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National Marine Fisheries Service's reponse to the Final Habitat Expansion Plan submitted by the California Department of Water Resources and PG&E in Nov. 2010
UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration NATIONAL MARINE FISHERIES SERVICE WEST COAST REGION 650 Capitol Mall, Suite 5-100 Sacramento, California 95814-4706 January 28, 2014 to response refer to: WP:WCR:FERC P-2100/P-2105/P-2107tP-1962 BGUVRD QF$UPERVI$E>Fj& Kimberly D. Bosc, Secretary Federal Energy Regulatory Commission IAN 3 0 2014 888 First Street, NE OROVILLE, CALIfORNIq Washington, D.C. 20426 Re: NOAA's National Marine Fisheries Service files to the Administrative Records of the Feather River Projects (P-2100; P-2105; P-2107; and P-1962): "Response to the Final Habitat Expansion Plan submitted by the California Department of Water Resources and Pacific Gus and Electric Company in November 2010." Dear Secretary Bose: The U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service (NMFS) hereby a-files in Enclosure A "NMFS' Response to the Final Habitat Expansion Plan submitted by the California Department of Water Resources and Pacific Gas and Electric Company in November 2010," dated January 9, 2014, to the Administrative Records of the Feather River Projects (P-2100; P-2105; P-2107; and P-1962). If you have questions about NMFS' response, please contact me, at 707-575-6052. Sincerely, ~~~.. Steve Edmondson FERC Hydropower Branch Supervisor California Central Valley Area Office Enclosures ~ __, cc: / ~12Z'~Service Lists (P-2100; P-2105; P-2107; and P-1962). sF"o `' a~"~ ~~ r j ~ r ~Gt~c.vt,~~~ CG~~,~.~~~~ Enclosure A UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION FERC "Feather River Projects" California Department of Water Resources ) P-2100 and AND Pacific Gas and Electric Company ) P-2105; P-2107; and P-1962 Feather River/ NF Feather River NOAA'S NATIONAL MARINE FISHERIES SERVICE'S RESPONSE TO LICENSEES' HABITAT EXPANSION AGREEMENT'S HABITAT EXPANSION PLAN (NOVEMBER 2010) E-Filed Document "NMFS' Response to the Final Habitat Expansion Plan submitted by the California Department of YYater Resources and Pack Gas and Electric Company in November 2010," dated January 9, 2014. Enclosure B UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION FERC "Feather River Projects" ) California Department of Water Resources ) P-2100 and AND Pacific Gas and Electric Company ) P-2105; P-2107; and P-1962 Feather River / NF Feather River CERTIFICATE OF SERVICE I hereby certify that I have this day served, by first class mail or electronic mail, a letter to Secretary Bose of the Federal Energy Regulatory Commission, the U.S. Department of Commerce's, National Oceanic and Atmospheric Administration's, National Marine Fisheries Service's "NMFS' Response to the Final Habitat Expansion Plan submitted by the California Department of Water Resources and Pacific Gas and Electric Company in November 2010" (dated January 9, 2014), for the above-captioned proceedings, and this Certificate of Service upon each person designated on the official service lists compiled by the Commission in the above-captioned proceedings. Dated this 28th day of January 2014 ~: , ,§ CG,~ C.--"" ~G~ William E. Foster National Marine Fisheries Service a''"~ «`'~ UNITED STATES DEPARMENT OF COMMERCE a~ c National Oceanic and Atmospheric Administration NATIONAL MARINE FISHERIES SERVICE ~~ ' ~ ~ West Coast Region ~""O' 650 Capitol Mail, Suite 5-100 Sacramento, CA 951114-4700 January 9, 2014 in response refer to: WCR FERC P-2100 HEA/HEP Director Hydro Licensing, Power Generation Pacific Gas and Electric Company P.O. Box 770000 San Francisco, California 94177 Chief, Division of Environmental Generation Department of Water Resources P.O. Box 942836 Sacramento, Califomia '94236 Subject: Response of NOAA's National Marine Fisheries Service to the Final Habitat Expansion Plan submitted by the California Departrrtent of Water Resources and Pacific Gas and Electric Company in November 2010. Dear Licensees: Thank you for providing NGAA's National Marine Fisheries Service (NMFS) with your Final Habitat Expansion Plan (HEP 2010). The California Department of Water Resources and Pacific Gas and Electric Company (Licensees) prepared and submitted dte EiEP (2410) to NMFS for approval in November 2010. Pursuant to the Amended Habitat Expansion Agreement for Central Talley Springltun Chinook Salmon and California Central Palley Steelhead, March 2011 (Amended HEA), and subject to additional procedures desciibe<i in Amended HEA (2011) Sections 4.2.5 through 4,2.7, NMFS provides in Enclosure A its comments and determinations regarding how the. habitat expansion actions recommended in the HEP (2010) do not meet the following NMFS Approval Criteria in Amended HEA (2011) Section 4.2.3: (a) estimated to meet the Habitat Expansion Threshold; (b) assures necessary testing, operation and maintenance; (e) supports establishing a geographically separate, self sustafningpopulation of Spring-run; and (d) supports segregating spring-run habitatfmm Central Yalleyfall--run Chnooksalmon. m a~NVU~ In addition, NMFS outlines the next steps. pertaining. to the HEP (2010) pursuant to the Amended HEA (2011). If you have questions about NMFS' response, please contact Steve Edmondson, at 707-573-6052. Sincerely, L ~~ ~ ~ ~(~~ l ~~~~)'L~-. William W. Stelle, 7r. Regional Administrator Bnelosure cc: HEA Signatory Parties Enclosure A Response of NOAA's National Marine Fisheries Service to the Final Habitat Expansion Plan. submitted by The California I>eparfraent o#' Water Resources ,and The Pacific Gas and Electric Company X0 Introduction Putsuaut to theAmended Hat~i2nt Expansion Agrsement,fflr Centro! J~alley Spring-Run. Ghtnaok Salmon and California Central Palley Steelhead. Maroh 201 ] (Amended HEA 2011),. iVOAA's National Nlatine Fisheries Service (NMFS) provides. its deterrttination on whether the habitat expansion actions recotnmendt:d in the Final Habitat~xpansion Plan (HEP 2010) submitted by the California Department of WaterResources and PacificGas and Electric Company (Licensees) meet the NMFS Approval Criteria in Amended HEA (2011) Section 4.2.3, This determination is subject to additlonal.pmcedures described irl Amended HEA (2011). Sections 4.2,5 through:4,2.7. ?'he Amended HEA (2011) relates to iwo:anadromous fish species; the evolutionarily significant unit (ESU) ofCentral Valley (CV) springntun Chinooksalmon (Dncorhvneltus tshaivytscha) (70 FR 37160, June'28, 2005; 70 FR 5248$, September 2, 2005) and the distinct population segment of California CV steelhead (O. mykiss) (7i FR 834, January 5, 2006; 70 F'R 52488, September 2, 2005).[ 13otli ofthese species arelisted as threatenedand have critical habitat designated under the Endangered Species Act. In addition, the Amended HIsA (2011) refers to the ESU :of CV fall-/late fall-run ("fall-run") Chinook salmon, NMFS "Amended HEA (2Ql l) Section 1.1 prpvides, in relevant part, "'spring-run" s6at1'mean Centro] Valley spring-ruin Chinook salmon (O.1sAtnt~t~rscha)." ]n addition, this section provides, in relevant par[, "steelhead" shay mtian California CeAtrat Valley steelhead (O. mpldss) "" ]n this response, "spripg«nuf' Hnt] `"steelhead"have mea~gs consistent with,AnxendedA>/A (2011) Section l.l. ittcludes the ESU of fall run Chinook salmon on its Species "tfConeera List {71 Flt b1022, fpctoher 17 2404). 2,0 Background and lieview History of Habitat Expautslbn Plan... The Licensees issued a Dra#t.Haliitat.Expansion Plan in Z~ovember 2009 [Draftt ITEP 2049). pursuant to the hTabzta#,,Expans~on:rlgrePnaent fog ~twentral T~crtday 3prtng-Run Gkino©k Scilmun' and California Central T'~r11ey Steeiliead (HEA 2407). In February 2dld, Ni14F"~ proviiied: extensive'wtitten i`ev%e'w comments to the'Licensees on the Draft HEP (2009) {N1~3$'S 201da}, NIvIFS also provided t~ecommendations fot moving,toward a s~ceessful esolutionof its concsrns with the Draft `HEP (2099) noting signi&carit areas of eoncs;rn that lied to be reconciled before the Draft IEP (2049) could be gpproued under the requirements of the:l~lEA X2007). The .Licensees tb¢n requested a sib-nsonti~ tune extension to submit the HF,I' to idMF~ ;for appro~+al. NIv,IPS {3A10b) grantei the request stating, In November 2410, the Licensees submitted theHBP ~Z01A) to NMFS for approval pursuant to. the HEM (2407). The HEP (2010) recommends the following three att~ions to meet the; reyuirr~-ents 9fthe t {2047), collectively referred to as "the LowerYuba River Aekions„ Expansion ©f spawning habitat at Narrows Gateway in Yhe:lYarrows.Raaeh below the Deer Creeds eonfluence,;and 2 • The option ofplanningfor--and installing a scesonally operated segre$atibn weir on the 5 Riverbelow the outlet aF the Narrows.Poal to segregate spring-ran and fall-nSn Ghinoalt salmon, if deemed necessary by file resourceagencies. From la#e 2014 to early 2011, the parties considered vanivus issues concerniiug consistency between the:Federal Energy,Regulatory Czammission's {FERC) orovilie Project (P-2100j Settlement Agreement, the HEAlHEP prueess, and the development ofthe State Water Resources Control Board's Glean Water Act Section 40i Water Quality Certification for the P- 2140 project. m March of 20:1;1, they a reache3 a resolution of these differences that was inaorated in the Amended IEA, (Amended HEA 201 i), 1?rom late 2010 through early 2012, NMFS received additional reports and reviews from interested parties, hx particular,lQMFS received reports submitted by I)r. Gregory Pasternack, working in a wslsulting capacity for the licensees {Pastemack 2010a; 24i 0c). Ur. Pasternack's reports were extensively cited -and relied upon in the final TiEP {2910). 'To assist in analyzing Dr. Pasternack's reports, NMFS hired Dr. Carl Mesick, an expert on Central Valley Chinook.. habitat restgration and life history, to provide an independent review (Ivlesick 2010). In addition, NMFS Hydranlic Engineer, Dr. David Crowder, prepared a separate review and analysis (CCrawder 20l Z). Dr Pastemack, subsequently responded to these reviews, providing additgnal clarification {Pasternaclc 2412j. In late Febnrary 2{112, pursuant to Section 4.2:2 4f the Amended Hl~A (2011, NMFS initiated the 60-day agnsultatia~tt petiod with aU Parties, the State Water Renounces Control Boazd and directly at3'ected and responsive third parties, in which IVh%IFS is required to "glue due corsideratlcn to any comment received, ""speci,(ically address any comment by rt Party or ether commenter alleging the habttat expansion action(s) recommended by the ~ieensees are Existing Requirements and Commitments,"and consult with USFWS and CDFG "to consider the 3 recommended habitat expanston acttpn(~)' pgtt<ntiAt ben~,J3Ys and fmpacts ©n restdent,~ish ot~tlae location Q~the acttons~s);" By 7n1~ 2012, I+TMF~ had received comments firm the L~easees, stakeholders, and responsive parties (inelrnding three landowners along the 1p~i+et Yuba River), l~Cl~'S also c#nsulted with the US-Fish amd VVilQlil`e ~e4rvice (i?`S~) and the Caiifoznia Department of Fish and Wildlife (CDFW, formerly known as the t.alifotxua I3eperhnerit ofltish-and Game) in late Februa~~012. Regarding the question of potential impacts to zesident: the U~1~~S did not expt~ss conceras,or provide written aotnments on fhe effects of the prapnsed 13EP 1201 ~) on resident fish (see Amended TEA fie~tion 4.2:2). The CDIi iTV provided or~l'feedback~ 1lutdid nQt provide ang+ written comments on the liEl' X2010).. Regarding the question of whether actions contemplated`iu-der the 73EP represent existing.: requirements and commiknents the USFV~S commtmicated its written comments on the HEl' (2t1i0~ by letter dated rlptil 2~~ 2412 (USFW 2012), Among otherteclniisal and scientific issues, USFWS raised ~ concern regarding whether t3te habitat expansion action(s) recommended by the Licensees arc I~cistingltequiremerlts end Commitments. The i7~~'WS ~2t)12j ~nciucledi "The proposed actions, 4chit>ve the i3.goal n is oat consistent with the H~1, because it:• iii overestimates c~ntii$crtion t 2) x7ves not have adequate testiieg; rrperutiorx, rand mdifttenaneer,~3) ik' not' ittribute to a separate, se~~uptrrininb'FQX~%tinn o,~',spting-run,•'(~f~ presents:a a acCion thkt is Yimited iii scope; ouerly constraYner~ a~tY +nay,prlt undue ,: tp.8~, A `i7-e Licensees requested and iVMFS 8greed to a tneet%ag, which was held on October 13, 2012, to:address specific technical questions about the HEP 1201.0) vis-~-vis the requirements.of t1te l1EA. Based on the outcome fromthat meeting,. and in anticipation of a secs?pd meeting proposed by the Licensees to focus on eligibility issues, NMFS staff c'otttinued tq evaluate the IEP (2010) from October 2012 to May 2Q13. ht lvlay 201 ~, the Licensees withdtew then request for a second,meeting focusing an eligibility issues.. Accordingly, NMFS now communicates its determinations regarding vVhether the HEP (2010) meets the I*T1v1T#S Approval Ctteria in Amended IEA {21)11) Sectiond.2;3. 3.0 tlpplicption of NMFS' Approval Griteris,.,Amended HEA (2p~]) Sectiian A.2.3, to tihe HEP (2010) This secrian focuses on NivTp5' Approval Criteria listed in Amended HEA (2D1 i) Section 4.2.x, which states: "In determining whetherto approve the b'inad Habitat Expansion Platt,ld~Ylk'Sshall review informatton submitted bytheZicensees, comments by otherl+arties and directly affected rind responsive third parties.. and any other relevant information, and,consider the extent. to wlsich the habitat'expansion action(s) recommended in the Plax meet the fallowing Approval Criterirtr (a) estimated to meet the Habitat Expansion 14eresholil: (b) assures necessary testing, operation and' mafrttenance (cJ .supports establishing a geographically separate, self-strstairting population of Spring- run, (d) supports segregatingspringrunliabitatfromCentrnl,F'alleyfutd-runChno®ksalmc!rs: (e) meets the requirements for eligible habitat expansion actiox(s) pursuant to SecYitrn 3 of this Agreement, and (~ expected to be implemented within a reaspnable period of tune: " 5 3;X Approval+Ct~teria:(a);~estlmatedtomeet?he,lfab3tatF.,~pans~tQnTh~shold~' The amended HEA Section 1.1 defines "Sabstat E,~cpanslon ?7treshold as "the expanxinn of spawning, fearing and adult holding habitat as xetforth in section 3 ~ df this ~greemenr." Section 2.2: rlescribesfhe habitat Expansion Threshold (~1E1`j as 1aAows, "The specs; fle goal ofti#ie agreement is to expand spawning, rearing and adult'holdtng habitat sufficiently to actwmmodate an esarnated net increase ofi,4©4 to 3,04©Spring-run for spawning ~ f3`abitat.l~xpanxion Threshold') 3M the Sacramento River Basin, as cOmpgred" to the hab#at available under any reiievant Fars[i~tg 3tequirements or Cosenritments. ?7te Habitat Expansion Threshold is focused on Spring--run as the priority species; as e~patrsivn of habitat for spring-r+trs typically accommodates steelhedd ax well:." [empitasls added]. In malcingts determination antler this approval ptiterion, Mullis nptes'seueral pciints regarding elements of Amended HF.A (Zb 1}Section 2.2, which are emphasized in bold above, The specific goal is tp expand three types of habitats, i.e. adult spawning; adult holding, and juvenile nearing. This is supported by the definition of "Habitat l~xpaasipn Z'hreslipld" in Amended HEA (201-Ij Section 1.1 ~('rHabitaitF„~pansion 7'hresltold shall t~iean the e~punsion o, fspaWning; rearing and adult iwlding habitat as xet forth in Bection 2.Z of thix Agreement."'j, howevei the 13EP ~L010} dace not+elaborateontbe $ttiibutespfadult`holdingpools<cttverl~abitat, prau~+ additional juvenile rearing habitat that will be provided duringthe creation of spawning habitat: lVlesick {2tllbj notes that most successful restoraticsn projects that were highly used by thitiook salmon spawners had natural refugia, such. as pools at least four feet dace, surface: turbulence; shade, and/ttt large vopdy debts far cover in the vicinity of the spawning beds. Itt addition, ito details were'provided regarding juvenile rearing hatntat ~p 2010). 1\2csicdc (~1 U} atlid L15FWS {2(1.12} both tlotethat-the proposed design is very vague as to habi#at details (ether than. aPa'g !'~~)_ ~, In addition, the specific goal of the H8A calls fox a habitat expansion action sufficientto meet or exceed theaumerical threshold; i.e.-"..an estimated net increase of 2;1700 ro 3,000' sgririg-rt~n for spawning.., " [emphasis added], In othex wards, the numerical standard of the HET refers>to the adult spring-run estimated t9 return tc> spawn {"escapement") where they were pxodnced as the result ofhabitat;expansion action(s). This is r~nsistentwith the-lung-standing pradi+ce ofineasurng salmon abundance trends bymonitoring the annual adult escapement tq a river. It also implies that the habitat action must ittvoive a stream where sutlycient adult holding and reariug habitat din addition to spawning habitat) can be (1') successfully restored to. accommodate the addton of the HET, nr (2) shown to intrinsically exist (in a ciutentiy unoccupied stream) over and above the existing sxnditi+cns accessible toboth species. This specific goal provides for establishing an existing or baseline condition; againstwhich the "estimated net increase" due t,c> habitat expansion is compared. The.existing or baseline. condition consists of, among other things, any relevant t$xisting Requirements or Commitments= as described in Amended HEA{2011) Section 9.~ (see discussion below at Section 2.5). Furthermore, in order for there: to be an:increase of 2,000-9,000 spring-n1m for epawning, t#iere must be sufficient habitat for these spawning fish to complete their entire life~cycle from egg to adult. Simpiy adding enough physical habitat to accommodate 2,000-3;000 fish For,spawiung does not gaarantee that there is sutfieieatholding and rearing habitat tosoeommodate this: increase. Wfrile habitat conditions in the ocean anti estuarine phase of the salmonid life cycle were considered beyond the scope of this agreement, incorporaiing three kinds of fresh water habitat -adult spawning, adultholding, and juvenr~e rearing-were specifically articulated in the constructionofthe HEA's goal statement:. '1 The USPWS (291;0 notes that the Yuba River spring~n.populatior has.low abundance, low: prvductivity> and limited spatial shueture,-and tha"t only al~nttt niuepereent of the ~hinovk sahnon'that spawned in the lower Yuba River originated from, there (cittag Batnetw7ohnson et al 2071}, Tiac IJSFWS (2912} slap notes that the Yuba Rivet population z~f spring--.ram is a population sink for other nearby spzing-roan pcapulatons (criting Schick dnd T.indlcy 2(~7} and as afiFectedbyadditlone?:limitingfactars that the;H~P (?,919} docsnot vonsidcr, These additional limiting factors include poor juvenilc tearing and outmigrarion conditions due.to ctintrainmetit, predation, low prey availability, inadequate stream:covea, limited sbadetl riverine,habitat,'and poor connection tp the fioodplan. 'The USFVVS (2(112) notes that altii©ugh the H$P (2910). contains a dscussionuf limiting.factors amore robust list Gait now be compiled using recexit doepmea-ts such as the NMFS' 2911 status revievus for sp~g-run (1+-iMFS 2011 a);ztud steelhead (IVMFS 20l lb) and 1+TI~+IFS (20i2aj:. llSFWS (2012} also notes additional.lmiting factors eacpeeted to oceltr in the future that could impact spring-run and the success of the habitat expansion actions trcotzamenried in the IEP (2010}. These future limiting factors include increased-water diversions from. the Yuba.. l~~r, glabal warming and uacreasingly variable rlimativ conditions, and increased' anthropogcnc urbani?ation and.growth {LISFWS 2012, p. 6},- The combi~don of all limitttg Mors - including these additional limiting facxora trot considered itt the li}?P (2019j - results in substantial: uncertainty and-casts ;significant doubt on whether the Licensees' estmate.ofthe Lower "Tuba River Actions' contn'bution tct the Ii(BT' is adequately supported; The additional factors limitipg a•robust,spriog-run population have utt been asleq~asateety considered by the Licensees, patticulady with respect to holding and rearing habitat, l5 agrees with other reviewers thatthe final IEP (2910) does not, evaluate specific habitat attributes 8 of holding pools, cover habitat, or juvenile rearing habitat that will be provided during the creation of spawning habitat. 1n the October 2012 technical meetvng, the Licensees clarified that the HEP (2010) proposes #o "optimize" the existing mix of habitats within each restoration area by expanding spawning habitat (an action that would likely reduce existing pool habitats) and states that some undetermined amount of rearing habitat will naturally occur date to the nature of the restoration. NMF$ is concerned that an inordinate amount of focus in the HEP (2010) is dedicated to restoring spawning habitat, while not adequately considering the importance,. availability.(oriack thereof), and spatial ,proximity of other habitat types that sahnonids require. to successfully complete their life cycle, The HEP (2010, p. 3-10) acknowledges that juvenile rearing habitat may be an important limiting factor in the lower Yuba, ..yet the Plan does not propose to sufficiently improve or expand it. The HEP (2010), Appendices M and Z, present plans forestoring juvenile rearing, riparian, and tloodplain habitats,'but these are not included as part of the HEP's (2'010) recommendedhabitat expansion actions:; In addition, N1v1FS' disagrees. with the redd density values presented in the HEP (9A10), which are critical in calculating whether the actions meet the 14ET. The procedure for estimating redd densities describatl in Pasternack (2010a; 2010c) tapes the proposed total spawnahle area created (40,738 m2) and divides it by an estimateof redd size (11.1 m2) to achieve an estimate of 3,670 redds. 'This estimate assumes that an average r~ld sine (3.5 m~) has an equal unoccupied urea for a total redd density of :11.1 m~/redd in the Project area. ~"rlven ~e bnpottauce o#'these numbers to-the calculation ofthe HET, NMFS performed .additional review end research Lo assess this aspect more thoroughly. The result is that NlviFS.cannot fmd suf0cent scientific support, in the HEP or any of its supporting doazments, for the formula of determining thrionetical redd density by adding an equal unoccupied area tic redd size.. 9 There is an important distinction between redd;s~ze, and resld densi In general, spring-rutt trhinook salmon redd density ~nieasured in terms of mZlredd) reflects the total amount of space between redds that is normally exhihited'by thepattem of atittlt spawners in a given stream. This spatial requirement includes not only thephysical dmensions:ofthe redds themselves, but also an envelope. of defensible space. that spawning adults generally exert while mating and protecting their territory, Thus, in additpn to accounting for the typical;,physical :dimensions of the redds themselves it is important to incorporate an accurate representation of the behavioral component efredd building -and defending - in a natural {non-hateharyl, riverine environment. FurthermAre, actual redd density can be-quite different from theoretical redd.density because .actual redd density is Bruited by river stage at particular river discharges. River stage can fluctuate considerably during the months of spawa~ng and egg incubation. At lower discharges, a significant amount of theoretical redcl space can beeomeunusable - by virtue o;Fthe fact that areas at the margins become ton shallow (or dewatered) when the water level decreases,, At higher discharges, redds can be damaged-or destroyed by thehydraulie energy imparted during.. flood flows. These stage~discharge factors are nqt azaalyzed bn<a site-specific basis in the formulafion ofthe HET calculation:. NIvIFS research identified a range of reported spring-run zetld sizes from 3,3 u~ - 9,5 m? {S'tillwater 2012, p. 39). 'The TIEP's (2010) chasensedd size of'S.5 m~ i`s within this range,.. Hower+er, it is the eomputation.ofredd densi {size ofredds end unoccupied area in a given. habitat unit) that lacks scientific support. DutSng the October ;1012 techncttl conference, Dr. 1'asternack cited Stillwater {2012) as suppprt for using Iris ehos€tt values. Although Stillwater {2fl 12) uses. S.$ m2 as a redd size, the redd density is'-much lower {i.e. higher mx/redd vatue) as only a maximum of 3,2°~° .of total habitat unit is `/usable"' as spawning habitat, with the test being. id unoccupied;(Stillwatec 2012,. p. F-3). IVIvIFS did trot lacate;sc%entific egidence-supporting adding an equal unoccupied area around each redd as an accurate calculation of redd densi . I~lo eitakions ar reasons for this chczice are provided in>Pastemack (2010a; 21l i 0c) ar in the I~EP .(201 D). During the October 2012 technical meeting; Dr, l'asternack did not explain whether this assumption; was derived from observed> values or Irv professional judgment. To date, NMFS has nol received any clarifying information from Dr. Pasternack-since the October 20Y 2 technical conference: NMFS finds many other observations that support a laver redd density {i.e. a higher mzlredd value). Pasternack 201Da (citing Pasternask 2U08) reports 322 redds ohserued irl 8.b4 hectares (86,d00 mz) ofriffle area (Table 2, p, l6) which equals a redd density of 2&8.32 m3Jredd, "While it is unlikely that all afthe riffle.areas used in these calculations have suitable depth, velocity, :and substrate spawning criteria; the calculations illustrate that in the most highly utilized spawning area on the'1'uba River, Chinook salmon are spawning at densities 2(I to 30 times tower than: the 11.1 trig/redd density -used 1n the H£7': As a second cheek; NMFS reviewed data collected t}oYrr aver three'years ofrrwnitoring to assess a similar gravel rehabilitation proj eft on the American River (Cramer Fish'~eiences. 2010). Tlie data reveal an average redd density of 9~. i m2/redd. Furthermore, observed redd densities reported in Pasternack-(201Oa; 20i0c) at'the Mokelumne River site (18:3 m~/redd) represent fall-run congregating below an mpassatiie barrier during a year of high escapement when hatchery operations N~ere changed to. allow a large percentage of fall-run to remain in the river to Spawn. The LJSF`WS (2012) notes two problems with the Licensees' use of data from the Molzelumne River.. First, the area in the Iviokelumne River from which'tlte.datawere derived has certain Ij favorable habitat cnndifions axed is :adjacent to a fud- hatchery khat is likely to,.be supplcanentang the mvubec of the wild fall-run spawners as a result:©fhatchery ~Il`tun production, bn contrast; the lower Yuba River area, where the Lieennsees .are reccam'meading haltitat ettpausiou actioltt~ iit the HEP (2010), does not have the same favorable habitat egnlitiotts anal is pat adjacent tta;a: hatchery weir. USF~ 0012} describes tliexelati~ely sli;P£~rent,habitat ecmditian~ betwe~nthe; Mokelumne and Yuba rivers asfollows;. "The selacted area on the Mols~lumrre River has a verdant reparian, edge, a hardwood. ripari~trz overstory good connection to the, jloodplain, fs {!,1 mile downstream A, j'the hatcheri? weft, and is adjacent to a fish hatcher}a . , .the lower Pubs River sites have depauperate' riparian edges, minimal and scrubby overstory, poor connection to xhe jioodplain, poor local reproduction to supplement the population, and'-are not adjacent to a hatchery weir." (IJSE~W~ 2012, A_t#)~ Second, USFWS (2012) ratites that the high fall-run returns to the Mokelumneltivec I3atchery in ZOUS urc expected to inner'ease crowding dowxrstream•of a hatchery weir, resulting in a bias in the caleulatetl mean cedd density. USFWS {2012) believes the FLEA {2010) oVerestimaCes the HET because`the HEP {2010) u~e~=an abpormally small. redd density Value; These haze also been many attempts to determine the theoretical redd densities:in a given Habitat area. '!'lteAretcal estimates afredl density tend to be Higher{i.e. smaller m?lredd value). than observed values because theoretical estimates usually assume optimal epnditions. Grgxes and Ghandlet (20D3j'vses.a theoretical %edil density Qf a5.8 miz/redd including wioccupied aka: ~e re~ut'ed a value to d~scpibe the area neededjo~' a,jemale.to Literature valuer were available Bret xnried considerably, 7p'to devQlopedforthissturly, d5.8m'per.redd, wascoris; the ~'olurnbla and Snake Rivers...'*`{p. 20);, The value. 12 . Jager:et al. (1997) uses a theoretical "average defended redd area°' of approximately 20 m?' which equates to four times the actual redd area, as cited is Butner. (195:1). Based on These cismparisons, NMFS cstncludes that the ii;i m~lredd density estimate.used in .the HFsP (2010) is not scientifically supported andthe 1$.3 m'~/nedd density estimate reported in Pastemack'(2010a; 2070c) at the Mokelumne River site is on the extreme loa°erend of observed- values. Using the 3-year average of observed redd density figm the American Ravel gravel rehabilitation project<df 93.1 m~/redd will yield an:estimated 43$ redds (40,73& m= / 93„ i m4) tit the proposed restoration area. t7sing a theoretical redd densitiy like the one used an Groves>and Chandler (2003) (4~5: mz/redd) yields an estimate pf 8$~ redly (40,738 m~ /45.8 ttt3) tit the proposed restoration area. Bruit estimates: are far fewer than the 3,670 redds estimated in Pasternack (20i0a, 2910c) and drastically reduce the `Yefereatce potential" abundanoe in the iTET calculation, if the observed redd densities in Timbuctoo Bend (as cited in Pastetnack 2008) are used by compansori, the projected number of r'edds-falls fiuttter below the HET threshold: Further, it? its comments on the:EiF<P (2070), the USFWS 02012) states: "The USF'WShas carefully reviewed.:the [HEP) estimated contribution to theT~7'artd finds the assumptions used #o make the calculations are riot based upon the most relevant seentiftc informdtion. The {HE'PJ uses fall-run.. Ghinoaltsalmon (lair run) spawning densities jfrom Mokelumne River data) as ~ metric, rather thaa the measured sprang-run resppn.Fe to gravel augmentation in the lower Yuba Raver; consequently, the [r~'PJ overestimates the potential HET contribution of the spax+ntt~g hubttat erthnncemeru irctiorr.s. " (t7SFWS 2(112, pp. 3-4). I3MFS agrees with the l7SF`WS that the I:censees should stave used observational data firm. the 'Yuba Raver,: e.g., &orn the ilSFW$° Anadromous Fish Restrsration Prr>gamn reports (YJSFVJS 2010) or the 1'nba Raver Management Team data, ar elsewhere, as a check on predictive estimates of spavr~ting;habitat accommodation. Using a more realistic redd density andiea#es 13 tkrera is insuff«ent expansion of even one type of habitat (Milt spawning) to a~mmodate an estsmated•net increase of 2,0f)Oto 3,Op0 spring-run for spawning: The I.-oensees' tuialysis of ltow the Lower Yuba River Acticns are estimated to meet the HET includes an area-taased $strs-ate of spavunable §ubslra#e ~z-d avemg~ redd densities foal-will accommodate a certain number of iish. "This area(fish numbers estim8te is lien reduced so account foc qualitatively described habitat limitations in fine HEP"s 0010) action area i? 201`0, p. 4-8 m 4 9 and Appendix-N). In:doing so, the Licensees assume a baseline habitat potential of200 spring run spawners in ttjie ITl3P's.~2010j.aeton area. l~lo e~tplanatiotts provided as to how thatbaseline number was derived.or what the proportions n#' fall~ittt and spring-ruts ~ou1d be (IMP 2UtU, p. #-$ and appendix 1~T, p. N-~). Norns therean ade~tsaate analysis ofthe potential unintended consequences that might result from furtHer supeampesidott ofredds, and segregation and fragmentation of habitats downstream of Englebrighi Darn, spectifically as it pertagis topopulations gffall--run t'hinook,.greeii stucgcon, steeihead/rainbow trout and other fillies that ufllize the,same tive~;.reacbes. LAMPS notes that the HEP's.(201q) ,proeedurrs to develop EiBT' results are extremely sensitive tofhe assumptions about "reference potential' input... I+rior tq tlu~ developsrient complex of I+tatrows T and TI hydroelectric facilities and F.~ebright Dam, -therein litfle`support fqr the:: "tefel'a~Ce:,#~tentael" eaq#iate af'3,b7A r~tds and ~',~40 spawning sdultsthe aalijeCt reach:. Pastemaek (ZOlOa; 20<l Oc) describes krausfcrmatiou of the paint bar3no~altology in,#he Etrglebright Dam Reach (EDR} at Sinoro Bar into expanded.spawning rifitie habitaf aiul 1 w2 adult, holding pools. Pasterrsack {201{la,.p:2~ cites the presence of"multiple gravel-bedded rifles" i historical photos from.-1909 aS evidence that "physical processes and morphologies" in the $DTt are.suitable to supper; sptimtg-ritt~ spawning Habitat; This argument is hawed because the 199 14. photos represent the "pre-dam.:era" when this reach was inundated. with. huge sediment loads transported downstream as a result of extensive hydraulic mining in the upper watershed. lilts wave of sediment overwhelmed the transport capacity of the River, prodycing alluvial features unlikely to exist under typical natural conditions, I*7NlF~ does not believe that these conditions are achievable andlor sustainable at the same magnitude as observed in the 1909 photo because of the unnatural nature of'sedinient transport conditions produced during the era of intensive hydraulic mining, coupled with the fact that flnglebright Dam and modern fiow regimes have virtually eliminated all sediment supply and altered depositional patterns..ilnless a decisons taken to remove 13nglebright Dam, the more reltvarit geomorphology regime for parposes of habitat potential and st>"stainabilty of this:project proposal is: that of the post-dam eras riot that. which existed in 1949. Although Pasternack (2010x, 2012) maintains That mitt-2C)Yh century gold mining is the primary reason far degraded habitat, there is no convincing evidence provided >the 11HP or Pasternack {2010). Tdri aerial photographs of 3inoro liar are in evidence between 7 952 and 1986, when mosto~the significant morphological change took place, Although bulldozers were photographed on the ground in 1:960, four large hoods occurred during this time period, including ttvo of the three largest floods on record„which. dramatically clranged the morphology of"Sinoro Bar. After the 1997 flood, fprmer mining pits fined ?with 6-8 meters of sediment, raffles becarrie atoxed, and::shot xock was deposited (Pastemack X010, p,78), 't'here is no evidence of mechanized gDld min"uag after the 7 997 flood, Vtrhile mining activities may have temporarily .altered the localised rorphology of Sinora liar in the pack, tht? current diver of degraded habitat is -tire 77,400 tons of gravel that is trappedby Englebright Darn on -average each year,3 combined s Caleulatea by 9Dd,ODO t/yt. total sediment multjpled lay l9q/o gravel [~~tyder 2DQ4j ~:d with shot rock deposited duriiag high fldws ~ the Iower Xuba.R.iver that etude canyon walls adjacent to Englebright Daam. In the:HET procedure described in III?P :~Olt)),Appendix N, the Licensees. apply a numbier ofadjustment factors to the `Yefererrceptttentiat" abundanceto reach a final estimate o€ a~ai#$ adults, Tq pport their argument; the Licensees provide spreadsheets `'with tl-e bl~P {201A) cankitled; liabitnt Expansion Threshold` ~~ Evaluation Taal, F`i#t~l Version, NdvenaaLer 21110, The ITT procedure estimates a:net benefit of 4,I $2 spring-run dueto tle7,oWer'Yuba Ttver Actigns, based on estimates in. Pasternaclc {~QI Oa; 2Ql t2c) and subsequent kIET calculation. In additioa to the "referencx poteni'ial" number, NN1FS also rj~stions the adjustment factors used in the IET calculation. The only source cited: for various adjusttr-ent factors in these spt~eadsleets is "IiEt1 Technical' committee's Bestt Professional Judgrnent.r' Therefore, it is unclear how these adjustment factors were deriued and whether there is any scient$c support fbr these adjusttn~t t'actora. In t~ppendix ld,:the l~P mentions that a second:qualifier on the esfiaiated eontdbution to the I3E?I' relates to the use of the expanded habitat by both spaingand fall run Chinook salmon :~(~Et'' a! p. N-14). In this context, IiEI' ?appendix N mentisms the "`action of conrng a weir to »aechanieally separnteftrli-run:and Spring-nn~. }~'deem~d necessgry by tits resc+urte agencies.. (n?'S, TTSF6l' , and ~t2A1»'yVJ~" (HEP at p. N-14) Therefore, the,IiE~P Appendx~*T. recognizes that both springmp and fall-r+na wlll case the,groposed expanded habitat(IiEP at p.• isle l4). However, the method6logy fox estitnating,the contributioru of the rmnoien3cd a~etinns;#o the HET does not address this recognized limitation: It assuines that all proposed handed habitat ill stantribute #u,spavraitig habitat f9x.sprtttg-rtm. A:ppcndix N ofthe IiEP tnemtioaa Elie: segregatioa.weir,~utthe segregation weir:is optimal and aaiy:oontrilauton that it anayhave W the lb ,estimated HET is speeulatiye because the.. HEP relies on the resource agencies to; install, Qperate, and maintain the weir. However, the resowce agencies are under no Obligation to do so, nor are they committed to do so. Finally, even if such a segregation weir concept were employed, the Klan fails to recognize the unintended consequences that could he incurred relatiue to the iuattagement ofhabitat productivity far otTier species such asfall-run Chinook salmon, green stiugeon, and O. mYlc+ss lresident and anadromous troutj. Thus-using a more realistic redd density value (alanej will clearly reduce the estimated abundance to beiaw that of the }iET threshold of 2,I100-3,OOt)` adults. if the ambigu"rues associated wish the. adjustment factors and the contribution ofa segregation weir are added tv 1he assessment; combined with the uncertainties associated with the preltninary nature of the conceptual design, and the speculative prospects for long term operations and maintenance are considered {see discussions belowj; then the potential of the HEP to achieve the habitat Expansion Threshold becomes-mare dubious. In concluding this.section, LAMPS makes clear that it is not taking the position that habitat restoration:actions. tithe Englebright Dami and Narrows Gateway Reaches are gntenable prnpositinns: Same of the elements and general appioaahes proposed for creation of enhanced spawning and holding habitat have meri#; and they should be;considered in future 3eaigo processes. However, NMIiS does not agree with the magnitude and intensity ofthe approach which seeks to achieve au unnaturally high leyei ofbiolagical performance -using engineering techniques: and predictions that rely too heavily an restraining, modifying, or altering the rivex's natural tendencies and capacities. The Licensees do not provide sufficient suppt3rl to conclude That the Hab#at Expansion Pun's proposed methods, which help fotm the basis ofthe Licensees' l7 lahitat Expansion Threshold estirpate, ca~i achieve the anted results:and hence the tiequirements of the kIEA. 3 For the reasons listed abovea )*tMF~ ftnds that the habitat expansion actions recommended :iii the HEP {2070) do not meet approval criterion {a) of section 4;2. J of the Amended HEA {2U l 7). 3:2 Approval Criteria: {b) "assure3 r;ecessary testing, aperm7tri~a acrd maint¢nuuee" In order t'or the HEP to be approvedunder criterion {b), 7ttnust assure necessary testing, operation, azrd maintenance. Tip proposed spawning hahtat expansion actions in the.>l,I)R •and Nauows Reach (Sinoro Bar and Nan owe-Gateway) aim to create very specific depths, .slopes,. and velocities in a very dynamic and unstable environment, I~TIvIFS, as well as otltdr commenters; find no :assurance in the HEP (207 0) That the proposed actions can or will be maintained to operate as designed. lack of detail about the proposed actions casts further doubts on whether the proposed actions are even achlevalle. 7'lte I.iceiysees do,not address this criterion in HEP {2Al t)) Chapter ~4, wlrece they compare She Lower Ypba River Actions to 1~13y1FS` Approval C'r7teria under the Amended HEA (2011) and other factors; The T.icensees have not provided adequate assurance that the prop2aaed 3inoro l7ar and lgarrows Gateway rehabilitations, will operate as suitablespawning lrabifiat or castbemaintaned over the license term. Although the i'ub& River lies malty itrponndments that alter flow, the lower'i'uba River retains a dynamic flood regime: Peak flows:downstreatn of trngiebxight ~?am frequently exceed 20;D00 cfs and occasionally exceed 100,000<cfs; the January 1947 flood peaked at 151,000 cfs_. Peak flows of such high magnitudes scour, ~Il, altd drive naaor geomorphologic changes as shown.l>y the;,aeria7 photogaphy io Pasternack (2010),. There as no mention in flee HBP {2010) of how the Lolver Yuba River Actions will irtaintain )ong expatrses of See farther discussion of his issue onpp. 19-2?I 1!$ spawning-riffles with; specific depths and: velocities during anii attersueh flow events..1)t. Pastemaclc comtnented during the October 2012 meeting that lte believes the proposed rehabilitatipns would :be stable at flows up to 34,444 cfs, which corresponds to as event with a 10-year recturence interval; ltut too hydrauilic analysis was provided tt> su~c~M this opinion. 'there is no.metiCios~ in the li$P {2010) ofthe cost of consttvction and maintenanne every'ten years and whether the original design specificaNOnawillorean berecreated a@er such high magnitude flow events as the 1997 flood.. Smaller #loods from 5,000 cfs - 3.0,000 cfs .are also of concern to I+IMFS. Although these events maynot cause as much morphological change as larger floods; they still may have the capacity to transport spawning: sized gravel in the habitat rehabilitation area. 'there is no mention in the HEP (2010) about puns for detection of geomorphologcai alterationJdestabilization events thatafl'ect the;distributon-and infegrity of available spawning substrate;:nor is there< identification of a threshold of change which would trigger maintenance or repair ofthe T;ower~= Yuba gravel enhancement actions following high flow events. Wbile it may be clear after a flood greater than 80,000 efs that the rehabilitation is not performing as designed;°smaller flocads may alter gravel hydraulics in more subtle: ways as well, causing reduced apawnmg habitat suitability in the following years. Since the HEP (3010) does not include any monitoring plan in the Lower Yuba River Actions to ensure that the Lower Yuba: River Actions are built and perform as designed, there is rin way to tall when naintenaneeis required. Pastetnaclt (2010a; 2010c, '24312) points nut that riffles in the upperhalf of thelrDlt are not sustainable because canyon width undulations ate in phase with bedrock bed undulations, but tha# "flow convergence touting" can be used manipulatively to ensure 1`~tb-pool sustainalty near Sinoro`Bar. This opinion relies on the thinkiag that gravel depositional areas-would be 19 maintained because~ey would pccur where.cluu~nel width igcreeses (within theperimeter of the veltey) sud stream velocity decreases. Although this reasoning array explain whysninoro Bar has persisted asa depositional point bar, it does not support ~eadon and: longterm maintenance o long tittle expanses (1,650,ft.) of homogenous depth and veluoity that look nothing Bice the. current channel maxphology. Y'he proposed fabricated habitats will contaity>triple:the length of riffle habitat vs. pool'habitat 11;650 8. va: 520 ft. respe~tively.1'asternack ?010a, p.~). 17us-is itx stark contrast to the:rest of the lower l'ubaRivet, which has approximately equal areas of rifrlcss and pools (k.$,4 % rit~le area, 20.2 °lo pool area, Pasterpack ~U12, p.8). One can expect a greater percentage of pool area in the naxrower bedrock canyon of the BDR. N1v1F3 doubts thatatlclr expansive. depositional. features; such as die proposed spawttiug rillles f covering b0 to 75°Jo of` the Project area at Snoro Bar depeading on areas allotted to other habitat types sail 80•!° of the Project area>at 1*iarrows Gateway), can be maintained at the proposed scale where scour processes cuzxemtly dominate. Even if the entire rehabilitafioarea is ~gineeued to have She desired hydraulics, the cucretxt flow (regular oCCUtTence ofhigh flows) and sediment (natucu supply eli><nix~ated} regime will ~cantinually produce et`asion and•depos~tion Hunt pushes the lower BUR towards its current deep pool and high.point bar morphology, poteutaally rendering portions of the reach !jwhere ahigh pexcent is hypothesized as becoming spawning habitat).as uusuitablc, or~ltighly cpmpromised, for spawning. NMIS no#es§ that arestoration design that includes a fhr ,greater diyet'sity 4f habitats with a much snaUer:&action as suitable spawning rleptlt, velocity,. and substrate would lkelybe far more feasible and: sustainable itt the high energy 8I3R and Iilatmws reaches;. Past+eenaack f 20i0a 24112) states that "flow convergence muting" is the primary mechanism flint controls pool-tittle location and persistence in the EbR Bind that it can be bniit into the ~0 channeLrehabilita6on to sustain new spawning riffles. However, there is no mention ofhow this "flow convergence muting" will be changed from its currentstate (coittrolled byundulating canyon walls), nor is there sufficient scientific support showirig it willbe effective under the.. circumstances. ~'he scientific studies cited in Pasteiuack (2gi0a) (i.e. Elkins etttl: 2007,. __ Wheaton et at. 20i0) to siipportthe stability ofthe-Lower Yuba River Actions come fmm the Mokelumne River, which has a maximum possible discharge of only 5;000 cfs; a magnitude that is inuch less than high flood flows that have occurred over-time in the lower Yuba River. The "flow convergencerouting" cited by Pastemack (2010x, 2410 is typically produced by the relatively immutable: constrictions of the valtey walls and there is no proposal in the HBP (2010] to ,alter their. Although not stated in the T31aP (2010), one might assume that the: "flow convergence routing" would be attempted:through piacementof boulder attd LWD struchues; however, without any hydraulic;modelingar evidences to support the success of this approach,. there is significant doubt thak such stractures would produce"flow convergence rouriag" different than what the narxow canyons waits cause in the EDR at flood flows typical in the Yuba (e;g., 30,fl0U to 100,(i(l0 cfs), let,alone withstand the hydtaulic forces sail not.get blown otiit. 'Thus, it is highly questionable whether the use of engineered Hydraulic<control features car- be effectively employed to override the forces of periodic flood flows. Instead, it is ni4re than likely that these forces will inevitably alter the hydraulic conditions titatwould need to prevail in order to consistently promote'exceptiouNlly functaolnal spawning gKounds' (i.e;, conclusions that b0 to 75°la ot'the proposed Pro,~ect, area st ~rrwro lair and 80"~0: of theatea atNatrowst'rateway will have suitable depth, velocity, and substrate spawning `aiteria) as envisioned byl?aste-naek; ZD1 Oa and 2012, l?ailure to consider this likelihood represents a flaw inthe LiGelsees' projections,.-and illustrates one of the rneeltanissnisnf hoiv tls projecx proposal might fail to 2l sustaitr~ its ittit]ai spawning hahcat oharaacter]stii~s over #teloag sun, iV1vIFS ;Prods nog assurance that this `yimcess based" approach will. sustain anything otherthan the deep pool and point bar morphology Sinoro Bar currentlydisplays:. As previously mentioned,.Pastemack ~2Q10a and 2111t]cj postulated that a very high. petcetttage of the proposed Pra~ect Area (bQ to '~S°~/u>at Sinara fat and $ll7/0 l*]arrows Gateway located in a;high energy, bedrock dominated canyon wiU continually function through time as high quality spawning riffles with suitabe depths, veloc]ties, and substrate size. ~alwiFS has not been provided the necessary assurance that this high estimate s+f spawning area istes#a}~ie; utaintainable, and sustaittable, k7artitermore, for the Sinoro l3'ar Project Area, a significant portion of the proposed area to lie converted to spawning riffle encompasses the high elevation point or is;petched above the normal water surface point bar (i.e., the actual Sinaro Bazj. The . proposed Project proposes to eliminate entirely chic cutrent liigh elevation poin# by-scalping: it dawn to the bed elevation of the restoration design: Analysis of the 14iD9 photo of Simciro Bar :clearly indicates a similar poin# her morphalogie.feature a# Siuoro Bar.- also ihed above the water surface pike]y during a low flowj, This indicates that the pointliar feat+ue-at Sinoro Her ia- a persistemt nature, }x+tentiallyperp$tna#ed by "flow convergence soutingt>bythe;undu]ati~g. ceuyon walls. While IJMh'S does not gitnstion wltetlaerthis point bar future could' ba,scalped down to the bed elevation, NMF«; believes here is significant reason to belfiepe tht<t the hydFau]ie conditions created by the canyon bedroekwalls would continue, #o promote.depoa6on and build= up On the Sinoro Bar area, and'has not been provided evidence-to stow #itherwlse: 1~hile fiJii!e. continued depos]tion and rebuilding of #he;point bar would be the natur&1 physi~i pnneess,.it:;alsa,; would substantially reduce or eliminate much of thepmjectecl suitable spawning habitat as the. area w4uid xto longer be inundated during the highly regulated spawning season flaws, Once 22s again, the Licensees have not provided the necessary assurance that the entire footprintof the point her at Sinoro Bar could' be converted and maintained as spawning habitat at;lvw flows, In its comments, 3JSP~TV'S (2012) notes that the HEP (2010) does not addressthe risk of bed shitting and concludes, ";r'he jHEPJ lacks the start-zep tgstir~ operatign and nsanter~ance Yo address proJectfailure or to sustain the habitat expansion aver time" (USFWS 2012, p. 7). The Licensees could have provided assurance by modeling and evaluating the HEF's (20i 0) .recommended habitat expansion actions; includingtesting,. operation, -and maintenance in the recommended habitat expansion actions; or some combination of these measures. However, the HEP (20l t)) does not include any detailed post-project hydraulic modeling or any Find of .assurance that the proposed actions will be sustainable. Hydraulic modeling of a rehabilitated 5inoro Bar and Narmws Gateway liar not been performed to assess how it would be rehabilitated and how the resulting configuration would persist ender flows that would likely recur over the. license term. The HEi' (2010) cites the 2I) modeling done on existing morphology, but that. modeling is pot relevant to the artificially constructed morphology that will be created post prole Crowder's (2012) comments also mnelude that. the HEP (2010) does not provide suffcaent modeling to address how the proposed amounts and sizes of-sediments will interact with the existing ohannel bathymetry, hydrologic regime, and any proposed habitat featutns Duet time. Crowder (2Q12) goes-vn to say,. The existing supply of shot rock near Englebright Dam, the potential for futua'e shot rc>ek generation upstream of these rehabilitation sites,. and the potential for future transport of shot 33 rock onto Sinoro >3ar.and NartvowsfiateYVay sites have not been evaluated in the HER {2410 to determine the potential to negatively impact the rehabilitated habitat at-these two proposed sites..: Pasternack,{2014a) stag:: "Based on historical euenis, s'fno action is tarlren.to midgate~hat roek~enemtiori dt L~nglebrigitt I?am and if nv design elements account for the backwater e,~"ect of Deex 4"reely then re3ittbititated oonditiotts at ~"inarD Bur aault bP afiart-~iued "~s„ 11). Given this statement, it is -sumrising thst the ~iua1 -lER {2p1Q) hes no plan tti ctmtol gemeratian of shat rock or to remove it limn the proposed rehabilitation areas intie future. Smrilarly, the backwater effect afDeer Creek has no#lie~ adequstelyconsidered: Finally; the Licensees have not provided assurance of operation arilmaintenance of#he proposed segregation weir. Although the,Lacensees stated at the October 2012 meeting that they would fund a weir, the Licensees assume That the "resource agencies" would determine at some point iu the future whether the-segregation weir is necessary, and if they defertnine its nepessary,;hey would install, t~perate, and adaptivelr~ managethe weir (HEP 201 t7, p.,3-27). .However, the resonreg agencies are not obligated to perfonm these.actions, and the Licensees have not alained any romrniitnent from the resmn'ce agencies to support these, assumpiions; Far the teasatts diseussed.ahoy@, 2*i1vIFS finds that the hab~a# expansion agti4tts, recommended in~the DER {2014) do not meet approval txiterion.{b) of section 4.2:3 of the:. Amended ~1P,A (2011):: 33 Approval CrIterla: {e) ~swPpor~s esta131ishing ageDF,`~P'bicul~J' ~Pa+"~r ~. sustainiigpapuXatran o,~`'ing-rrtr-n The fiEP.{2014) acourA#ely describes dte importance ofths rsitetion in 1VMFS' appravalgf a habitat expansion action(s) under the Amended HEA.{201'1); 24 Presentl}; the anlyremaining independent, sel, f-sustaining populations in the C~entra~" T'ulley spring-run Chinook salmpn ES71 occur in Mill, Meer, and Butte Creeks (Lindley et al: Z(J04) The lack of spatial diversify within the ESQ impedes reaovery of spring--rein Chinook sdlmon and ineregses the risk of extirpation of the ESU. Far this reason, development of neke papulatfans ofspring-run Chfnooksalmon to Elie Central bailey is a high prior~lty in foie Pub11c 1lraft Recpyery Plan ~IV~F'S 2f109), (HEP 2U10, p. 4.11). From the plain text in the Amended HEA (2011), it appears #hat "geograghica113~ separate" refers to developw~t of an additional, self-sustaining populatt~n of spring=ran. In ether words, the habitat expansion action(s) is the T3EP (20113) needs to :suppork establishtnentof a se1~ sustaining population of spring-run that is geographically separate from rather self- sustaining populations of springrun. In addition,. to be conssten# wi#h zither management objectives,. the HEA action(s) must not conflict with, or compromise habitat management. strategies for other species. The Amended HEA {2011) doesnot define or describe what "self sustaining population" means, but the HEP 12fl10} appears to equate this term with the "viable. population" concept (McElhany et al. 2000; Lindley et al. x@07). 1VMF5 agrees that a geographically separate, self sustaining population of spring=run should generally meet the. eti#eria that NMF3 has developed to assess the viability of salmonid populations< However, fife Habitat Expansion Agreement does not call on the action to necessarily meet a specific nrterion for an "`independent population." While this biological attribute is generally considered as a ilesirabie goal to seek: and develop over tht long-run; it may not be practical to achieve independent populations in ell recovery. actions, especially during the initial stages of anadromous fish reintroduction. Theretore,ldMFS reserves the right to determine whethex; and to what degree this aspect is needed to satisfy management.objedives within the context of the Habitat Expansion Agreement. 25 IVIVIF5 defihes a "viabie,salmonid gopulation" as an inde~aeudentpopuiationtsfectyPac~ic salmonid Genus ~bnenrhynchus) that has a negligible risk ot'extinction due to threats from dechographic varlatioh ~randtjm ar directional), local. environmental variation, and genetic- diversitychanges (random or directional)--Aver a 100-year time iiame (IVlcEihatiy et ad. ~D00)c The following fourparameters form the key to evaluating pogutation viability stattas: abundance; productivity, spatial struchne, and diversity. The IVMFS' Central Valley Technical Recovery 'T'eam (TRT) established criteria to evaluate risk of extinction for salmon populatipns %Lindley et rxt: 2007). Lindley et ul. (2007) characterize CV Chinook salmon populations with a low risk of extinction (iess,than 3"Io.chanee of extincltioa in 100. years) as ;(I) those v;~ith a mnimwn trstai escapement of 2,500'spawhers ewer three consecutive years {mean abundance o€'833 fish per year), (2) nc apparent decline in.escapement, (3) no catastrophic declines occurring within the last ten yeses, and (4)' a IoW hatchery inflttence: Although Lindley el at (2bd'iJ concludes that data are insufficient to assess the risk of extittctian for the sprin$-run populatiori in,the Yuba Diver, Mesick (20I0) postulates that a naturatly produced spring-run poputatioh ih:the Yuba River would initially be charac+tetized as being.at a moderate tslc~of eXtuactioh ~5% m ZO°lo clianee o~eztinction Within 30 dears). This characterization was based on 2005-200"7 total: spring-r~u escapemenf of 7,507 6sh, where only about 450 tish were ttaturally produced,'("i'lie' rest were fin-clipped Feather Rivex Flatahety Springxun,) Th4as, for:naturally produced spYittg- run to reach a low rjs~ of extinction, the ~=year escapement (baseline abundance) wduld hays to increase over five tunes the aurcent level of predicted natnrai abundahce (from 450 tp 2,SitD natxual splri~ run fish). The HEl' (2010) discusses.only one o~the viablty.criteria (abundance). It ignores th'e regaining viability criteria tl:e„ productivity, spatial structure, and genetic diversity). Even in . 26 the discussion of abundance, the HEP (2010) does not specifically describe the abundance that will result from the recommended Habitat expansion actionsc The Z.icensees have not attempted #a make any sonelusons regarding the actual abundance of~zsh that might return tp the Yuba River as za result of the recommended actions. However, given t7ie amount of habitat provided by the recommended actiazzs, there is consideraiile reasan to believe-that an independent populatiox of spring-run Chinook salmon can develop in the Hi;A aciion area, especially :n conjunction with the optionr#/ use ore segregation wear and other management actions by the resource agezzcies and ether stakeholders in the Ltzwer Yuba River, (HEP 2t110; p. 4-12j. In addition to the problems with relying on the optional use ofa segregation weir discussed in under Sections 2.2, 24, and 2,3, this conclusion in the HEP (201 Qj as based on the following unsupported assumptions. First, the HEP (201fl) states that the predicted number offish/redd (at least two flshj and the estimated number of redds (based on redd.area per spawning habitat area] support a conclusian that the recommended habitat expansion actions will result in an effective population site=that exceeds the abundance criterion developed by the "fRT to evaluate risk. of extinction for salmon populations. Howevery based an HEt~ terms, computing escapement and population abundance should not tae based upon an estimation of the number of redds that could be consUUCted in,a spawning habitat area and/or a prediction. of the number of fish/redd. Even if the estimated number of redds is coxect, the itumber of tedds alone does zzot net,essacty t'nean that each qr any of those redds will result in sustained, successful renroductinn.ti.e., self-sustairiingpop3latonl. 3'his is particularly the ease if the constructed redds are created using engineering approaches to' artif daily manipulate stream reaches in an attempt to support the intensive spawning capacity predicted bythe HEP 21)10. Furthermore, properly furzctIrsning habitats must offer more than just ample spawning area to promote the early life stages of a healthy salmonid population, Specifically,. satisfactory habitat expansion actions musk include (but are not limited to) the 27 following characteristics: (i) offer adequate hoidirig pools #or adults; (2) avet~muti©date spawning,. frsh; (3) incubatehealthy eggs; (4) enable suflicientifry to hatch out; and (~) then those fry~must: be able to successfully rest andemigtate to complete their lif~s cycle: If these elements are achieved, there is reason to expect a sustainable parcentage of the ptrog~ (afthe spawning;. adults) will emneback to tl-e Ymba itivar (.escapement). Therefore, the'TiET evaltiaatlon should not, focus so narxowly on the potential numbeis of fish tbat may be ablo to spawn pet redd •ina given area. I;ather, the evaluation of the:HE'f in this case should be based on abroader limitiag factors aaaiysis focusing on all habitats necessary to suppctrtthe riverine components offhe. aasdromous fish life cycle. Specifically, this should inchule fihe amwmt of additional adult spawwning, adult holding, and juvenile rearing habitats provided as a result of the aCtipn(s), with a rAtnmensutate estimate of the escapement of returning 8sh. to the HEF (3910), as well as the- October 3013 techaical meeting; the Licegsees focused mauil3~ on spawning habitat; they did not adequately: address issues associated with the expansion of suitable adultholding and juvenile= tasting habitats. Juveniic rearing habitat ($uality and quantity] is a vital romp~+nent frtr the successful growth sari development ttfiteathy fiy,.smolts, and adult analromous fish - enablimg much bettet'survival ptospects.tlurttughputi.their llfe,c, yrJe, It i~.diffioult to dettunine lrow arty viability. criteria can be met, because the analyses ofthe habitat expansion actions reconunended in they' i<~O1Q) are based primarily on the potential numbers of available redds,;it is unclear. whether (and how) the. habitat expansion actions recommended in the IiBP ~201ti)<would enhance vdtuabie adultholdwg and juvenile rearing ittabitat~. Second, the I3El' (2Ui b) indicates that: spatial s"trticture and: genetic dit+etsity aspects of viability criteria would be met; but the Plan does not clearly address this issue. Instead, the Plan's success in this arena is depehdent upon segregatingtall-run and aprin$-run Chinook into 28': designated spawning areas downstream of Fhglebright T9am. These designated areas are limited in total area and fimctonally adjacent toeach other. "The scheme is anattempt to intensively manage and'spatiallyregulate~he reproductive behaviors of uultiple species ~diic- a relatively small stream segment: This is complicated by the overlapping tuns of Chinook salmon; steelhead/rainbowfrout, green sturgeon, and other'speeies that occupythe lower Yuba River. Although fife HEP (2010) does mention that Feather Riverspring-run can stray into the Yuba Liver, ihe,HEP (2010] doss not :fully discuss the true cause of thisi Mlle flaw discontinuity between the Feadter and'i'uba fivers when flows uxthe Feather River are lpwer and/or warmer than flows in the Yuba River {IJ~FWS 2012). This'flgw disepnnect attracts adultspring~tuu native to the Feather River, and Feather River Fish:Tiatchery spring-ntn into the Yuba River to spawn. In turn, this:attraction of Feather River spring run fish into the Yuba River resulfs in corripromsing the genetic integrity of the. native Yuba River spring run, Mesick j2010J postulates that a largepercentage of the:spring-nm that dU return io the Xuba River are-stays from the Feather River Fish Hatchery; "Unpublished reports suggest that approximately 70~ of the springrun observed in rite Daguerre Point Dam ladder wl'th the Yalu Piverwatcher-in ~0D9 had adfpose fin clips,. whlCh Indicates that these,~sh were hatchery reared ..,. It is lily that ynost pf these fish were produced at the Feather River hatchery and that a substantial percEntage of the Yuba :Ricer escapement has consisted pfFeatherRiverFlatshet~+ftsh ,.. FeatherRiver,Halcherysp#vig-. run that stray to the Yuba River tp spawn re, fleetthe su-vivral cif the hatchery fish ,.. as welf as the conditions that caused these fish Io stray us adults to the Xuba River .. ~7tese f r~ do not represent a sefzsustainngpopulatipn in the Yuba River and should not be considered in an assessment ofpopulation viubil#ty far the Yuba River." The HEP (201 OJ recognizes that shay fist- front the,Feather River Fish Hatchery would ;limit the ability ofthe recommended habitat expansion actions to; support establishing a ~9 geographically separate, self-susf'ainblg Poitui8t[on of sprung: tun unique to the 3'tba Ric~ee as °showu below; 3t is the result of ~+ 9: (HAP 201A, pp. Regardless of the cause, the incursion off sh from the FeaWer River Fish 13atchery into the Yuba Rir+er is a factor tHat limits the ability ofthe Hk~' ac~ioh{s~ to develop a geographieall .separate, self-sustaiting population of sprang-ntn C>tiinctole satmttn. For the xeasons Listed above,'h1NIF& fipds that the habitat expansion actions recommended in. the IiSP (2QIA) do riot meet approval criterion (c) of section 4'.2,3 of the Amended IiEA (2011). 3<4 Approval Criteria: (d) supports segregating Spring-rnn habitat.Trom Central VaAeyfatbrun ChinookswJmon" The Licensees pue~orth iwo:reasons why then'xecommended habitat etcpansioxi setions;meet this txiterion ~11~P 201t), pp. 41ii to 4i tip. First, "?'heLicen~sees expect:that sorrrenatural se~regddon a,/'the twv runs woulr3 octtv~iased omhut~ftat preferences and behc~iorb' ~ecottd. the Licenseesrely tm the optional use of the segregation weir... In its toattments, T7SFWi5 ~~012,,p.n notes that the value pfthe Licensees' recommended Habitat expansion actions "will depend greatlytn the extent to wAich spring-andlall--run adults remain separated during spownn~.'° U~F~S ~(~01~) states that recerit,acpustic traciting tiara "suggest substant{a`I. ~tiatial and temporal overlpp between the twb runs,,.tvhich »ay lead t+o ge-ieticintrvgtassion" Htadditlbt1,1t3F'~VS(2©12?notas,Y`because,~all=run generdlly;rpawn later than spring-run, superimposition o~""~spaxming could result in lowereggsurvval forspring fit) run." Furthermore, the USF~rJS 12012} notes fife spatial and. temporal overlap` nfspring-rnn and fall-run adults during both the holding and spawning periods, concluding that - due to the ioW numbers offal!- - "it wauld:le inapprppriate to-use a segregation weir tt+force spring-run spawning ire full-run habitat," Finally, the 1.ISF (2012, p. 6} concludes that use ofa segregation weir under these circumstances, "would'not constitute a true expansion of habitat; Historically, spring-run and steelhead only migrated through the lower Yuba River to spawn at higher elevations upstream;;and even fall-run would have spawned a bit higher than the current impasse at the Englebright-Narrows hydroelectric complex (Ybshiyama eta1.1996; 300i}, However, both spring-run and fall-run have been oonfined to the lower reaches of the Yuba River since oonstructibn of Bnglebright Dam> Spring-run ate unable to migrate begond this barrier into the higher elevation reaches they hstoricaliy occupied; Therefore, spring-iut ate unable t#b geographically segregate themselves fromfall-nm. Ina "brief' sent. to N1v1F'S after the technical meeting, the Licensees state;that some "natural segregation seems to be occurring in the Iow~r+Yuba"' (.Licensees 2!)i 2b}. NMFS cannot verify this anecdotal evidennce of spring- run "tending to occupy areas closerto;EnglebrightDam and,fall-run;ftsh concentrating in;the Timbuctoo Bend area: downstream." ~llttough it may be occurring to some degree. because. spring-run are naturally seeking. to pass further upstream at the Na-rows 2 power plant, the evdencepresented is insufficient to ascertain thatthe Licensees' recommended habitat: expansion :actions meet the approval criterion to Support segregating suing-rnn Chinook satnnn habitat ftbm fall--run Chinook: salmon. On the contrary, genetic studies "have found widespread introgression between spring-run and fall-nm in the lower Yuba River II~TMFS 2004}, Ttris spawning: overlap threatens the spring--run population in a variety of ways - including increased competition for spawning grounds, the destruction of redds due to superimposit#on, and. ~l introgresson that leads tc> a loss of a genetically distinct sp#ngrun population ~s 2tlb9a):, The LowerYuba Raver Actions propose to create new spring<zun habitat in lo~uu~lsrvation.ereas that weretiot historically associated as primary areas ofspt3n~=ran spawaliug. This would place spring-nut in cximpetition with. fall-nw fox any snch "`Ymp~to~ed habitat: ° In such siiuati6ns ~-e larger andxaore numearous ~'ailrrun Chinook salmon tend to dominate tle'spawyning grounds:. Likewise, steeiheadvould beforced to compete in the Tower Yuba River as well, whcn hstorically:they evolved tQ oceupyhigher eievatipn habitats for'sPawni~g and early life stage rearing. The Licensees assert-that spring-run will tend to go farther upstream ind~ the Englebright l)sm reach than thofall-run,.. apparently basing.tlis ~inlGing.on.the ~t laalcof spawning habitat upsttnam of Narrows: Novi (1TliN 2010; Licsees ~Ol2b). 11©rvewer, +~chatthe Licensees fail to Hotels that zany new spawning habitatis created in the lower Yuba Rlver below Englebright Dam, them both runs of Chinopk salmon aad steelhead woul$ try to use it Finally, the Licensees propose a segregation weir is the LiEP (~O10~ as ``ciptional" (Til1P' 2AI0, p. ~~}j. As described above under ~eetion ~,'3 they stafie that the resoureeagenoies should Have the re$ponsibility to decide whether a segregation wen isneoessary and if the resource. agencies decide it is tlecessary,;then they (resource ageneiesJ will be resp~ibt~ for=installing,; operating, -and adaptively managing the Aveitr (HEP ~O10, p. 3-27). In other words, the Iac~LS~es are not actually pmposin$ to instali,;operate, and msgGage such a weir th!eanselvea-.Drily t4 "sppport" it through fianditig. Even i£it rx~ possible to read}'the ITT, thncaugh.use o£a frsh weir, there could be rto separapan betwaet runs of spring and fall=nm man©ok sa3gon ~d s#eelhead unless the resource agencies ag~ee to accomplish it by using their own nanag~ent. and staffresources, Yet, the agencies are not.umderen obligation to do eo, narhave tktey cgmmitted td accomplshing,suali actions; Therefore, the Licensees havsproposed,an 32 incomplete.. action: in the FIEP {2010} that does not, on its own merits„support thersegregaton of spring-run habitat from fall-run. Forthe-reasons listed above; N1viFS finds that the habitat exiaansior actions t`ec4rnnaended in The HEP (201 Q} do not meet approval criterion {d}:of seGGan #:3:3 ofit-e Amended HEA (2Q1 I ): 3.S Approval Criteria: (e) "meets the requirements for eltgtble habitat expanstvn action(s) pursuant to Sector 3 of tlttsAgree~enP' Amended HEA (2011) Section 3.1, Scope of Eligible Actions, states in relevent part; "Actions idient fed in other venues, including utirunded fictions, areacceptable for consideration, provided that implementation of this Agreement results in a net expanaox of habitat over any Existing Requirements and Commihnents, whether by the Licensees or others.":[Emphasis added);. Amended HEA (2011 Section 3.2 describes Existing Requirements and Commitmettts atTd provides, its -relevaat.part "Existing Requirements and ~ornmitments nuiy include but are no# limitedTo: ib~ lega~° or regulatory requirements beat are thesubject v, f ongoing nr im~sin~tit administrative orjudictal actior4 by an agency or court o,J`eompetertl jurisdiCtort at fhe time NA~IFS approves tke habitat expansiota action(s), ~~* and termsttnaT has. * ~ * * ;~. Throughout the; HEP's (2014) development process, I~TMFS raised eoncems that the Lower "Yuba River. Actions. recommended by t11!c .licensees might beneligible under Aneuded FIFA (2tt11) Section 3, because these actions would not insult in a net expenaion of habitat aver existing requirements ruder a NMFS Biological Opinion, 33 ha 2009Q during the developtnent of the Draft HEF (2449),; NMFB provided the Lieense~s-a preliminary review ofthe HEA Steering Cammattee's "Working Lisf" ofpotential habitat exptmsian aotiaaas.(TIMFS 2409b). NMFS identified severtil:actionsth~t it considered Exis#ng Requirements and Cot~trmitmertts pursuant to the H>rA. (2047),ancludingtinercgarding rehebilitation of the Iwlarrows Crateway spdwniaag habitat in tlie.Iower tuba River: 'NIv1FS' specifically alerted the Licensees to the existing requirements in terms and ~ndtions of NIvIFS'' Balagical ()pinion issued in November 204'7 on the effects afthe U.S. Army Corps of Engineers' (:Corps) operation of Engjebright and Daguerre Point deans on the "f'uba River,.. G'elif4rnia (2{JD~ BD; I~TMFS X447)• In coantriettts an the Drag I~EF (2009), NMFS (2414) states Wiat the spawtung habitat rehabilitatiott~ction proposed by the Licensees in;tkii; lower'Yttba Rivexs apparently ineligible under HEA. {2447) Section 3.2(d), because it is within the scope of a tetTil and condition in the 2447 Bt7. The non-discretionary terms end conditions,in the X447 a<3D include:: "l. The iG'titps s~aii develop curl tttaplement a lah~ ter~t ~r+ave! au~g?n+sii~tatlan,;progr~rm to (~) wlthln three years. n~'the lssutYt3ce ~~'ih~s biolo~tral mplnibn. " (p. 4f)). jlrnphesis addcd~: hits comments an the i7xaft HEP (2049), 2•TMFS (2t?14) states; „The reasonable trrrlprurlea7 measure artrl tetrrt:attd caridzttbn do atot litnlt the Corpse 34 responsibility simply to gravel injection similar to the pilot project initiated by the C'orpsin 2007. The +Corps'responsr$ilit3v is to 'restore quality spawning habitat below Englebright Dam.::,, {p. 25). In addition, NMFS (2010) states: "S'i`lvan That it is the Corps' responsibilityy to restore guala"fY spayr+ning habitat below Englebright Dam the Corps must fake whatever steps necessary tv accomplish this task including spawning habitat rehabilttution e.g., shot-rock removal An additia»al, factor supporting that-the Corps should be responsble,forr~moving the shot-rock is that one ofthe primarysources6f the shot-rockta+as rock ezcayatian during the construction ofEnglebright Dam, which the Corps owns. and operates. " (p: 27) Pasternaek {et. al. 2010a; 20l Ob, 2010c) provides additional information that indicates: • ~Lngular shot rock is impairing spawning habitat below Englehright I)am;. • Shoi rock was initially produced by the Corps during Englebright Dam conshuction; • Shot rock continues to exist in the vicinity downstream ofEnglebn'ght Dam:and • Duringvery high-#low spills (e.g,,1997, 2t)O5, etc,), additional shotrock will likely be torn otf the canyon walls near the Englebrght Dam.and transported to spawning areas' downstream, where it will imgair quality: tan July: $, 2010, a Federal district court issued an opinion regarding the 200"7 BO anti held tliatNMF~ acted arbitrarily and capriciously in reaching the BO'snajeopardy and no adverse modiflcagon conclusions and in issuing tl~e incidental take statement lathe B!Qs On April 24, 201 1, the court remanded the matter to NIWiFS to prepare a new t,prgs BQ consistent wi#b rile court's JulyB, 2010 order ° NMFS issued a new 130 in 2012.(,2012 BO, NMFS 2012a). 'l'ire 2812 BO includes a reasonable and prudent alternative (1tPA) witha suite of actions that the Corps must follow to avoid jeopardizing the continued existence of these listed apecies: CV :spring run Chinook salmon, CV steelhead, and the southern D1zS of North American green sturgeon. S South Yuba R.n~er GYtt?e>as Lengire i+, lUuttanul Marine i:'istieraes Service.'92~ ~'.Supp:2tl 1249 tE.D. Cal. 20l!D), 6 5nuth Yuba gti ea• Citi~etiS Lepgue b. National ~Gtririne Fisheeie,~ sen~me;~0] ] WL.143G233 (~.R~ Cn1~ 2Q 11). 4lrt .December 20; 2011, the court ordeird NtvIFS: tp file the new biological opinion by febTUary 29, 2Q 12. 3 Relevant W the actions recommendeal nq the HL'p {2010), ZU12130 RPA ,Action S (Ghanncl. Restcnatioia prograar) includesthe follorvtg "The t~orps shall-develop and Implement a long-term channel restorcinan prpgram to restore properly functioning chgnn~i marpholagy,and depvsltionat snrfaoes downstr~atn a,~' Englebrtght Da»t. CRI. T7=e Corp [stet shall 8evetap a Channel Restamti~on Plan, far :the Englebright Darn Reach, and upperpartions of the NcrrYOws Reach (extending from Deer Creep confluence ea I,llOflfeet dawnstr~eam~i of the Zawer YtYbg Rivera C',9 ay Lleeember 21j13. ,}pate ~zregs #o other suitable deposittans areas or surf "aces thorns longer functtan properly due to armarin; or deposition afshot-rock. The ti'htanrell?estrtrAttoit Planwilt itpclet~le cvr~cepCugl lvel pitta far design thatidenttfy areas where,slrot racknheds ~to be removed M1vkere chri»rtel recontouring should occur, loeattans far tn».rtailment of ~?enttal flora ol~structYvns, identify areas where local/site spectf tc gravel addict©ns dire warranted, and Identify sources of shat= rack In t#e vicintly o~'E'ngJebright Dzrm that can be saibilzed. At a minimum tie ChasatzeX Restoration Plan will Include shot-rackre»wval.at,3"inora Bar and.the mid-nhannel liar at the entrance to Narrows Gateway. reconi'ourtngaf these gars, addition of at leasa eigXat flgw abstrueton structures that muy,potentially be pztrt of the large woadaugmentatton program, anzX stal?kiizatton o, f shots oCksriuurces fn the vicilslty afts'nglebright ~~n loeuliaed gr'uir2l augmentattan ut'the resontoured bars and hydrwultc structures will aLsa be included, sped amounts will Ire determined=as part of the design pr'acess tend potentittl~parriirl'7~v atscbufitez far witJ :Ilse pnnttttl gravel augmentrttton supplied at the tpp if ~~siaJ lice ~R,. tmpiementatian svhedule wlt,alsa be part afthis plus. The Channel R~sw,ratton Plan siartll Asa: The Carps shall ~_~ *:~; Sy comparing the RPA action quoted above to the ~~' (2{110), it can be semi.khat the same areas and types Af actions recommended ii1 the HEl? {24.10) fQ expansion of spawning habitat at 36 Sinom Bar,and Narrows Gateway are essentially contained in the 2012 B0 RPA Action 5 (Channel Restoration Program), Similar to NMFS' concerns detailed itt this se6tion, the TJSFWS {2012) ttotes drat they requested in-their conmients on the Draft:IiEF {2009)'a clear accoun[ing to erasure that there. would be no overlap between Corps' requirements for gravel: augmentation attd the development of quality spawnittg habitat in the lower Yuba River. and the habitat expansion action proposed in lower'i'nlaa liivet in the Drag HEP (2009). The requested accountng was nat provided, Based on the requirements of the 2012 BO RPA,, the USFWS (2012) reiterated:in their,comrnent letter submitted during the Pre-Approval Consultation, .,'very dear accounting must be clone to assure thatthere is r~o overlap between obligations'ofthe (COtlrs) andthe incremental' contributions of jHEPJ actions" ([?~aF1?VS 2012, p. 3),- In their comments, the Licensees assert that tlie:actions proposed in the HEP'(2010) remain eligible vender the Amended HEA {3011),: both for the reasons given iu the HEP (2010) and for the reasons stated in the comments {Licensees 2012, p. 3}. 7n the HEP {2010), tlieLicensees assert, "The HEP recommended spawning'habitat expansionactions ttt Sinoro Bar and Narrows Gateway are independent of, and complementary tn, the Corgis' grave`I augmentation program below Englebright Dam" {HEP 2010, p. 419). However, the: Licensees' discussion in the HEP (2010) preceded the 2013 BO and RPA. As descn~aed above, the Lowet'Yuba River Actions rceommended in me HEP (2010) 'for expansion of spawtting habitat at Sinoro Bar snit Narrows Gateway are essentially contained in the 3013 BU RPA Action 3 (Chattniel Restoration Fragram). in their cottuuents the Licensees assert that the HEP (201'0) actions. are eligible pursuant to Amended HEA (2011) Section 3.2 because the HEP (2010] actions maybe itttpletnentecl sooner than fire relevant actions under the RPA an:the 2012 BQ {Licensees 201 Z, p, 4t CDWR 2012, pp.. 37 (:~). 'lie Licensees note that flmended t3EP. (2911) Sec~on:3;2,provi#les t}tat ~~i$tiz~g Ttequirements and Commitments are ";::intended to encor~+aszr aeti©ns ez~ectetl to occur fn a tmeframe ~mparable to imple»renta#on o,~'habitat prpansi~n acttan(s,~ under the flgreemerzt:" Tha Licensees assert that they can implement the IiBP ~2010):actions in two to ~~our years after NMFS apgrov~s the HEl'.(2010) (this asseztion is reiterated iii Licensees (2013);:p. 2). 3?irst, this asseztian assumes that Nl\RES can approve the IiBP (2Q10) pursua~at ~ the eriteriaof section 4.2.3 of the Amended. HBA (2U11). As noted throughout this response,;IdMFS also finds that the. TiEP (2011 Q) does natmeet the criteria of section 4.2.3 {a), (b), (c), and:(d) of the. t)mended I3EA 0011). Second, the ~IEP (2010) does not; provide suf$eient anfomuttion to determine how long it-would take to implement the proposed actions recommended in the HE.P (2014): Therefoze -even if N1vIFS were to determine that the IiEQ (2030) meets the other approval Criteria under section 4.2;5 of the Amended 33EA (2011), the Licensees do not provide sufficientinfozma'don to.suppork tt~e assertion that the HIP (281:0) actions wotild be completed in two to:faur years after I~TMFS' approves the HEP ~(~410~.. RegatrUng the current status'of the BO attar issuing die'~Q12 BD, NM3~S met with atad received comments fivm the Corps, Yuba County Water Agency (YCWl~), and the Pacific Qas and ElecttieCompany (PG&B) as well as other parties (see,. eg., P{i&13 20.12, with attached cotmments fmm PG~i>,the Corps, Yuba County Water Agency, and Nevada Irrigation tlialact): Afi~ reviewing and c~nsideting these comments, NIVIFS a~iyelytexplored °with the Corps.. options for addressiugoutstanding issues assac'mated with the cronsulmtion and ycaiitaCly geed to reinitiate cAnsultaticn on the Cot3m'a proposed sctivtes at tluglebright and Daguerre Point dams:.. Accordingly; on Pebmtary 25, 2013, NMI: received a retluest l"rcmm theCorps (2033) tin reinitiate this section 7 consultation. The. Corps stated that neinitiation c~rotmsultation is appropriate iin 3 order for the Corpsto provide NMFS with additional information on subjects that include: 1) the scope of the Corps' legal authority and jurisdiction, for purposes both of defining the proposed action and developing-any reasonable:and prudentaiternatves (see 30 C.F.R, § 402.02); 2) thtr scope of the action area and the:determnation of which father activities are interrelated and interdependent with the proposed action; 3) thenature ofthe C'orps' proposed activities;'and. (4) scientific and technical information regarding the listed species and effects of the proposed action on t3ae listed species:. On April 1l, 2013, NMFS (2013) communicated its-agreementto reinitiate formal ]rSA section 7 consultation once the Corps provided all ofthe infoirsrta#ion-necessaryto evaluate the effects of the action on listed species and entical habitat as described tai 50 CFR. § 402.14(c); I~IMFS recatnmended that the Corps develop an updated biological assessment (BA) to evaluate the potential effects of fire action on listed species and designated critical habitat,,pursuant to SO CFR § 402.12. This stew information will be considered in the consultation and analyzed ~n the new biological opinion. This new biological opinion will reflect ihebest availalale scientific and technical information,, :and it will supersede the 2012 l3C?. Several entities have challenged file 2012 BO iti federal district court, and the court ordered stays of these actions that-will be automatically lifted upon issuance of a new biological opinioii. The Corps must submit to NMFS a final BA by October 22, 2013, and NMFS trust issue a final biological'opinion by May 12, 2014.'' Because the 2012 BO is subject to reinititation of consultation and a new BA and. biological. opinion are requiredby certain dates, and NMFS' final detertninatian regarding whether the habi#at eacpansion actions recommended in the HEP (2010);meet the #pproval ~ South Yu1rn Rtver Ctu<,ensLeague v, Nattonnt Mtriine Fisheries Sen~c¢; Z©t3 WL AU9A777 (E.b. Cai: 2013) (slip gpiaion dated August 13, 2b i 3j. 39 Criteria in Amended IDEA (2Dl I j Section;4.2.3 is subject to farther procednnes as desetibed in Section S.,U ofthis response below, IYMFS will not make a determination at this tune whether the. habitat expansion actions recommended is the HIrY'(2010) meet approval criterion (e) of section 4.2,3 ofthe;i4~ended;HEA(2411). ;FTowevez,basedoz-thep~n%isionsn~sectio~~}.2,4o~ihe- tlinended IEA (201 ij and IVMFS° deteraainations herein regarding whether We habitat expansion actions recommended in the HLP (2p10) meet other appraval priteria of section 4:2.3 of the Amended HEA:(2d11),1VMRS notes that its determinatton regar~~ rir#eron (e) •shaulcl mbt -affect NMFS' final deeision:reganding approval of the HEI' {2Q10); 4<D i'FS Detetwination tegarding the H~r,~:(ZO~tt} Based on the dscussion,abnve,end subject #ti additional pm~eduiies descrTbgd its Amended HEA (2011) Sections 4.2.5 through 4.2.'i,.NM1~S determines that the habitat expansion actions rseonamended.in the Hirt' (201d):do not meet the.NIv1FS' Approval criteria (a), (b), (c): (d)-in Amendgsl HEA X2011) Section 4.2.3; However, as•descsibed in Section 3:0 below, tltia. detetrninatiott,is not a,~tttal decision on wiether.to'approvx tbeha`b3tat expansion echcros recommended intl-e ~P (2014)4 S0 Cencduslon Based on NMFS' disagreement with the Ias~nsees about Y7xether thehabitat expansion actions recommended is the HEP (201.0) are estimated to meet the Habitat Expansion Threshold' ~Sectian 2.1 above), NMFS ~CCC4gnizes that Amended HEA (21111) Section 4.2.5 provides the. Licensees ettd~vlFS sbaii seleot.a ventral third party with appmpriate,expertiae to;tnalce an independent estimate. According to Amended HEA 2411) Section 4,2:5, 3*TMpS sb~i give ~tite consideration to the independent estiriiattebe#itz~making its.final decision on approval of:the recommended habitat expansionraeiion(s) for purposes of the;Amended I-IEA (2011). Therefore, . Oil NI~iPS' determination that theliebitat expansion=actions recommended is the HE1' {2014) do not ..meet the NMFS Approval Criteria in Amended IiBA (24l I)'Section 4.2:3 is not a final'decision tiff whether to approve habitat expansion. actions, However, it should be noted that this provision .addresses Approval Criteria; (aj "`estimated tp meet-the Habitat Expansion Threslia?lai" Drily-and does not address the other criteria that I*iMFS has found theFinal HEP {2414) does not meet,. 3dlvIFS will work witfi t#re lcensees to select a neutral third party Putsaant to Aruended IEA {2411) Section 4.2.3. In addition, under these circumstances, Amended IiF.A {2411 Section 4.2.b provides that. I+IMFS shall consultwish the Licensees to consider the acceptability ofthe recommended actions and, at NMFS' discretion, make one of the determinations listed in thet section. One of those cietemvnafions, Sectiop 4.2.ti(l) provides; ".. ,identcfy ether habitat expansion action(s).. rnutuully acceptable to NMFSand the licensees that may be approvetlin accordance with S'ectton 4:2,4 df .the Agreement, in which case NMFS may.approve the Final Habitat Expansion Plan;(as mpdifted to ncprporate the mutually acceptable habitat expansion action(s)) after eonsriltlrlg with Zlte pilfer 1'artiea and anylirectly tt,~etted and responsvz third putties as. described in Section 4..2.2 above:. In light of that provision, iris NMFS' view that. altemativc or modified habitat;expanson actions shciuld be developed that will fulfill the purpose, goal; and approval criteria of t}te Amended ll?A (2011). Accordingly, the Licenseesare enc©uraged to work closely with l!IMES anti other resource ager-cies and stakehcilders to cottsider how HEA funding for Srture anadmmous fish'habitat restoration actions might be programmed to contribute to a more comprehensive and holistic restoration action that satisfies the:intent and requirements of the 41 I~abitat lxlaansion emeat, ns well as contributes signiiicantiyto fh~recovezy vfanadromoas ash of the Sacxamento River watetshe~<' btl References Cramer Fish Sciences (CFS). 2012. "Evaluation Flav~ements on the Lower American River, ~R10--ZQIl l>rtta lieport;" " Prcpar~tl foz of Reclamation, and U.S, Fish andi Wildly Nn: 2010- 1.449 Sacramento, California. 24,12, NG-AA iviemorandum from D. Re: "Review of Tuba River ~'inoro Bar Chandler,. 7. A, .24(13;. n2 Prggtam Contract Wantuck ~" Reyiewbased Salmon: Butner, C..J, X9,51, Characteristics of spawningnests of Columbia River saLnon ,'[~,~. 3~ish:and `Wildlife Service, Fisheries Bulletin 51:97-11U. Habitat Expansion Ageement Amended (Amended: HF.A). 2t)1 1. habitat Facpa~ositlte Agreement, Amended, i`ot Central Valley Spring-Run Clunaok Salmon and.California.. Central Valley Steelhead. For Federal Energy Regulatory Cotuunission Projects on the Feather River; Nos. P-2100, P-2107, P 2105, and P-19b2. Amended March 2013. Jager, H. I.;H. E. Cardwell, Ivl. J. Sale,. M. S. Bevelhimer, C:'C. Content, and W. VatiWinkle> 197. Modeling the linkages between $ow management and salmon recruitment in streams. Ecological Modeling 103; 171-191: Licensees. 2012a. Letter from Dean F. Messer, California Department of Water Resources (DWR) and David W. Ivialler {Pacific Gas :and Electric Company (PG&E} (Licensees), fo Rodney R. McInnis (NMFS), Re; "13abitat h'~tpaneion agreement Annua! Itepnrt an~1 Comments sin Response to 6D Day Corasuitatton Period." DWR, Sacramento, & PG&E, San Francisco, Califoznia. Apri120, 2012 {received by NIViFS, Sacramento tJffice May 30, 2612).. I,ieettse Licensees. 2013, Letter from Dean F. Messer, California Deparhnent o€ Water resources (DWR) and David W. Moller (Pacific Gas and Eleattic Company (PG&E) (Licensees), to Rodney R. Mchmis (NMFS), Re; "Habitat Expanrivn Agreement Anmtal Report for period beginnng.Aprillpl2 through June ~D73. " DWR, Sacramento, &g PG&E, San Francisco, California. July 9, 2013. Lindley, S T., R, Schick, B. May. J. J. Anderson, S. Greene, G. Reason. A. Low. D. McEwan, R, B; MacFarlane, C. Swanson, and J. G. Williams. 2004. Population straciure of threatened and endangered Chinook salreon ESIJs in California's Central Palley Basin. (NOAA Technical Memorandum NOAt1•TM-NMFS-SWF8C-~50), April X004. Lindley, S,T"., R.S. Schick, E. Mora, P. B. Adams, J: J. Anderson, S. Greene, C. Hanson, B;. P. May, A McEm+an, R. B. MacFarlane, G. Swanson, and J. G. Williams. 2007. Framework f9r Assessing Viability of Threatened and Endangered Chinook Sahnon and Steelhead in the SacramentoCSan Joaquin.BasLt. San Francisco Estuary & Watershed Science Volume S, Issue. l . Article 4: California BayFlDelta.:4pthority Science Prograta and the John Muir Institute of the Environment. McElhany;.}?., M.H.. Rnckelshans, M.J, Ford, T.C, Waimight and E.P. Bjorkstedt 2000:. Viable... sahnonid populations and ffie recovery of evolutionatxly signuficaut units. U:S Department of tVommerae. N©AA Technical Report lJo,1~1MFS-I+IWFSC-ti2,1S8 pages, Mesick, Carl. 2410. "Scientific Review afLower Yuba,lxivea+Spawning Gravel.~rihancement Proposal (Pasrernaek 20?`(1a)," Prepared fcr NMFS by Karl l~+esick Consultants, El Dorado, California. August S, 2fl10. 43 ~+Iational Marine F'i; . Qpera6ons. IVMFS. ~b04, Salmonid Hatchery Inventory and Effeets E M'emorand'um NMFS-NWRIS'WR. An I?valUation o on the Stakes and Likelihood of Etctinetion;o£ West + the-Federal Endangered Speeies Ad. May Zit, 2004 1+TMI~S. NMFS. 29Q9b. Letter from Steve. "NMFS Comments on Yt'arl znc3usivn in a Draft Habitat Santa itosa, C@lifort+ia NtuIFS 35. ]JMRS. } pages. t1) I~IMI~S. ~~] Ib. ~'Lx11r~'~/;~iBY~eCUVCT~~o1P$III. S ~C~i'~~Ndet~': `~!'UI1IiCl8T}' anS~ ~'~i1811Q2T1 U C~'T''StCCII!¢a[I:L~Pi~, ~&tlonOl I~8t1n~.I~'iS~1eP1E,R i$$erY1G~, S(31ut~1~4WE3t~e~(l~R]a (1.~.. ~~ pagee; NMFS. 20i`2a. New Biolo;Opinion pn U S. Army CottZS~afEngineets (Corps),DaSuerre Paint: turd Engiebright dams f2bI2 corps Bi+Qp). NMF~, 5W IteBitrtt, Long Beach, Califortua. P~bruary 39 201. NMFS, Ad. NMFS. 2(f 12b. Letter from Rodney R. Iti+IcIimis (NMFSj to Secretary Bose (FFItG), Re; "Endangered Species Aet and Mugnusan Steven Act Cona~ultations on the Yuba-Bear HydroelecircProject (FER~'No. X266) and the Drum-SpauliingHydroelecuzc Project {FERC Na. 2310)." August 23, 2012. IQMf'S, PRD, SW Regicsn, Long Beaeh, California, 1VMFS. 2012c. Letter from Rodney R. McInnis (NMFS) to vVilliam ?. l=.easy, P;R., Colonel, NMFS 2013. I~TMFS Letter to U.S. ArmyCs>arps of Engineers, Saerame?rto District, April Il, 241 Pasternaek, C., A. Ftalton, and -S; Morford: 2010. Tuba River Analysis Altos to-Aid Spring-itun Clrinook Salmon HabitatRehabilita&on. Uslifarnia A;gcdculture 64(2):b9,'7"1:, 45' Yasternack, G. B. 2008. "SFIIRA Based River,rlnaiysis-and Field Based Matupulative Sediment Transport Experiments to Balance Xabttat an41 ~eamorphic Goals an thn X.ower Yuba River " Prepared for the Cooperative $cosystems Study Unit{CEStI) 81332bd442, University:of Celiforrua at Davis, Depatment of Taad, Air; and Water Pasternaek,<G.B. 2414b. "Gruel/CvblteAugmentation~mplemeutatort~jan(~AZP)jvrYlse Englebright Dam Reach of the Lower Yuba River, CA3' Preparexl for U.S. Army Corps. of Engineers, Sat~nenta, t;alifonaia. Sept~xnber 30, 20.10'.. Schick, R. ~., ana ~. r. T.inaley, 2ooh, tivexne network. Journal pf'A1 Snyder, laT. P., Rubin{; D. Nl„ Alpers, C. N; Childs,: J. It ,4., ~f?D4, Estimating accurnulatioti rates andph; U:S. Saeratnento Letter from Susan k: Federnl Register (PR) 2005: Threateded Species: ~,5i;7s) of West Cons &altttonia ES7s. Fine F.R. ZUOSb: Volume'70 FR 52%188, September, 2b45. an S. 4D, 4:~ TJ:S. Army Corps ofEngineers-(IZSe~CE). Letter to t+1MFS to request initiation ofESA.seoton 7 ccznsultatioty 2tJX3. Federal Register Naclces Flt. 2006a: Volume 71 FR 834, Januarys, 2006.. Endangered and Threatened Species: Final, Listing be#erninations for 10 bstinct Pgpulation Segments of Wes# Coas# S#eelhead Final; Rule. FR 2006b. Volume 'Il FR 61:022, October 19, 2006. Endangered and"Phreatened Species; Revision of Species of Concern List, Candidate Species Definition, and Candidate .Species I-s#. 49'