Federal judge denies Pacificorp request to throw out Klamath dams toxins case
Joseph Cotchett and Robert Kennedy will continue to argue case against PacifiCorp
A federal judge ruled on Friday that a nuisance case against PacifiCorp can go forward. The claim filed on behalf of a group of Klamath Basin residents alleges that PacifiCorp’s Klamath River dams produce toxins that endanger plaintiffs’ economic well being and way of life. The ruling came as a result of PacifiCorp’s attempt to have the case dismissed.
“PacifiCorp’s attempt to rob Klamath residents of their right to a day in court has failed. This ruling means that PacifiCorp will stand trial accused of poisoning our river and thereby destroying the livelihoods and rights of Tribal members, fishermen and business owners,” according Regina Chichizola of the Klamath Riverkeeper, a non-profit plaintiff in the case.
Several Yurok and Karuk Tribal members, a Klamath River business owner, a Pacific Coast salmon fisherman, and Klamath Riverkeeper sued PacifiCorp on May 2, 2007 for damages resulting from the toxic water conditions that PacifiCorp’s dams create. The groups cited risks to human health as well as a decline in the salmon fishery.
No tribal government is involved in the suit.
Friday, Judge William Alsup of the United States District Court for the Northern District of California rejected PacifiCorps’ request to throw the case out. He also rejected PacifiCorp’s request to delay the case while FERC completes the highly contentious dam relicensing proceedings that have been ongoing since 2004.
According to plaintiffs’ complaint, PacifiCorp has caused damages to the individuals by creating toxic conditions in the reservoirs and the entire Lower Klamath. Specifically, the suit alleges that toxic blue-green algae thrives and settles in the reservoirs above PacifiCorp’s dams, creating a toxic environment for salmon and endangering human health. According to plaintiffs, when the algae and its toxic by-products flow downstream, it threatens not only their livelihoods but their way of life. They allege that PacifiCorp has decimated the Klamath salmon fishery, dissuaded tourism and other recreational uses of the river, and seriously impeded tribal religious ceremonies, most of which are river-based.
Attorney Niall McCarthy, a partner of the law firm of Cotchett, Pitre & McCarthy who argued for the plaintiffs, haled the order as “sending a clear message that PacifiCorp cannot willfully and knowingly risk its downstream neighbors’ health, livelihoods and way of life and hide behind FERC when the time comes to compensate its victims.”
“Tribal residents on the Klamath River have the right to perform religious ceremonies and fish. PacifiCorp’s dams have devastated the Tribes’ traditional food supply and economy. People conducting religious ceremonies should not have to worry that they could end up sick if they touch the Klamath River,” said Chichizola, while noting the Klamath Riverkeeper has many tribal fishermen as members.
Although Judge Alsup found that the Federal Energy Regulatory Commission (FERC’s) authority over dam relicensing precluded an injunction directing PacifiCorp to modify its dam operations, he also ruled that claims for money damages against PacifiCorp could go forward. In addition, he rejected PacifiCorp’s contention that under California law, the FERC permit precluded nuisance claims, finding that the FERC license “cannot be read as to go so far as to demonstrate ‘an unequivocal legislative intent to sanction a nuisance.’”
Marine Life Protection Act Science Advisory Team Members Announced
California Department of Fish and Game Director Ryan Broddrick announced today a panel of science advisors to assist in redesigning marine protected areas along the north central California coast. The Marine Life Protection Act (MLPA) Master Plan Science Advisory Team (SAT) will provide scientific support for the MLPA Initiative.
“Establishing a network of marine protected areas along the north central coast is a next step in implementing the provisions of the MLPA,” Broddrick said. “The scientists I have appointed to the advisory team have experience and expertise in marine resources conservation and will work to ensure the actions taken to implement the MLPA continue to be science-based.”
The appointed members of the SAT include:
• Dr. Sarah Allen, Point Reyes National Seashore
• Dr. Eric Bjorkstedt, NOAA Southwest Fisheries Science Center
• Dr. Mark Carr, University of California, Santa Cruz
• Dr. Chris Costello, University of California, Santa Barbara
• Dr. Steve Gaines, University of California, Santa Barbara
• Mr. Dominic Gregorio, State Water Resources Control Board
• Dr. Caroline Hermans, U.S. Geological Survey
• Dr. Ray Hilborn, University of Washington
• Dr. John Largier, Bodega Marine Lab, University of California,
Davis
• Mr. Gerry McChesney, U.S. Fish and Wildlife Service
• Dr. Steve Morgan, Bodega Marine Lab, University of California,
Davis
• Dr. Karina Nielson, Sonoma State University
• Dr. Pete Raimondi, Long Marine Lab, University of California,
Santa Cruz
• Dr. Astrid Scholz, Ecotrust
• Mr. John Ugoretz, California Department of Fish and Game
• Dr. Carl Walters, Fisheries Centre, University of British Columbia
Members of the SAT are charged with assisting DFG and the MLPA Blue Ribbon Task Force in reviewing and commenting on scientific papers relevant to the implementation of the MLPA, reviewing alternative marine protected area (MPA) proposals, and addressing scientific questions raised by the Task Force or the regional stakeholder group. “The advice of the SAT will be critical to the work of the Task Force and regional stakeholders,” said Susan Golding, chair of the MLPA Blue Ribbon Task Force.
The MLPA directs the state to redesign California’s system of MPAs to aid in the protection of marine life and habitats, marine ecosystems, and marine natural heritage, as well as to improve recreational, educational and research opportunities provided by marine ecosystems. MLPAs include state marine conservation areas, state marine parks, and state marine reserves.
The California Fish and Game Commission is the ultimate decision-making authority for implementing the MLPA. The principal mission of the Task Force, SAT and regional stakeholder group is to provide information and recommendations to the Commission to facilitate sound policy decisions in implementing the MLPA. The Commission will be asked to adopt MPAs in each study region along California’s coast. Recommendations for the current north central study region, which spans from Alder Creek in Mendocino County, just north of Point Arena, to Pigeon Point in San Mateo County, will be developed between now and December 2008.
On April 13, 2007, the Commission adopted regulations to create MPAs for the central coast region, which extends from Pigeon Point in San Mateo County south to Point Conception in Santa Barbara County. These MPAs were the first to be designated and implemented under the MLPA. The regulations will go into effect later this year after the appropriate approval from the Office of Administrative Law and filing with Secretary of State.
Monitoring of Central Coast Marine Protected Areas Begins
La Jolla – Scientists have been awarded $2 million to begin monitoring the ecological and socioeconomic effects of the recently designated Central Coast marine protected areas (MPAs), which will ban or limit fishing in about 18 percent of state waters between Santa Barbara and San Mateo counties. Commerical fishermen from the area point out that 50 percent of the reefs in the Central Coast area are now MPAs.
“We are beginning the most comprehensive survey yet of the status of marine resources in the Central Coast region,” said Christine Blackburn, who is managing the Baseline Data Collection Project, a 1-year, state-funded effort to characterize marine life and habitats within and outside the Central Coast’s 29 marine protected areas before new fishing regulations go into effect and then in the first few months following their enforcement.
This “before” snapshot will serve as a reference point for detecting long-term ecological change associated with the Central Coast project. With future monitoring, scientists will be able to evaluate the network’s effectiveness in protecting marine habitats, preserving ecosystem integrity, and otherwise meeting the many goals of the state’s Marine Life Protection Act (MLPA). “What we learn from this work will help inform management decisions far into the future,” Blackburn said.
Administered by California Sea Grant, the Baseline Data Collection Project also initiates another of the act’s goals–“to monitor the new marine protected areas and to use what is learned to improve marine policies and management and to otherwise inform the ongoing process of establishing marine protected areas along all of the different regions of the coast. The Central Coast was the first region to get marine protected areas. The next will be the North Central Coast.
“The baseline data will allow us to review how these protected areas are performing and to make adjustments accordingly, as we move forward with the MLPA,” said John Ugoretz, who is leading the implementation of the MLPA at the California Department of Fish and Game.
In terms of its scientific objectives, a main component of the baseline project is to count and speciate fishes and invertebrates in key areas, and to use this data to compute biological meaningful quantities such as fish density and distribution, species diversity, and relative species abundance.
Manned submersibles will be used to survey the deepest areas, while teams of divers will work the shallower ones. The surveys will be most intense in four key habitat types, identified as priority areas by the science advisory team to the Central Coast project. These are deep rocky habitats, including submarine canyons and cold-water corals; kelp forests; deep soft-bottomed habitat, about which little is known, and the rocky intertidal, which can be surveyed from the shore.
In addition to gathering biological information, scientists also will conduct a baseline socioeconomic study to assess the impacts of the marine protected areas on commercial and recreational fishers, as well as “non-consumptive users,” such as kayakers, windsurfers and divers.
There is also a collaborative fisheries component of the project that will harness the expertise of commercial and recreational fishers to fill gaps in the other survey methods by counting fishes through trap and hook-and-line surveys.
The lead investigators of the five projects, which were selected in June through a competitive grant review process, are:
• Peter Raimondi, an ecologist at the University of California, Santa Cruz, who will lead surveys of rocky intertidal habitats.
• Mark Carr, an ecologist at the University of California, Santa Cruz, who will lead diver surveys of kelp forests.
• Rick Starr, a California Sea Grant Marine Advisor, and Mary Yoklavich of NOAA Fisheries, who will use a manned submersible to survey deep-water habitats.
• John S. Petterson and Edward Glazier, both consultants with Impact Assessment, Inc. in La Jolla, who will lead socioeconomic studies, which will be based on a series of interviews with consumptive and non-consumptive users.
• Dean Wendt, a biologist at Cal Poly San Luis Obispo, and Sea Grant Marine Advisor Rick Starr, who will lead the collaborative fisheries project.
All raw data from these projects will be submitted to the California Department of Fish and Game in the spring of 2008 for analysis by its staff. Fish and Game also plans to conduct diver and ROV (remotely operated vehicle) surveys to supplement the outside survey work, Ugoretz said
The Central Coast MPA Baseline Data Collection Project is a collaboration of the California Coastal Conservancy, Ocean Protection Council, California Department of Fish and Game, and California Sea Grant Program. Funding was made possible through a one-time appropriation from the state’s General Fund to the California Coastal Conservancy and Ocean Protection Council.
NOAA’s California Sea Grant College Program is a statewide, multi-university program of marine research, extension services, and education activities administered by the University of California. It is the largest of 30 Sea Grant programs and is headquartered at Scripps Institution of Oceanography at the University of California, San Diego. The National Sea Grant College Program is part of the National Oceanic and Atmospheric Administration (NOAA), U.S. Department of Commerce.
Judge: Counting hatchery salmon as wild violates law
Federal court sets aside controversial Bush Administration policy on endangered salmon runs.
SEATTLE – The Bush Administration's 2005 policy requiring fisheries scientists to count hatchery-bred fish in making endangered species assessments of salmon runs has been declared invalid. A federal judge in Seattle set aside the controversial policy as scientifically flawed and inconsistent with the Endangered Species Act.
The Court also set aside the listing decision for the Upper Columbia steelhead, which was treated with a lower level of endangered species protections due to the abundance of hatchery salmon in its habitat. The ruling came in twin decisions in related cases that were released today.
In setting aside the policy, the Court held "in evaluating any policy or listing determination under the ESA, [the Court's] polestar must be the viability of naturally self-sustaining populations in their naturally-occurring habitat.". The Court also focused on statements by federal experts and biologists declaring that the policy was biologically indefensible. "Nothing . . provides a scientific justification for basing status determinations" on both hatchery and wild fish together.
"Salmon and people need clean water, swimmable streams, and healthy habitat. We all win when we protect and recover wild salmon and their habitat," said Jan Hasselman, an attorney with Earthjustice. "Hatcheries never were meant to be a replacement for self-sustaining populations of salmon in healthy streams."
NMFS's scientific advisors and experts unanimously concluded that it would be "biologically indefensible" to eliminate ESA protection for endangered salmon based on the abundance of hatchery fish. Scientists emphasized that salmon need habitat to sustain themselves into the future while hatcheries rely on an artificial environment that doesn't produce salmon that survive well in the wild. Documents uncovered in the lawsuit showed that political appointees sought to muzzle the agency's scientific experts, forcing some to independently publish their views in scientific journals.
"People in the Northwest want salmon in their rivers and streams for generations to come. We should strengthen legal protections and accountability for wild salmon, not weaken them," said Kaitlin Lovell, salmon policy coordinator for Trout Unlimited. TU has worked to improve the operation of hatcheries while keeping attention focused on reducing the need for them by recovering wild salmon to self-sustaining numbers.
The policy originally arose out of a 2001 court decision in which anti-protection groups successfully sued to eliminate ESA protections for the Oregon coast coho salmon. NMFS had included hatchery fish in the definition of the coho's population, but listed only the wild component under the ESA. Based on a strict reading of the law, the judge ruled that the ESA did not allow NMFS to list only a portion of a designated species.
The problem identified by the Court could have been solved easily by designating separate populations for wild and hatchery components. However, the Bush administration seized the opportunity to push through a policy designed to take remove endangered species protections for salmon by counting hatchery fish in their population estimates. That policy triggered a nationwide outcry when it was leaked in 2004.
"The presence of hatchery fish should never be an excuse to reduce protections for wild salmon and their habitat. Both wild and hatchery salmon need healthy rivers to survive. Our ultimate goal must be the return of healthy wild fish stocks so we eventually can eliminate our dependence on hatcheries," said Jim Lichatowich, scientist and author of the book Salmon without Rivers.
The Court noted that counting hatchery fish alongside wild fish can reduce protections for the wild fish. This was the case when the Administration downlisted Upper Columbia River steelhead from endangered to threatened, which the Court also set aside/is considering.
The groups filing the lawsuits included Trout Unlimited, National Wildlife Federation, Pacific Coast Federation of Fishermens' Associations, Institute for Fisheries Resources, Oregon Wild, Klamath Forest Alliance, Pacific Rivers Council, Wild Steelhead Coalition, Native Fish Society and Federation of Fly Fishers. They were represented by attorneys Jan Hasselman, Kristen Boyles, and Patti Goldman of Earthjustice.
Bluefin tuna disappearing
EUROPEAN SUPERMARKETS URGE A REDUCTION IN MEDITERRANEAN BLUEFIN TUNA HARVEST: The drastic decline in the Mediterranean bluefin tuna has garnered a lot of attention in the press recently. The majestic fish, which can grow up to 1,500 pounds and has been an important economic resource along the Mediterranean littoral since antiquity, was the topic of a cover story in the April 2007 issue of National Geographic about the global decline of fish stocks. An important reason for the decline of bluefin tuna in the Mediterranean, as the author of the article noted, has been the enormous difficultly of management in a region with a complex political geography (twenty-one countries share the coastline along and in the Mediterranean Sea). The inadequate management structure and the difficulty of enforcement, in addition to high prices for bluefin tuna – a prized sushi fish – have led to a drastic over harvest in the past couple decades.
Californians like their fishermen, their boats and docks
Public Opinion in favor of California Fishermen: Responsive Management, a public opinion and attitude survey research firm based in Harrisonburg, VA, and the Alliance of Communities for Sustainable Fisheries (ACSF) announced results of a public opinion poll in California titled, “California Residents’ Opinions on and Attitudes Towards Coastal Fisheries and their Management.” The survey conducted 801 interviews of California residents from throughout the state. The participants were chosen at random to span a wide range of age, occupation, income level, and education level. The objective of the study was to “determine Californians’ opinions on and attitudes toward commercial and recreational fishing in coastal areas of California, the ecological health of California’s coastal fisheries and wildlife, and fisheries and wildlife management along the coast.”
The results demonstrate tremendous support for local fishermen and small family-run fishing operations. Additional major findings of the survey include: support to manage fisheries rather than ban fisheries (68%); disagreement that family-run commercial fishing is harming fisheries (65%); belief that pollution is the largest factor in marine/fishery problems (72%); and a strong preference to purchase local seafood (82%), although many struggled to name local fish species. Beyond strong support for local and small-scale fishing families, the report also highlighted a large partiality for working waterfronts (71%). The report also included numerous other findings which are available at www.cafisheriescoalition.org/docs/California_Coastal_Fisheries_Report.pdf (which also includes a description of the survey methods and participant demographics). More information about the work of Responsive Management is available from their website at www.responsivemanagement.com or at www.cafisheriescoalition.org/docs/Responsive_Management_%20factsheet.pdf
A call to end International Fishery Subsidies
The term “overfishing” is increasingly being seen in the media. In the fall of 2006 a Science article stated that fishing pressure and fishery management needed to change internationally to a more inclusive ecosystem-based approach to prevent the collapse of commercial fisheries (see Sublegals 12:15/01). This month’s National Geographic focused on fishing issues in multiple areas of the globe. Numerous researchers and media agencies have documented a decline in fisheries, but what can be done to counterbalance the trend?
The current federal Administration has been heavily pushing for aquaculture as an answer to our fishing problems (see Sublegals 13:08/01). But many forms of aquaculture cause large environmental problems and can have greater impacts on wild fish stocks. The U.S. Trade Representative (USTR) recently announced a proposal sent to the World Trade Organization (WTO) to halt international fishery subsidies. Fishery subsidies are categorized as: direct payments to boat owners; tax write-offs; and "access payments" to poor-country governments in exchange for rights to fish in their territorial waters. Subsidies account for 20-25 percent of the $56 billion annual trade in fish. Many economists and scientists believe that subsidies increase the number of and technological abilities of vessels in the fleet. With an increase in fishing abilities, a growing commercial fleet can correlate with a quickened decline in the fish stock, which disrupts that marine ecosystem and artificially alters trade and supply of the species.
The USTR proposed that the WTO cut international subsidies for fishermen to enter or remain in a declining fishery in exchange for an increase in applicable and effective fishery management changes. The proposal continued to support subsidies for: boat safety improvements; vessel turn-in programs; marine resource development; and natural disaster relief. Additionally, the proposal targeted nations that receive large quantities of subsidies and contribute large portions to the international trade of fish, such as Japan (roughly $2-3 billion per year), not smaller nations.
Additional good news, the proposal called for a prohibition on harvesting forage fish, aka wild fish stocks that are caught to feed aquaculture programs, and harvesting young specimens to rear in aquaculture pens. Each of these issues is a current criticism of certain forms of aquaculture and is currently allowed under the Administration’s Aquaculture Bill to various degrees. For more information about current fish subsidies see the Progressive Policy Institute 24 January 2004 summary at www.ppionline.org/ppi_ci.cfm?knlgAreaID=108&subsecID=900003&contentID=252352, or read the 29 March USINFO article by Kathryn McConnell, http://usinfo.state.gov/xarchives/display.html?p=washfile-english&y=2007&m=March&x=20070328161706AKllennoCcM0.0224573.
Bush Administration anti-salmon attitude condemned by Appeals Court
NINTH CIRCUIT COURT BLASTS BUSH ADMINISTRATION’S COLUMBIA RIVER SALMON RECOVERY FAILURES, UPHOLDS LOWER COURT RULING OVERTURNING NMFS BIOP: In a sharply worded ruling issued on 9 April 2007, the U.S. Ninth Circuit Court of Appeals issued a scathing rebuke of the Bush Administration for its complete refusal to consider dam impacts on salmon in its 2004 Biological Opinion (BiOp) and salmon plan for the Columbia River, upholding Federal District Court Judge James Redden’s September 2005 rejection of that 2004 plan as “arbitrary and capricious” on all counts.
The Court was particularly critical of the Administration for two assumptions it made in the 2004 BiOp in an effort to avoid analysis of the impacts of the Columbia dams on ESA-listed salmon runs. First, the Administration tried to define the dams as, in effect, natural objects beyond the ability of the government to modify by classifying them as part of the “environmental baseline” over which it has no control. Second, the Administration rejected the traditional “recovery Standard” of the ESA for a standard that would allow salmon extinctions throughout the Columbia under current dam operations so long as federal actions did not incrementally hasten that event. In upholding the lower court’s ruling that these were “arbitrary and capricious” assumptions, the Ninth Circuit Court noted that “The ESA does not permit agencies to ignore potential jeopardy risks by labeling parts of an action non-discretionary,” (pp. 4016) and with regard to NMFS’s incremental additional risk standard, said “Under this approach, a listed species could be gradually destroyed, so long as each step on the path to destruction is sufficiently modest. This type of slow slide into oblivion is one of the very ills the ESA seeks to prevent.” (pp. 4020).
The Ninth Circuit Court was also highly critical of the Bush Administration’s National Marine Fisheries Service’s 2004 Biological Opinion generally, stating: “At its core, the 2004 BiOp amounted to little more than an analytical slight of hand, manipulating the variables to achieve a ‘no jeopardy’ finding. Statistically speaking, using the 2004 BiOp’s analytical framework, the dead fish were really alive. The ESA requires a more realistic, common sense examination.” (pp. 4026).
The ruling sent shock waves through the federal agencies, now under court order by Judge Redden to craft a legally and biologically acceptable Columbia River recovery plan. The Administration still adamantly refusese to consider Lower Snake River dam removal as a potential option.
On 9 April, the federal agencies (US Army Corp of Engineers, US Bureau of Reclamation, National Marine Fisheries Service and the Bonneville Power Administration) issued their own counter press release, citing “strong juvenile survival rates” which they attributed to their recovery actions, not good ocean conditions most scientists credit for the higher survival. The press release is at: http://www.salmonrecovery.gov/Biological_Opinions/FCRPS/biop_remand_2004/Docs/2007/14_07_Remand_Ninth_Cir_Dec_Res_4-09-07.pdf. The ruling will likely have an impact on the remand process at a critical time, when federal agencies are proposing using many of the same flawed analytical methods roundly invalidated by the courts.
For more on the ruling, see The Oregonian article of 10 April at: http://www.oregonlive.com/oregonian/stories/index.ssf?/base/news/1176175533181450.xml&coll=7. See also the Associated Press coverage at:http://www.signonsandiego.com/news/nation/20070409-1337-wst-salmon-dams.html. The U.S. Appellate Court ruling can be found on the Ninth Circuit website at: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F3A817DDA98587C8882572B80054FFF4/$file/0635011.pdf?openelement.
Saving fish
KLAMATH RIVERKEEPER SUES PACIFICORP AND CDFG OVER IRON GATE HATCHERY POLLUTION: March 27, the Klamath Riverkeepers organization filed suit in U.S. District Court in Sacramento against PacifiCorp and the California Department of Fish & Game (CDFG) over alleged violations of the Clean Water Act at the Iron Gate fish hatchery. The Klamath Riverkeepers claim that the hatchery, owned by PacifiCorp though operated by CDFG, has long been polluting the Klamath River with fish waste and pollutants that have exacerbated algae bloom problems in the lower river. The reservoir behind Iron Gate dam on the Klamath River also raises water temperatures on the river, which encourages these algal blooms. The virulent fish parasite Ceratomyxa shasta is spread by a small worm that thrives in these algae blooms. The Klamath Riverkeepers’ goal is to increase pressure on PacifiCorp during the FERC relicensing process to outfit the dams with fish passage and cleaner hatcheries. For more information see: <http://contracostatimes.com/search/ci_5538105>contracostatimes.com/search/ci_5538105 and <http://www.earthtimes.org/articles/show/45971.html>www.earthtimes.org/articles/show/45971.html.
Saving fish
Court finds massive power plant fish kills illegal
NEW YORK, NY – A three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled yesterday that EPA cannot allow power plants to kill a trillion fish per year through their cooling water intakes. Cooling water intakes gulp in billions of gallons of river, lake and coastal water to cool power plant machinery. Along with the water, these intakes devour countless fish and fish larvae, devastating fish populations across the country.
In a major victory for environmentalists, fishermen and the public, the court found that regulations issued by EPA in 2004 improperly rejected “closed cycle cooling,” a technology that cools plant machinery while nearly eliminating the need for large infusions of fresh water. This technology also greatly reduces the massive fish kills associated with power plant operations. The court also found that EPA violated the law by placing the profits of power companies above the protection of America’s fisheries, defying the direct mandate of Congress in 1972 to EPA to stop these unnecessary impacts.
“This historic decision validates what the environmental community has been saying for decades,” said Alex Matthiessen, Hudson Riverkeeper and President of Riverkeeper, Inc. “The Clean Water Act requires use of the best technology available. By ignoring that requirement EPA has thwarted the will of Congress and repeatedly failed to protect fish and wildlife from needless devastation at the hands of power plants.”
“Once again the courts have prevented EPA from rewriting the Clean Water Act at the behest of industry,” said Reed Super, Senior Clinical Staff Attorney at Columbia Law School’s Environmental Law Clinic and lead attorney for the Environmental Petitioners.
Steve Fleischli, Executive Director of Waterkeeper Alliance explained, “Waterkeeper Alliance filed this lawsuit because EPA has ignored the Clean Water Act by allowing power plants to kill billions of fish each day. The solutions to this problem have been available, affordable and in common use for decades. With this victory, this indiscriminate and illegal slaughter will now stop.”
The case is Riverkeeper, Inc., et al. v. U.S. Environmental Protection Agency, No. 04-6692-ag(L) (2nd Cir. Jan. 25, 2007).
The winning coalition of Environmental Petitioners included: Riverkeeper, Inc., Natural Resources Defense Council, Waterkeeper Alliance, Soundkeeper, Inc., Scenic Hudson, Inc., Save The Bay—People For Narragansett Bay, Friends of Casco Bay, American Littoral Society, Delaware Riverkeeper Network, Hackensack Riverkeeper, Inc., New York/New Jersey Baykeeper, Santa Monica Baykeeper, San Diego Baykeeper, California Coastkeeper Alliance, Columbia Riverkeeper, Conservation Law Foundation, and Surfrider Foundation.
Riverkeeper is an independent, member-supported, not-for-profit organization whose mission is to safeguard the ecological integrity of the Hudson River, its watersheds and the New York City drinking water supply.
Waterkeeper Alliance is non profit environmental organization that connects and supports over 150 member watershed groups to provide a voice for waterways and their communities worldwide. Each of these groups and their members have an express mission to preserve and protect their local waterbodies.
Background: Fish Kills, Cooling Intake Technology and the Clean Water Act
Every year, electric generating and industrial plants withdraw more than 100 trillion gallons from U.S. waters for cooling, and kill the overwhelming majority of organisms in this massive volume by entraining them into the facility or impinging them on intake screens. This staggering mortality – trillions of fish, shellfish, plankton and other species at all life stages – has stressed and depleted aquatic, coastal and marine ecosystems for decades, and has contributed to the collapse of some fisheries.
A single large power plant can utilize hundreds of millions or even billions of gallons of cooling water per day before discharging the heated effluent directly into a lake, river or ocean. In contrast, a closed-cycle cooling system, which recirculates most of the water after dissipating the heat in a cooling tower and is standard technology for new plants, cuts withdrawals and fish kills by more than ninety-five percent.
Section 316(b) of the Clean Water Act requires such facilities to employ the “best technology available [BTA] to minimize adverse environmental impact.” Despite this direct mandate and the decades-old availability of cooling towers, industrial pressure and EPA neglect has prevented effective regulation.
In 1993, after years of frustration at agency failure to require protective technology, a coalition of environmental groups led by Riverkeeper sued to force EPA to finally promulgate cooling water intake standards, Riverkeeper, Inc. v. Whitman, U.S. District Court, Southern District of New York, No. 93-Civ.0314 (AGS).) and won a consent decree requiring EPA to promulgate such standards. The Phase I and Phase II rules were issued pursuant to that consent decree.
Fishermen Welcome Dire Science Report on Future of Fish Stocks
Fishing Group Says Report Will Be Valuable Ammunition for Protecting Oceans and Marine Life
San Francisco – The West Coast’s largest organization of commercial fishermen found hope in a report in the journal Science predicting the end of wild seafood stocks by 2048.
“Thankfully we’re getting the Science report now and not in 2047, so we have some time to take corrective action,” said Zeke Grader, Executive Director of the Pacific Coast Federation of Fishermen’s Associations (PCFFA). “However, if we don’t begin acting soon to protect our oceans, we could be witnessing the demise of our fish and fisheries much sooner.”
Grader said unchecked storm water runoff from a growing coastal population, pesticides in agricultural wastewater, hormones in the water from sewage treatment plants, and sediment all pose significant water quality problems that can either kill fish or make them unsafe to eat.
“The Science report we believe will help to strengthen the arguments that we’ve been making for years that fish habitat and water quality have to be protected and sound fishing regulations put in place to assure we will have wild fish and shellfish stocks in the future,” said Grader.
Current Congressional meetings to reauthorize the nation’s primary fishery statute – the Magnuson-Stevens Fishery Conservation & Management Act – offer a rare opportunity to address the nation’s fishery needs.
The report in Science has been criticized by some in the fishing industry, and Grader cautioned against what he called “soundbite science,” dire predictions that grab headlines. But fishermen are warning of new threats on the horizon, from the transfer at sea of oil from supertankers to smaller ones with no backup safety equipment in the event of a spill or mishap, proposals for new offshore drilling and deep sea mining, and a Bush Administration initiative to open ocean waters to large scale aquaculture operations with no protection for wild fish stocks or the ocean environment.
“The Science report is certainly a call to action,” concluded Grader. “Purchase only fish that are caught or produced in a sustainable manner, support strong clean water laws, oppose new uses of the ocean that threaten fish and other ocean life, and vote for candidates who care about the future of our fish and fishing men and women.”
(Since this article was written the 109th Congress reauthorized the Magnuson-Stevens Fishery Conservation and Management Act (MSA) as one of its final actions. The MSA was originally passed in 1976 to establish the 200-mile Exclusive Economic Zone (EEZ) off the United States coast line. The MSA was publicly supported then as a means of preventing large foreign fishing vessels from pillaging our fish stocks and to ensure mineral rights along the Continental Shelf. Over time, the MSA took on an increasing role in managing federal fisheries. While the reauthorization of MSA is welcomed as a step forward in fisheries management and conservation, a large portion of the bill was cut at the final stages. The bill does not include language pertaining to national health care for fishermen. Fishermen traditionally, from 1799-1981, were provided with federal health care coverage for themselves and their family members. Health care is a major concern for all fishermen, regardless of region or fishery. It is unfortunate that language to help the fishing community was stricken from the final draft of the bill.)
An April Fool's story:
WTO-WORLD BANK MINESTERIAL PROPOSES END TO SUBSISTENCE AND ARTISANAL FISHERIES.
Following on a U.S. proposal to end subsidies
for all of the world’s fishing fleets, the World Bank and the World
Trade Organization (WTO) are now prepared to take the fishery negotiations
to the next round at their joint June meeting in Brunei, calling for nations
to end all subsistence and artisanal fisheries. The decision appears to have
the fully backing of the U.S. delegation, and is rumored to have actually
been developed by the U.S. Trade Representative (USTR) and her business and
environmental advisors.
“Subsistence and artisanal fisheries are just so inefficient, and worse,
they stand in the way of the development of individual quota systems and privatization
of fishery resources,” said the Wonderful World Fund’s (WWF) Buffy
Doright-Smith, an advisor to the USTR.Doright-Smith, who helped craft the U.S. position
to ban subsidies for fishing, but retain them for aquaculture, said she was
hopeful the WTO and World Bank would act promptly on the proposal. She
said the recent release of the report by Environmental Defense on individual
fishing quotas “documents the need
to privatize our fisheries.” She said she was pleased that “special
interest fishing groups representing these pathetic little people” had
been kept out of the negotiations and drafting.
“How can we expect large corporations to invest in and control this prime food producing sector, as long as we allow these ancient artifacts [subsistence and artisanal fisheries] to get in the way?” asked Doright-Smith. “Just look at the successes with water privatization and marketing and you’ll understand why socialist public ownership of resources such as fisheries has to end and these subsistence and artisanal types eliminated.”
For further background, see USTR’s fact sheet on the WTO fisheries negotiations at www.ustr.gov.
NEW SCIENTIFIC REPORT FINDS EDC THREAT TO FISH OVERBLOWN: A report slated for release next week in the scientific journal Natural, finds that the threat of endocrine disruptor compounds, or EDCs, to fish populations is overblown. EDCs are a type of pollutant that comes from pharmaceuticals, such as hormones, and certain cosmetics that are not normally treated by waste water facilities. When these compounds enter waterways they can change the behavior of fish and even cause fish to have reproductive organs from both sexes, or totally change sex. However, in his paper, marine bio-behavioralist, Dr. Sigfried Frond, has found that EDCs may actually be good for fish and should not be considered a threat.
“From my studies, I have concluded these endocrine disruptors are actually very beneficial. They reduce the incidence of aggressiveness in male fish and assist with anger management,” said Frond. “Moreover, EDCs help male fish get in touch with their feminine side.”
"If it wasn't funny I would cry," said Local fishing expert Joe Wag
PRESIDENT ANNOUNCES NEW OFFSHORE LEASE SALES, NATIONAL MPA SITES: Utilizing an overlooked provision in the U.S. Patriot Act, President Bush on Thursday announced he was opening up Georges Bank, the west coast of Florida, and the California coast to offshore oil leasing. Although a moratorium currently exists, he said the Patriot Act gave him authority to override the drilling ban and allow drilling anywhere, anytime he deemed necessary. Apparently the provision, which slipped by every member of Congress, had been inserted by Attorney General Alberto Gonsalves, when he was White House Counsel, along with the clause allowing the appointment of U.S. Attorney’s without Senate confirmation. Taken with the earlier decision to open Bristol Bay for drilling, Thursday’s announcement will mean the nation’s richest fishing grounds are all now subject to oil and gas development.
“I am not insensitive to the need to protect our nation’s offshore areas,” said President Bush in the statement he presented in the Rose Garden, “so I have also ordered that Georges Bank, the West Coast of Florida, the California coast, along with Bristol Bay, be declared marine reserves, under our National Marine Protected Areas program, similar to what I just did in Hawaii, to make these areas safe from fishing and prevent any interference with the development of clean oil for our nation’s security.”
The action by the President won high praise from all of the Beltway environmental organizations, many of whose members were attending regional fishery council meetings. “We applaud the President’s courageous action in the face of powerful special interest fishermen. We know fishery management doesn’t work and MPAs are our last best hope to save our oceans. Additionally, by drilling close to home, we will help to eliminate green house gasses emitted from tankers bringing oil from the Mideast,” said Mimi Lilliputian of Environment International speaking on behalf of the bevy of environmental groups.
Fishermen hope to turn the tide on Bristol Bay offshore drilling proposals
Fishermen and local representatives travel to Capitol to urge Congress to restore protection for nation's 'fish basket'
From the BERING SEA FISHERMEN'S ASSOCIATION, ALASKA MARINE CONSERVATION COUNCIL and the ALASKA INDEPENDENT FISHERMEN'S MARKETING ASSOCIATION
(Anchorage, Alaska) -Bristol Bay fishermen and representatives from Alaska Native groups are meeting with members of Congress this week to voice their concerns over proposed offshore oil and gas development in the nation's 'fish basket'. In January, President Bush removed a long-standing executive ban on offshore drilling in Bristol Bay, opening the way for leases the federal Minerals Management Service (MMS) has proposed in 2010 and 2012.
"Bristol Bay's marine resources are simply too valuable-economically, ecologically and culturally-to put at risk," said Karen Gillis, executive director of the Bering Sea Fishermen's Association. Gillis' organization represents 128 communities within the Arctic, Yukon, Kuskokwim, and Bristol Bay regions of Alaska and was instrumental in winning Congressional protection for Bristol Bay in 1989. "We saw what the Exxon-Valdez Oil Spill did to marine life in Prince William Sound and we're determined to protect Bristol Bay from a similar disaster." The congressional moratorium for Bristol Bay was lifted in 2003.
Alaska's Bristol Bay and the southeastern Bering Sea encompass one of the most productive marine ecosystems in the world. These sub-arctic waters support important commercial fisheries, representing more than 40% of the nation's annual seafood catch. The area targeted for oil and gas leasing overlaps with important habitat and fishing grounds for pollock, cod, red king crab, halibut and salmon - fisheries which generate more than $2 billion dollars annually.
Bristol Bay also supports the largest sockeye salmon runs on earth. "Interest in Bristol Bay wild salmon is soaring," explained Mike Davis, a long-time Bristol Bay fisherman who recently returned from the International Boston Seafood Show. "Now is not the time to put this valuable resource at risk," Davis said. "Instead, we should be investing in the sustained health of Bristol Bay fisheries to meet the growing market demand for wild seafood."
"Salmon is central to village economies and ways of life," explained Tom Tilden, Chief of the Curyung Tribal Council. "Little benefit would come to our communities from offshore development, but the risks to the fish and wildlife resources that are the irreplaceable mainstay of Alaska Native tradition and culture are tremendous," Tilden said.
Environmental Impact Statements by the Minerals Management Service (MMS) have predicted at least one major oil spill as well as numerous smaller spills should development in Bristol Bay be allowed. "We are not at all confident in the oil industry's ability to operate in this region without causing harm to Bristol Bay's invaluable, renewable resources," said Alaska Marine Conservation Council board member Terry Hoefferle. "Couple the poor track record of the oil industry demonstrated by corrosion of pipelines on the North Slope with the violent storms that are commonplace in the region and you have a recipe for disaster," said Hoefferle. Recovery of spilled oil in the rough sea conditions, ice and strong tides and currents that characterize Bristol Bay is unfeasible due to inadequate clean-up technology. In addition, offshore infrastructure would be exposed to the full force of winter storms at a time of year when response efforts would be rendered useless.
"As millions are being spent to rebuild collapsed fisheries, it is important that the United States ensure the sustainability of remaining healthy wild fish stocks into the future," said David Harsila, President of the Alaska Independent Fishermen's Marketing Association. "Given their world-class importance, Bristol Bay fisheries must be at the heart of this effort."
A summary of the top ten reasons to protect Bristol Bay from offshore oil and gas drilling can be found at www.akmarine.org/pressroom/BristolBayTopTen.pdf.
Fishing and local representatives who will be meeting with members of Congress from March 26-28, 2007 include:
o Mike Davis (Dillingham, AK), long-time Bristol Bay fishermen, Assistant
Professor, University of Alaska Bristol Bay Campus, former four term state
legislator
o Karen Gillis (Anchorage, AK) Executive Director, Bering Sea Fishermen's
Association
o David Harsila (Seattle, WA) President, Alaska Independent Fishermen's Marketing
Association and long-time Bristol Bay fishermen
o Terry Hoefferle (Dillingham, AK), Alaska Marine Conservation Council Board
Member and former CEO of Bristol Bay Native Association
o Tom Tilden (Dillingham, AK) Chief of Curyung Tribal Council, long-time
Bristol Bay fishermen, regional representative to the Alaska Federation of
Natives and former mayor of Dillingham
Addtional web addresses abot Bristol Bay:
At the Anchorage Daily News
http://www.adn.com/money/industries/oil/story/8738805p-8640504c.html
And at KTUU-TV
http://ktuu.com/Global/story.asp?S=6275315
Klamath River wins one small victory
FEDERAL KLAMATH PROJECT IRRIGATORS LOSE US COURT OF CLAIMS “takings” Case for 2001 water losses to fish: On 16 March, U.S. Court of Claims Judge Francis Allegra formally dismissed all remaining claims in the $1 billion Fifth Amendment “takings” case filed by Klamath Project irrigators seeking damages against the federal government for the 2001 loss of the irrigation water usually received by Project irrigators to the lower river and Upper Klamath Lake to prevent fish extinctions. In an earlier ruling on 31 Aug. 2005, in the case Klamath Irrigation District, et al., v. U.S. (Nos. 01-591L, and 01-5910L through 01-59125L consolidated), the court had concluded that the irrigators owned no property rights to water from the Project, but only contract rights. In this final ruling the court ruled that those contracts did not allow irrigators to claim damages for the federal government meeting its legal obligations under the ESA or any other federal statute. Had the plaintiffs won, this would have made it impossible for the federal government to meet ESA water needs for fish and wildlife without massive payments to similarly situated irrigation groups. It is expected that the ruling will be appealed to the U.S. District Court of Appeals for the D.C. District. For the Earthjustice Press Release and a copy of the ruling see: www.earthjustice.org/news/press/007/klamath-irrigators-contract-claim-rejected.html.
Organic shellfish proposed
First certified sustainable shellfish program: The Pacific Coast Shellfish Growers Association (PCSGA) announced at the 2007 Seafood Summit at the end of January that a new “certified sustainable” program will be created by the end of the year for aquacultured shellfish. Currently no certifying body certifies aquaculture as sustainable, making this program the first of its kind. PCSGA representatives stated that in order to receive the eco-friendly label, an aquaculture practice must already abide by a PCSGA Individual Farm Plan and be reviewed by a third party. The certification will denote that the aquaculture operations participating grow, harvest, process, and transport the shellfish in a sustainable manner. Additional information about PCSGA is available at <http://www.pcsga.org/>www.pcsga.org. It should be noted that this is an industry-based certification, different from the independent Marine Stewardship Council certification. Moreover, there is no current U.S. Department of Agriculture organic certification for fish or shellfish and only products certified by the USDA may be sold as organic in states such as California.
USDA TO address organic aquaculture classification: The National Organic Standards Board (NSOB) under the United States Department of Agriculture (USDA) will be meeting from 27 to 29 March to recommend, among other things, the possibility of listing some farm-raised fish, including those raised in open water net pens and enclosures, as organic. On Thursday at 1130-1200 HRS the Livestock Committee chaired by Hue Karreman will announce its recommendations. The meeting will take place at the Washington Plaza Hotel, Ten Thomas Circle, NW, Washington, D.C. 20005. Additional information about the meeting can be found at www.ams.usda.gov/nosb/meetings/03_07agenda.html.
