta River,” said Bill Chesney, retired CDFW fisheries biologist and Friends of the Shasta River board member. “That needs to come first—not just as an afterthought once the safe harbor participants have already been given immunity for their destructive practices.”
In a statement, Andrew Marx, board president of Friends of the Shasta River, said they are “reluctant” to take the notification action. Still, NMFS ignored their concerns and those of Tribal and conservation groups regarding Safe Harbor Agreements.
WELC said if corrections to the BiOp and the granted enhancement of survival permits are not made within 60 days of the letter, dated Feb. 24, they will pursue further legal action. — Charles Wallace, WLJ editor
