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August 6,2009
Mr. Rodney R. McInnis �Rs
Regional Administrator �,�� '
National Oceanic and Atmospheric AdministrationQRQ ZL79
National Marine Fisheries Service CLlFO ,N/A
Southwest Region
501 West Ocean Boulevard, Suite 4200
Long Beach, CA 90802-4213
RE: Draft Biological and Conference Opinion
Oroville Facilities Project Relicensing
(Projeet No. 2100-134)
File Number 151422SWR2000SA5808
Dear Mr. McInnis:
On behalf of the State Water Contractors (SWC) and the Metropolitan Water District of
Southern California(MWD), this letter responds to the Draft Biological and Conference Opinion
(Draft BO) issued by NOAA's National Marine Fisheries Service (NMFS)pursuant to Section 7
of the Endangered Species Act (ESA),1 and submitted to the Federal Energy Regulatory
Commission(FERC) on July 6, 2009 regarding the relicensing of the Oroville Project(FERC
Project No. 2100). SWC and MWD very much appreciate the opportunity to comment on the
Draft BO.2
SWC and MWD agree with the NMFS conclusion that Oroville Project relicensing "is
not likely to jeopardize Sacramento River winter-run Chinook salmon, Central Valley spring-run
Chinook salmon, Central Valley steelhead and the Southern DPS of North American green
sturgeon or adversely modify designated or proposed critical habitat."3 We also agree that
relicensing"is not likely to adversely affect California Central Coast steelhead."4 Nevertheless,
we are concerned that in its current form, the Draft BO is flawed in a number of respects. We
1 16 U.S.C. § 1536(b)(3)(A).
2 State Water Contractors,Inc.(SWC)is an organization comprised of 27 public agencies that have water supply
contracts with the California Department of Water Resources(DWR),the Licensee of the Oroville Facilities.
MWD is one of the members of the SWC.
s Draft BO,Transmittal Letter at 1.
4 Id.
a
Mr. Rodney R. McInnis
National Marine Fisheries Service
August 6,2009
Page 2
respectfully request that the final BO be revised in accordance with these comments. We also
request that if NMFS is not inclined to make each of the changes suggested below,that NMFS
agree to meet with the SWC and MWD at its earliest convenience to discuss necessary changes.
I. Executive Summary
As an initial matter, many of the terms of the Draft BO are inconsistent with the terms of
the comprehensive Oroville Project relicensing settlement agreement(SA) submitted to the
FERC on March 24, 2006. NMFS was a key participant in the settlement negotiations that
resulted in the SA, and is a party to the SA. SWC and MWD are also parties to the SA, along
with many other regulatory agencies and stakeholders. As parties to the SA, SWC and MWD
have the right to request dispute resolution regarding the issuance of a final BO that is
inconsistent with the SA, and, if they choose, to withdraw from the SA.5 Dispute resolution is a
serious process that could destabilize the SA, and is not a remedy SWC or MWD favor.
However, SWC and/or MWD, or possibly other parties to the SA,may have no alternative but to
initiate dispute resolution procedures if the Draft BO is not amended. Therefore,to the extent
that the terms of the Draft BO are inconsistent with the terms of the SA,the Draft BO should be
revised to be consistent with the SA.
In addition, a number of the proposed conditions in the Draft BO appear to be based on
speculation regarding the impacts of the Oroville Project, and therefore are not supported by
substantial evidence or the best available scientific data and information. Furthermore, some of
the conditions in the Draft BO are beyond the limited scope of measures to monitor and
minimize incidental take of listed species that may be imposed by NMFS in a"no jeopardy
opinion."6 Finally, SWC and MWD believe that the environmental baseline used by NMFS does
not accurately reflect the impacts of the relicensing action.
H. SWC and MWD Comments
A. The Draft BO Is Inconsistent with the Settlement Agreement.
SWC and MWD participated fully and actively in all of the work groups,task forces,
negotiations, and other proceedings associated with the Alternative Licensing Process for the
Oroville Facilities.7 The SA resulted in a comprehensive resolution of the issues that were
appropriately raised in the FERC alternative collaborative relicensing process. The SA
represents the culmination of that ALP process, and was the product of negotiations by dozens of
stakeholders interested in the Oroville Facilities. The environmental provisions of the SA were
crafted in close cooperation with the state and federal resources agencies, including NMFS, as
well as interested environmental groups.
5 See SA,Section 5(Dispute Resolution),and Section 6(Withdrawal From Settlement Agreement),
6 See 16 U.S.C. § 1536(b)(4);50.C.F.R. §402.14(i)(requirements for Incidental Take Statement(ITS)).
The SWC and MWD are intervenors in the FERC relicensing proceeding in Docket No.P-2100,and are
actively participating in the FERC process.
Mr. Rodney R. McInnis
National Marine Fisheries Service
August b, 2009
Page 3
Section 2.1 of the SA is unambiguous in outlining the expectations of settlement:8
"The Parties have entered into this Settlement Agreement for the purpose of
resolving all issues that have or could have been raised by the Parties in
connection with FERC's order issuing a New Project License. While recognizing
that several regulatory and statutory processes are not yet completed, it is the
Parties' intention that this Settlement Agreement also resolves all issues that may
arise in the issuance of all permits and approvals associated with the issuance of
the New Project License, including but not limited to ESA Section 7 Biological
Opinions, CWA Section 401 Certification,NEPA and CEQA." (emphasis added)
The SA also includes specific language to inform consistency:
"1.5.8 Inconsistent with this Settlement Agreement shall mean: (i) any material
modification to, addition to, or deletion of a Proposed License Article in the New
Project License issued by FERC; or(ii)any material modification to or addition
to any Proposed License Article in any Final Mandatory Terms and Conditions,
ESA Section 7 Biological Opinions or CWA Section 401 Certification issued in
conjunction with the New Project License; or(iii) a New Project License issued
for a term of less than 50 years." (emphasis added)
While NMFS concludes that the Draft BO is consistent with the SA based on the
reasoning that"the terms and conditions are drafted to be consistent with and not impede
implementation of the license articles proposed with the Settlement Agreement,"9 our review of
the Draft BO indicates that this is not the case. It is inconsistent with the intent of settlements in
general, and with the intent of the SA in particular, to include measures in the Draft BO that
would materially modify provisions in the SA.
.l. The Draft BO's Green Sturgeon Provisions Materially Modify the SA.
NMFS asserts that while several of the terms and conditions in the Draft BO "address the
Southern DPS of North American green sturgeon, which was listed as threatened in April 2006,
and for which critical habitat in the Feather River was proposed in September 2008, following
the development and signing of the Settlement Agreement"those terms and conditions "are
consistent with the Settlement Agreement and ... involve only minor changes to the proposed
action."10
Contrary to NMFS's assertion, it is inconsistent with the intent of the SA to include
measures in the Draft BO regarding green sturgeon. Moreover,'the green sturgeon measures
8 N1VES was represented in the drafting of the terms of the SA.
9 Draft BO,Transmittal Letter at 2.
so Irk,
Mr. Rodney R. McInnis
National Marine Fisheries Service
August 6, 2009
Page 4
NMFS proposes are extensive and costly, rather than being"minor changes to the proposed
action."
NMFS published its"Status Review for North American Green Sturgeon, 4cipenser
medirostris" in 2002, and recommended that green sturgeon be added to the Species of Concern
List. There were detailed discussions of green sturgeon during the relicensing process, and a
report dated September 2003 was prepared by DWR in collaboration with NMFS.11 NMFS
updated the green sturgeon status review in February 22, 2005 — 13 months prior to Settlement
Agreement execution—and determined that the Southern DPS should be listed as threatened
under the ESA. There was no indication during settlement negotiations that measures should be
implemented to protect or enhance habitat for green sturgeon and there is no mention of green
sturgeon in the SA. The proposed listing of green sturgeon was published just one month after
the SA was executed by NMFS. Therefore,NMFS was well aware of green sturgeon matters
during the entire course of negotiations of the SA and did not propose any sturgeon measures as
part of the SA.
In Section 10.4 of the Draft BO, Reasonable and Prudent Measure (RPM) 6 proposes to
minimize adverse effects related to flows and water temperatures on green sturgeon adult
upstream migration, egg incubation, larval rearing, and early juvenile development. The
extensive Terms and Conditions included in the Draft BO to implement this RPM require DWR
to develop and implement the following new programs as part of SA Article A 10 1 (Lower
Feather River Habitat Improvement Program):
• "Pulse flows"under certain water conditions.
• Detailed water temperature requirements.
• Develop and implement a Green Sturgeon Management Program.
• Assemble a Green Sturgeon Technical Sub-committee of the Feather River Technical
Team, including hiring at least one green sturgeon expert affiliated with a credentialed
university.
• Develop annual strategic plans to meet in-stream flows and temperatures that minimize
potential for the project to adversely affect upstream migration, successful spawning,
larval development, and early rearing of green sturgeon in the Feather River.
• Develop and implement a green sturgeon monitoring Plan.that shall include tracking
adult presence and passage; evaluation of abundance and distribution of green sturgeon in
time and space in the Feather River as far downstream as Honcut Creek,ten miles
downstream of the FERC boundary; consider the purchase, installation and operation of
Dual Frequency Identification Sonar(DIDSON) equipment for counting green sturgeon;
characterize potential green sturgeon spawning habitats using Acoustic Doppler Current
profiler(ADCP) technology.
• Conduct feasibility studies of operational and physical habitat modifications for fish
passage improvement actions outside of the FERC boundary and identify responsible
1 SP-F3.2 Task 3A:"Final Assessment of Potential Sturgeon Passage Impediments"
Mr. Rodney R. McInnis
National Marine Fisheries Service
August 6, 2009
Page 5
parties and agencies associated with those sites (including, among other sites,the Sunset
Pumps, a potential green sturgeon upstream passage impediment owned and operated by
the Sutter Extension Water District, located 16 miles downstream of the FERC
boundary.)
Had the flow requirements for green sturgeon under the Draft BO been in effect in 1993,
pulse flows would have been required in 5 of the past 17 years. Water that would have been
released from Oroville in those years that otherwise could have been released later in the year
would have been in the range of 7,700 to 157,000 acre-feet per year. This loss of water supply is
a material impact, and would constitute a material modification of the SA.
Finally, approximate order-of-magnitude estimates for the actions proposed in the Draft
BO are identified in the following table. Costs are expressed as ranges to accommodate
uncertainty in study design and objectives and estimates are intended to be conservative.
Estimated costs of green sturgeon actions are likely to exceed $750,000 to $1.65 million over 10
years, with much of this cost front-loaded. This is a substantial understatement of the likely
costs for a number of reasons. Costs do not include any operational or habitat modification
measures that might be contemplated based on monitoring or feasibility results. Such measures
could dramatically increase compliance costs. In addition,the cost of achieving target flows and
water temperature criteria,which could be very high, are not estimated.
Action Cost Duration
(thousands)
Management plan development $504150a 1-2 year project
Management program implementation Unknown Annual
Green sturgeon technical subcommittee Unknown Annual
Monitoring plan development $50-$150° 1-2 year project
Abundance&distribution surveys $50-100/years Annual(5-10 yr)
Spawning habitat characterization $150-$250 2-3 year project
Target flow Unknown' Annual
Water temperature criteria Unknown' Annual
Feasibility studies of operational&habitat modifications $10043009 TBD
' Cost may vary depending on the nature of the planning process and the involvement of agency staff.
a Costs related to assignment and participation of agency staff.
Cost may vary depending on the nature of the planning process and the involvement of agency staff.
d Based on a combination of Didson and acoustics monitoring(as specified)of multiple sites and sample dates over several months.
Assumes habitat mapping of multiple sites at multiple flow levels,data analysis,physical model development and reporting.
r Costs of specified operations have not been assessed. Review of recent 17-year hydrology indicates that pulse flows proposed under the Draft
BO would have been required in 5 years with losses of water to the ocean ranging between 7,000 and 157,100 AF/year.
$ Costs vary in relation to the number and type of alternatives that may be identified for consideration and the spec ications of the evaluations.
All of the programs, studies, and costs listed above are new programs that were never
discussed during the settlement negotiations, and all of these programs have associated short
term and long term costs that are material changes to the SA requirements, and inconsistent with
the SA itself.
Mr. Rodney R. McInnis
National Marine Fisheries Service
August 6,2009
Page 6
2. The Draft BO Materially Modifies the SA's Riparian and Floodplain
.Improvement Program.
The Draft BO also materially modifies the broader requirements for anadromous fish. In
Section 10.4 of the Draft BO, RPM 4.d. substantively changes Article 106 (Riparian and
Floodplain Improvement Program) of the SA. As set forth in the SA, the phasing and
implementation of the Riparian and Floodplain Improvement Program begins immediately after
license acceptance. Phase 1 of this program begins with plan development within one year of
license issuance, and the Licensee is required to implement the approved alternative fully within
15 years of license issuance (see SA A106(b)(2)). Phase 4 of the plan will be completed by the
Licensee within 25 years after license issuance (see SA A106(b)(4)). The Draft BO seeks to
change the phasing and implementation of this article to 10 and 15 years, respectively. This is a
material change to the SA.
The Riparian and Floodplain Improvement Program is designed to be a long-term
program, intended to take advantage of commercial gravel extraction leases operating within the
Oroviile Wildlife Area, and is not intended to be an immediate fix for current habitat conditions,
as noted in the SA's Explanatory Statement for A106 (Section III.A.1.g.):
DWR and Fish and Game will work with gravel operators to seek to reduce costs of
gravel removal and earthwork component of this program. The abilities and limitations
of gravel extraction will guide the scope,timeframe and magnitude of the Riparian and
Floodplain Improvement Program.
This program was designed by the California Department of Fish and Game (DFG) and is
one of many that must be undertaken by DWR following license acceptance. Program phasing is
necessary due to the workload involved, both by DWR and the permitting agencies (e.g., DFG;
USFWS). While improved salmonid rearing habitat may be listed as a potential ancillary benefit
of the program, it is not a primary objective. Salmonid rearing habitat issues will be primarily
and more immediately addressed by actions described in articles A102, Al 03, A104, A108,
B105, and B108 of the SA. The objective of this program is to restore floodplain connectivity.
The Draft BO proposes to change the timeframes set forth in the SA, and therefore
constitutes a material modification to the SA.
B. The Draft BO Lacks Sufficient Evidence to Su ort Its Conclusions Regarding
Incidental Take and Reasonable and Prudent Measures/Terms and Conditions
related to Green Sturgeon in the Feather River.
The NMFS Draft BO docs not provide the necessary substantial evidence in support of its
proposed conditions regarding green sturgeon.NMFS asserts that the Oroville Project has
blocked access to "what were certainly historic spawning areas" in the Feather River and
Mr. Rodney R. McInnis
National Marine Fisheries Service
August 6, 2009
Page 7
elsewhere.lz This conclusion appears to be contradicted by NMFS elsewhere in the Draft BO,
wherein NMFS states "no historical accounts exist for identified green sturgeon habitat above the
current darn sites...."13 NMFS also admits that there"are no observations of juvenile or larval
sturgeon even prior to the 1960s when Oroville was built." 14 These facts conflict with NMFS's
conclusion that there "certainly" were historic spawning areas for sturgeon in the Feather River,
as well as its conclusion that incidental take is occurring due to the blockage of green sturgeon
passage to upstream spawning habitat by Oroville Dam.15
The lack of foundation for NMFS's conclusion regarding the Oroville Project's impact on
sturgeon passage and spawning habitat is further illustrated by the following statements in the
Draft BO:
Spawning on the Feather River is suspected to have occurred in the past due to the
continued presence of adult green sturgeon in the River below Oroville Darn. This
continued presence of adults below the dam suggests that fish are trying to
migrate to upstream spawning areas not blocked by the dam, which was
constructed in 1968, and may be spawning and reproducing in the river below the
daze."16
"The effects of the proposed action on the green sturgeon are difficult to
determine given the paucity of empirical evidence."17
Based on the above, it appears that NMFS agrees that its assertion that spawning
occurred upstream of Oroville and thus the Project is blocking passage, is speculative. In its
Draft BO,NMFS cites to no evidence or study indicating that sturgeon are spawning in the area
below the dam. Instead,NMFS relies on the fact that there is habitat for Chinook salmon in the
vicinity of Oroville.18 However, this fact does not support NMF S's conclusion, because Chinook
salmon and green sturgeon require fundamentally different habitat conditions for spawning, and
Chinook salmon historically have occurred in many areas where green sturgeon have never been
reported.19
12 Dram BO,at p.254.
" Draft BO,at p. 115
14 Draft BO,at p. 153.
15 Elsewhere in the Draft BO,NMFS states"...there is only one known population[of sturgeon] within the
mainstem Sacramento River." Draft BO at p. 119;"Currently,there are no reliable data on population sizes
exist and data on population trends is lacking"Draft BO,at p. 125.
17 16 Draft BO,at p. 115 (emphasis added).
Draft BO,at p.252(emphasis added).
�$ Draft BO,at p. 115.
19 See Attachment A.Ray Beamesderfer,"Continents on green sturgeon portions of the July 2,2009 OrovilIe Dam
Draft Biological Opinion by the National Marine Fisheries Service"(Beamesderfer Report),at p. 3 (citing
hnt ://content.cdlib.or view?doc[d=kt8'49n9k8&doc.vierv=frames&chunk.id=dN523&toc_id=0&brand=calfs here).
Mr. Rodney R. Mchinis
National Marine Fisheries Service
August 6, 2009
Page 8
NMFS's conclusion that incidental take occurs as a result of the Oroville Project
blocking access to upstream sturgeon spawning habitat also is undermined by the fact that the
rice farmers were operating two flash dams in the Feather River prior to construction of Oroville
Dam, one of which was downstream of the Thermalito Afterbay and began operation in 1905,
and the other near Robinson's Riffle upstream of the Afterbay Outlet that began operation in
1915.20 In order to meet rice agriculture irrigation needs and based on current agricultural
practice,these dams would have been installed in late April of each year. Those dams would
have affected stream flows and blocked green sturgeon access to upstream reaches during the
migration and spawning periods until 1968,when they were removed upon completion of the
Oroville Facilities. In fact, construction of the Oroville Facilities opened up an additional 8 river
miles to green sturgeon(from the Sutter Butte Canal flash dam at river mile 59 up to the fish
barrier dam at river mile 67).
Prior to construction of the agricultural diversion dams,the Feather River was heavily
impacted by mineral mining activities that began in the mid--1980s and that would have
sigaif cantly affected survival of fish upstream of the Yuba/Feather Rivers confluence.2"
NMFS also claims that green sturgeon are harmed due to adverse Project water
temperature impacts. However, as evidenced by the settlement agreement between DWR and
area rice fanners,the river water temperatures became colder as a result of Oroville Project
operations (relative to pre-project conditions) and improved habitat for all salmonid species in
the Feather River, including the green sturgeon.22
Other unsubstantiated statements in the Draft BO include:
"The USFWS working paper on restoration needs, volume 3 (1995b) described
that good sturgeon recruitment, as measured in the Delta fish salvage facilities,
occurred when monthly flow ranged from 3,488 to 20,505 CFS at Gridley (RM
50, approximately 4 miles downstream of the Project Boundary) and 7,028 to
35,234 CFS at Nicolaus. They recommended providing mean monthly February
through May flows of at least 7,00 CFS at Gridley and at least 11,500 CFS at
Nicolaus during above normal and wet water years. These flows were
recommendation based on salvage in the Delta and are not based on production
estimates from the Feather River. "23
This discussion appears to be intended to support the pulse flows of 7,000 cfs specified in
Draft BO RPM 6.c-iii. However,the recommendations are based on salvage in the Delta, and
NMFS provides no evidence that the salvaged fish in the Delta carne from the Feather River
20 See Attachment B: "Factors Affecting Fish Survival and Passage on the Feather River in the Oroville Area".
21 _ See Attachment B.
22 Id
2s Draft BO,at p. 197.
Mr. Rodney R. McInnis
National Marine Fisheries Service
August 6, 2009
Page 9
(instead of the Sacramento River). There is no evidence linking the salvaged fish in the Delta to
Feather River production of green sturgeon, and therefore no substantial evidence in support of
the pulse flows.
The Draft BO notes that"...limited observations of green sturgeon within the action area
indicate their dependence on Feather River habitat to some degree,particularly in above average
and wet years"2 but provides no citation to substantiate this conclusion. The sentence continues:
"Although limited,the value of the action area as migratory, spawning, and rearing habitat may
be significant. _.. In addition, continuity and connectivity of the action area to other green
sturgeon habitat makes it important for the survival and recovery of this DPS." NMFS provides
no citation to substantiate this conclusion.
The Draft BO also states the following: "For green sturgeon, it appears that most historic
habitat is now inundated by Oroville reservoir and all freshwater life stages now occur below
Oroville Dam." No cite is provided for this statement. In fact, green sturgeon were unlikely to
be able to access this habitat prior to the construction and operation of the Oroville Facilities, due
to the existence of two flash dams in the Feather River for rice agriculture that would have
presented passage barriers for adult green sturgeon. Water temperatures in the Oroville area were
far less suitable for spawning prior to Oroville Dam construction than under current conditions.
The Draft BO does not reference the water temperatures prior to the construction of Oroville
Darn or the improvements to temperatures since its construction.
C. The Draft BO Is Deficient As A Matter Of Law.
1. Green Sturgeon Conditions Are Not Supported by Substantial Evidence
and Are Arbitrary and Capricious.
All conditions included in a FERC hydroelectric license, including those incorporated by
FERC through a Biological Opinion submitted by NMFS,must be supported by"substantial
evidence. ,25 The Endangered Species Act"does not expand the powers conferred on an agency
by its enabling act. ,26 Therefore, the fact that a condition is recommended by another agency---
here,NMFS—does not undermine the substantial evidence requirement applicable to FERC
license conditions. In addition, both FERC and NMFS are subject to the bar on arbitrary and
capricious actions in the Administrative Procedure Act.27
24 Draft BO,at p. 162.
21 16 U.S.C. §8251("The finding of the Commission as to the facts, if supported by substantial evidence,shall be
conclusive.");Bangor Hydro-Electric Company v. FERC,78 F.3d 659(D.C. Cir. 1996)("Bangor Hydro").
2G Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC,962 F.2d 27(D.C.Cir. 1992).
27 5 U.S.C. §706(2)(A)(A reviewing court shall hold unlawful and set aside agency action,findings,and
conclusions found to be"arbitrary and capricious,an abuse of discretion, or otherwise not in accordance with
the law.").
Mr. Rodney R. McInnis
National Marine Fisheries Service
August 6, 2009
Page 10
As discussed above,the Draft BO appears not to rely on facts regarding the impact of the
Oroville Project on green sturgeon, in particular on spawning and fish passage. The "conclusory
assertions"in the Draft BO may not properly be relied on to support conditions in a FERC
license.28 Therefore, because the green sturgeon conditions in the Draft BO are "arbitrary and
capricious" and not supported by substantial evidence,they should not be included in the final
Biological Opinion.
2. Certain Conditions Are Beyond the Scope of That Which Is Permitted In a
No Jeopardy Opinion.
The scope of reasonable and prudent measures (RPMs)that may be recommended
pursuant to a no jeopardy opinion is narrow. First, a RPM must be limited to "actions ...
necessary and appropriate to minimize impacts, i.e. amount or extent, of incidental take."29
Second, RPMs and the conditions that implement them"cannot alter the basic design, location;
scope, duration., or timing of the action and may involve only minor changes."3°The ESA
Handbook explains:
Reasonable and prudent measures can include only actions that occur within the
action area, involve minor changes to the project, and reduce the level of take
associated with project activities.—Measures are considered reasonable and
prudent when they are consistent with the proposed action's basic design(e.g.,
narrowing of disturbed right-of-way at known species locations), location(e.g.
temporary storage of equipment or other materials) scope, duration, and timing.
The test for reasonableness is whether the proposed measures would cause more
than a minor change to the project.31
In Westlands Water District v. U.S. Department oflnterior,32 the U.S. Court of Appeals
for the Ninth Circuit affirmed the decision by the U.S. District Court to set aside two RPMs
contained in a no jeopardy opinion on the grounds that they did not involve "minor changes"to
the action. The Court held that a FWS RPM redirecting water flows, "cannot be considered to be
a minor change."33 The Court also set aside a NMFS RPM on the grounds that it altered the
"timing of the action,"in violation of ESA regulations.34
28 Bangor Hydro, at 663.
29 50 C.F.R. §402.02.
30 50 C.F.R. §402.14(i)(2)("Reasonable and prudent measures,along with the terms and conditions that
implement them,cannot alter the basic design,location,scope,duration,or timing of the action and may
involve only minor changes.").
31 Endangered Species Consultation Handbook
g P (U.S.Fish and Wildlife Service and National Marine Fisheries
Service,March 1998)("ESA Handbook"),at 4-50(emphasis added).
32 376 F. 3d 853 at 876-7(9a'Cir.2004)
33 Id
34 Id
Mr. Rodney R. McInnis
National Marine Fisheries Service
August b,2009
Page 11
The requirement in the Draft BO that"DWR to develop and implement a Green Sturgeon
Management Program as part of the Lower Feather River Habitat Improvement Program"is not
a"take"monitoring and minimization measure or a"minor change" in the proposed action but
rather a costly and comprehensive program regarding water temperature, flow and passage for
green sturgeon that includes, inter alfa, 7000 cfs "pulse flows"under certain water conditions,
stringent and detailed water temperature requirements, and many other measures. These
measures are a major change to the proposed action that are not appropriate for inclusion in the
final BO for the Oroville Project relicensing.
In addition,the green sturgeon measures in the Draft BO include a number of studies that
may not be included as RPMs because they are not measures either to monitor or minimize take.
Studies that are outside the permissible scope of an RPM in the Draft BO include:
• An evaluation of the "Abundance and Distribution of Green Sturgeon"using
"Dual Frequency Identification Sonar."35
• "Characterization of Potential Green Sturgeon Spawning Habitats..." using
"Acoustic Doppler Current Profiler..."36
• "Feasibility Studies of Operational and Physical and Facility Modifications for
Water Temperature Improvement Actions."37
• "Feasibility Studies of Operational and Physical Habitat Modifications for Fish
Passage Improvement Actions."38
Therefore,none of these study requirements may be included in the final BO as RPMs.
In addition to being an improper RPM because it is a study,the Feasibility Studies of
Operational and Physical Habitat Modifications for Fish Passage Improvement Actions RPM is
flawed on other grounds. It requires that DWR study"physical impediments to passage within
the lower Feather River" and to "identify operational and physical habitat modifications for those
impediments, and identify responsible agencies and parties associated with those sites. ,39 This
appears to be a reference to the Shanghai Bench, a natural passage impediment in the lower
Feather River, as well as the Sunset Pumps, owned by the Sutter Extension Water District.
NMFS may not—by means of an RPM—require DWR to study passage barriers that are not
caused by the operations of the Oroville Project. A natural passage barrier such as the Shanghai
Bench is not DWR's responsibility to address in the Oroville relicensing process. Moreover,to
the extent NMFS wishes to study the impact of the Sunset Pumps on sturgeon passage and to
remedy such impacts, the owner of the pumps should be contacted,not DWR.
35 Draft BO,at p.270.
36 Draft BO,at p.27I.
37 r[i
38 Id
39 rd.
Mr. Rodney R. McInnis
National Marine Fisheries Service
August 6, 2009
Page 12
NMFS's RPM 4(d), discussed above, which makes substantive changes to the Riparian
and Flood Plain Improvement Program(Article 106) included in the SA also is not a proper
RPM. Revising the phasing and implementation of Article 106, from 25 years to 10 and 15
years, is not a"minor change"and thus is not a permissible RPM. Moreover,ESA regulations
specifically state that an RPM"cannot alter the ....timing of the action...,,40 Therefore, RMP
4(d)must not be included in the final BO as an RPM.
SWC and MWD also believe that a number of the RPMs other than RPM 4(d)that relate
to Oroville Project impacts on listed salmon also are not appropriate RPMs, and thus are beyond
the authority of NMFS to require through the means of a BO. However, in the spirit of comity
and a desire to support the SA,to the extent such RPMs are consistent with the SA, at this time,
SWC and MWD do not object to their inclusion in the final BO as RPMs and implementing
terms and conditions.
3. The NMFS Pre-Project Environmental Baseline is Flawed.
The Draft BO submits that one of the effects of the relicensing action is blockage of fish
passage. However,NMFS appears to use a pre-project environmental baseline, a use that is
inconsistent with NMFS's own regulations, which provide that the"effects of the action" are
effects "that will be added to the environmental baseline. Al The existence of the Oroville
Project is part of the environmental baseline. This is why FERC uses existing environmental
conditions to assess the environmental baseline of a relicensing proposal.42
Therefore, fish passage blockage is not a project effect of the proposed action to
relicense the Project. At the Oroville Project,this reality is reinforced by the fact that the Project
is primarily a water supply, flood control, and recreation project, separately authorized under
California lav,that will continue to operate under State law regardless of the outcome of the
Oroville Project relicensing process. A consequence of NMFS use of a pre-project baseline is to
seriously overestimate the effect of the relicensing action.
III. Conclusion
SWC and MWD appreciate NMFS's strong interest in green sturgeon. However, we
believe that the approach taken on green sturgeon to date by NMFS—through the issuance of a
Draft BO that is inconsistent with the terms of the SA and otherwise flawed—is not the correct
direction. We believe a better approach would be for NMFS to promptly convene a Feather
River green sturgeon technical team to collaborate in the development of a research and
evaluation plan regarding green sturgeon. We are optimistic that common ground can be found
40 50 C.F.R. § 402.14(i)(2).
41 50 G.F.R. §402.02.
42 See, e.g.,American Rivers v. FERC,201 F.3d 1186(9th Cir. 1999).
Mr. Rodney R. McInnis
National Marine Fisheries Service
August 6, 2009
Page 13
between NMFS, SWC,MWD and other agencies and stakeholders on how to address the
sturgeon issue outside the context of the Oroville Project relicensing BO.
Thank you for your consideration.
Respectfully yours,
L LEk-
Terry
Erlewine, General Manager
State Water Contractors, Inc.
Steven M. Arakawa, Manager,
Water Resources Management Group
The Metropolitan Water District of Southern
California
Attachments:
a Beamesderfer Report
m "Factors Affecting Fish Survival and Passage on the Feather River in the Oroville Area'
cc: State Water Contractor Member Agencies
Kimberly D. Bose, Secretary, FERC
Attachment A
Seamesderfer Report
1PIPPP'120RAMER 600 NW i=ariss Road
ISH SCIENCES Gresham, OR 97465.1934
. A V: 503.491.9577 F: 503.465.1940
WREE
Oregon•California• Washington•Idaho•Alaska www.fishsciences.net
MEMORANDUM
TO: California State Water Contractors
FROM: Ray Beamesderfer
DATE: August 3, 2009
SUBJECT: Comments on green sturgeon portions of the.July 2, 2009 Oroville Dam Draft
Biological Opinion by the National Marine Fisheries Service
SUMMARY OF THE OPINION
NMFS believes that the Feather, Sacramento, and San Joaquin rivers historically supported
green sturgeon (p. 115). Green sturgeon adults are periodically observed in the lower Feather
River up to the Afterbay outlet during spring (p. 154.155). This occurrence has led NMFS to
conclude that spawning may have occurred in the past, that fish are trying to migrate to
upstream spawning areas now blocked by the dam, and that fish may be spawning and
reproducing in the river below the dam (p. 115)
The opinion concluded that the proposed action (relicensing of the Oroville Facilities) is not
likely to jeopardize the continued existence of green sturgeon relative to current conditions (p.
256). NMFS found that the proposed action maintains the Primary Constituent Elements (PCEs)
for green sturgeon habitat that supports their migration, spawning, and production in the lower
Feather river. The action includes numerous water temperature and habitat improvement
actions that improve the conservation value of critical habitat substantially after the first ten
years of the license and throughout the remainder of the license period.
NMFS concluded that incidental take of green sturgeon has occurred as a result of continued
operation of Oroville facilities without fish passage (p. 257). The resulting level of take was
deemed not likely to jeopardize green sturgeon.
A series of reasonable and prudent actions were identified to minimize the effect of incidental
take of green sturgeon.Actions specific to green sturgeon (p. 266-273) included:
6(a) Develop & implement a green sturgeon management program.
6(b) Establish a green sturgeon technical subcommittee of the Feather River Technical
Team
6(c)(i) Develop annual strategic plans to minimize potential for adverse effect on migration
and reproduction
6(c)(ii) Develop and implement a monitoring plan
6(c)(iii- Establish a schedule of pulsed target flows (7,000 cfs in above normal years, to be
iv) determined in below normal water years)
6(c)(v) Implement operational measures to attempt to meet daily mean water temperature
(vi) criteria from March-June (64°F at the downstream project boundary).
6(d) Develop a green sturgeon management plan.
6(d) Conduct feasibility studies of operational and physical habitat modifications.
1
DWT 13179152vi 0065802-000001
COMMENTS
1. Costs of green sturgeon actions are projected to be significant.
Approximate order-of-magnitude estimates for actions are identified in the following table.
Costs are expressed as ranges to accommodate uncertainty in study design and objectives and
estimates are intended to be conservative. Estimated costs of green sturgeon actions are likely
to exceed $750,000 to $1.65 million over 10 years with much of this cost front-loaded. Costs do
not include any operational or habitat modification measures that might be contemplated
based on monitoring or feasibility results.
Actions Cost Duration
(thousands)
Management plan development $50-$150' 1-2 year project
Management program implementation Unknown b Annual
Green sturgeon technical subcommittee Unknown b Annual
Monitoring plan development $50-$150` 1-2 year project
Abundance&distribution surveys $50-100/year d Annual (8-10 yr)
Spawning habitat characterization $150-$250 e 2-3 year project
Target flow Unknown f Annual
Water temperature criteria Unknown f Annual
Feasibility studies of operational&habitat modifications $100-$3009 TBD
° Cost may vary depending on the nature of the planning process and the involvement of agency staff.
6 Costs related to assignment and participation of agencystaff.
Cost may vary depending on the nature of the planning process and the involvement of agency staff.
d Based on a combination of Didson and acoustics monitoring(as specified)of multiple sites and sample dates over
several months.
e Assumes habitat mapping of multiple sites at multiple flow levels,data analysis,physical model development and
reporting.
f Costs of specified operations have not been assessed.
9 Costs vary in relation to the number and type of alternatives that may be identified for consideration and the
specifications of the evaluations.
2. The take determination is based on speculative and unsubstantiated assumptions
regarding the historical occurrence and distribution of green sturgeon in the Feather
River.
The take determination is based on a conclusion that most of the historic habitat is now
inundated by Oroville reservoir and all freshwater life stages now occur below project dams (p.
258). Page 254 notes that the blockage of green sturgeon from what were "certainly historic
spawning areas" above dams with the accompanying loss of spawning area in rivers including
the Feather River make green sturgeon at risk of extinction in the foreseeable future.
However, page 115 notes that spawning on the Feather River is only "suspected" to have
occurred in the past based on the continued presence of adult green sturgeon in the river
below Oroville Dam. Other support for this belief is based on an unsubstantiated conclusion
that suitable spawning habitat existed. A conclusion that green sturgeon historically occurred in
areas where habitat was suitable for spring Chinook salmon (p. 115) is erroneous. Chinook
salmon and green sturgeon require fundamentally different habitat conditions for spawning
and spring Chinook historically occurred in many areas where green sturgeon have never been
2
DWT 13179152v10055802-000001
reported. Further, historical water case studies reported that the bulk of salmon spawning
historically occurred downstream from Oroville as very little suitable spawning habitat existed
above Oroville Dam.;
In fact, the Opinion states that "no historical accounts exist for identified green sturgeon
spawning occurring above current dam sites" (p. 115). "There are no observations of juvenile or
larval sturgeon even prior to the 1960s when Oroville was built" (p. 153). Reports of recent
spawning by green sturgeon in the Feather River have not been confirmed, specific spawning
locations have not been identified, and research designed to identify spawning has found no
eggs or juveniles in the river (p. 153). Further, the Opinion states that "green sturgeon appear
limited to only one spawning population in the Sacramento River" and "a significant population
no longer exists in the Feather River" (p. 254).
3. Requirements for new programs lack a sound scientific basis.
Needs for and benefits of flow and temperature actions are inconsistent with the assessment
by the Opinion that project effects are unclear. "There is insufficient information available to
fully understand the project-related effects of the Feather River's flow regime, habitat
availability and water quality on green sturgeon" (p. 255). "There is insufficient information
available to fully understand how the proposed action will affect food resources of green
sturgeon" (p. 255).
The Opinion notes that current conditions are already favorable to green sturgeon. "NMFS
anticipates that the existing abundance of aquatic invertebrates provides adequate nutritional
resources for green sturgeon rearing in the river" (p. 255).The proposed action is not having an
adverse effect on substrate suitability (p. 255). "Sufficient flow conditions exist that create
migration,conditions that allow green sturgeon to migrate upstream even in dry water year
types, as evidenced by the observation of adult green sturgeon in the upper reaches below
Orville and the Fish Barrier Dams" (p. 255). "Due to the wide range of adult and sub-adult
temperature tolerances, and the observation that simulated water temperatures that are
warmer than 73.5°F only occurring after the peak of upstream migration, we do not expect any
adverse water-temperature effects for migrating and holding adults or rearing juveniles" (p.
219). Optimal temperature conditions for spawning or rearing occur within the project area
with exceedence of 63°F occurring in only 2% of days in May (p. 21.9). June exceedences occur
on only 22%of days and are expected to occur in dry or critically dry years.
Finally, the Opinion notes that actions currently proposed in the settlement agreement will
already produce significant improvements in habitat conditions for green sturgeon. "The action
includes numerous water temperature and habitat improvement actions that will improve the
conservation value of critical habitat substantially after the first ten years of he license and
throughout the remainder of the license period" (p. 256). The proposed action includes water
temperature targets and criteria at the downstream end of the project boundary that are
within' the optimal range for adult migration and holding, spawning, and egg incubation (p.
219).
htto://content.cdlib.orp/view?docld=kt8i49n9k8&doc.view=frames&chunk,id=dOe523&toc.rd=0&brand=calisphere
3
VWT 13179152v10065902-000001
4. Priority of prescribed flow and temperature actions for green sturgeon are unclear.
The Opinion identifies specific flow and temperature requirements as reasonable and prudent
measures to minimize incidental take of green sturgeon. However, it also recognizes that
conditions may exist that will not allow DWR to meet targeted flows or temperatures, and
therefore specific flows and temperatures are to be considered targets which DWR shall strive
to achieve (p. 268, p 269). Failure to achieve the flow targets shall not be considered a violation
of the terms of the Opinion. The situation is referred to the FRTT with no guidance or direction
regarding appropriate conditions or remedies, leaving the situation wide open to
interpretation.
5. The Opinion failed to evaluate potentially conflicting tradeoffs between flow and
temperature actions for green sturgeon and the ability to implement actions identified for
other species in the settlement agreement.
Actions identified in the Opinion for Green sturgeon can make it difficult to effectively
implement actions prescribed by the settlement agreement for the benefit of other species. For
instance, during drier years, the coidwater pool in Lake Oroville could become exhausted,
making it difficult to meet the temperature objectives. The Opinion recognized that reservoir
storage and coldwater pool limitations will make it difficult to balance actions necessary for
green sturgeon, salmon, and steelhead water and temperature targets as well as other project
purposes (p. 269). This action was referred in the Opinion to the Green Sturgeon Technical
Subcommittee and the Feather River Technical Team for consideration (p. 269). Without a more
detailed assessment of these tradeoffs and guidance for priorities, identification of specific flow
and temperature measures is premature.
6. Lack of basis for assessment of take.
There is not substantial evidence that incidental take of green sturgeon occurs as a result of
their inability to pass the Oroville facilities. Instead, NMFS's conclusion that spawning occurred
historically upstream of the Oroville facilities is based on speculative and unsubstantiated
assumptions. In addition, substantial evidence indicates that spawning did not occur upstream
from Oroville at the time when the project was built. Evidence includes the diversions which
presented barriers to sturgeon passage, historical accounts of the loss of suitable spawning
habitats due to mining effects, and the apparent absence of a significant population of spawnig
fish in the lower Feather River under current conditions.
Construction of the Or Project has improved habitat for green sturgeon downstream by
opening up additional habitat due to removal of the Sutter Butte and Western canal diversion
dams. The Oroville project has also produced favorable water temperatures in the Feather
River downstream from the project in an area where pre-project water temperatures were not
favorable for green sturgeon spawning, incubation or rearing (DWR, unpublished). Nor can
take be defined based on loss of critical habitat because areas upstream from Oroville are not
included in the proposed critical habitat for green sturgeon.
4
DWT 13179152vl 0065802-000001
Z Unclear basis for definition of the environmental baseline.
The logic tying the need for green sturgeon actions to the consultation for changes in operation
under the relicensing process while at the same time finding no jeopardy results from a
questionable definition of the environmental baseline. The environmental baseline for the
Opinion for the relicensing action is defined relative to current configuration and operation.
Because habitat is currently suitable for green sturgeon below the project and relicensing
actions are expected to provide even more favorable conditions, the relicensing action was
deemed to pose no jeopardy.
The assessment of take was essentially based on comparison of the proposed action to a
pristine pre-project condition which assumed that the project blocked upstream migration of
green sturgeon. Take consultations by NMFS for listed fish species often require actions to
minimize fish mortality or critical habitat impacts under current conditions, but I am not aware
of instances where additional conditions were required as compensation relative to a
speculative historical impact when the project was found to pose no jeopardy.
Assessing project impacts relative to a pristine historical condition essentially holds the project
accountable for pre-project impacts by unrelated actions. The project did not eliminate passage
of green sturgeon into upstream areas because sturgeon passage was already blocked by other
facilities for many years prior to the construction of the Oroville facilities. Dams placed in the
river in late March/early April by Feather River Service Area water districts (Western Canal
Water District, Richvale Irrigation District, and others) to irrigate rice agriculture had already
previously eliminated upstream passage of green sturgeon to presumed areas of historical
habitat. Fish ladders operated at those dams for salmon passage were not configured to
provide effective passage for sturgeon (see appendix).
The current configuration and operation of the project has actually improved habitat conditions
and eliminated other downstream passage barriers present when the project was built.
Diversion dams would have continued to operate if Oroville Dam had not been built and
removal of those dams as part of project construction actually expanded access upstream to
the current fish barrier dam from the historical distribution prior to the project. Current water
temperatures in the Feather River have also been reported by Feather River Service Area
districts as being colder than conditions that existed prior to the construction and operation of
Oroville Dam which has resulted in improved conditions for green sturgeon.
S. If appropriate to include sturgeon measures in the Biop, they should be different than
what is currently proposed. Specification of monitoring methods and priorities is
premature in the absence of management and monitoring plans with clearly-defined
objectives and experimental designs.
To address uncertainty in the status and requirements of green sturgeon in the Feather River,
the Opinion is essentially proposing an experimental approach of providing flow and
temperature conditions thought to be favorable and then monitoring the response of the fish.
Prescribed actions provide direction to consider or apply specific methods to population,
habitat and facility evaluations. Specifications also implicitly assume experimental designs that
are not identified. Prescribed methodologies may or may not be effective or efficient
alternatives for the designated purpose. Actions should more appropriately be defined in terms
5
DWT 13179152x1 0065602-000001
of objectives with clear management applications. More detailed specifications of alternatives
and approaches are typically the subject of management and monitoring plans that in the case
of Feather River green sturgeon have not yet been developed.
Much of the proposed monitoring is similar to research that has already been conducted in the
licensing process with equivocal results. More of the same type of work will be costly and likely
of limited value. It is also unclear why flow and temperature measures are prescribed as part of
the experimental approach when a greater range of conditions already occur through natural
system variability. An experimental protocol based on monitoring of existing variability in
conditions may be equally or even more effective by providing suitable contrast in conditions to
detect response effects.
As an alternative to the inclusion of the proposed measures as RPMs, consider: 1) convening
the Feather River green sturgeon team and developing a research and evaluation plan, 2)
identifying some level of support for planning and interim monitoring, 3) implementing a
monitoring program of baseline conditions in the absence of additional flow and temperature
measures and collaborating with other green sturgeon monitoring underway or planned in the
Sacramento River, and 4) considering the adequacy of green sturgeon plans and actions as part
of the recovery planning and recovery plan implementation process being developed by ISM FS.
6
DWT 13179152v1 0065802-000001
APPENDIX—HISTORICAL FEATHER RIVER HABITAT LIMITATIONS
Sutter-Butte Canal Diversion
Sutter-Butte Dam was located 6 miles below Oroville at RM 59 (Figure 1). It was an irrigation
diversion dam about 5 feet in height (Figure 2). Operations began in 1905 and the dam was
removed in 1968. The dam included a fishway but effectiveness for salmon passage was
questionable.2 The configuration and orientation of the ladder is extremely unlikely to provide
effective sturgeon passage based on inferences from salmon passage facilities in the
Sacramento and Columbia rivers that are ineffective for sturgeon and passage facilities in the
eastern US that have been effective for lake sturgeon. Surface water attraction flows like those
at the Sutter Butte Canal Flash Dam have not proven to be effective in drawing the bottom-
oriented sturgeon into facilities. A staircase design without submerged entrance orifices does
not allow sturgeon to ascend the ladder—unlike salmon, sturgeon do not typically jump to pass
obstacles. Pool length and depth between steps is not adequate for sturgeon due to their much
larger size than salmon. High velocities through the ladder during high stream flows would also
preclude sturgeon passage. Removal of this dam created access to 8 more miles of river than
pre-Oroville conditions.
Western Canal Diversion
The Western Canal Dam was located 2 miles below Oroville at RM 63 (Figure 1). This irrigation
diversion dam is reported to be similar in configuration to the Sutter-Butte Canal Diversion.
Operations began in 1915 and the dam was removed in 1968.
812. 10t t ville;
]]Ivarslon darn < j�
743 Thermalito
1=oreba
489 f,
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Fsh 6arFier Dam
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r 1rr-Yic ,'Frier ry �-- Eiilll59
Water Temperature and
f 0 Flotiv Station-Feather
�j BWG1 River at orovllle(RM 67-4)
`< Selected Rice Water
BWG2 : Temperature Stations{2005)
Historical Western Canal-
i {8.2 miles)
Historical Sutter Butte Canal
r (1.2 miles)
- Current Canals
'es
Figure 1. Current and historical locations of Sutter Butte and Western canal diversions in relation to Oroville
project facilities on the Feather River(CDWR,unpublished).
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Mining Impacts
The Feather,Yuba, and Bear rivers were severely impacted by habitat damage due to hydraulic
mining in the upper and middle watersheds, and dredge mining in the lower elevations.3
Impacts created unsuitable conditions for sturgeon spawning and rearing in the Feather and
Yuba rivers for over 50 years beginning in the mid-1800s.
Prior to 1850,the lower Feather River was reported to consist of a succession of deep pools,
separated from each other by shallow bars, with the water being"remarkably clear." Hydraulic
mining introduced massive volumes of sediment into the system between the 1850s and 1890s.
This sediment, consisting of fines, gravel, cobble, and boulders, was discharged directly into the
river and deposited in the canyons, in the Upper river channels, and where the river entered the
valley near Oroville. Streams of sand,gravel, and mud from the mines flowed together into the
Feather to bury the stream under an immense moving deposit of debris reaching depths of
more than 100 feet.
During winter storms, deposits would mobilize, a wall of mud and gravel would roar down the
canyon, and the river was choked in sediment, burying vegetation, destroying pools and riffles,
and killing fish. The gravel and cobbles washed out of the canyon were deposited in what is
now the Oroville wildlife area. The finer sand, silt and clay was deposited farther downstream,
choking the Feather and Sacramento Rivers. The river was filled with sediment and
transformed into wide shallow channel, often just 2 feet in depth. With much of the Feather,
Yuba, and Bear rivers choked with mining debris,flooding became a serious problem. A series
of floods during the 1860s spread water and mud over much of the Sacramento valley. A total
of 60 square miles of lower Feather farmlands were deeply buried under hydraulic mining
debris.
Dumping of hydraulic mining debris directly into the stream system virtually ceased in 1884
with the Sawyer Decision. Dredge mining continued to occur between 1905 and 1952, mostly
in the Oroville Wildlife Area, and on the lower Yuba River.
Since the early 1900s, habitat conditions in the lower Feather River have gradually evolved to
redevelop equilibrium between streamflow, channel shape, and sediment transport. Periodic
surveys of channel cross sections surveys show that fine sediment deposits are being scoured
as the river incises the mining debris, resulting in widening and deepening of the channel.
3 This summary excerpted from Buer et aL 2004. SP-G2 Effects of Project Operations on Geomorphic Processes Downstream of
Oroville Dam. Task 1.2-Physiographic Setting and Mesohabitat. CD WR Oroville Relicensing report.
fhtt : www.water.ca. ov orovillerelicensin w -reports EWG 050420a. m
9
DWT 13179152v1 0055802-000001
Attachment B
Factors Affecting Fish Survival and Passage on the Feather River in the Oroville Area
Factors Affecting Fish SurvivaI and Passage on the Feather River in the Oroville Area
MINING
Mineral mining was a thriving industry on the Feather River beginning in the mid-19t" century.
As part of the Alternative Licensing Process conducted by the Department of Water Resources
regarding its application for a new FERC license in 2004,DWR outlined the history of mining in
"SP-G2: Effects of project Operations on Geomorphic Processes Downstream of Oroville Dam"
(see liup://www.water.ca.gov/orovillerelicensing/w. -reports EWG.cfin). The following is taken
from Chapter 6 of that report.
Mining in the Feather River watershed began in the mid- 1800s and continues today, although
on a smaller scale. Mineral resources include gold, copper,manganese, silver, chromite, lead,
limestone, sand, gravel, and rock. The first miners exploited placer gold deposits in stream
gravel. Gravel was dredged and sluiced using water and mercury to separate the gold. Between
the 1850s and 1890s, large amounts of sediment were washed into the stream system using high-
pressure water jets to erode older gold-bearing formations. High mercury levels in the sediment
and in fish are a result of this early mining.
Hard rock mining also produced large quantities of pulverized tailings. Many of these tailings
now leach sulfides, which lower stream water pH. Sulfide contamination, by lowering pH, may
significantly harm fisheries.
Dredging for placer gold occurred over large areas of what is now the Oroville Wildlife area.
Windrows of gravel still remain although considerable gravel has been harvested for the
construction of Oroville Dam and appurtenant facilities. Commercial gravel mining is also
occurring in the area.
Hydraulic Mining
Hydraulic mining was invented by Edward Matteson, who arranged to have water delivered
above his claim, and then used water under pressure to wash gold bearing gravels from the
hillside into his sluice box. The process was so revolutionary that a miner could do the work in a
single day that would normally take many months. The idea spread rapidly, with larger and
larger nozzles washing away entire hillsides of clay, silt, sand, and gravel.
In the early 1850's,mining began around the City of Oroville. In the early years, small hydraulic
mines cropped up on both sides of the river. In the later 1850's, ditches provided abundant water
to the miners, resulting in a spurt of economic activity. Ditches to drain effluent from the mines
located in the bluffs behind the town were cut through the city's streets to the river. A plume of
hydraulic ruining debris discharged into the Feather,producing a long island in front of town. On
the north side at Thompson Flat, a new drainage tunnel was completed in 1864. In 1866, a new
supply ditch gave the miners far more water, resulting in large increase in debris being washed
into the river. Hydraulic mining first caused an initial surge of fine sediment into the channels.
Transport downstream in the Feather River fin-ther differentiated the sediment sizes, with a
predominance of gravel, sand, and silt in the upper reaches and silt and clay in the downstream
reaches. Later, coarser gold bearing deposits were mined, resulting in a large influx of boulders,
cobbles and gravel with some fines. Most of this material deposited in the canyons, in the upper
1
river channels, and where the river entered the valley near Oroville. This explains the large
volume of cobbles and gravel deposited in the Oroville wildlife area.
In the late 1860s,the pace of mining again stepped up. More powerful equipment was purchased.
Bigger drainage ditches and larger nozzles were installed. Increasing amounts of debris were
dumped into the river. At the head of Morris Ravine, a few miles upriver from Oroville,the
colossal Hendricks mine opened up in 1870. The large monitors hurled tons of water on the
mountainside,melting the earth away. Even bedrock was torn up and thrown in the air. The
water and debris streaming out of the mine was caught up by a sluice box four feet wide and a
mile long, discharging directly into the Feather River.
Streams of sand, gravel, and mud from the mines flowed together into the Feather to bury the
stream under an immense moving deposit of debris reaching depths of more than 100 feet.
During winter storms,these deposits would mobilize, and a wall of mud and gravel would roar
down the canyon. The Feather was choked in sediment, burying vegetation, destroying pools and
riffles, and killing fish.
The gravel and cobbles washed out of the canyon and deposited in what is now the Oroville
Wildlife Area. The finer sand, silt, and clay deposited farther downstream, choking the Feather
and the Sacramento Rivers. Navigation in the Sacramento River became a problem as early as
1856, three years after the tentative start of hydraulic mining in the canyons above. With much of
the Feather, and its tributaries the Yuba and Bear Rivers choked with mining debris, flooding
became a serious problem. A series of floods during the 1860's spread water and mud over much
of the valley.
The enormous flood of winter 1861-62 spread devastation throughout the entire Sacramento
Valley. Cattle died in great numbers, city business and residential districts were buried deep in
water, and people were swept away to their deaths. During the flood, a large part of the tailings
piling up in the Feather's upper reaches were washed down to settle on the valley floodplains to
depths of seven feet or more (Kelley 1989).
State engineer William.Hammond Hall wrote in 1880 that the deep river canyons in the
mountains through which flowed the American,the Bear, and the Yuba were choked by
immense deposits of mining debris which in some places were a hundred feet deep. For forty
miles downstream from Oroville, with its cluster of large mining operations,the Feather's
channel on the valley floor was also filled in. Altogether, some 684 million cubic yards of gravel
had been mined on the Yuba, 100 million on the Feather, and 254 million on the Bear. All of this
debris flowed into the lower Feather.
Dumping of hydraulic mining debris directly into the stream system virtually ceased in 1884
with the Sawyer Decision. The decision prohibited the direct dumping of debris into a river
system, requiring catchments and dams to hold the debris.
The decline in hydraulic mining in the upper watershed occurred at the same time that gold
dredging increased in the lower river basin. Large gold dredging operations occurred where the
Feather, Yuba, and Bear Rivers entered the valley floor. Dredge tailings are still visible in large
areas of the Oroville Wildlife Area on the Feather and near Parks Bar on the Yuba.
2
The scars of the hydraulic mines can still be seen around the town of Oroville. The famous
Hendricks mine lies just north of Oroville Dam, and other mines in the North Fork were later
buried under the waters of Lake Oroville.
Surveys done by U.S. Army Engineers showed depths of mining debris in 1880 and 1891. The
depth of mining debris in the lower Yuba River decreased downstream from about 125 feet near
Smartville,to 35 feet at the edge of the valley foothills,to about 20 feet near Marysville. Similar
profiles were surveyed on the Bear that showed channel aggradation of about 150 feet about 12
miles from the mouth, to about 20 feet near the mouth.
Examination and mapping revealed that a total of 39,000 acres, or about 60 square miles of lower
Feather River farmlands were buried under hydraulic mining debris.
Surveys made on the Sacramento River near Sacramento in 1854 by the City Surveyor and again
in 1880 by the State Engineer reveal a maximum filling of 30 feet and an average filling of 15.2
feet. Infilling in the Feather River was probably considerably more than this.
The channel degradation process began immediately after the end of the mining. In the steep
canyons of the upper Feather, the deposits were washed downstream, leaving only a few high
terrace remnants. In lower gradient valleys in the upper watershed, evidence of the massive
dumping of mining debris is still evident in remnant terrace deposits flanking both sides of the.
valley. The terraces formed as the creeks and rivers incised the mining debris. Remnant terraces
over one hundred feet above the present channels attest to the vast amount of debris that was
flushed into the stream system.
The Yuba River joins the Feather about 20 miles above the confluence with the Sacramento
River. The Yuba suffered the greatest 'impact from hydraulic mining because of the widespread
deposits of gold - bearing gravel in its upper watershed.
In 1879 it was estimated that the canyons of the Yuba River contained over 25 million cubic
yards of debris. Ten years later the estimate was about 6 million cubic yards, and by 1908,the
deposit was nearly. gone. While some of this gravel was removed by gravel operations,much of
it was washed downstream to the mouth of the canyon where the Yuba enters the valley. This
demonstrates that the main channel of the upper river system probably cleared a substantial
amount of sediment relatively quickly, and returned to pre-mining stream geomorphology.
Over time, the finer mining debris moved as a "wave" slowly down the Feather, into the
Sacramento River,past Sacramento, and into the Delta. Adler (1980) studied degradation of
hydraulic mine debris in the lower Yuba River. The rate of incision was greatest between 1906
and 1912 (1.1 foot per year) and decreased to 0.21 foot per year between 1912 and 1979. In
many places the Yuba has recovered to its original streambed elevation, and has eroded below it
in others.
Ninety percent of the debris still remains as a virtually permanent deposit. This'is the cobbles,
gravel, sand, silt, and clay deposited on the banks and floodplain. Between Oroville and Gridley,
much of the river is incised into cobble and gravel mining debris. Between Gridley and Verona,
the fine grained slickens in most places still constitute the lower part of the channel banks.
3
Impacts of Hydraulic Mining
Hydraulic mining in the study area started in 1853 in the mountain canyons east of Oroville. By
1895, when for the most part,hydraulic mining ceased, an incredible 1.2 billion tons of sediment
had been washed into the Sacramento Valley. This sediment washed down the canyons,
obliterating fish habitat,burying spawning gravel, and sterilizing the stream system. Much of the
sediment washed out into the valley, depositing in the channel and driving much of the
floodwater out into cities and over the valley farmland. Mendell (187 5) records and describes
this process:
"The ... physical condition of the Feather River is something wonderful,when we know that
in 1849 it was the counterpart of the present Sacramento in all respects,namely, a succession
of deep pools, separated from each other by shallow bars, the water being remarkably clear.
At present day, all the pools along the Feather River have been filled up with washings from
hydraulic mines, and changed into broad flats, covered with a sheet of water densely charged
with sediment,and often barely 2 feet in depth,the only deep water being where the channel
is contracted to 300 feet or less. An idea of the extent to which this filling has taken place can
be appreciated when I state that the bottom of the river today is ... level with the tule-lauds
enclosed by the levees. These same pools in 1849 contained fully 30 feet of water where now
there is scant 2 feet, and the bars have also been covered with sand so as no longer to be
seen."
Dredging and Gravel Mining
After hydraulic mining decreased, following an injunction in 1884 and regulation in 1893,the
Feather River began to redevelop equilibrium between strearnflow, channel shape, and sediment
transport. This trend was interrupted by dredge mining operations between 1905 and 1952,
mostly in the Oroville Wildlife Area, and on the lower Yuba River.
Dredging consists of mining gravel deposits. First, a large pond is constructed in the gravel. A
floating dredge is brought in that processes the gravel using buckets and conveyor belts. The
dredge works its way across the floodplain by mining the gold -bearing gravel on one side of the
pond and depositing the tailings in windrows on the other side. Dredging affects the river by
disrupting the floodplain, moving the river channel, and discharging sediment to the river.
Dredging does not change the amount of sediment, but it disrupts the layering, changes the
surface topography, and moves the coarse cobbly bottom material to the top of the tailing pile.
Much has been written.regarding the effect of gravel mining on stream morphology. Only a short
description of these effects is given here.
Gravel mining first and foremost removes bed material from the stream bed. This affects the
amount of gravel in the river and the amount available for transport. Gravel mining changes the
depth,width, gradient, bedload, stream velocities, grain size distribution, and other hydraulic
parameters.
Gravel mining pits located in the channel capture bedload,thereby stopping gravel replenishment
on riffles below. Pits change the river gradient,typically causing bed erosion both upstream and
4
downstream. Pits constructed off channel are sometimes "captured" by the stream. This occurs
mostly during floods, and results in changes in location of the stream bed, gradient,bed material,
and habitat.
Instream gravel mining appears to have affected the Feather River mostly in an area between
River Miles 56 and 64. Much of this activity has been offstream, including mining the floodplain
and dredger tailings, and excavating pits.
Inspection of aerial photographs in this area suggests that some channel migration has occurred
as a result of the mining. This has occurred because of accidental pit capture and stream
diversion.
Gravel mining activity is still occurring today. However, it appears that the activity has been
isolated from the main channel by levees, and no mining appears to be presently occurring in the
active stream channel.
DAM BLOCKAGE
Prior to construction of Oroville Dain, there were two diversion dams in the Oroville area.
Those darns diverted water for irrigation of rice fields—an activity that continues today. As part
of the water rights proceedings, DWR agreed to provide water to the farmers out of the
Thermalito Afterbay and the flash dams were removed as a result.
Sutter-Butte Dam. The Butte Creek Watershed Society has described the history of Sutter-Butte
Canal OLttp:/fbuttecreekwatershed.org/Watershed/ECR 08 Historic Use. d :
"In 1990 two men, Duncan McCallum and Thomas Fleming, became partners and
constructed an irrigation canal to better supply the Gridley and Biggs areas. In 1905 they
secured enough support around the Gridley area to begin construction of a canal. On June 9,
1905, Butte County Canal was completed. It was 14 miles long, 30 feet wide and cost
$200,000 (McGee 1980). The canal, which later became known as Sutter-Butte canal, led to
increased land values around Gridley and many new people moved to the area."
The Sutter-Butte Canal required a diversion dam for its operation (Figure 1). Photographs of the
dam Figure 2) indicate that it is a"flash dam"that would be erected at the beginning of the rice-
growing season and removed at the end of the season. Dam construction incorporated a fish
ladder that used a staircase design without submerged entrance orifices and relatively-short pool
length and shallow depth between steps.
There is no record of the dam operations, but in 2005,rice planting in Feather River Service
Area started in early May (Mutters, January 2006). DWR records
(http://www_water.ca.gov/sn/operationscontroI/projectwide.cf n) show that deliveries to the
rice fields to prepare them for planting began on April 20. Had the flash darns been required to
divert water(in lieu of deliveries from the Thermalito Afterbay), installation of the flash boards
would have occurred about two weeks earlier(Randy Davis, Anderson-Cottonwood Irrigation
District, 2006).
5
t
Western Canal Dam. The Butte Creek Watershed Society also described the history of Sutter-
Butte Canal:
"McCallum and two new partners continued to push the advancement of irrigation by
securing water rights and a right of way off Hamlin Slough in 1908. They began surveying
the area but no work was ever done. The rights were then passed to a financial group in San
Francisco,who sold it to the Great Western Power Company. Great Western went on to
organize a subsidiary company known as the Western Canal Company. In 1915, the first
section of the Western Canal was completed and in May of that year the Feather River was
diverted into the canal to irrigate 20,000 acres of rice and 10,000 acres of fruit orchards
(McGee, 1980). The general layout of the present canal was finished by 1917,with the
siphons under Cottonwood and Dry Creeks and the dams on Butte Creek being completed. In
1930, PG&E bought the Great Western Power Company with the canal as part of the
transaction(McGie[sic], 1982). Since then, other modifications have been made as demands
for water for rice have increased. In the late 1980's the system was purchased from PG&E
and was formed into the Western Canal Water District(WCWD)."
The Sutter-Butte Canal required a diversion dam for its operation(Figure 1). Participants in the
Oroville Alternative Licensing Process described the dam as having created a sufficiently-large
pool that water skiing became a favorite pastime upstream of the dam. Information in DWR's
"SP-G2—Task 3 Report—Appendix A" (plate 39; see
Litt ://www.water.ca. ov/orovillerelicensin docs/w stud re orfs and docs/EWG/040930/09-
01-04 g2t3 Lipp a plate39. df) suggests that the difference in elevation between the top of the
dam and the downstream water surface was at least 6 feet. It's not known whether the dam
included operation of a fish ladder. Timing of dam operations was likely the same as the Sutter-
Butte Dam.
Flows. The news article in Figure 3 (dated June 14, 1924) reported that Lake Almanor on the
North Fork of the Feather River releases would only support river flows of 480 cubic feet per
second(cfs) during the growing season in the vicinity of the diversion darns and that the Western
Canal Dam diversions were 250-350 cfs. Those operations would limit the amount of water that
could be diverted by the Sutter-Butte Dam and cause 3-foot fluctuations in Sutter-Butte Canal
levels. A review of June, July and August flows in 1924 based on DWR's 1962 application to
FERC for its license under the Federal Power Act(p. 178) that flows in the Feather River
upstream of the diversion dams during June,July and August 1924 were not abnormal. This
paints a clear picture that flows for fish in the Feather River downstream of the diversion dams
were challenged prior to DWR's construction of Oroville Dam.
WATER TEMPERATURE
Construction of Oroville Darn provided for withdrawal of water from various levels of the
reservoir. DWR's commitment to cold-water deliveries to benefit salmon and steelhead trout
have resulted in river temperatures that are reliably colder than existed in the Oroville area prior
to construction of Oroville Dam (see Figure 4) and far more conducive to success of sturgeon
survival in the Feather River.
6
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Figure 3. June 24, 1924 News Article
With- and Without-Project Source Water Temperature in the
Feather River at Oroville
75
70
L 65
- -
Y
60 _-
m ,
55
50
5/1 5/11 5/29 5131 6/10 6120 6130 7110 7120 7130
Date
Oroville Without-Project 9955-1963 —Oroville With-Project 1994-2005
Figure 4. Comparison of Water Temperatures Pre- and Post-Oroville Dam