[Federal Register: June 17, 2003 (Volume 68, Number 116)]
[Page 35910-35912]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Bureau of Reclamation

Revised Purpose for Trinity River Mainstem Fishery Restoration 

AGENCY: Fish and Wildlife Service and Bureau of Reclamation, Interior.

ACTION: Supplemental notice of intent to prepare a Supplemental 
Environmental Impact Statement/Supplemental Draft Environmental Impact 
Report (SEIS/SDEIR).


SUMMARY: The Fish and Wildlife Service (FWS) and the Bureau of 
Reclamation (Reclamation), along with the Hoopa Valley Tribe and 
Trinity County, California, are preparing a Supplemental Environmental 
Impact Statement/Supplemental Environmental Impact Report (SEIS/SDEIR) 
for the Trinity River Mainstem Fishery Restoration Program (Program). 
The purpose of the Program has been revised to be consistent with 
recent court findings on the Program.

DATES: Two scoping meetings will be held to solicit public input on 
alternatives, concerns, and issues to be addressed in the SEIS/SDEIR. 
The meeting dates are:
    [sbull] Tuesday, July 8, 2003, 3:30 p.m. to 6:30 p.m., Redding, 
    [sbull] Thursday, July 10, 2003, 7 p.m. to 9 p.m., Hoopa, 

ADDRESSES: Scoping meetings will be held at:
    [sbull] Redding at the Holiday Inn, 1900 Hilltop Drive, Redding, CA 
    [sbull] Hoopa at Neighborhood Facilities Recreation Center, Highway 
96, Hoopa, CA.
    Written comments on the scope of the SEIS/SDEIR should be sent by 
July 18, 2003 to Mr. Russell Smith, Bureau of Reclamation, Shasta Dam 
Office, 16349 Shasta Dam Boulevard, Shasta Lake, CA 96019; telephone: 
530-275-1554; fax 530-275-2441. Comments received after this date will 
be considered but may not be included in the resulting SEIS/SDEIR 
scoping report. Comments received in response to the March 25, 2002 
Notice of Intent will remain under consideration.

FOR FURTHER INFORMATION CONTACT: Mr. Russell Smith at the above address 
or by telephone at 530-275-1554.

SUPPLEMENTARY INFORMATION: Previously, a Notice of Intent (NOI) was 
published in the Federal Register (67 FR 13647, Mar. 25, 2002) for 
preparing the SEIS/SEIR with a stated purpose of analyzing the effects 
of two biological opinions associated with the Program issued on 
October 12, 2000, one by the FWS and the other by the National Marine 
Fisheries Service of the Department of Commerce (NMFS), on Central 
Valley Project (CVP) operations and the effects of the Program on 
energy generation within the context of the state of deregulation and 
supply uncertainty for electricity within California. This NOI replaces 
the previous NOI and presents a purpose consistent with recent court 
findings on the Program.
    A final environmental impact statement/environmental impact report 
(EIS/EIR) on the Program was issued in November 2000, and a Record of 
Decision (ROD) was executed on December 19, 2000. Central Valley water 
and power interests filed suit seeking to enjoin implementation of the 
ROD. On March 22, 2001, the court issued a Memorandum Decision and 
Order enjoining the Federal defendants from implementing certain flow 
related aspects of the ROD. Westlands Water District v. United States 
Department of the Interior, CIV-F-00-7124-OWW/DLB. In its Memorandum 
Decision and Order, the court found that the effects of reasonable and 
prudent measures in the

[[Page 35911]]

two biological opinions as well as the effects on power in light of the 
California energy crisis were not adequately analyzed in the EIS/EIR. 
The lead agencies published a NOI on March 25, 2002, announcing plans 
to produce the SEIS/SEIR and soliciting public input and comment on the 
process. A scoping meeting was held in Redding, California on May 9, 
2002. On December 10, 2002, the court released a Memorandum Decision 
and Order regarding Cross-motions for Summary Judgment. That memorandum 
provided detailed direction regarding the preparation of the SEIS/SEIR 
that was not available for the previous scoping effort, including 
direction on the purpose statement for the SEIS/SEIR, alternatives to 
be considered in the SEIS/SEIR, and a timeline for completion of the 
SEIS/SEIR, although an appeal is pending. The Federal agencies have 
decided that the purposes of the National Environmental Policy Act 
(NEPA) will be furthered by preparing to address these issues in the 
SEIS/SEIR and are soliciting public input and comment on this process.
    The primary objective of the Program is to meet Federal trust 
responsibilities for tribal fishery resources and restore the fisheries 
in the Trinity River basin to the level that existed prior to the 
construction of the Trinity River Division (TRD) of the CVP. These 
actions are authorized by the Act of August 12, 1955, 69 Stat. 719; the 
Trinity River Basin Fish and Wildlife Management Act, Pub. L. 98-541 
(1984), as amended, and the Central Valley Project Improvement Act, 
Pub. L. 102-575, Title XXXIV (1992) (CVPIA). The FWS and Reclamation 
are the Federal co-leads for purposes of complying with NEPA, along 
with the Hoopa Valley Tribe which is also acting in a co-lead capacity. 
Trinity County functions as the state lead agency for purposes of 
complying with the California Environmental Quality Act (CEQA).
    The purpose for the November 2000 EIS/EIR was to restore and 
maintain the natural production of anadromous fish on the Trinity River 
mainstem downstream of Lewiston Dam. The purpose of the SEIS/SEIR has 
been amended, consistent with court orders on the Program.
    The revised purpose for the SEIS/SEIR is to restore and maintain 
the natural production of anadromous fish in the Trinity River basin 
downstream of Lewiston Dam, including fishery restoration to pre-TRD 
levels, and to meet the U.S. Government's tribal trust obligations. 
Secondary consideration is given to: (a) Meeting the other restoration 
goals of the Act of October 24, 1984, Pub. L. 98-541, as amended, and 
(b) Achieving a reasonable balance among competing demands for use of 
CVP water, including the requirements of fish and wildlife, 
agricultural, municipal and industrial and power contractors.
    The SEIS/SEIR will update information on alternatives described in 
the October 2000 EIS/EIR. These alternatives include: Existing 
Conditions, No Action, Mechanical Restoration, Percent Inflow (modified 
to address the court's concerns), Flow Evaluation, and Maximum Flow. It 
is anticipated that two additional alternatives will also be evaluated; 
a 70 Percent Inflow Alternative and a Lower Flow Alternative that seeks 
to use lesser amounts of water in conjunction with non-flow related 
restoration actions.
    In 1980, the FWS completed an EIS which estimated fish population 
reductions of 60 to 80 percent since completion of the TRD and 
estimated the loss of fishery habitats in the Trinity River to be 80 to 
90 percent. The 1980 EIS concluded that insufficient streamflows 
represented the most critical limiting factor for the restoration of 
the fishery. Based on this EIS, the Secretary issued a decision in 1981 
which increased flows on an interim basis and directed the completion 
of a scientific study to assess the instream flows and other measures 
needed to restore the Trinity River fishery.
    In 1983, an EIS on the Trinity River Basin Fish and Wildlife 
Management Program was prepared by the FWS (U.S. Fish and Wildlife 
Service, 1983). The environmental document analyzed habitat restoration 
actions, watershed rehabilitation, and improvements to the Trinity 
River Salmon and Steelhead Hatchery (TRSSH). The EIS clarified that the 
hatchery's purpose was to mitigate for the loss of the 109 miles of 
habitat upstream of Lewiston Dam; whereas, the restoration and 
rehabilitation projects were explicitly designed to increase natural 
fish production below the dam.
    In 1984, the Trinity River Basin Fish and Wildlife Management Act 
(Pub. L. 98-541) was enacted. It formalized the existence of the 
Trinity River Basin Fish and Wildlife Task Force (Task Force), and 
directed the Secretary of the Interior (Secretary) to implement 
measures to restore fish and wildlife habitat in the Trinity River 
Basin. The Task Force was directed at implementation of a fish and 
wildlife management program ``to restore natural fish and wildlife 
populations to levels approximating those which existed immediately 
prior to the construction of the Trinity Division.'' In 1996, Congress 
reauthorized and amended the original Trinity River Basin Fish and 
Wildlife Management Act (Pub. L. 104-143). The 1996 amendments 
clarified that ``restoration is to be measured not only by returning 
adult anadromous fish spawners, but by the ability of dependent tribal, 
commercial, and sport fisheries to participate fully, through enhanced 
in-river and ocean harvest opportunities, in the benefits of 
restoration * * .''
    In 1992, Congress passed the CVPIA (Pub. L. 102-575, Title XXXIV) 
in order to protect, restore, and enhance fish, wildlife, and 
associated habitats in the Central Valley, including the Trinity River 
Basin. Specifically, the CVPIA provides at section 3406(b)(23) that 
``[i]n order to meet Federal trust responsibilities to protect the 
fishery resources of the Hoopa Valley Tribe and meet the fishery 
restoration goals of Public Law 98-541,'' the Secretary is directed to 
complete the Trinity River Flow Evaluation Study (TRFES) initiated 
pursuant to the 1981 secretarial directive to develop recommendations 
``based on the best available scientific data, regarding permanent 
instream fishery flow requirements and TRD operating criteria and 
procedures for the restoration and maintenance of the Trinity River 
fishery.'' The CVPIA also specifically provided for the Secretary to 
consult with the Hoopa Valley Tribe on the TRFES and, upon the Tribe's 
concurrence, to implement the restoration recommendations accordingly.
    The FWS and the Hoopa Valley Tribe completed the Flow Study in June 
1999. The draft EIS/EIR for the Trinity River Mainstem Fishery 
Restoration Program (TRMFRP) was prepared by the FWS, Reclamation, 
Trinity County, and the Hoopa Valley Tribe, and was completed in June 
1999. The final EIS/EIR was completed in November 2000. A ROD selecting 
the alternative to be implemented for the TRMFRP was signed by the 
Secretary, with the concurrence of the Hoopa Valley Tribe, pursuant to 
section 3406(b)(23) of the CVPIA, and issued in December 2000. However, 
the EIR was not certified by Trinity County and it is not a finalized 
document under CEQA.
    Subsequent to execution of the ROD, water and power interests in 
the Central Valley of California amended a previously filed lawsuit 
against the Federal agencies materially involved in either the decision 
making process for the ROD or the associated Endangered Species Act 
approvals for the TRMFRP (Reclamation, FWS, and NMFS), in Federal 
district court. Plaintiffs sought, and were granted a preliminary

[[Page 35912]]

injunction for implementation of certain flow-related aspects of the 
ROD. The terms of the injunction limit the increase in flows in the 
Trinity River which may be implemented in the ROD, but allow the 
Secretary to proceed with all other activities approved by the ROD. 
Westlands Water District v. United States Department of the Interior, 
CIVF-00-7124-OWW/DLB (E.D. Calif., filed May 3, 2001).
    On February 20, 2003, the court entered final judgment in the case, 
finding that the ROD for the Program, issued on December 10, 2000, and 
the associated biological opinions issued by FWS and NMFS, were 
unlawful in part. The court found that the ROD was in violation of NEPA 
in that it had an improperly framed purpose statement and the range of 
alternatives was inadequate. The biological opinions were found to 
exceed the agencies' authority under the ESA in that they required 
major modifications to operations of the CVP. Although the issue was 
not before the court, nor briefed by any of the parties, the court also 
found the government in breach of its general and specific Federal 
trust obligations to the Hoopa Valley and Yurok Tribes, as set out 
under CVPIA section 3406(b)(23) and related statutes. The case is now 
on appeal.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review. Individual 
respondents may request that we withhold their home address from public 
disclosure, which we will honor to the extent allowable by law. There 
also may be circumstances in which we would withhold a respondent's 
identity from public disclosure, as allowable by law. If you wish us to 
withhold your name and/or address, you must state this prominently at 
the beginning of your comment. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public disclosure in their entirety.

    Dated: June 11, 2003.
Frank Michny,
Regional Environmental Officer, Mid-Pacific Region, Bureau of 

    Dated: June 11, 2003.
Mary Ellen Mueller,
Fisheries Supervisor, California and Nevada Operations Office, Fish and 
Wildlife Service.
[FR Doc. 03-15219 Filed 6-16-03; 8:45 am]