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HomeMy WebLinkAboutRequest for 30 day comment period A PROFESSIONAL CORPORATION -Va1TSTess 1050 Thomas Jefferson Street N.W. Feldync- Washington,D.C. 3877 (242)298-1800 Telephone ATTORNEYS AT L A W (202)338-2416 Facsimilie www.vnf.com Seattle,Washington (206)623-9372 !Michael A. Swiiaer (202)298-1891 mas@vnf.com July 9, 2009 Rodney R. McInnis Southwest Regional Administrator NOAA National Marine Fisheries Service 501 West Ocean Boulevard, Suite 4200 Long Beach, CA 90802 Kimberly D. Bose Secretary Federal Energy Regulatory Commission SSS First Street,N.E. Washington:,DC 20426 Re: Oroville Facilities, FERC Project No. 2100-1.34, TN 2009102370; Request for Thirty-Day Comment Period for Draft Biological Opinion for Endangered Species Act Section 7 Consultation Dear Regional Administrator McInnis and Secretary Bose: By letter dated July 31, 2007, the Federal Energy Regulatory Commission (Commission or FERC)requested formal consultation with the National Oceanic Atmospheric Administration's National Marine Fisheries Service (NMFS)under Section 7 of the Endangered Species Act with regard to the Commission's relicensing of the California Department of Water Resources' (DWR) Oroville Facilities, Project No. 2100 (Project).! In its letter,the Commission explained that its Final Environmental Impact Statement for the relicensing, issued May 18, 2007, concluded that the proposed action is likely to adversely affect the federally listed threatened Central Valley (CV) spring-run Chinook salmon (Oncorhynchus tshawytscho) and the CV steelhead (O. mykiss), and adversely modify critical habitat for these species.? The Commission's letter also concluded that the proposed action may affect, but is unlikely to adversely affect,the threatened Southern Distinct Population. Segment (DPS) of North American green sturgeon(Acipenser medirostris).3 Accordingly,the Commission's July 2007 letter ' Letter from Timothy J. Welch,FERC,to Rodney R.McInnis,NMFS,Project No.2100-134(issued July 31, 2007)(hereinafter, July 2007 Letter). Id. at 1;see Final Environmental Impact Statement§§ 3.3.5, 5.5.2,Project No.2100-0.52 (issued May 18,2007) (hereinafter,Fhial EIS). July 2007 Letter at 2. Although the Commission's Final EIS had concluded that the proposed action would have no effect on the green sturgeon,Final EIS § 3.3.5, at p. 190, the Commission's July 2007 letter noted that it (C). �` requested NMFS's concurrence with its determination regarding the North American green sturgeon and asked NMFS to prepare and submit its biological opinion on listed salmonids.4 On July 6, 2009,NMFS submitted its Oroville Dam Draft Biological and Conference Opinion (Draft BO) to the Commissions The Draft BO concludes that the Commission's proposed action is not likely to jeopardize Sacramento River winter-run Chinook salmon, CV spring-run Chinook salmon, CV steelhead, and the Southern DPS of North American green sturgeon or adversely modify designated or proposed critical habitaO As part of the Incidental Take Statement,however, the Draft BO sets forth several "reasonable and prudent measures" (RPMs)that"NMFS believes . . . are necessary and appropriate to minimize the effect of incidental take of Sacramento River winter-run Chinook salmon, CV spring-run Chinook salmon, CV steelhead, and North American green sturgeon resulting from the proposed action."-' When preparing the Draft BO,NMFS provided DWR an opportunity to review early versions of the Draft BO both to ensure the accuracy of the factual information set forth in the Draft BO, and to assess possible effects of the RPMs on proposed license measures contained in the long-standing relicensing settlement agreement, to which NMFS is a party.$ DWR appreciates the opportunity to work through these issues with NMFS and believes that the Draft BO has been improved as a result of the consultation. DWR remains concerned, however,that the RPMs set forth in the Draft BO may have the potential to significantly affect Project operations, including water supply and/or power generation, as well as DWR's ability to implement the relicensing settlement agreement. Accordingly,DWR is in the process of developing a hydrologic model to analyze effects that implementation of the RPMs would have on Project operations. The results of this modeling effort are expected to be completed by around July 17, 2009. Given DWR's ongoing analysis, and the importance of understanding the operational impacts of the RPMs on the Project and the settlement, DWR believes that the two-week comment period on the Draft BO established by NMFS would not give DWR or other parties a meaningful opportunity to comment.$ Rather,DWR believes that a thirty-day comment period— commencing the day after the Draft BO was filed with FERC—is warranted? This will allow DWR to complete and distribute its quantitative analysis,which will better inform its comments on the Draft BO as well comments from FERC and possibly others. Because the Section 7 consultation process is not the only remaining matter to complete prior to the Commission's had modified this conclusion based on the Final Biological Assessment, which DWR submitted to NMFS on July 6, 2007,documenting observations of green sturgeon in the vicinity of the Project's Thermalito Afterbay in 2006. July 2007 Letter at 2. a July 2007 Letter at 2. '- Oroville Dam Draft Biological and Conference Opinion,Project No.2100-134(filed July 6,2009)(hereinafter, Draft BO). Draft BO §§ 3,9. Id. § 103, at p.263. s Settlement Agreement for Licensing of the Oroville Facilities,Project No.2100-052 (fled Mar. 24,2006). 9 Letter from Rodney R.McInnis,NMFS,to Kimberly D. Bose,FERC at 2,Project No.2100-134,TN 2009/02370(filed July 6,2009). 1° As the Draft BO was filed with FERC on July 6,2009,the thirty-day comment period requested herein would extend throuah Wednesday, Auanst 5,2009. action on DWR's relicensing application, granting a thirty-day comment period on the Draft BO would not cause a delay in the overall relicensing schedule.''—' For these reasons, DWR respectfully requests NMFS and the Commission to establish a revised,thirty-day comment period for the Draft BO, commencing on July 7, 2009—the date following NMFS's submission of the Draft BO to the Commission. If you have any questions regarding this request, please do not hesitate to contact the undersigned. Respectfully submitted /L � t Micha(1 A. Swiger Counsel to the California Department of Water Resources The California State Water Resources Control Board has not yet issued its water quality certification under Section 401 of the Clean Water Act,a prerequisite to Commission action.