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IN
THE MATTER OF: KLAMATH
HYDROELECTRIC PROJECT (License
Applicant Pacific Corp) |
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DOCKET NUMBER
2006-NMFS-0001 |
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FERC
PROJECT NUMBER:
2082
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DECISION
Dated:
September 29, 2006
Issued By:
Hon. Parlen L. McKenna, Presiding
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For PacifiCorp
(License Applicant)
Michael A. Swiger, Esq.
Steven Richardson, Esq.
Matthew A. Love, Esq.
Julia Wood, Esq.
Ivy Anderson, Esq.
Van Ness & Feldman |
For
Frank DeMarco, Esq.
Roger A. Berliner, Esq.
Berliner Law , PLLC |
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APPEARANCES
(continued) |
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For the
National Marine Fisheries Service
Ruth Ann Lowery, Esq.
Dan Hytrek, Esq.
Samuel Chi, Esq.
Christopher Fontecchio, Esq.
National Oceanic & Atmospheric Administration, Office of
General Counsel |
For the
Kerry O’Hara, Esq.
United States Department
of Interior
Office of the Regional Solicitor
Luke Miller, Esq.
Veronica Rowan, Esq.
James Monroe, Esq.
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For the Bureau
of Land Management
Nolan Shishido, Esq.
Frank Wilson, Esq.
Michael A. Schoessler, Esq.
Michael Tressman, Esq.
Office of the Regional Solicitor |
For California
Department of Fish & Game
Stephen Puccini, Esq.
Office of the General Counsel |
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For Yurok
Tribe
John Corbett, Esq.
Office of the Tribal Attorney
Scott W. Williams, Esq.
Alexander, Berkey, Williams &
Weathers, LLP |
For
Conservation Groups
Richard Roos-Collins, Esq.
National Heritage Institute
On Behalf of Trout Unlimited |
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For
Thomas P. Schlosser, Esq.
Thane Somerville, Esq.
Pirtle, Morisset, Schlosser & Ayer |
Charlton H. Bonham, Esq.
Brian J. Johnson, Esq.
On
Behalf of
Project/Trout
Unlimited |
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For
Klamath Tribes
Carl Ullman, Esq. |
For PCFFA/IFR
Glen
Spain, Esq. |
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DISPUTED
ISSUES OF MATERIAL FACT
1.
Motions to Strike and Motion for
Reconsideration are DENIED.
2.
Klamath Tribes Motion to Strike
Errata of Mr. Malone’s Direct Testimony is DENIED.
B.
USFWS/NMFS DISPUTED ISSUES OF MATERIAL FACT
1.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 2(A)
a.
Historically, Anadromous Fish were
distributed above Iron Gate Dam
b.
Project Dams Have Changed the
Migratory Behavior of Anadromous Fish in the Klamath River
c.
The Habitat above Iron Gate Dam is
Similar to the Habitat in Some Tributaries below Iron Gate Dam
d.
There are Stocks of Fish Suitable
to Conditions above Iron Gate Dam
2.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 2(B)
3.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 2(C)
4.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 3
5.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 4
6.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 6
7.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 7
8.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 8
C.
BLM DISPUTED ISSUES OF MATERIAL FACT
1.
FINDINGS OF FACT CONCERNING BLM ISSUE 10
2.
FINDINGS OF FACT CONCERNING BLM ISSUE 11
3.
FINDINGS OF FACT CONCERNING BLM ISSUE 14
4.
FINDINGS OF FACT CONCERNING BLM ISSUE 16
a.
Low Flows Reduce Fish Habitat
5.
FINDINGS OF FACT CONCERNING BLM ISSUE 17
6.
FINDINGS OF FACT CONCERNING BLM ISSUE 19
A.
USFWS/NMFS DISPUTED ISSUES OF MATERIAL FACT DISCUSSIONS
a.
The Miller Radio-Telemetry Study
is Scientifically Unreliable.
2.
USFWS/NMFS ISSUE 2(B) Discussion
3.
USFWS/NMFS ISSUE 2(C) Discussion
4.
USFWS/NMFS ISSUE 3 Discussion
5.
USFWS/NMFS ISSUE 4 Discussion
6.
USFWS/NMFS ISSUE 6 Discussion
7.
USFWS/NMFS ISSUE 7 Discussion
a.
There is Significant Suitable
Habitat above Iron Gate Dam for Coho Salmon.
b.
Habitat above and below Iron
Gate Dam are Equally Degraded.
c.
Providing access above Iron Gate
Dam will Benefit Coho Salmon.
8.
USFWS/NMFS ISSUE 8 Discussion
B.
BLM DISPUTED ISSUES OF MATERIAL FACT
1.
BLM ISSUE 10 and 11 Discussion
ULTIMATE
FINDINGS OF FACT AND CONCLUSIONS of LAW
1.
Under Daubert, the Miller Radio-Telemetry study is scientifically
unreliable.
SUMMARY
OF
THE CASE
This
expedited trial-type proceeding was brought pursuant to Section 241 of the
Energy Policy Act of 2005, Pub. L. 109-58, § 241, 119 Stat. 594, 674-75 (
More
specifically, under section 4(e), the Secretary of Interior
(“Interior”), acting through the Bureaus of Land Management (“BLM”)
and/or Reclamation (“BOR”), may establish conditions deemed necessary for
the protection of Indian reservations and public lands to be included in a hydroelectric
license. See 16 U.S.C. §
797(e). Likewise, under section 18
of the FPA, the Secretaries of Commerce (acting through the National Marine
Fisheries Service (“NMFS”)), and Interior (acting through the United States
Fish and Wildlife Service (“USFWS”)) may prescribe fishways to provide for
the safe, timely, and effective passage of fish.
As
the party requesting the hearing, the burden of proof rests with PacifiCorp to
establish its version of the facts on each disputed issues of material fact by a
preponderance of the evidence. See
Order Granting Motion to Confirm Burden of Proof (
The
parties framed fourteen disputed issues of material fact for decision.
In this case, PacifiCorp partially proved its version of the facts with
respect to USFWS/NMFS Issue 8. The
utility company also proved its version of the facts with respect to BLM Issue
19 and partially proved its version of the facts with respect to BLM Issues 10
and 11. However, PacifiCorp failed
to prove its version of the facts with respect to the remaining disputed issues
of material fact.
This
decision is made following a two-day prehearing conference; the submission of
thousands of pages of written direct and rebuttal testimony, exhibits, and
transcripts; the filing of and ruling on numerous pretrial motions; and over
forty-five hours of hearing over a five day period.
The preliminary statement, a listing of the stipulated disputed issues of
material fact to be decided, the findings of fact on each of those disputed
issues of material fact, a discussion analyzing the basis for the findings of
fact, and rulings on the proposed findings of fact and conclusions of law are
set forth below.
This
case concerns disputed issues of material fact with respect to preliminary
prescriptions and conditions that the NMFS and Interior agencies seek to include
in any FERC issued re-license for the operation of the Klamath Hydroelectric
Project No. 2082 (“Project”). The
Project is located on the upper
On
[1]
On
Separately,
in a letter to the FERC dated March 27, 2006, the BLM and the BOR each filed
section 4(e) preliminary conditions (together with USFWS section 18 preliminary
prescriptions that were jointly developed with NMFS) (collectively referred to
as “Interior Agencies”). A copy
of the preliminary conditions and prescriptions is contained in Attachment B.[1]
Pursuant
to 16 U.S.C §§ 797(e) and 811 (as amended), and 50 C.F.R. Part 221, in letters
dated April 28, 2006, PacifiCorp requested an expedited trial-type hearing to
challenge the factual bases supporting the preliminary prescriptions and
conditions. Since three of the five,
Project dams are located in
Pursuant
to 50 C.F.R. § 221.23, NMFS consulted with the Interior Agencies.
They jointly decided to consolidate the hearing requests, and refer the
consolidated
matter to the United States Coast Guard ALJ Docketing
Center for assignment of an Administrative Law Judge.
On June 22, 2006, Chief Administrative Law Judge Joseph N. Ingolia
assigned the Hon. Parlen L. McKenna to preside over the consolidated hearing and
issue a decision on the disputed issues of material fact within ninety (90) days
from the date of referral in accordance with section 241 of EPAct and 50 C.F.R.
Part 221.
In
accordance with 50 C.F.R. § 221.12, an initial prehearing conference was held
on July 6 and 7, 2006. During
the initial prehearing conference, the disputed issues of material fact were
narrowed. The next section of this
decision contains a list of the disputed issues of material fact.
The
hearing commenced in
DISPUTED
ISSUES OF MATERIAL FACT
Fourteen (14) disputed issues of material fact were identified in this
proceeding as follows:
1.
USFWS/NMFS
ISSUE 2(A): Whether stocks of anadromous fish suitable to conditions above
2.
USFWS/NMFS ISSUE
2(B): To what extent facilitating the movement of anadromous fish via prescribed
fishways presents a risk of introducing pathogens to resident fish inhabiting
the basin above
3.
USFWS/NMFS
ISSUE 2(C): To what extent
facilitating the movement of steelhead above Iron Gate Dam via prescribed
fishways presents a risk of residualizing, and whether and to what extent that [residualization]
would pose adverse effects to the resident trout fishery resource?
4.
USFWS/NMFS
ISSUE 3: Whether and how current
Project operations affect the resident trout fishery resource in the absence of
passage?
5.
USFWS/NMFS
ISSUE 4: Whether entrainment at
Project facilities is adversely affecting resident fishery resources?
6.
USFWS/NMFS
ISSUE 6: Whether 58 miles of habitat
suitable for use by anadromous fish exists with[in] the Project?
7.
USFWS/NMFS
ISSUE 7: Whether access to habitat
within the Project would benefit coho salmon, and if so, to what extent?
9.
BLM
ISSUE 10: Whether the seasonally
high flows will help to improve riparian conditions in the J. C. Boyle bypass
reach; and if so, whether and to what extent such improved riparian conditions
will affect native riparian-focal bird species?
10.
BLM
ISSUE 11: Whether project operations
adversely affect riparian resources and native riparian-focal bird species in
the J.C. Boyle peaking and bypass reaches?
11.
BLM
ISSUE 14: Whether the seasonal high
flow specified in BLM Conditions 4 A.1(c) will have a net adverse effect on
redband trout spawning?
[1]
Since they were jointly developed, the USFWS’ section 18 preliminary
prescriptions are identical to the NMFS section 18 preliminary
prescriptions. The only
distinction between the two is the Secretary of Interior is responsible for
filing USFWS’ preliminary prescription whereas the Secretary of Commerce
is responsible for NMFS’ preliminary prescription.
[2]
The Conservation Groups are comprised of eight separate organizations: 1)
American Rivers; 2) Trout Unlimited; 3) Northcoast Environmental Center; 4)
Pacific Coast Federation of Fishermen’s Associations and the Institute of
Fisheries Resources (“PCFFA/IFR”); 5) WaterWatch of Oregon; 6)
California Trout; 7) Friends of the River; and 8) Oregon Natural Resources
Council.
[3]
The parties agreed to file joint post-hearing briefs as follows:
a)
PacifiCorp and
b)
NMFS and FWS filed a joint post-hearing brief (adopted by
CDFG);
c)
BLM filed a post-hearing brief;
d)
The Conservation Groups filed a post-hearing brief; and
e)
The Indian Tribes filed a joint post-hearing brief.
1.
BLM
ISSUE 16: Whether and how current
Project operations affect the redband trout fishery resources, insofar, as that
resource would be addressed by the River Corridor Management Condition?
2.
BLM
ISSUE 17: Whether and to what extent
BLM’s two-inch-per-hour upramp rate for the J.C. Boyle facility will affect
fish resources and other aquatic organisms?
3.
BLM
ISSUE 19: How the flows proposed by
BLM may affect the existing whitewater boating and flyfishing in the J.C. Boyle
peaking reach?
Pursuant
to 50 C.F.R. § 221.60, the undersigned’s findings of fact with respect to
each disputed issue of material fact will be final and binding on the
Secretaries of Interior and Commerce in their final actions under sections 4(e)
and 18 of the FPA.
There are six pending motions to strike that have not yet been ruled
upon. The Motions are as follows: (1) Yurok Tribe’s Motion To
Strike Testimony of PacifiCorp Witnesses Chane and Giorgi dated August 15, 2006;
(2) Federal Fisheries Services Motion to Strike Certain Portions of the Written
Direct Testimony filed by PacifiCorp dated August 16, 2006; (3) BLM’s Motion
to Strike Testimony of PacifiCorp Witness Forrest Olson dated August16, 2006;
(4) Klamath Tribe’s Motion to Strike Certain Testimony of PacifiCorp’s
Witness dated August 16, 2006; 5) Klamath Tribe’s Motion to Strike Alteration
of Direct Testimony dated, August 16, 2006; and 6) NMFS/FWS Motion to Strike
Certain Portions of the Written Rebuttal Testimony Filed by PacifiCorp dated
August 18, 2006. A Motion for
Reconsideration of an Order Granting PacifiCorp’s Motion to Supplement
Rebuttal Exhibits of Ken Carlson filed by the Federal Fisheries Services, dated
1.
Motions
to Strike and Motion for Reconsideration are DENIED.
The
Federal Fishery Services, the BLM, the Yurok Tribe, and the Klamath Tribe all
seek to strike certain written direct and/or rebuttal testimony of all five of
PacifiCorp witnesses: (1) Mr. Ian Chane addressing USFWS/NMFS Issue 8; (2) Dr.
Albert E. Giorgi addressing USFWS/NMFS Issue 8; (3) Mr. Ken Carlson addressing
USFWS/NMFS Issue 6; (4) Mr. Kevin Malone addressing USFWS/NMFS Issues 2 and 6;
(5) Forrest Olson addressing the Tennant Method.
In support of each motion, the Federal Fishery Services, the BLM, the
Yurok Tribe, and the Klamath Tribe argue that the aforementioned evidence is
irrelevant because it is outside of the scope of the issues agreed upon by the
parties for the hearing and, in many instances, seek to introduce subjects that
have previously been dismissed/withdrawn from the proceeding.
The Agencies also filed a motion on
In
these proceedings, “relevant, reliable, and probative evidence” is
admissible at the hearing so long as the evidence is not privileged, unduly
repetitious, or cumulative; and its probative value is not substantially
outweighed by the risk of prejudice, confusion of the issues, or delay.
See 50 C.F.R. § 221.55. Although
the Federal Rules of Evidence do not apply in these proceedings, those rules do
serve as guidance.
The
undersigned recognizes that issues concerning the effectiveness of volitional
passage, the Tennant Method, and the prospective temperature effects from the
BLM 4(e) conditions were either withdrawn/dismissed from this proceeding.
However, the controversial testimony and evidence contains information
that bears on the issues in this case. Thus,
it is relevant and admissible. This
is especially true given the fact that the
parties are not prejudiced by the admission of this evidence.
The parties have been aware of the information for sometime now (for
instance the United States Geological Survey Report, dated September 20, 2005,
entitled “JC Boyle Bypass Segment Temperature Analysis” was received by
PacifiCorp from the government in discovery).
Further, the parties received the written direct/rebuttal testimony in
advance of the hearing, they had an opportunity to cross-examine the witness,
and they introduced countervailing evidence at the hearing.
Therefore, the motions to strike testimony filed by the Federal
Fishery Services, the BLM, the Yurok Tribe, and the Klamath Tribes are
DENIED.
2.
Klamath Tribes Motion
to Strike Errata of Mr. Malone’s Direct Testimony is DENIED.
Klamath
Tribes moved to strike PacifiCorp’s Errata Regarding the Direct Testimony of
Kevin Malone, arguing that the change to the testimony was substantive and
impermissible.
With
respect to discovery, the regulations place continuing obligations on the
parties to promptly amend or supplement any prior response to discovery upon
learning that the response is incomplete or incorrect when made.
See
50 C.F.R. § 221.42(a). The
regulations are silent whether the same rule applies with respect to written
direct testimony. Recognizing that a
rule requiring a party to go forward with evidence that is known to be
incomplete or incorrect would be an exercise in futility, PacifiCorp’s Errata
is GRANTED, and Klamath Tribes’
motion to strike is DENIED.
The Findings
of Fact on the disputed issues of material fact are based upon a complete review
of all evidence of record. The facts
are as follows:
1. Four of the five Project dams are at issue in this trial-type expedited proceeding conducted under section 241 of EPAct and 50 C.F.R. Part 221: a) Iron Gate Dam; b) Copco I Dam; c) Copco II Dam; and d) J.C. Boyle Dam and Diversion or the Klamath Hydroelectric Project. (Entire Administrative Record).
[1] The Federal Fisheries Services also sought to strike portions of Mr. Malone’s testimony addressing USFWS/NMFS Issue 9. Since that issue has been withdrawn and removed from this proceeding, the motion to strike is dismissed as moot.
1.
salmon, Coho salmon, and winter steelhead trout under the
terms of its existing FERC hydroelectric license.
(KTr-CWH-Ex. 1 at 8-9;
KTr-CWH-Ex. 5 at 11; KTr-CWH-Ex. 20 at 79).
2.
Copco I development consists of a dam and a 20 MW power plant.
It is the first development that was constructed in the Project area
in 1917. Copco I is located
upstream from Iron Gate Dam at RM 198.6 in
3.
Approximately a
quarter-mile downstream from Copco I at RM 198.3 in
4.
The J.C. Boyle
development was constructed in 1958 and consists of a dam, reservoir, and
powerhouse. It is located
farthest upstream at RM 224.7 and the 80 MW powerhouse is located several
miles downstream at RM 220.4, both in Southern Oregon.
(KTr-CWH-Ex. 1 at 8-9).
A.
USFWS/NMFS DISPUTED ISSUES OF MATERIAL FACT
1.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 2(A)
2A-1.
The selected
anadromous stocks of fish at issue in this proceeding are: a) wild Chinook
salmon; b) Coho salmon; c) steelhead trout; and d) Pacific lamprey.
(Entire Administrative Record).
2A-2.
An anadromous
fish is a fish that migrates to and from the ocean and spawns in its river
of origination in order to complete its life cycle.
(
a.
Historically,
Anadromous Fish were distributed above
2A-3.
While the precise geographic distribution is
uncertain, historical records and tribal accounts demonstrate that anadromous
fish (Chinook salmon, Coho salmon, and steelhead trout) migrated past
the present site of Iron Gate Dam which provided a viable ecosystem and
habitat for those stocks of fish. (Aug
24, 2006 Tr. at 11:1-6, 26:21 - 27:7, and 68:10-14; NMFS/FWS-Issue
2A-Garza-Ex. 7 at 1; NMFS/FWS-Issue 2C-Hooton-Ex. 1 at 2:1-17;
NMFS/FWS-Issue 6 Hamilton-Ex. 1 at 3:1-14; NMFS/FWS-Issue 6-Hamilton-Ex. 10
at 5; NMFS/FWS-Issue 16-Hamilton-Ex. 16; NMFS/FWS-Issue 8 Hamilton-Ex. 6 at
6-7;HVT-Franklin-Ex. 1 at 2:3-9; 2:20 to 3:5; HVT-Franklin-Ex. 6;CDFG Pisano
Exhibit 1 at 6:10-15; Yurok Tribe’s Direct Testimony, Witness: Cleveland
R. Steward, Issue: NMFS/FWS 8 (“Yurok-Steward 8 Direct”) at 3:18-4:8; KTr-CWH-Ex. 5 at 10; NMFS/FWS
PFF 2A.1 and 8.2; NGO PFF 2A.1; Indian Tribes PFF 2A.2).
2A-4.
Chinook salmon (both spring and fall-run) were
abundant in the tributaries of
2A-5.
Steelhead trout utilized habitat in Spencer, Shovel,
Fall, Camp, and Scotch Creeks, and they were likely distributed as far
upstream as
2A-6. Coho salmon spawned in Fall Creek. (Aug. 24, 2006 Tr. at 273:11-274:8; NMFS/FWS-Issue 2A-Garza-Ex. 7 at 7-8;NMFS/FWS-Issue 8-Hamilton-Ex. 1 at 4:3-13; NMFS/FWS-Issue 8-Hamilton-Exhibit 6 at 6-7;NMFS/FWS-Issue 8-Hamilton-Ex. 11 at 236; Yurok-Steward 8 Direct at 3:20- 4:8; Yurok Tribe- Steward 8 Rebuttal at 4:12 to 5:8; KTr.-CWH-Ex. 4 at 216; KTr-CWH-Ex. 5 at 16; NMFS/FWS-Issue 7-Simondet-Ex. 5 at 117; NMFS/FWS-Issue 7-Simondet-Ex. 1 at 4:7-18; NMFS/FWS-Issue 7-Williams-Ex. 1 at 5:8-6:4; KTr-CWH-Ex. 4 at 216-224; Indian Tribes PFF 7.1).
2A-7.
There is insufficient
evidence in the record to determine whether Pacific lamprey historically
were distributed above the present site of Iron Gate Dam.
(Aug. 24, 2006 Tr. at
121:2-122:1, 124:2-125:19, 250:23-252:13; 253:13-23; 255:8-13; PAC-Chane-R-1
at 2:23-3:1; CDFG Pisano Ex. 1 at 13:8-9; KTr-CWH-Ex.
5 at 16-17).
However, the evidence does show that Pacific lamprey do occur in the
b.
Project Dams Have Changed the Migratory Behavior of Anadromous
Fish in the
2A-8.
The construction of the Project dams has changed the
migratory behavior of anadromous fish in the Klamath River System, blocking
upstream migration and limiting those fish to habitat below the dam.
(Aug. 24 Tr. at 11:2-12:9; NMFS/FWS-Issue 2C-Hooton-Ex. 1 at 2;
NMFS/FWS-Issue 2A-Garza Ex. 1 at 3; NMFS/FWS-Issue 2A-Garza Ex. 7 at 1;
KTr-LKD-Ex.-13, at 1; NMFS/FWS-Issue 2C-Hooton- Ex. 17, at 20; KTr-CWH-Ex. 3).
2A-9.
No anadromous fish presently inhabit the waters
above Iron Gate Dam. (Id).
2A-10.
Migration is one of
several defining life history characteristics of anadromous fish, especially
salmonids. (NMFS/FWS-Issue
2A-Garza-Ex. 1 at 2:8-3:25; NMFS/FWS-Issue 2A-Garza-Ex. 6 at 6;
NMFS/FWS-Issue 2A-Garza-Ex. 8 at 13; NMFS/FWS-Issue 2A-Garza-Ex. 4 at 3;
2A-11.
Today, wild anadromous
fish (Chinook salmon, Coho salmon, and steelhead trout) can only migrate up
to the base of Iron Gate Dam, using nearby tributary and main stem habitat
to spawn. (Aug 24, 2006 Tr.
at 10:18 to 11:1; 17:15-18; NMFS/FWS-Issue 2A-Garza-Ex. 1 at 4:4 to 5:7;
NMFS/FWS-Issue 2A-Garza-Ex. 7 at 1-2; NMFS/FWS-Issue 2A-Curtis Rebuttal
Testimony Ex. 1at 2:1-16; CDFG Pisano Exhibit 1 at 4:20 to 5:28; CDFG Pisano
Exhibit 4; HVT, Franklin, Ex. 1 at 2, lines 10-17; Yurok-Steward 8 Direct at
3:1-9; Steward Yurok Ex 5; KTr.-LKD-Ex. 13; see also NMFS/FWS
PFF 2.A.2 and 8.2; NGO PFF 2A.2; Appendix to Reply of PacifiCorp and
Siskiyou County Responses to Proposed Findings on USFWS/NMFS Issues at 2).
2A-12.
If access was
provided, anadromous fish would migrate past Iron Gate Dam.
(Aug. 24, 2006 Tr. at 11:12-23;
170:2-17; 273:11-274:8; NMFS/FWS-Issue 2A-Garza-Ex. 1 at 2-3, 5:3-4; NMFS/FWS-Issue
2A-Garza-Ex. 6 at 6; NMFS/FWS-Issue8-Moser-Ex. 1 at 8:4-9:16 and
13:11-17; HVT-Franklin-Ex. 1 at 3:10-20 and 5:3-6; NGO Ex. 3, at 5:22-23,
7:11-9:20 and 13:11-17; CDFG-Pisano-Ex. 1 at 10:12-11:8; NGO PFF 2A.5; see
also Appendix to Reply of
PacifiCorp and Siskiyou County Responses to Proposed Findings on USFWS/NMFS
Issues at 3).
c.
The Habitat above
2A-13.
Habitat below Iron Gate Dam, like habitat in the
Project-bounded area, has variable suitability across locations, time, and
life stages. (Aug. 24 at
283:25-20). Anadromous
salmonids have used downstream habitat that is no more favorable than that
located above Iron Gate Dam. (CDFG
Pisano Ex. 1 at 4:18-51, 7:10-9:7 (Coho in other parts of the Klamath system
occupy water with temperatures in excess of 26 о
C), 9:8-10:12 (spawning in degraded streams); Yurok-Hillemeir
Direct Testimony-NMFS/FWS Issue 7 at 4:24-5:3; KTr-CWH-Ex 4 at 219 (juvenile
Coho salmon observations in the main stem Klamath River where temperatures
exceed 20 оC)).
2A-14.
Warm water temperatures in the summer and cold water
temperatures in the winter will not preclude anadromous fish from
successfully utilizing habitat above Iron Gate Dam.
(NMFS/FWS-Issue 2A-Garza-Ex. 1 at 2:8-3:25; NMFS/FWS-Issue
2A-Garza-Exh. 6 at 6; NMFS/FWS-Issue 2A-Garza-Ex. 8 at 13; NMFS/FWS-Issue
2A-Garza-Exh. 4 at 3;
2A-15.
The findings of fact in USFWS/NMFS Issue 2B
addressing disease is incorporated herein.
2A-16.
The findings of fact in USFWS/NMFS Issue 6
addressing the mileage of suitable habitat within the Project-boundaries are
incorporated herein.
2A-17.
The amount of delay associated with anadromous fish
migrating above Iron Gate Dam is uncertain.
(c.f. Aug.
23, 2006 Tr. at 224:18- 227:17, 237:7-20; 226:20-25; Aug. 24, 2006 Tr. at
42-11:15, 54:10-55:2; NMFS/FWS-Issue 7-Simondet Rebuttal, at 7:7-8; KTr
Huntington Rebuttal Ex. 6, at 9:7-20, 11:18-19, 13:16 to 14:16; KTr LKD
Rebuttal Ex. 15, at 3:11-4:2, 4:20-5:12; KTr CWH Rebuttal Ex. 6, at
3:22-4:2; NMFS/FWS-Issue 2-Hamilton Rebuttal, Ex. 1 at 2:18 to 3:20;
NMFS/FWS-Issue 6-Hamilton Rebuttal at 6:7-24; NMFS/FWS-Issue 2-Hamilton
Rebuttal Ex. 8; KTr LKD Rebuttal Ex. 15, at 3:8-5:12; KTr CWH Rebuttal Ex.
6, at 4:2-10; Indian Tribes PFF 2A.8, 2A.10, 2A.11).
[1]
The issues concerning whether Pacific lamprey stocks suitable to
conditions above Iron Gate Dam are available, and whether Pacific
lamprey would benefit from access to habitat within the Project area are
discussed in great detail below in response to USFWS/NMFS Issue 8.
2A-1.
2A-2.
Likely mortality rates
of juvenile anadromous salmonids migrating through reservoirs will vary
widely among species, and will depend largely on size (larger migrants will
do better) of the migrating fish. Thus,
small sub-yearling fall Chinook are likely to experience lower passage
success than larger Coho, yearling Chinook or steelhead out-migrants.
(KTr-CWH Rebuttal Ex. 6 at 2:6-17, 3:10-14; Aug. 25, 2006 Tr. at 64:7-
65:8, 65:14-22; Indian Tribes PFF 2A.12).
2A-3.
Predation of
outmigrating salmonids above Iron Gate Dam is likely to be low.
(NMFS/FWS-Issue 2
Hamilton-Rebuttal Ex. 4 at 224-225;
2A-4.
The fact that
anadromous fish currently complete life cycles through eight dams and
reservoirs on the Columbia and Snake rivers, and historically completed life
cycles through Upper Klamath Lake, provides strong evidence that anadromous
salmonids could also migrate through the reservoirs created by Project
facilities. (Aug. 24, 2006 Tr. at 26:21-27:7;
KTr FAE Rebuttal Ex. 7, at 2:2-17; KTr FAE Ex. 32, at 5:21-25; Indian Tribes
PFF 2A.9).
a.
There are Stocks of Fish Suitable to Conditions above
2A-5.
The NMFS and the USFWS (collectively referred to as
“Federal Fishery Services”) seek to, among other things, restore native
anadromous fish species to their historical habitats above Iron Gate Dam.
See NMFS/FWS-Issue 7-White-Ex. 14, Attachment A, at A-9
through A-12.; Yurok-Hillemeir Direct-Issue 7 at 6).
2A-6.
The record shows that
those anadromous fish proximate to Iron Gate Dam are genetically most
similar to those populations that existed in the Upper Klamath basin prior
to the construction of the dams. (NMFS/FWS
Issue 2A-Garza-Ex. 1 at 4:1-5:7 and 6:1-3; NMFS/FWS-Issue 2C-Hooton-Ex. 1 at
2A-7.
There are numerous
examples from other streams and rivers systems that provide persuasive
evidence that anadromous fish possess the capacity and capability to
successfully adapt and colonize new habitat or recolonize historic habitat,
including streams or river systems with lakes or reservoirs.
(NMFS/FWS-Issue
2A-Garza-Ex. 1 at 2:8-3:25; NMFS/FWS-Issue 2A-Garza-Ex. 6 at 6;
NMFS/FWS-Issue 2A-Garza-Ex. 8 at 13; NMFS/FWS-Issue 2A-Garza-Ex. 4 at 3; NGO
Ex. 3 at 12:13-13:9; NGO Ex. 20; HVT, Franklin, Ex. 1 at 4:-5:2; CDFG Pisano
Ex. 1 at 10:20-22; NMFS/FWS PFF 2A.8).
2A-8.
The record evidence
shows that Chinook salmon, Coho salmon, and steelhead have varying life
histories and would use differing areas of habitat within the Project at
somewhat different times of year as they did prior to construction of the
Project. (
i.
Stocks of fall-run Chinook salmon Suitable to
Conditions above
2A-9.
Chinook salmon historically were and continue to be
the most abundant anadromous fish in the Klamath basin.
In the last 25 years, annual runs of Chinook salmon have ranged
between 30,000 and 240,000. Historically,
the runs were much higher. (KTr-CWH-Ex.
4 at 225).
2A-10.
In the
2A-11.
The majority of adult fall-run Chinook salmon enters
the river to spawn in early September and continues through late October.
Although the optimal temperature for adult Chinook salmon is below 14о
C, they can withstand temperatures exceeding
20о C for
short periods of time. It takes
approximately 2 to 4 weeks after entering the river to reach the spawning
grounds, where the adult fall-run Chinook salmon spawns and dies.
This spawning period coincides with the declining temperatures, which
by early November are within the optimal range for the developing embryos
(i.e., 4-12о C).
(KTr-CWH-Ex. 4 at 225-26).[2]
2A-12.
The record evidence shows that juvenile fall-run
Chinook salmon begin outmigration to the ocean as early as January and
migration is complete by the beginning of April.
Juvenile Chinook salmon are thermally tolerant and can withstand
temperatures exceeding 20о C provided there is
abundant food, thermal refugia (i.e., areas of cool water where the
fish can seek refuge when the water temperature becomes to warm), and other
conditions are not stressful. (
2A-13.
Historically, the success of fall-run Chinook salmon
in the drainage basin above Iron Gate Dam was associated with the thermally
moderate spawning and incubation environments (which included spring-fed
streams and/or areas of strong groundwater input).
In addition, the warming, nutrient-rich waters also provided
excellent habitat during the spring for sub-yearling Chinook. (NGO Ex. 3
at 6; NGO Ex. 19).
2A-14.
The fall-run Chinook salmon in Bogus and
1.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 2(C)
2C-1.
Resident
rainbow/redband trout are distinct from anadromous steelhead trout.
Although the two species are similar (both are designated O.
Mykiss), the life histories are different.
(Aug. 22, 2006 Tr. at 160:2-15;
Aug. 24, 2006 Tr. at 42:16-43:13, 43:5-13; CDFG-Chesney-Ex.
1 at 4:18-20; see also NMFS/FWS PFF 2C.1; NGO PFF 2C.3;
Appendix to Reply of PacifiCorp and
Siskiyou County Responses to Proposed Findings on USFWS/NMFS Issues at 21-22).
After hatching and early rearing in the riverine habitat,
juvenile steelhead trout out migrate to the ocean where they mature into
adults before returning to their riverine habitat for spawning.
By contrast, resident rainbow/redband trout spend all of their life
stages in the
2C-2.
Historically,
anadromous steelhead trout extended up to and used tributaries of
2C-3.
The erection of Iron Gate Dam necessarily changed
the migratory behavior of anadromous fish in the Klamath River System,
limiting them to habitat below the dam.
(FOF 2A-2). Today,
anadromous steelhead trout only migrate to the base of Iron Gate Dam, using
nearby tributaries and main stem habitat to spawn.
(FOF 2A-3). However,
if access was provided, steelhead would migrate past Iron Gate Dam into the
upper
2C-4.
The habitat for the anadromous fish has been
significantly reduced subsequent to the construction of the Project dams.
(
2C-5.
Although environmental conditions and habitat above
Iron Gate Dam have changed, anadromous fish are resilient and can adapt to
most existing environmental conditions and habitat.
(
2C-6.
For instance,
steelhead trout have the genetic ability to recolonize and use new habitat.
(Aug. 24 Tr. at 0011:2-0012:13; NMFS/FWS-Issue 2A-Garza-Ex. 1 at 2:8
to 3:25; NMFS/FWS-Issue 2A-Garza-Ex. 6 at 6; NMFS/FWS-Issue 2A-Garza-Ex. 8
at 13; NMFS/FWS-Issue 2A-Garza-Ex. 4 at 3; NMFS/FWS-Issue 2-Curtis Rebuttal
at 4:15-17; CDFG-Dean-Ex. 1 at 3:8-17; CDFG-Pisano-Ex. 1 at 5:15-28 and
8:14-9:7; NGO Ex. 3 at 12:3-21; HVT-Franklin-Ex. 8; HVT-Franklin-Ex. 2 at
2:20-26; see also
NMFS/FWS PFF 2A.3; Indian Tribes PFF 2A.3; NGO PFF 2A.7).
2C-7.
Resident trout have
the genetic capacity to adopt anadromy and some may outmigrate to the ocean
if passage exists. (
2C-8.
While residualization
(remain in freshwater) is common in juvenile hatchery steelhead trout, there
is an absence of evidence of high levels of residualization in juvenile
naturally-spawned steelhead trout. (Aug.
23, 2006 Tr. at 200:13-14; NGO-Ex. 3, at 11:5-7; HVT-Franklin Ex. 1 at
5:18-22; KTr-FAE Ex. 32 at 7:3-22; NMFS/FWS PFF 2C.4, 6).
2C-9.
There are no
scientific studies of the Klamath basin demonstrating that reintroduction of
anadromous steelhead trout would detrimentally affect the genetic makeup of
the resident trout fishery. (
2C-10.
There is little
information on the nature of any competitive interactions between steelhead
and resident trout in the Klamath basin.
(NGO Ex 3, Testimony of Dr. R.. Williams at
2C-11.
There
are many examples from nearby river systems in the
2C-12.
The risk of
residualization of rainbow/redband trout may be minimized through adaptive
management. (KTr.-Huntington-Ex. 1; NGO Ex. 3 at 11:8-12).
2.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 3
3-1.
The Project contains various
habitat areas for resident trout including: a) the J.C. Boyle bypass reach
which extends 4.3 miles from J.C. Boyle Dam to the J.C. Boyle powerhouse; 2)
the J.C. Boyle peaking reach extending 17.3 miles and traversing the
California/Oregon state line; 3) a 1.4 mile section between Copco II
diversion dam and Iron Gate reservoir; and 4) other reservoirs within the
Project reach. (PAC-Ols-D-Ex. 1 at 20:20-22:2; CDFG-Dean-Ex. 1 at 4:19-25; NGO-Ex. 14 at
4; NMFS/FWS-Issue 3-Snedaker-Ex. 1 at 3:24-4:6, 6:15-18; CDFG-Dean-Ex. 1 at
4:19-26, 5:22-6:4; NGO-Ex. 2 at 19:7-9).
3-2.
The 1.4 mile section of river between the Copco II Diversion Dam and
Iron Gate Reservoir contains marginal trout habitat.
(PAC-Ols-D-Ex. 1 at 21:21-23; PacifiCorp PFF 200; Appendix
to National Marine Fisheries Service and United States Fish and Wildlife
Service’s Joint Post-Hearing Reply Brief at 20).
3-3.
There are a limited number of
trout in the J.C. Boyle, Copco, and Iron Gate Reservoirs.
(PAC-Ols-D-Ex. 1 at 22:4-5;
PacifiCorp PFF 201; Appendix to Reply of PacifiCorp and
Siskiyou County Responses to Proposed Findings on USFWS/NMFS Issues at 32).
3-4.
Prior to the construction of
the dams, redband trout within the Project area belonged to a single, large,
intermixing population throughout the
3-5.
Although the trout sport fishery is robust in the
3-6. Life history strategies (such as spawning above the J.C. Boyle Dam) are denied to the resident trout population below the dam. (NMFS/FWS-Issue 3-Hooton-Ex. 0A at 6:17-20; Hooton-BLM-Ex. 4 at 22; NGO-Ex. 2 at 14:10-12, 17:15-18:2, 19:4-18; CDFG Dean Ex. 1 at 5:1-2; Aug. 23, 2006 Tr. at 161:13-162:17; NMFS/FWS PFF 3.5).
3-7.
Migration is one of several
defining life history characteristic of trout.
(
3-8.
The Project restricts migration
of resident fish within the main stem and into and out of tributaries.
(NGO Ex. 2 at 19:12-14).
3-9.
J.C. Boyle Dam has a
fishway for migration of rainbow/redband trout.
(NGO PFF 3.6). The
current fish screen and ladder at the dam do not meet current state and
federal fish passage criteria and impairs upstream migration.
(PAC-MAL-D-Ex. 4 at 7-31; NMFS/FWS PFF 3.8 and 3.9; Appendix to
Reply of PacifiCorp and Siskiyou County Responses to Proposed Findings on
USFWS/NMFS Issues at 32).
3-10.
The effectiveness of
the fishway has declined by 98% since initial operation of the fishway in
1959. (NGO Ex. 17 at 379; NGO
Ex. 2 at
3-11.
PacifiCorp has agreed to
improve the channel configuration below the fishway so that upstream
migration of trout will no longer be impeded.
(PAC-Ols-R- Ex. 1 at 25:14).
3-12.
Improvements in efficiency to
the fishway at JC Boyle Dam would result in significant trout population
migration above the dam over time. (
3-13.
3-14.
Historically,
trout in the Copco II area would have moved up and downstream to access
needed habitat. To now meet
essential life history needs, trout move further downstream over Copco II
Dam and utilize either the bypass reach or other tributaries of Iron Gate
Reservoir. However, once they
exit Copco II they cannot return as there are no upstream passage
facilities. Thus,
the trout population is not self-sustaining.
(NMFS/FWS-Issue 3-Snedaker-Ex. 1 at 6:15-21; NMFS/FWS- Issue
3-Snedaker-Ex. 16 at 127; NMFS/FWS-Issue 4- Hamilton-Ex. 7 at 1; NMFS/FWS
PFF 3.13).
3-15.
Downstream
migration of rainbow/redband trout is also adversely impacted because of the
Project dams. This is due to the
hydraulics at the Project dams and mortality related to unscreened flow
resulting in fish passage through Project dam turbines.
(NMFS/FWS-Issue 3-Snedaker Ex. 16 at 126-130; NMFS/FWS-Issue
3-Hooton Ex. 0A at 7:10-9:14; BLM-Hooton-Ex. 3 at 7-8).
3-16.
The
Project’s limitation on riverine migration may have reduced the genetic
diversity of the remaining stocks within the Project reaches.
(NGO Ex. 2 at 3:6-10, 21:1-9; NGO Ex. 14, Figure 3 at 103; NGO PFF
3.8; NMFS/FWS PFF 3.3-3.5).
3.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 4
4-1.
J.C. Boyle, Copco, and Iron Gate Dams support populations of
resident fish including native and non-native species.
Popular sport fisheries occur in each reservoir targeting primarily
bass, perch, and catfish. Rainbow
trout, resident lamprey, and
4-2.
It is estimated that “several tens of thousands of resident
fish” are annually entrained at “each of the Projects” facilities.
(NMFS/FWS-Issue 4-Hamilton-Ex. 12, at 28; NMFS/FWS-Issue 4-Hamilton-Ex.
1, at 6:7-9; NMFS/FWS-Issue 4-Hamilton-Ex. 14 at 1; NMFS/FWS-Issue
4-Hamilton-Ex. 10 at 3; NMFS/FWS-Issue
4-Hooton-Ex. 14, at 112; NMFS/FWS-Issue 4-Hooton-Ex. 1, at 5:3-5; HVT-Steward-Ex.
1 at 3:19-20; NMFS/FWS PFF 4.5; Indian Tribes PFF 4.1).
4-3.
Entrainment occurs when fish are drawn into Project
facilities, such as power canals, turbines, and tailraces.
When drawn into turbine intakes, fish can be subject to injury and
mortality. (NMFS/FWS-Issue
4-Hamilton-Ex. 1, at 4:22-25; NMFS/FWS-Issue 4-Hamilton-Ex. 5, at 1;
NMFS/FWS PFF 4.1; Appendix to Reply Brief of PacifiCorp and
ii.
Minimal stocks of spring-run Chinook salmon Suitable to
Conditions above
2A-15.
Today, wild spring-run Chinook salmon have been
significantly reduced. The vast
majority of Chinook salmon is fall-run. (KTr-CWH-Ex.
4 at 225 and 229; NGO Ex. 3 at 8-9; NGO Ex. 19).
2A-16.
Habitat degradation is the primary cause of the
decline of spring-run Chinook salmon in the Klamath system.
(KTr-CWH-Ex. 4 at 229-30).
2A-17.
Like Coho salmon,
spring-run Chinook salmon has a stream-type life history (meaning that the
juveniles remain in the stream for one year or more before outmigrating to
the ocean). (KTr-CWH-Ex. 4 at 229).
2A-18.
Unlike adult fall-run Chinook salmon that spawn soon
after reaching their spawning habitat, adult spring-run Chinook salmon enter
the river before they are ready to spawn and reside in deep pools for 2-4
months before they spawn. (KTr-CWH-Ex.
4 at 229).
2A-19.
Adult spring-run Chinook salmon enter the Klamath
system to spawn in April through July and aggregate in deep pools where they
hold until September. Water
temperatures below 16о C are generally regarded as optimal
for adult spring-run Chinook salmon. However,
in
2A-20.
Spawning peaks in October, juvenile
Chinook salmon emerge between March and July, rear through the summer and
fall, and migrate to the ocean in the following spring.
(KTr-CWH-Ex. 4 at 229).
2A-21.
The record evidence demonstrates that the Lower
Williamson and
2A-22.
However, finding suitable candidates of wild
spring-run Chinook salmon might be problematic.
Currently, the spring-run Chinook salmon in the Salmon River provide
the only alternative for using wild fish in the reintroduction effort but
that stock of Chinook salmon is also not highly abundant.
(KTr-CWH-Ex. 13 at 17-18; NGO Ex. 3 at 8-9; NGO Ex. 19).
[1]
Some literature indicates that there are three populations of Chinook
salmon in the
[2]
Historically, fall-run Chinook salmon entered the river to spawn in
July, peaked in August, and they were largely completed by September.
Today, the time the fall-run Chinook salmon enter the river to
spawn has shifted by 2 to 4 weeks presumably because the high
temperatures in the main stem Klamath River has become unfavorable for
the adult salmon or because of excessive harvest of early run fish.
(KTr-CWH-Ex. 4 at 225-26).
2A-1.
2A-2.
Further, deteriorating water temperatures in the
summer are likely to block migration of adult spring-run Chinook salmon
before they reach suitable holding or natal areas.
(KTr-CWH-Ex. 13 at 11).
ii.
Stocks of Coho Salmon Suitable to the Conditions above
2A-3.
The findings of facts in USFWS/NMFS Issue 7
addressing Coho salmon are incorporated herein.
2A-4.
The evidence shows suitable stocks Coho salmon are
available to used prescribed fishways above Iron Gated Dam.
(FOF 7-1 through 7-15).
iii.
Stocks of Steelhead Suitable to the Conditions above
2A-5.
Steelhead trout are the most widely distributed
anadromous salmonids in
2A-6.
Adult steelhead trout enter the
2A-7.
Juvenile steelhead
trout emerge in the spring and most spend approximately two years in
freshwater before outmigrating to the ocean.
Although juvenile steelhead trout demonstrate a preference for cold
water temperatures (of 15-19о C), they can withstand
incrementally higher temperatures exceeding 22о C provided
food is abundant and by finding thermal refuge or by living in areas where
nocturnal temperatures drop below the thermal threshold.
(
2A-8.
Historical numbers of steelhead trout in the Klamath
are unknown, but total run sizes in the 1960s were estimated at 170,000.
In the 1980s, the estimated population numbers dropped to 100,000 and
the numbers are still declining to the extent that now the winter steelhead
trout is considered to be at risk of extinction.
(KTr-CWH-Ex. 4 at 231-32).
2A-9.
Habitat that is
presently suitable for anadromous wild steelhead is more widespread in the
upper basin than is habitat suitable for Chinook salmon.
(NGO Ex. 3 at 9; NGO Ex. 19).
This habitat is presently being used in varying degrees by resident
rainbow/redband trout. (NGO
Ex. 3 at 9; NGO Ex. 19).
2A-10.
Many streams or
segments of streams contain fair to good steelhead habitat above Iron Gate
Dam. (NGO Ex. 3 at 9). While
access to habitat for steelhead trout might be a problem because of
gradients, it is critical because the diversity of life history strategies
enables the fish to adapt to changing environmental conditions and habitat
(Aug. 23, 2006 Tr. at
24:21-26:19; 63:9-65:9; 68:22-69:10; NGO Ex. 3 at 9)
2.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 2(B)
2B-1.
The pathogens present
below Iron Gate Dam include: Ceratomyxa Shasta (C. Shasta);
Ichthyophithirius multifiliis (Ich); Flavobacterius
columnaris (F. columnaris);
Paravicapsula minibicornis (P. minibicornis); and Trematode
metacercaria. (Aug.
24, 2006 Tr. at 39:11-40:5, 199:2-200:1; Aug. 25, 2006 Tr. at 42:18-25;
NMFS/FWS-Issue 2B-Foott-Ex. 1 at 2:1-3:3;NMFS/FWS-Issue 2B-Foott-Ex 5 at 5;
CDFG Cox Ex. 1 at 3:8-23 and 4:20-21; NMFS/FWS
PFF 2B.1; NGO PFF2B.2; Indian Tribe PFF 2B.1; Appendix to Reply of
PacifiCorp and Siskiyou County Responses to Proposed Findings on USFWS/NMFS
Issues at 14).
2B-2.
For the most part, the
pathogens existing in the lower basin historically and currently exist in
the upper basin of the
2B-3.
The existence of virus
Infectious Hematopoietic Necrosis (IHN)
in the
2B-4.
To date, no research
or studies have been performed to detect the occurrence of IHN
in the upper basin of the
2B-5.
There is insufficient
evidence in the record to make a determination whether IHN
exists in either the upper or the lower basins of the
2B-6.
In addition, multiple
surveys on adult and juvenile Chinook salmon in the Klamath River show that Renibacterium
salmoniranrum (R. salmoniranrum), a rare, insignificant bacterial
pathogen, is present in the lower basin.
(NMFS/FWS-Issue 2B-Foott-Ex. 1
at 2:15-17 and 3:25-4.4; see
also NMFS/FWS PFF 2B.2; Indian Tribes PFF 2B.3, NGO PFF at 2B.3; Appendix
to Reply of PacifiCorp and Siskiyou County Responses to Proposed Findings on
USFWS/NMFS Issues at 14 and 18).
2B-7.
Like IHN,
there is a lack of information concerning the presence of R.
salmoniranrum in the upper basin. (NMFS/FWS-Issue
2B-Foott-Ex. 1 at 3:13-16, see also NMFS/FWS PFF 2B.2; Indian
Tribes PFF 2B.3, NGO PFF at 2B.3; Appendix
to Reply of PacifiCorp and Siskiyou County Responses to Proposed Findings on
USFWS/NMFS Issues at 14 and 18).
2B-8.
Nevertheless, because
of its low levels, R. salmoniranrum does not appear to pose a
significant risk of disease in the salmonid population in the
2B-9.
Similarly, parasitic Trematode
Metacercaria present in juvenile and adult Chinook salmon do not appear
to present a significant health threat to resident fish in the upper
Klamath. (NMFS/FWS-Issue
2B-Foott-Ex. 1 at 3:6-11; NMFS/FWS-Issue 2B-Foott-Ex. 4 at 7-8; see also
NMFS/FWS PFF 2B.2; Indian Tribes PFF 2B.5; Appendix to Reply of PacifiCorp and Siskiyou County Responses to
Proposed Findings on USFWS/NMFS Issues at 14 and 18).
2B-10.
F. columnaris
and Ich are ubiquitous in freshwater systems, and both are present
throughout the
2B-11.
Likewise, C. Shasta
and P. minibicornis are myxozoan parasites that are found throughout
the
2B-12.
It is recognized that disease is the outcome of the
interaction of a susceptible host and a pathogen in a poor environment that
favors the pathogen and places stress on the fish.
The passage of adult fish into a poor upper river environment would
have disease, possibly pre-spawning mortality as a likely outcome.
(
2B-13.
The incidence of infection from pathogens is
seasonal during summer months when water temperatures and algae blooms are
high thereby resulting in poor water quality.
(
2B-14.
In the upper Klamath, the water quality is only poor
during the summer, but for much of the year the water system is quite good.
(
2B-15.
Opening up the upper
Klamath to anadromous salmonids would not produce adverse results because
adult salmonids would be passed late enough in the fall that water
conditions in the upper basin would be good.
(
2B-16.
As for outmigration,
juvenile salmonids would be out of the system prior to water conditions
deteriorating and becoming conducive to disease development.
(
2B-17.
C. shasta
has been detected in the lower
2B-18.
Within the
2B-19.
Coho salmon are less
resistant to C. Shasta than
steelhead trout, but are more resistant to the virus than Chinook salmon.
(Aug.24, 2006 Tr. at 197:21-22;
2B-20.
Generally, with the
exception of F. columnaris
and Ich, pathogens associated with anadromous fish do not impact
non-salmonids. (NMFS/FWS-Issue
2B Foott-Ex. 1 at 3:25-4:3; NMFS/FWS PFF 2B.6; NGO PFF 2B.4; Appendix to
Reply of PacifiCorp and Siskiyou County Responses to Proposed Findings on
USFWS/NMFS Issues at 15).
For instance, both IHN
and P. minibicornis are
salmonid pathogens for which there exists no data associating them with
non-salmonid fish in the upper Klamath.
(NMFS/FWS-Issue 2B Foott-Ex. 1 at 4:1-3).
2B-21.
In the life cycle of C.
Shasta, the parasite multiplies primarily within the adult fish under
low water temperatures of approximately 10-15 C and potentially, under
certain circumstances, infects other fish if the parasite is released into
the water column and is ingested by the Polykete worm of the species,
manucia speciosa. (
2B-22.
Since a majority of the pathogens currently found in
the lower basin also exist in the upper basin of the
2B-23. To the extent that migrating anadromous fish carry a unique highly virulent pathogen, disease management protocols could be used as is customary. (KTr-CWH-Ex.17 at 16 and 85-87; KTR-CWH-Ex. 34 at 8:168-74; Indian Tribes PFF 2B.9).
[1]
The evidence suggests that like
Chinook salmon, steelhead trout may be divided into two population: a)
winter steelhead (ocean-maturing); and b) summer steelhead
(stream-maturing). (KTr-CWH-Ex.
4 at 230). The summer
steelhead trout is on the verge of extinction and is not addressed in
this proceeding. (KTr-CWH-Ex.
4 at 233).
1.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 2(C)
2C-1.
Resident
rainbow/redband trout are distinct from anadromous steelhead trout.
Although the two species are similar (both are designated O.
Mykiss), the life histories are different.
(Aug. 22, 2006 Tr. at 160:2-15;
Aug. 24, 2006 Tr. at 42:16-43:13, 43:5-13; CDFG-Chesney-Ex.
1 at 4:18-20; see also NMFS/FWS PFF 2C.1; NGO PFF 2C.3;
Appendix to Reply of PacifiCorp and
Siskiyou County Responses to Proposed Findings on USFWS/NMFS Issues at 21-22).
After hatching and early rearing in the riverine habitat,
juvenile steelhead trout out migrate to the ocean where they mature into
adults before returning to their riverine habitat for spawning.
By contrast, resident rainbow/redband trout spend all of their life
stages in the
2C-2.
Historically,
anadromous steelhead trout extended up to and used tributaries of
2C-3.
The erection of Iron Gate Dam necessarily changed
the migratory behavior of anadromous fish in the Klamath River System,
limiting them to habitat below the dam.
(FOF 2A-2). Today,
anadromous steelhead trout only migrate to the base of Iron Gate Dam, using
nearby tributaries and main stem habitat to spawn.
(FOF 2A-3). However,
if access was provided, steelhead would migrate past Iron Gate Dam into the
upper
2C-4.
The habitat for the anadromous fish has been
significantly reduced subsequent to the construction of the Project dams.
(
2C-5.
Although environmental conditions and habitat above
Iron Gate Dam have changed, anadromous fish are resilient and can adapt to
most existing environmental conditions and habitat.
(
2C-6.
For instance,
steelhead trout have the genetic ability to recolonize and use new habitat.
(Aug. 24 Tr. at 0011:2-0012:13; NMFS/FWS-Issue 2A-Garza-Ex. 1 at 2:8
to 3:25; NMFS/FWS-Issue 2A-Garza-Ex. 6 at 6; NMFS/FWS-Issue 2A-Garza-Ex. 8
at 13; NMFS/FWS-Issue 2A-Garza-Ex. 4 at 3; NMFS/FWS-Issue 2-Curtis Rebuttal
at 4:15-17; CDFG-Dean-Ex. 1 at 3:8-17; CDFG-Pisano-Ex. 1 at 5:15-28 and
8:14-9:7; NGO Ex. 3 at 12:3-21; HVT-Franklin-Ex. 8; HVT-Franklin-Ex. 2 at
2:20-26; see also
NMFS/FWS PFF 2A.3; Indian Tribes PFF 2A.3; NGO PFF 2A.7).
2C-7.
Resident trout have
the genetic capacity to adopt anadromy and some may outmigrate to the ocean
if passage exists. (
2C-8.
While residualization
(remain in freshwater) is common in juvenile hatchery steelhead trout, there
is an absence of evidence of high levels of residualization in juvenile
naturally-spawned steelhead trout. (Aug.
23, 2006 Tr. at 200:13-14; NGO-Ex. 3, at 11:5-7; HVT-Franklin Ex. 1 at
5:18-22; KTr-FAE Ex. 32 at 7:3-22; NMFS/FWS PFF 2C.4, 6).
2C-9.
There are no
scientific studies of the Klamath basin demonstrating that reintroduction of
anadromous steelhead trout would detrimentally affect the genetic makeup of
the resident trout fishery. (
2C-10.
There is little
information on the nature of any competitive interactions between steelhead
and resident trout in the Klamath basin.
(NGO Ex 3, Testimony of Dr. R.. Williams at
2C-11.
There
are many examples from nearby river systems in the
2C-12.
The risk of
residualization of rainbow/redband trout may be minimized through adaptive
management. (KTr.-Huntington-Ex. 1; NGO Ex. 3 at 11:8-12).
2.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 3
3-1.
The Project contains various
habitat areas for resident trout including: a) the J.C. Boyle bypass reach
which extends 4.3 miles from J.C. Boyle Dam to the J.C. Boyle powerhouse; 2)
the J.C. Boyle peaking reach extending 17.3 miles and traversing the
California/Oregon state line; 3) a 1.4 mile section between Copco II
diversion dam and Iron Gate reservoir; and 4) other reservoirs within the
Project reach. (PAC-Ols-D-Ex. 1 at 20:20-22:2; CDFG-Dean-Ex. 1 at 4:19-25; NGO-Ex. 14 at
4; NMFS/FWS-Issue 3-Snedaker-Ex. 1 at 3:24-4:6, 6:15-18; CDFG-Dean-Ex. 1 at
4:19-26, 5:22-6:4; NGO-Ex. 2 at 19:7-9).
3-2.
The 1.4 mile section of river between the Copco II Diversion Dam and
Iron Gate Reservoir contains marginal trout habitat.
(PAC-Ols-D-Ex. 1 at 21:21-23; PacifiCorp PFF 200; Appendix
to National Marine Fisheries Service and United States Fish and Wildlife
Service’s Joint Post-Hearing Reply Brief at 20).
3-3.
There are a limited number of
trout in the J.C. Boyle, Copco, and Iron Gate Reservoirs.
(PAC-Ols-D-Ex. 1 at 22:4-5;
PacifiCorp PFF 201; Appendix to Reply of PacifiCorp and
Siskiyou County Responses to Proposed Findings on USFWS/NMFS Issues at 32).
3-4.
Prior to the construction of
the dams, redband trout within the Project area belonged to a single, large,
intermixing population throughout the
3-5.
Although the trout sport fishery is robust in the
3-6. Life history strategies (such as spawning above the J.C. Boyle Dam) are denied to the resident trout population below the dam. (NMFS/FWS-Issue 3-Hooton-Ex. 0A at 6:17-20; Hooton-BLM-Ex. 4 at 22; NGO-Ex. 2 at 14:10-12, 17:15-18:2, 19:4-18; CDFG Dean Ex. 1 at 5:1-2; Aug. 23, 2006 Tr. at 161:13-162:17; NMFS/FWS PFF 3.5).
3-7.
Migration is one of several
defining life history characteristic of trout.
(
3-8.
The Project restricts migration
of resident fish within the main stem and into and out of tributaries.
(NGO Ex. 2 at 19:12-14).
3-9.
J.C. Boyle Dam has a
fishway for migration of rainbow/redband trout.
(NGO PFF 3.6). The
current fish screen and ladder at the dam do not meet current state and
federal fish passage criteria and impairs upstream migration.
(PAC-MAL-D-Ex. 4 at 7-31; NMFS/FWS PFF 3.8 and 3.9; Appendix to
Reply of PacifiCorp and Siskiyou County Responses to Proposed Findings on
USFWS/NMFS Issues at 32).
3-10.
The effectiveness of
the fishway has declined by 98% since initial operation of the fishway in
1959. (NGO Ex. 17 at 379; NGO
Ex. 2 at
3-11.
PacifiCorp has agreed to
improve the channel configuration below the fishway so that upstream
migration of trout will no longer be impeded.
(PAC-Ols-R- Ex. 1 at 25:14).
3-12.
Improvements in efficiency to
the fishway at JC Boyle Dam would result in significant trout population
migration above the dam over time. (
3-13.
3-14.
Historically,
trout in the Copco II area would have moved up and downstream to access
needed habitat. To now meet
essential life history needs, trout move further downstream over Copco II
Dam and utilize either the bypass reach or other tributaries of Iron Gate
Reservoir. However, once they
exit Copco II they cannot return as there are no upstream passage
facilities. Thus,
the trout population is not self-sustaining.
(NMFS/FWS-Issue 3-Snedaker-Ex. 1 at 6:15-21; NMFS/FWS- Issue
3-Snedaker-Ex. 16 at 127; NMFS/FWS-Issue 4- Hamilton-Ex. 7 at 1; NMFS/FWS
PFF 3.13).
3-15.
Downstream
migration of rainbow/redband trout is also adversely impacted because of the
Project dams. This is due to the
hydraulics at the Project dams and mortality related to unscreened flow
resulting in fish passage through Project dam turbines.
(NMFS/FWS-Issue 3-Snedaker Ex. 16 at 126-130; NMFS/FWS-Issue
3-Hooton Ex. 0A at 7:10-9:14; BLM-Hooton-Ex. 3 at 7-8).
3-16.
The
Project’s limitation on riverine migration may have reduced the genetic
diversity of the remaining stocks within the Project reaches.
(NGO Ex. 2 at 3:6-10, 21:1-9; NGO Ex. 14, Figure 3 at 103; NGO PFF
3.8; NMFS/FWS PFF 3.3-3.5).
3.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 4
4-1.
J.C. Boyle, Copco, and Iron Gate Dams support populations of
resident fish including native and non-native species.
Popular sport fisheries occur in each reservoir targeting primarily
bass, perch, and catfish. Rainbow
trout, resident lamprey, and
4-2.
It is estimated that “several tens of thousands of resident
fish” are annually entrained at “each of the Projects” facilities.
(NMFS/FWS-Issue 4-Hamilton-Ex. 12, at 28; NMFS/FWS-Issue 4-Hamilton-Ex.
1, at 6:7-9; NMFS/FWS-Issue 4-Hamilton-Ex. 14 at 1; NMFS/FWS-Issue
4-Hamilton-Ex. 10 at 3; NMFS/FWS-Issue
4-Hooton-Ex. 14, at 112; NMFS/FWS-Issue 4-Hooton-Ex. 1, at 5:3-5; HVT-Steward-Ex.
1 at 3:19-20; NMFS/FWS PFF 4.5; Indian Tribes PFF 4.1).
4-3.
Entrainment occurs when fish are drawn into Project
facilities, such as power canals, turbines, and tailraces.
When drawn into turbine intakes, fish can be subject to injury and
mortality. (NMFS/FWS-Issue
4-Hamilton-Ex. 1, at 4:22-25; NMFS/FWS-Issue 4-Hamilton-Ex. 5, at 1;
NMFS/FWS PFF 4.1; Appendix to Reply Brief of PacifiCorp and
4-1.
Mortality from entrainment can occur at each Project facility,
thus fish surviving through one powerhouse could be exposed to potential
cumulative mortality. (NMFS/FWS-Issue
4-Hooton-Ex. 1, at 5:19-21; HVT-Steward-Ex. 39, at 2:3-7; NMFS/FWS-Issue
4-Hooton-Ex. 14, at 113).
4-2.
Once entrained, the fish face a high risk of mortality.
For juvenile fish, the risk is between 10-30%.
(PAC-Ols-D-1 at 27).
4-3.
Entrainment mortality removes fish that would otherwise add to the
population base downstream of the dam. (NMFS/FWS-Issue
4-Hamilton-Ex. 12 at 29).
4-4.
4-5.
J.C. Boyle Dam has fish
screening and bypass systems in place, but they do not conform to current
fish screen criteria for resident and anadromous fish.
(NMFS/FWS-Issue 4-Johnson-Ex. 1, at
4-6.
The seals at J.C.
Boyle Dam have rendered the fish screens partially ineffective, allowing fish to
be entrained in the power canal and turbines.
(PAC-Ols-R-1, at 26:13-17 and
27:1-3; Aug. 23, 2006 Tr. at 213:13 to 214:13; NMFS/FWS-Issue 4-Hooton-Ex.1, at
4:4-5; NMFS/FWS-Issue 3-Snedaker-Ex. 1, at 3:12-14; Appendix to Reply Brief of
PacifiCorp and Siskiyou County, at 38).
4-7.
The J.C. Boyle facility uses Francis turbines, at an operational
head of 440 feet. A 1987 report
prepared by the Electric Power Research Institute (EPRI) concluded that fish
mortality from entrainment at hydroelectric projects using Francis turbines
averaged 24 percent. The EPRI report
found that entrainment mortality at hydroelectric projects using Francis
turbines with operational head greater than 335 feet ranged from 33-48%.
(NMFS/FWS-Issue 4-Hooton-Ex. 1, at 5:23 to 6:2;
NMFS/FWS-Issue 4-Hooton-Ex. 7, at 51, Table 4-1; NMFS/FWS-Issue
4-Johnson-Ex. 1, at 2:11-15; Aug. 22, 2006 Tr. at 186:1-17); CDFG Hughes Ex. 1,
at 4:12-18; HVT-Steward-Ex. 1, at 2:17-20; NMFS/FWS-Issue 4-Hamilton-Ex. 12, at
28; NMFS/FWS PFF 4.10; Indian Tribes PFF 4.3;
Appendix to Reply Brief of PacifiCorp and Siskiyou County, at 39).
4-8.
In light of the large percentage of river flow that is diverted
into the J.C. Boyle power canal, the operation of Francis turbines, and the high
operational head of 440 feet, fish mortality from entrainment at the J.C. Boyle
project is likely in the higher end of the mortality ranged as described in the
Electric Power Research Institute report. (NMFS/FWS-Issue
4-Hamilton-Ex. 12, at 28; NMFS/FWS-Issue 4-Hooton-Ex. 1, at
4-9.
PacifiCorp recognizes that entrainment at the J.C. Boyle Dam is a
“problem that needs to be addressed.” (
4-10.
PacifiCorp has not conducted site-specific studies on the
mortality levels of entrained resident fish at Project facilities, but did
conduct a literature review that provides insight into the potential of the fish
entrainment at J.C. Boyle,
4-11.
Precise estimates of the number of fish entrained at the facility
are not available. However,
extrapolating from data at other comparable FERC Facilities, PacifiCorp
estimates a median annual entrainment of 75,655 fish for reservoirs the size of
J.C. Boyle, and 115,979 fish for reservoirs the size of Copco and
4-12.
In the Project Area, non-native species are entrained to a greater
extent than native species. (NMFS/FWS-Issue 4-Hamilton-Ex. 12 at 17 and 29; PAC-Ols-D-1 at 26:20-21;
PAC-Ols-D-15). This may be the
result of the relative abundance of non-native species vis-à-vis native
species. (PAC-Olson-D-1 at 27-28).
4-13. The J.C. Boyle reservoir contains sucker fish (shortnose and lost River) that are listed under the federal Endangered Species Act and those fish are susceptible to entrainment. (PAC-Olson-D-15 at 8 and 10).
4-14. Habitat degradation has been recognized as a common contributor to the decline in the abundance of shortnose and lost river sucker fish in the Klamath basin. (KTr-CWH-Ex. 1 at 4).
4-15.
Records from canal salvage operations at the J.C. Boyle power
canal show that resident fish, in particular resident trout and sucker fish, are
entrained and possibly killed in the power canal each year.
(NMFS/FWS-Issue 4-Hooton-Ex. 1, at 5:6-17; NMFS/FWS-Issue 4-Hooton-Ex.
15; NMFS/FWS-Issue 4-Hamilton-Ex. 1, at 5:17-19 and 6:3-5; NMFS/FWS-Issue
4-Hamilton-Ex. 14, at 1; Aug. 23, 2006 Tr. at 212:25-213:21; Appendix
to Reply Brief of PacifiCorp and Siskiyou County, at 38).
4-16.
Salvage records show the entrainment of over 690 trout into the
J.C. Boyle reach during salvage operations between 1995 and 2002.
(NMFS/FWS-Issue 4-Hamilton-Ex. 14, at 1).
During that same period of time, it appears that only 2 sucker
fish were entrained. (NMFS/FWS-Issue
4- Hooton-Ex. 15, at 3-4 (Fish Salvage
Data Table).
In 2003, J.C. Boyle fish salvage totaled 86 trout and 17 suckers.
(NMFS/FWS-Issue 4-Hamilton-Ex. 14, at 1; NMFS/FWS-Issue
4-Hooton-Ex. 15 at 2-3).
4-17.
Canal salvage data provides a snapshot of the number of fish
entrained at the time that salvage operations are performed, and thus such data
represents only a small fraction of the total number of fish actually entrained
each year. (NMFS/FWS-Issue
4-Hamilton-Ex. 1, at 6:3-5; NMFS/FWS-Issue 4-Hamilton-Ex. 14, at 1;
NMFS/FWS-Issue 4-Hooton-Ex. 1, at
4-18.
Since sucker fish are bottom dwellers, they are less prone to
entrainment through the shallow intakes at Copco and Iron Gate Dams.
(NMFS/FWS-Issue 4-Hamilton-Ex. 12
at 17). Moreover, nearly all of
the non-larval sucker fish appear to be too large to pass through the existing
trash racks at the powerhouse intakes at Copco and
4-19.
While the vast majority of fish entrained consists of small
juvenile fish, the record shows that adult fish are also susceptible of being
entrained and killed. (PAC-Ols-D-1
at 27; NMFS/FWS-Issue 4-Hooton-Ex. 1 at 3; NMFS/FWS-Issue 4- Hooton-Ex. 18).
(
4-20.
In 1959, the year after J.C. Boyle Dam was completed, adult
redband trout migrated from what are now known as the peaking and bypass reaches
in large numbers to spawn in
4-21.
Resident trout are a migratory species.
Because Spencer Creek, located upriver of the J.C. Boyle facility, is a
primary spawning and early rearing area for resident trout within the Project
area, it is important that adult spawners from the river below the dam and
juvenile trout from Spencer Creek both are able to successfully migrate upstream
and downstream past J.C. Boyle Dam. (NMFS/FWS-Issue
4-Hooton-Ex. 1, at 3:6-17; NMFS/FWS-Issue 4-Hooton-Ex. 11, at 2; NMFS/FWS-Issue
4-Hamilton-Ex. 1, at 4:8-12; NMFS/FWS-Issue 4-Hamilton-Ex. 14, at 2;
NMFS/FWS-Issue 4-Hamilton-Ex. 17, at 4; NMFS/FWS-Issue 4-Hamilton-Ex. 13, at 4;
Aug. 23, 2006 Tr. at 161:5 to 162:18; Aug. 24, 2006 Tr. at 64:20-24; NMFS/FWS
PFF 4.12; Appendix to Reply Brief of PacifiCorp and Siskiyou County at 40.).
4-22.
While it is true that the present population of resident trout is
robust and supports one of the finest trout fisheries on the West Coast, the
losses of juvenile trout through entrainment at the Project could, in the long
run, adversely affect trout abundance and distribution.
(NMFS/FWS-Issue-4-Hooton Ex. 1 at
6:9-13; NMFS/FWS-Issue 4-Hamilton-Ex. 1 at
1.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 6
6-1. The findings of fact in USFWS/NMFS Issue 2A are incorporated herein.
6-2. Habitat is deemed “suitable” if it can be used successfully at least some of the time by one or more life stages of a Coho salmon. (NMFS/FWS-Issue 6-Smith-Ex. 1 at 2:18-2:24; PAC-MAL-D-30 at 65; HVT-Franklin-Ex. 2 at 2:20-2:26; KTr.-CWH-Ex. 35 at 2:22-3:6; KTr-CWH-Rebuttal-Ex. 6 at 5:14-6:2; Aug. 22, 2006 Tr. at 197:12-198:23; Aug. 24, 2006 Tr. at 1283:25-285:20; NMFS/FWS PFF 6.1; Indian Tribes PFF 6.1; NGO PFF 6.1).[1]
6-3. Anadromous fish are highly adaptive to differing conditions typically can readily migrate into and colonize new habitat or recolonize historic habitat. (Aug. 24, 2006 Tr. at 11:24-15:9; NMFS/FWS-Issue2A-Garza-Ex. 1 at 2:8-3:25; NMFS/FWS-Issue 2A-Garza-Ex. 6 at 6; NMFS/FWS-Issue 2A-Garza-Ex. 8 at 13; NMFS/FWS-Issue 2A-Garza-Ex. 4 at 3; HVT-Franklin-Ex. 8; HVT-Franklin-Ex. 2 at 2:20-2:26; CDFG-Pisano-Ex. 1 at 8:14-9:7).
6-4. While the exact amount of suitable habitat available for anadromous fish is uncertain, the record evidence shows that steelhead trout, Chinook salmon, Coho salmon, and Pacific lamprey will likely find suitable spawning and rearing habitat in the Project-bound area. (Aug. 24, Tr. at 28:24-29:1; Aug. 25, 2006 Tr. at 75:2-11; Malone Supplemental Rebuttal Ex., Attachment 2 at 1; NMFS/FWS-Issue 6-Smith-Ex. 1 at 2:1-8; KTr-CWH-Rebuttal-Ex. 6 at 2:16-17 and 3:7-18; KTr-FAE-Rebuttal Ex. 7 at 6:18-20).
6-5.
Spawning and rearing habitat requirements are similar among
resident rainbow/redband trout, anadromous steelhead trout, anadromous Coho
salmon, and anadromous Chinook salmon. Habitat
suitable for redband trout will generally be suitable for steelhead trout, Coho
salmon, and Chinook salmon. (HVT-Franklin-Ex.
12 at 3:4-8 and
6-6.
Stocks of resident rainbow/redband trout are self-sustaining in
habitat above Iron Gate Dam, suggesting that anadromous stocks will probably do
the same. (HVT-Franklin-Ex.
12 at
6-7.
The record evidence shows that Coho and Chinook salmon may use
tributary habitat with a gradient of up to 7%.
(
6-8.
USFWS/NMFS Issue 2A-47 is
incorporated herein.
6-9.
Expansive bottomland areas with abundant low-gradient channels,
which are preferred salmon habitat, are more common in the
6-10.
The record, however, shows that there are approximately 28 miles
of suitable habitat for anadromous fish to spawn in the main stem provided
gravel is placed in those areas. (NMFS/FWS-Issue 7-White Ex. 14, Table 3 at A-21).
Such habitat includes areas cooled by springs (thermal refugia) in the
J.C. Boyle bypass (Aug. 25, 2006 Tr. at
98:10-14 and 101:20-102:7; NMFS/FWS-Issue 6-Sneadker-Ex. 1 at 5:18-6:2;
NMFS/FWS-Issue 4-Hooton-Ex. 1 at 3:6-9; KTr-Dunsmoor Direct-Issue 2 at 3:6-9 and
4:3-4:5; HVT-Franklin-Ex. 2 at 3:9-22; KTr-CWH-Ex. 7 at 6-8; NMFS/FWS-Issue
6-Smith-Ex. 1 at 1:19-3:5; CDFG-Pisano-Ex. 6).
[1]
The transcript indicates that the Federal Fisheries Services’ definition
of “suitable habitat” appears on 51 of PAC-MAL-D-30
(NMFS/FWS Responses to Discovery Requests).
The definition of “suitable habitat” actually appears on page 65
of that exhibit. It is a
response to Interrogatory 51.
6-11.
There are at least 12 miles of perennial stream reaches within the
Project area that have gradients at or below 15%.
(NMFS/FWS-Issue 7-White-Ex. 14,
Table 3 at A-21). These include:
Jenny, Fall, Shovel, and
6-12. The only area in Fall Creek that is not suitable habitat for anadromous fish is the portion of the stream below the PacifiCorp diversion to the penstock and the powerhouse. Further, Fall Creek upstream of the Spring Creek diversion experiences low flows in the summer months which would also make it unsuitable habitat for anadromous fish. (KTr-CWH-Ex. 20 at 82).
6-13.
Fall and Shovel Creeks have the water temperatures most suited for
juvenile Coho salmon rearing.
6-14. There are also approximately 18 miles of intermittent stream reaches within the Project area that have gradients at or below 15%. (NMFS/FWS-Issue 7-White-Ex. 14, Table 3 at A-21; NMFS/FWS-Issue 7-Simondet Rebuttal Ex. 1 at 4:6-11; HVT-Franklin-Ex. 2 at 2:20-26; NMFS-FWS-Issue 6-Hamilton-Ex. 1 at 5:11-7:17; NMFS/FWS-Issue 6-Smith-Ex. 1 at 2:13-16 and 3:7-22).
1.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 7
7-1.
The findings of fact under USFWS/NMFS Issue 2A are incorporated
herein.
7-2.
Today, the runs of Coho salmon have greatly diminished in the
7-3.
The Coho salmon stock of the
7-4.
The SONCC Coho salmon population has experienced a 70% decline
since the 1960s. (NMFS/FWS-Issue
7-Williams-Ex. 7 at 1; NMFS/FWS-Issue 7-Williams-Ex. 6 at 34; NMFS/FWS-Issue
7-Williams-Ex. 1 at 2:17-3:9; NMFS PFF 7.1; NGO PFF 7.2; NMFS/FWS-Issue
7-Simonet Ex. 5 at 117; Appendix to Reply Brief of PacifiCorp and Siskiyou
County at 60).
7-5.
Habitat degradation is a primary cause for the decline of the
SONCC Coho salmon. (NMFS/FWS-Issue
7-White-Ex. 1 at 6:3-5; NMFS/FWS-Issue 7-White-Ex. 18 at 6; NMFS/FWS-White-Ex. 4
at 3; NMFS/FWS-White-Ex. 5 at 363 (page 401 of the report); NMFS/FWS-Issue
7-Simondet-Ex. 1 at
7-6. Coho salmon below Iron Gate Dam still utilize the habitat below the dam even though it has suffered degradation commensurate with that above the dam. (Aug. 25, 2006 Tr. at 118:16-119:2; CDFG-Pisano-Ex. 1 at 7:10-11:17; Yurok-Hillemeir at 4:15-5:3; NMFS/FWS-Issue 7-Simondet at 5:22-6:7; Indian Tribes PFF).
7-7. Although portions of the habitat above Iron Gate Dam have been degraded, much of this habitat remains suitable and restoration projects are currently in progress or planned. (NMFS/FWS-Issue 7-White-Ex. 1 at 6:7-9; NMFS/FWS-Issue 7-Snedaker-Ex. 1 at 8:7-9:17; NMFS/FWS-Issue 6-Hamilton-Ex. 1 at 8:11-13; NMFS/FWS-Issue 7-Snedaker-Ex. 7 at 35-48; NMFS/FWS-Issue 6-Smith-Ex. 1 at 6:1 to 9:18; NMFS/FWS PFF 7.6).
7-8. Habitat is deemed “suitable” if it can be used successfully at least some of the time by one or more life stages of a Coho salmon. (FOF 6-1; NGO PFF 7.7). Such suitability varies across locations, life stages, and time. Faced with such variability in a given tributary, Coho salmon will move to the extent feasible to more suitable habitat within that given tributary so long as access is provided. (KTr-CWH-Ex. 4 at 216; FOF 2A-14; NGO PFF 7.7).
7-9.
Suitable habitat above Iron Gate Dam includes Spencer, Fall,
Beaver, Deer, Shovel, Scotch, and
7-10. Adult Coho salmon enter the river to spawn in late September and reach peak migration strength between late October and mid-November. While it appears that adult Coho salmon migration is keyed to water temperature (below 16о C) and river flow, adult Coho salmon migration have been observed where these stimuli are reduced. (KTr-CWH-Ex. 4 at 217).
7-11. The record evidence shows that juvenile Coho salmon begin outmigrating to the ocean in late February, and continue migration through early July. While juvenile Coho salmon rear in streams for one year and have a preference for cold water (ranging between 12 and 14о C), they can tolerate higher water temperatures (exceeding 20о C) where food is abundant, there are areas of thermal refugia, and other conditions are not stressful. (KTr-CWH-Ex. 4 at 218-19).
7-12. Although water temperature in the summer above Iron Gate Dam is an issue, the record evidence shows that water temperature will not preclude Coho salmon from successfully utilizing the habitat within the Project area. (CDFG Pisano Ex. 1 at 4:18-51, 7:10-9:7 (Coho in other parts of the Klamath system occupy water with temperatures in excess of 26 о C), 9:8-10:12 (spawning in degraded streams); Yurok-Hillemeir Direct Testimony-NMFS/FWS Issue 7 at 4:24-5:3; KTr-CWH-Ex 4 at 219 (juvenile Coho salmon observations in the main stem Klamath River where temperatures exceed 20 оC)).
7-13.
Predation may also be a slight problem that could be minimized
through use of remedial measures. (NMFS/FWS-Issue
7-White-Ex. 14 at A-10, B-2, and B-40; NGO PFF 7.10).
7-14.
In restoration efforts elsewhere in the
7-15.
Coho salmon below Iron Gate Dam would migrate above the dam if
access was provided through fishways. (FOF
2A-10; NMFS/FWS PFF 7.8; Appendix to Reply Brief of PacifiCorp and
7-16. Over time, access to habitat above Iron Gate Dam would benefit the Coho salmon population by: a) extending the range and distribution of the species thereby increasing the Coho salmon’s reproductive potential; b) increase genetic diversity in the Coho stocks; c) reduce the species vulnerability to the impacts of degradation; and d) increase the abundance of the Coho population. (Aug. 23, 2006 Tr. at 163:1-2; Aug. 25, 2006 Tr. at 107:5-20; NGO Ex. 27 at 3:11-4:7 (allowing access to additional habitat does not decrease the size of the population existing below Iron Gate Dam); Yurok-Hillemeir Direct Testimony-NMFS/FWS Issue 7 at 5:7-8 (access to project area is one of the quickest ways to increase population abundance, 6:4-22; CDFG-Pisano-Ex. 1 at 5, 11:18-12:23; NMFS/FWS-Issue 7-Simondet-Ex. 1 at 5:21-6:15; NMFS/FWS-Issue 7-Williams-Ex. 1 at 6:15-19, 7:15-9:22 (explaining that additional spatial structure reduces species vulnerability to changing environmental conditions); HVT-Franklin-Ex. 1 at 6:16-7:12 (explaining that diverse habitat leads to populations adapted to diverse life history forms and greater viability for the species; NGO ex. 4 at 11:15-28).
2.
FINDINGS OF FACT CONCERNING USFWS/NMFS ISSUE 8
8-1. The Findings of Fact in 2A are incorporated herein.
8-2.
Today, Pacific lamprey is found throughout the
8-3.
Although the historical upstream distribution of Pacific lamprey
is unknown, suitable habitat for spawning and juvenile rearing is available
within tributaries and stream reaches in the Project area.
(Yurok-Hillemeier 2and 8 Direct at 6:4 to
8-4.
Resident lamprey ammocoetes (juveniles) already rear within
tributaries within the Project. (Yurok-Steward 8 Rebuttal at 4:2-11; CDFG Pisano Ex. 16; NMFS/FWS PFF 8.5).
8-5.
Ammocoetes of resident and Pacific lamprey have similar habitat
requirements. (PAC-Chan-D-1 at
8:8-9; Yurok- Steward 8 Rebuttal at 4:4-6; NMFS/FWS PFF 8.5).
8-6.
There is no measurable genetic difference between Pacific lamprey
inhabiting different river basins along the Pacific coast. (Yurok-Hillemeier 8 Direct at
8-7. Pacific Lamprey below Iron Gate Dam would migrate above the dam if access was provided through fishways. (FOF 2A-10; NMFS/FWS PFF 8.9; Indian Tribes PFF 8.5).
8-8. Volitional passage for Pacific lamprey has been designed and is in place in other river systems. (NMFS/FWS-Issue 8-Johnso-Rebuttal Ex. 1 at 2:3-19, 3:5-7; Aug. 24, 2006 Tr. at 178:8-179:1, 184:1-185:15; NMFS/FWS-Issue 8-Moser-Ex. 1 at 9:12-16; Yurok-Steward 8 Direct at 5:12-26; NMFS PFF 8.8; Indian Tribes PFF 8.6).
8-9.
Access to habitat would benefit Pacific lamprey by increasing
their viability through: a) extending the range and distribution of the species;
b) providing additional spawning and rearing habitat; c) increasing the generic
diversity of the species; and d) increasing the abundance of the Pacific lamprey
population. (NMFS/FWS-Issue
8-Hamilton-Ex. 1 at 8:1-11; Yurok-Steward 8 Direct at
B.
BLM DISPUTED ISSUES OF MATERIAL FACT
1. FINDINGS OF FACT CONCERNING BLM ISSUE 10
10-1
About eighty (“80”) percent of the J.C. Boyle
bypass reach (an area of 4.3 miles in length) is confined by steep canyon walls.
Thus, only twenty (“20”) percent of the bypass reach (less than one
mile in length) has potential for “riparian restoration.”
(PAC-Dwer-D-1
at
10-2
Relatively coarse bed
sediment (i.e., gravel and cobble) can
be mobilized in the bypass reach with flows of 1,700 cubic feet per second (cfs)
and greater. (PAC-Tomp-R-1
at 4:8-10).
10-3
The seasonal high flows
proposed by BLM for the bypass reach will create more frequent and larger
magnitude high flow events. (BLM-Turaski-Ex.
4 at 59, 89-91; BLM-Gard-Ex. 0 at 2:4-9).
10-4
BLM high flows, as
compared to current conditions, will mobilize and transport sediment more
frequently within the Project. (PAC-Tomp-D-1
at 12:20-23).
10-5
Seasonal high flows, in
combination with the BLM’s proposed gravel augmentation program, will likely
create a more dynamic channel with a wider range of sediment deposits.
This sediment will be deposited higher on the channel margin which will
serve as an ecological benefit. (BLM-Cluer-Ex.
0 15:5-7, 24-16:4;
10-6
With the construction of
dams and their operation, changes have occurred to the riparian community of the
bypass reach. Specifically,
reed canary grass has encroached into the channel in places that have been
exposed by Project-diverted flows.
(PAC-Dwer-D-5 at 6-66; NGO-Ex.
1 at 13:7-9, 16:7-10;
10-1
).
10-2
Reed canary grass can
adversely affect downstream channel formation by effectively trapping sand,
gravel, and small cobble in its dense root mass.
Such material would otherwise have been transported downstream where it
would replenish similar sized bed material scoured by floods.
(NGO-Ex.
1 at
10-3
Approximately two-thirds
of the riparian habitat in the J.C. Boyle bypass reach is riparian grass land,
which is predominately reed canary grass. (
10-4
Riparian-focal
bird species are birds that use riparian habitats.
(BLM-Alexander-Ex. 0 at 5:19-24;
BLM-Alexander-Ex. 6 at 35; BLM-Turaski-Ex. 4 at 74).
These species often have a special management or conservation status.
(
10-5
Avian riparian focal
species consistently use riparian habitat in the J.C. Boyle bypass and peaking
reaches during breeding season. (PAC-Tres-D-1
at 7:6-9:12).
10-6
The eight species of
riparian-focal bird species in the Project area do not nest in reed canary
grass. Nesting is such grasses make
the birds accessible to predators. (PAC-Tres-D-1
at
10-7
Avian riparian focal
species prefer structurally diverse habitat.
(
10-8
In the J.C. Boyle bypass and peaking
reaches, riparian-focal bird species are associated with and primarily nest in
woody riparian vegetation. (BLM-Alexander-Ex.
0 at
10-9
Numerous factors determine
how useful riparian patches are to avian riparian focal bird species.
An increase in the amount of riparian habitat does not necessarily
correspond to a similar increase in birds that would use that habitat.
(
10-10
A relative increase in
early woody riparian vegetation and a relative decrease in reed canary grass
will likely increase abundance of riparian-focal bird species in the J.C. Boyle
bypass reach. (BLM-Alexander-Ex.
0 at 9:10-14;
10-11
BLM proposed flows would
not increase woody riparian habitat. (PAC-Tres-R-1 at
1.
FINDINGS OF FACT CONCERNING BLM ISSUE 11
11-1.
J.C. Boyle Dam has
captured an average of 6,124 tons/year of channel bedload and thus blocked its
transport into the bypass and peaking reaches.
(PAC-Tomp-D-1 at 14:9-15;
11-2.
Channel bedload is the
totality of cobble, gravel, and other sediment that form the channel bed.
Bedload mobilization is the natural geomorphic process whereby flow moves
gravel for deposit on alluvial features and cleanses gravel of sediment. (
11-3.
The bed material in the J.C. Boyle
bypass and peaking reaches has coarsened due to the J.C. Boyle Dam limiting the
sediment supply. (BLM-Cluer-Ex. 5 at 111, 129; BLM-Cluer-Ex. 0 at
11-4.
In the J.C. Boyle bypass reach, the
average annual flow released from the J.C. Boyle Dam has been reduced by
eighty-one (“81”) percent—from approximately 1,560 cfs to 296 cfs—with
the 100 cfs minimum flow occurring eighty-nine (“89”) percent of the time.
(BLM-Turaski-Ex. 4 at 68, 83).
11-5.
Low base flows combined with sediment
being blocked by the J.C. Boyle Dam result in smaller alluvial features.
(NGO-Ex. 1 at