October 15, 2009

VIA E-MAIL AND U.S. MAIL

The Honorable Ken Salazar The Honorable Gary Locke

Secretary, U.S. Department of the Interior Secretary, U.S. Department of Commerce
1849 C Street, NW 1401 Constitution Ave., NW
Washington DC 20240 Washington, DC 20230

Re: National Academy of Sciences Review Regarding Science Underlying the OCAP
Biological Opinions

Dear Secretaries Salazar and Locke,

The Coalition for a Sustainable Delta is writing in response to the e-mail solicitation sent by the
Departments of Commerce and the Interior on October 9, 2009, for comments on the
independent scientific review proposed by Senator Feinstein to be carried out by the National
Academy of Sciences (NAS). While the Coalition appreciates the opportunity to provide our
input, we do not believe that the limited scope of review suggested by your Departments is either
consistent with Senator Feinstein’s request or with the scope of the review previously proposed
by the NAS. Senator Feinstein proposed that the NAS conduct an independent review of the
biological opinions issued by your agencies. It would be improper for your agencies, whose
actions are the subject of the proposed review, to attempt to control and narrow the scope of the
NAS evaluation. Instead, we urge you to proceed with the scope of review articulated by
Senator Feinstein and others, as explained more fully below.

It is fundamental to the notion of independent scientific review that the author of the study
subject to review not be allowed to control the scope of the review. Indeed, one benefit of
conducting independent scientific review is that it can “raise the level of public trust in the
decision-making process, alleviating fears that … government agencies are simply promoting
their own interests or moving ahead without benefit of relevant scientific information.” (G.
Meffe et al. 1998. Independent Scientific Review in Natural Resource Management.
Conservation Biology 12: 268-270.) The scope of the review proposed by your departments
seems designed to preclude independent review of the science underlying the key conclusions of
the biological opinions. Rather than allow the NAS to utilize its considerable experience in
conducting independent reviews, you propose to limit the NAS to a review of (i) the Bay Delta
Conservation Plan (BDCP) and (ii) alternatives to the reasonable and prudent alternatives
(RPAs) set forth in the biological opinions. You have also suggested that CalFed determine
whether the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)
biological opinions are incompatible.

The BDCP is, to be sure, an important endeavor that may be an essential component of the long-
term solution to the collapse of the Sacramento-San Joaquin Delta ecosystem. But the BDCP is

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Secretaries Salazar and Locke
October 15, 2009
Page 2
still very much a work in progress. There is no draft plan or draft environmental analysis
available or in a form that could be subject to independent review at this time. That said, the
BDCP process could benefit from an independent review of the scientific bases for the biological
opinions since such a review would include feedback on the standing scientific literature
regarding the Delta ecosystem.

The Delta is in an ecological tailspin, which has contributed to a regional economic crisis. The
causes of this circumstance are subject to extensive speculation and controversy. That said,
published evidence strongly suggests that the decline of the Delta’s pelagic and anadromous
fishes – and the Delta ecosystem that supports those fishes – is attributable to multiple factors
including changes to the food web in the Delta, agriculture in the Delta itself that both diverts
water and returns agricultural flows containing pesticides and other pollutants, urban
development within the Delta that destroys fish habitats and results in stormwater runoff,
leaching of contaminants into the Delta and into waterways that run into the Delta, predation of
the delta smelt and other native fishes by non-native species, diversions of water to power plants,
climate change, and water exports from the Delta. In combination over a period of decades,
these factors precipitated the current crisis, as is well documented in The State of Bay-Delta
Science 2008 (Michael Healey, ed. 2008) and Envisioning Futures for the Sacramento-San
Joaquin Delta (Jay Lund et al. 2007). The response of your agencies to the crisis in the form of
the biological opinions restricting water deliveries, combined with the drought and other forces,
have resulted in unprecedented reductions in the delivery of water to municipal, industrial and
agricultural uses and levels of unemployment in the Central Valley not seen since the Great
Depression.

Against this backdrop, Congressman Costa approached the NAS in March 2009, to discuss the
prospect of an independent review of plans for management of the Delta, including the biological
opinions. In response, the NAS generated a set of three task options for independent review.
The common tasks in each of the three options included:

identifying and ranking the factors that have contributed to the decline of federally listed
and other at-risk species in the Delta, and other biotic components of the Delta ecosystem
that are critical to the survival and recovery of those species for the purpose of informing
future conservation actions, and

reviewing and evaluating the science underlying the jeopardy and adverse modification
determinations, and reasonable and prudent alternatives in the FWS and NMFS biological
opinions.

With the benefit of this independent input from the NAS, Congressman Costa became lead
sponsor of H.R. 2977 (introduced June 19, 2009), a bipartisan bill to “direct the Secretary of the
Interior, acting through the Bureau of Reclamation, to enter into an agreement with the National
Academy of Sciences to conduct a comprehensive study of sustainable water and environmental
management in the Sacramento-San Joaquin Delta, California, and for other purposes.”

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Secretaries Salazar and Locke
October 15, 2009
Page 3
Parallel with Congressman Costa’s effort, on May 15, 2009, Senator Feinstein submitted a
request for an appropriation of $750,000 for an NAS Delta study. On September 24, 2009, the
Senate approved the fiscal year 2010 Interior Appropriations bill, including the $750,000
appropriation for an NAS Delta study. In a letter to you both dated September 11, 2009, Senator
Feinstein made clear that “an independent review of the science on which the [biological]
opinions are based is warranted.” Senator Feinstein reiterated her position in a San Francisco
Chronicle opinion piece dated September 25, 2009, in which she eloquently defended her
support “for an independent review of [the biological] opinions by the National Academy of
Sciences.” While there is clear Congressional support for an independent scientific review of the
biological opinions, to date your agencies have sought to limit any review to the BDCP and
whether other efficacious RPAs exist. Such a limited review would not address the controversy
regarding the science underlying the biological opinions, and, as a result, it would do nothing to
build public trust in the federal government’s ability to effectively address the crisis in the Delta.
Conversely, your endorsement of a more comprehensive independent scientific review will build
public trust and reinforce President Obama’s commitment “to restore the scientific process to its
rightful place at the heart of the Endangered Species Act.” (President Obama. 2009. Remarks
by the President to Commemorate the 160th Anniversary of the Department of the Interior.)

An independent scientific review of the RPAs, without a concomitant review of the biological
opinions, is an exercise in futility. The provision of the Endangered Species Act respecting
RPAs becomes operative only when the Service determines that a proposed action is likely to
jeopardize a listed species or result in adverse modification of the critical habitat of such a
species. It requires the Service to propose RPAs that it believes will avoid jeopardy to the
species or adverse modification of its habitat attributable to the proposed action. It is impossible
to fashion the RPAs without a clear demarcation between the effects of the proposed action
(here, CVP and SWP operations), which are in the view of the Service likely to jeopardize the
delta smelt or result in adverse modification of its habitat, and the effects of the environmental
baseline (i.e., all those factors other than CVP and SWP project operations that contribute to the
degraded status of the species including invasive species, predation, over-fishing, contaminants
such as ammonium, and habitat destruction). Therefore, as Senator Feinstein, Congressmen
Costa, Cardoza, Radanovich, Nunes, and McCarthy, and the NAS have recognized, an
independent scientific review of RPAs should occur in the context of a broader review of the
biological opinions in their entirety.

It is unsurprising that the agencies that authored the biological opinions both profess confidence
in their scientific underpinnings and are opposed to an independent review of those opinions.
This is precisely why Congress – having called for such a review – cannot simply delegate to
those agencies unfettered discretion to define the scope of review. Instead, Congress and the
agencies should, in the words of James Madison, “by their mutual relations, be the means of
keeping each other in their proper places.” (Alexander Hamilton et al. 1787-88. The Federalist
Papers.) This can only be accomplished if the agencies are permitted to voice their views on the
scope of review and task statement but Congress retains its “proper place” in ultimately
formulating the scope and task statement following consultation with the NAS.

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Secretaries Salazar and Locke
October 15, 2009
Page 4
In light of the foregoing, we believe it is appropriate to proceed with the scope of review
articulated by Congressman Costa and his co-sponsors with the benefit of input from the NAS.
(We note that this scope is entirely consistent with the direction provided by Senator Feinstein to
date.) We have previously circulated the attached task statement; it is consistent with this scope
of review and we urge you to endorse it. Furthermore, it is imperative that the NAS select a
committee to conduct the review consistent with its own Policy on Committee Composition and
Balance and Conflicts of Interest. We believe that the first, critical task can be completed by the
NAS within four to six months of the time that a committee is selected.

Concurrently, to address the valid concerns about water supply impacts associated with some of
the RPAs in the biological opinions, we believe it would be appropriate to engage a panel of
independent scientists with knowledge of the Delta (perhaps through CalFed) to conduct a public
workshop to solicit alternative RPAs from stakeholders that would fulfill the requirements of the
Endangered Species Act, but result in reduced water supply impacts and to produce a report that
includes an evaluation of those alternatives for consideration by FWS, NMFS, and the Bureau of
Reclamation. CalFed is positioned to assist with this effort immediately, and it should be able to
complete its work within two to three months.

Sincerely,

William D. Phillimore
Board Member

enclosure

cc: Governor Arnold Schwarzenegger

Senator Dianne Feinstein
Senator Barbara Boxer
Congressman Dennis Cardoza
Congressman James Costa
Congressman Kevin McCarthy
Congressman George Miller
Congressman Devin Nunes
Congressman George Radanovich
Chairperson Nancy Sutley, Council on Environmental Quality
Deputy Secretary David Hayes
Assistant Secretary Ann Castle
Assistant Secretary Tom Strickland
Acting Assistant Administrator James Balsiger
State Assemblymember Juan Arambula
State Assemblymember Tom Berryhill
State Assemblymember Bill Berryhill
State Assemblymember Sam Blakeslee

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Secretaries Salazar and Locke
October 15, 2009
Page 5
State Assemblymember Anna Marie Caballero
State Assemblymember Connie Conway
State Assemblymember Filipe Fuentes
State Assemblymember Jean Fuller
State Assemblymember Cathleen Galgiani
State Assemblymember Danny Gilmore
State Assemblymember Roger Niello
State Assemblymember Jim Nielsen
State Assemblymember Jose Solorio
State Assemblymember Alberto Torrico
State Assemblymember Michael N. Villines
State Senator Roy Ashburn
State Senator Ron Calderon
State Senator Gilbert Cedillo
State Senator Dave Cogdill, Sr.
State Senator Lou Correa
State Senator Dave Cox
State Senator Jeff Denham
State Senator Denise Ducheny
State Senator Robert Dutton
State Senator Dean Florez
State Senator Dennis Hollingsworth
State Senator Bob Huff
State Senator Abel Maldonado
State Senator Gloria Negrete McLeod
State Senator Alex Padilla

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