Declaration Of Dr. Charles Hanson

Case 1:09-cv-00407-OWW-DLB 1 2 3 4 5 6 7

Document 344

Filed 10/09/2009

Page 1 of 7

GREGORY K. WILKINSON, Bar No. 054809 STEVEN M. ANDERSON, Bar No. 186700 PAETER E. GARCIA, Bar No. 199580 MELISSA R. CUSHMAN, Bar No. 246398 BEST BEST & KRIEGER LLP 3750 University Avenue, Suite 400 P.O. Box 1028 Riverside, California 92502 Telephone: (951) 686-1450 Telecopier: (951) 686-3083 [email protected] Attorneys for Plaintiff STATE WATER CONTRACTORS

8 9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11 12

THE DELTA SMELT CASES

Case No.

13

SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al. v. SALAZAR, et al. (Case No. 1:09-CV-0407)

Judge:

14 15 16 17

STATE WATER CONTRACTORS v. SALAZAR, et al. (Case No. 1:09-CV-0422)

18 19 20

COALITION FOR A SUSTAINABLE DELTA, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. (Case No. 1:09-CV-0480)

1:09-CV-0407 OWW GSA Hon. Oliver W. Wanger

DECLARATION OF CHARLES H. HANSON, PH.D. IN SUPPORT OF PLAINTIFF STATE WATER CONTRACTORS’ SUPPLEMENTAL BRIEF RE EXTRA-RECORD EVIDENCE Date: October 19, 2009 Time: 11:30 a.m. Courtroom: 3 Hon. Oliver W. Wanger

21 22 23 24 25 26

METROPOLITAN WATER DISTRICT v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. (Case No. 1:09-CV-0631) STEWART & JASPER ORCHARDS, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. (Case No. 1:09-CV-0892)

27 28 RVPUB\SANDERSON\765493.2 DECLARATION OF CHARLES H. HANSON, PH.D.

Case 1:09-cv-00407-OWW-DLB 1

Document 344

Filed 10/09/2009

Page 2 of 7

DECLARATION OF CHARLES H. HANSON, PhD

2 3

I, CHARLES H. HANSON, Ph.D., declare as follows:

4

1.

I am a principal in the firm of Hanson Environmental, Inc., located at 132 Cottage

5

Lane, Walnut Creek, California. My academic training includes Bachelor of Science and Master

6

of Science degrees in fisheries from the University of Washington, College of Fisheries, graduate

7

studies in environmental engineering at the Johns Hopkins University and a Ph.D. in fisheries and

8

ecology from the University of California, Davis. I have been involved in issues related to the

9

status of fish species in the Sacramento-San Joaquin-San Francisco Bay-Delta since 1976. These

10

issues include state and federal Endangered Species Act studies regarding fisheries populations,

11

including the biological monitoring of listed fish species, preparation of biological assessments,

12

preparation of habitat conservation plans and service as a member of the United States Fish and

13

Wildlife Service’s (FWS or “Service”) Sacramento-San Joaquin Delta Native Fisheries Recovery

14

Planning Team and the National Marine Fisheries Service’s (NMFS) Central Valley Salmonid

15

Technical Recovery Team. I served as a member of the National Scientific Peer Review Panel

16

for Stanislaus River Water Temperature Criteria for Salmonid Restoration. I also testified in

17

1990 as an expert witness on fishery issues on the American River in the case of Environmental

18

Defense Fund v. East Bay Municipal Utility District, Alameda County Superior Court, Case No.

19

425955 and in numerous water right hearings before the State Water Resources Control Board. I

20

have also testified as an expert witness on fishery issues before this Court in the 2007 delta smelt

21

proceeding (NRDC, et al. v. Kempthorne, E.D. Cal., Case No. 1:05-cv-1207) regarding the 2005

22

FWS State Water Project (SWP) and Central Valley Project (CVP) “OCAP” biological opinion

23

and interim remedies, and in the 2008 salmonid proceeding (PCFFA v. Gutierrez, E.D. Cal., Case

24

No. 1:06-cv-245) regarding the 2004 NMFS OCAP biological opinion and interim remedies. I

25

also served on the independent scientific peer review panel for the United States Bureau of

26

Reclamation 2008 OCAP biological assessment. I also continue to serve on the consultant team

27

assisting in developing conservation strategies for water project operations and fishery habitat

28

protection and enhancement within the Sacramento-San Joaquin Delta as part of the Bay Delta RVPUB\SANDERSON\765493.2 -1DECLARATION OF CHARLES H. HANSON, PH.D..

Case 1:09-cv-00407-OWW-DLB 1 2

Document 344

Filed 10/09/2009

Page 3 of 7

Conservation Plan (BDCP). A statement of my qualifications is attached hereto as Exhibit 1. 2.

I am familiar with the measures created by state and federal fisheries agencies for

3

the purposes of protecting delta smelt, and other pelagic fish species, as well as salmonid species

4

in the Sacramento – San Joaquin Delta. I am also familiar with studies already undertaken and

5

those currently underway that are focused on delta smelt. Among other subjects, these studies

6

focus on the decline of pelagic species in the Delta and the potential factors that affect the

7

population dynamics of resident and migratory fish species inhabiting the Bay-Delta estuary.

8 9

3.

In preparing this declaration I reviewed the December 15, 2008 Delta Smelt

Biological Opinion (BiOp) issued by FWS, the results of fishery surveys conducted prior to that

10

date on the seasonal timing, densities, and geographic distribution of juvenile and adult delta

11

smelt; the results of fish salvage monitoring conducted at the SWP and CVP export facilities; the

12

results of hydrologic conditions occurring within the Delta; and the results of the particle tracking

13

model that has been used to estimate the potential risk of entrainment at the SWP and CVP export

14

facilities for larval and early juvenile lifestages of delta smelt.

15

4.

As I explain briefly below, and as I will explain in a subsequent, more detailed

16

declaration should the Court permit its submittal, clarification and explanation are required of the

17

way in which FWS defines and analyzes “habitat” in the 2008 BiOp. The term “habitat” is

18

deceptively complex, both in general and as it is used, or misused, in the BiOp. In my opinion,

19

review of the effects of operations of the SWP and CVP on delta smelt habitat cannot be properly

20

undertaken without a fundamental understanding of what habitat is. I intend to focus my

21

declaration on the full complement of physical and biological variables that define habitat

22

conditions for delta smelt.

23

5.

Habitat is the geographic areas that support the physical (abiotic) and biological

24

(biotic) resources upon which a species depends. As just one example of the issues raised with

25

the use of the term “habitat” in the BiOp, while the document frequently references abiotic

26

habitat, there is no such thing as abiotic habitat. There is only habitat. Habitat does have abiotic

27

components, which include water temperature, salinity, and turbidity, as well as waterway

28

substrates and other physical structural attributes of the Delta. But habitat by definition also RVPUB\SANDERSON\765493.2 -2DECLARATION OF CHARLES H. HANSON, PH.D..

Case 1:09-cv-00407-OWW-DLB

Document 344

Filed 10/09/2009

Page 4 of 7

1

includes biotic components, including food resources, vegetative cover, and predators. The

2

combination of abiotic and biotic resources and conditions define the geographic space where

3

delta smelt can survive and persist, that is their habitat. Given that the overlap of essential habitat

4

components of the delta smelt is not complete (for example, not all areas in the species’ preferred

5

salinity range will always experience acceptable temperatures or provide adequate food types or

6

densities), no single abiotic or biotic habitat component can serve as the sole indicator or

7

surrogate measure for actual habitat.

8

6.

The importance of the Service’s misuse of the term “habitat” is exemplified by

9

Component 3 of the BiOp’s Reasonable and Prudent Alternative (“RPA”), which relies upon a

10

purported relationship between indices of abundance for delta smelt and the location of the low

11

salinity region (defined by FWS for management purposes as the location of 2 parts per thousand

12

salinity (X2)) during the fall. Explanation is necessary to understand and properly evaluate the

13

basis for this purported relationship and for imposing RPA Component 3, and to ensure that the

14

FWS considered all relevant factors in its analysis and conclusions. Such explanation is

15

important not only concerning the statistical analyses relied upon by FWS in the 2008 BiOp and

16

the data underlying those analyses – explanation that Dr. Deriso will seek to provide – but also

17

concerning habitat, abundance, location and other biological indices related to delta smelt during

18

the fall period. My intent is to focus on the latter, biological information in a manner that does

19

not duplicate the analyses to be presented by Dr. Deriso in his declaration(s).

20

1.

By way of background, Feyrer et al. (2007) conducted statistical analyses to

21

explore potential relationships between three abiotic variables in the Delta, which they

22

characterize as EQ (or environmental quality) – water temperature, conductivity, and water clarity

23

– and the occurrence within or use of these areas by subadult delta smelt. Subsequently, Feyrer et

24

al. (unpublished) presented results of further statistical modeling to assess the potential

25

relationships between EQ in the autumn and the abundance of young delta smelt produced the

26

following year.

27 28

2.

The BiOp uses the results of Feyrer’s statistical analyses to describe potential

effects of changes in the location of the low salinity region within the Delta during the fall months RVPUB\SANDERSON\765493.2 -3DECLARATION OF CHARLES H. HANSON, PH.D..

Case 1:09-cv-00407-OWW-DLB

Document 344

Filed 10/09/2009

Page 5 of 7

1

on the abundance and reproductive success of delta smelt. BiOp, pp. 373-374 (AR, pp. 385-386).

2

Additional information cited in the BiOp related to this issue includes Bennett (2005), Nobriga et

3

al. (2008) and Baxter et al. (2008). BiOp, pp. 372-376 (AR, pp. 384-388.) The BiOp also uses

4

the results of Feyrer’s unpublished statistical analyses as the purported scientific basis for the

5

imposition of RPA Component 3 (regarding fall X2). AR, pp. 384-391 (BiOp, pp. 369-376.) As

6

explained in the Declaration of Dr. Deriso (Doc. 167, paras. 29-33), the underlying statistical

7

analyses of the relationship between fall habitat and delta smelt abundance is likely flawed based

8

upon FWS’ use of a linear additive model, rather than a multiplicative stock-recruit model. See

9

also Independent Peer Review of USFWS’s Draft Effects Analysis for the Operations Criteria and

10 11

Plan’s Biological Opinion (AR at 8819 ). 3.

The declaration I intend to submit would help explain to the Court the interreleated

12

biological mechanisms that affect habitat conditions for subadult delta smelt in the fall. A

13

complete understanding of these complex mechanisms is a predicate for the Court to undertake a

14

meaningful review of the scientific underpinnings of RPA Component 3 and other provisions of

15

the BiOp addressing delta smelt habitat generally and fall X2 issues in particular. This

16

explanation will shed light on whether the purported statistical relationship identified by Feyrer

17

and relied upon by FWS aligns, or does not align, with what is known about the distribution of

18

delta smelt in the fall, on habitat parameters for the species during that time period, and other

19

relevant biological information. My declaration would, among other topics, review the limited

20

number of habitat parameters addressed in the BiOp and Feyrer analyses and discuss whether

21

other relevant information was available at the time the BiOp was issued in addition to what was

22

presented in the BiOp. By way of example, in addition to information regarding water

23

temperature, conductivity, and water clarity (as referred to by Feyrer), relevant data which were

24

readily available which FWS should have examined, but did not, to evaluate whether habitat

25

conditions for delta smelt in the fall include other important environmental factors such as

26

zooplankton food supplies. Current and historical information on the Delta is available on a wide

27

array of environmental factors, not just salinity and turbidity, but water depth, temperature,

28

zooplankton food sources, chlorophyll, and other delta attributes that are essential in determining RVPUB\SANDERSON\765493.2 -4DECLARATION OF CHARLES H. HANSON, PH.D..

Case 1:09-cv-00407-OWW-DLB 1 2

Document 344

Filed 10/09/2009

Page 6 of 7

habitat for delta smelt. 4.

I also intend to provide necessary clarification for the Court as to how the

3

information presented in the BiOp regarding fall X2 accounts, or does not account, for actual field

4

surveys of the geographic distribution and relative of abundance of subadult delta smelt in the fall

5

relative to habitat characteristics, such as the location of X2, as demonstrated in the results of fall

6

Kodiak trawl surveys performed by the California Department of Fish and Game (“CDFG”).

7

Information from the biological surveys would also be used to describe the range of geographic

8

distribution and the corresponding range of delta smelt habitat during the fall.

9

5.

My declaration will provide clarification to the Court on these issues and present

10

further biological information on the key issue of whether the location of X2 in the fall, as

11

examined through biological data covering delta smelt occurrence over the past decade, is a

12

significant driver of delta smelt adult spawning and subsequent production of young delta smelt

13

the following spring. Information from available CDFG fishery surveys will be presented over

14

the recent period from 1995 to 2008. This information will help explain the relationship between

15

fall geographic distribution of subadult delta smelt and spawning adult delta smelt later in the

16

winter and early spring as well as the abundance of young delta smelt the following spring and

17

early summer.

18

6.

The information I intend to present about habitat and delta smelt abundance would

19

focus on the relationships that have occurred in the years since 1995, when the Bay-Delta Accord

20

went into effect and changes in SWP and CVP operations were implemented to comply with

21

FWS and NMFS biological opinions issued during the 1990’s. I will also discuss a number of

22

fundamental changes that have occurred to the Bay-Delta aquatic ecosystem over the past two

23

decades that are likely to affect the habitat-abundance relationships for delta smelt under current

24

conditions. I will also present a summary of the information and analyses of habitat-abundance

25

relationships for delta smelt and an opinion as to the potential benefits and drawbacks to delta

26

smelt of managing fall X2 in the manner included in the 2008 BiOp when compared to recent past

27

actual conditions.

28

7.

The importance of potentially controlling fall X2 location through RPA RVPUB\SANDERSON\765493.2 -5DECLARATION OF CHARLES H. HANSON, PH.D..

Case 1:09-cv-00407-OWW-DLB

Document 344

Filed 10/09/2009

Page 7 of 7

1

Component 3 not only has important, material implications for water export operations, but also

2

for the management and availability of cold water within upstream CVP and SWP reservoirs

3

needed to support habitat for winter-run and spring-run Chinook salmon and Central Valley

4

steelhead. Part of my assessment will include an analysis of CALSIM model results on the

5

effects that managing Project water to meet a fall X2 standard under RPA Component 3 would

6

have on upstream habitat quality and availability for salmon and steelhead. Modeling tools have

7

been developed using operating criteria included in both the FWS and NMFS BiOps that can

8

examine the constraints of the two BiOps on the ability to meet upstream and downstream habitat

9

conditions for the delta smelt as well as for the salmon and steelhead. Part of the biological basis

10

for evaluating fall X2 conditions is the effect that implementation of these downstream estuarine

11

fall conditions will have on upstream habitat protections for salmon and steelhead. Information

12

and clarification are necessary to explain to the Court the level of uncertainty in the benefit to

13

delta smelt abundance resulting from efforts to meet a fall X2 standard and the potential adverse

14

effects on salmon and steelhead associated with those efforts.

15

I declare under penalty of perjury under the laws of the United States of America that the

16

foregoing is true and correct. Executed this 9th day of October, 2009, at Walnut Creek,

17

California.

18 19 CHARLES H. HANSON, Ph.D.

20 21 22 23 24 25 26 27 28 RVPUB\SANDERSON\765493.2

-6DECLARATION OF CHARLES H. HANSON, PH.D..