IRON MOUNTAIN MINES INSTITUTE - FREEMINERS UNIVERSITY
COLLEGE FOR THE BENEFIT OF AGRICULTURE AND THE MECHANIC ARTS

DISTRICT COURT
the "CENTINEL"

To all to whom these Presents Shall come, Greeting: In Testimony Whereof.
“The duty we owe to the Creator and the manner of discharging it.”
CHRIST OF THE FREEMINERS

Yet have I set my king upon my holy hill of Zion. (psalm 2)


Broad criteria: relevance, inclusiveness, objectivity, transparency and openness, timeliness, and
best available science for proposed covered actions and for use
peer review.
The statutory protection found at CERCLA § 107(r)(l) is self-implementing and the EPA generally will not be involved

"I don't mind pounding heads & twisting arms when I'm NOT running my fenced,  posted, & otherwise indicated unmistakably;

PRIVATE PROPERTY!"  Occupation right-a-way:

Observing Safeguards while Covering all the Bases...taking ownership
Trail Bla
zing in a Wilderness of Conflicting Counsels Venturing out of their League.

"The agency has a very good batting record" - David Doniger, policy director of the National Resources Defense Council's Climate and Clean Air Program (Wiffle Ball)

Solid Waste Facility Cleanup Prospecting Permit - Landfill Violating State Minimum Standards

“It is to protect citizens against … overreaching actions by government bureaucrats that
courts are empowered to prevent arbitrary and capricious interference with property rights.

Long-term Legacy - Disposal Site: Abatement of landfill leaching into valuable watershed habitat.

Notification of Intent: Best Management Practices for timely remediation and for New Redevelopment and accelerating cleanup and restoring site and protecting public health and safety and the environment.

Custom Mill Site:  Public lands which are non-mineral, independent of mining claim.  (43 CFR 3844)

John F. Hutchens, Principal Investigator, Prospector, Headmaster Naturalist, Tenant-in-Chief

Authority: Implementing certain provisions of the MRP on behalf of the Shasta County Flood Control and Water Conservation District. Critical Watershed Habitat & New Enterprise Zone Program.

Overall Mission: Freehold interest in subject Abandoned Disposal site renewable energy waste minerals.

Qualified Application: Persons engaged in cleanup activities needed to protect public health and safety or the environment reducing pollutants entering the county's storm-water system activities including the ownership and use of premises that is source of pollutants, with business enterprise and dwelling units.

Priority: (Public entities bear financial responsibility for remediating public landfill sites in compliance with State regulations and standards and to accelerate the pace of remediation cleanup & restoring sites.)

Special Financial Assurance Management Site Storage Disposal Treatment Assistance Mechanisms Unit

EPA recognizes the uncertainty regarding the potential liability of certain parties under CERCLA.
CERCLA expressly confers upon EPA the ability to provide certain assurances to a certain party who wishes to be treated as exempt from CERCLA liability and meet certain statutory requirements to provide certain parties liability protection. Independent science advisory "innovation ecosystem Prospecting Permit

Taking reasonable steps going forward toward sustainability and factoring for measuring ownership from the time of cleanup best bona fide authority management performance adapted to local conditions exclusion of certain property

    3116(a)        40:258e-1 (less         Feb. 26, 1931, ch. 307, Sec. 
                    last sentence).         6, as added Pub. L. 99-656,

Regarding the Treatment of Tenants : EPA actions effectually obliterate the distinction applicable to certain tenants of some nexus to the act or omission giving rise to the matter of innocent purchasers do need to satisfy the contractual relationship test of the third party defense and to clarify and improve protections "EPA knew or showed reckless disregard for" functions concerning whether its conduct was prohibited" and provided regarding the degree to which the invasion is intended or is the foreseeable result of authorized government action when EPA did not prevent disposal of hazardous waste and failed to act with appropriate care.

“We can’t let sunk costs or past behavior define our path forward,”

When The Landfill Is Full…

FILED UNDER: ,

The Biggest Fish Story Ever Told

Overlying Rights Performance based on what to do in a case of an EMERGENCY! Human rights report finds persistent persecution of the non-religious

Brandon Gatto December 11, 2012

Photo source or
                                            description

[JURIST] A report [text, PDF] by the International Humanist and Ethical Union (IHEU) [advocacy website] has found [press release] that atheists and other non-religious persons suffer persecution and discrimination all over the world, and that prosecutions of blasphemy have risen along with the popularity of social media. The report, "Freedom of Thought 2012: A Global Report on Discrimination Against Humanists, Atheists, and the Non-Religious," was released on Monday [Reuters report] to recognize Human Rights Day [UN backgrounder], and discusses laws and cases in 60 countries where atheists have been prosecuted for their beliefs. It also reports that the laws are used to curb the rights of the non-religious. Specifically, certain decrees are used to suppress expression, restrict the right to marry, obstruct access to public education, criminalize blasphemy, and even execute those who choose to stop practicing the religion of their parents. Additionally, the report notes a drastic increase in blasphemy cases in 2012, as more than a dozen people in 10 counties have been prosecuted for their posts on Facebook and Twitter, as compared to the three cases prosecuted over the last three years. The report was welcomed by the UN Special Rapporteur on freedom of religion or belief [official website], Heiner Bielefeldt, who hopes that the international community will reflect on the IHEU's findings.

In October, Bielefeldt presented his own report [JURIST report] to the UN General Assembly [official website] that urged all member states to protect freedom of belief as it applies to religious conversion. In particular, the report documents the Special Rapporteur's analysis of international patterns of abuse in the area of religious conversion [UN News Centre report], detailing violations in which people are either restricted in their rights to conversion or are forced to convert or reconvert to become more "acceptable" to the society in which they live.

Custodian of Records, MS 5
California Integrated Waste Management Board
P.O. Box 4025 Sacramento, CA 95812-4025

Existing law authorizing or requiring the sale of acquired lands empower any commission, bureau, 

or agency of the Government to make the sale of any acquired land: Provided, That any such sale or 

conveyance of lands shall be made by the agency having jurisdiction thereof, subject to any lease 

theretofore made, covering the mineral deposits underlying such lands: Provided further, That 

nothing in this chapter is intended, or shall be construed to affect in any manner any provision 

of chapter 641 of title 10.
 
Independent establishment having jurisdiction over the land.
 
(Corporation primarily acting as an agency which produces electrical energy for sale to the public 

if such governmental entity is located in the State in which such lands are located.)

Provisions of section 2325 (30 U.S.C. 29) 43 CFR 3861.1

A millsite must be occupied or used in connection with mining activity.

Research, Education, and Economics  - opportunity assessment

Moving Forward to Improve Engineering Education.

"Jury Trial of Right"--

A properly demanded jury trial on the issue of just compensation "is a matter of right,"

("The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate."), with FRCP 38(b) ("Any party may demand a trial by jury of any issue triable of right by a jury by [following specified procedures].").

40 USC Sec. 3115 01/03/2012

DECLARATION OF TAKING (or otherwise, which has been or may be, that may have been, or may be, deemed to be possession of...said lands in fee simple absolute)

on behalf of the Government by a declaration of taking or otherwise.

on behalf of the Government by a declaration of taking or otherwise. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147

on behalf of the Government by a declaration of taking or otherwise. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147

on behalf of the Government by a declaration of taking or otherwise. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147

on behalf of the Government by a declaration of taking or otherwise. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147

the Attorney General may stipulate or agree on behalf of the Government to exclude any part of the property, or any interest in the property, taken by or on behalf of the Government by a declaration of taking or otherwise. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147.

: C18-3465 JCS

(d) Authority of Court. - On the filing of a declaration of taking, the court - (1) may fix the time within which, and the terms on which, the parties in possession shall be required to surrender possession to the petitioner; and (2) may make just and equitable orders in respect of encumbrances, liens, rents, taxes, assessments, insurance, and other charges. (e) Vesting Not Prevented or Delayed. - An appeal or a bond or undertaking given in a proceeding does not prevent or delay the vesting of title to land in the Government. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1145.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3114(a) 40:258a (1st par.). Feb. 26, 1931, ch. 307, Sec. 1, 46 Stat. 1421; Pub. L. 99-656, Sec. 1(1), Nov. 14, 1986, 100 Stat. 3668. 3114(b) 40:258a (2d par. 1st sentence words before 1st semicolon). 3114(c)(1) 40:258a (2d par. 1st sentence words after 1st semicolon, last sentence). 3114(c)( 40:258a (3d par.). 2), (3) 3114(d) 40:258a (last par.). 3114(e) 40:258b. Feb. 26, 1931, ch. 307, Sec. 2, 46 Stat. 1422. -------------------------------------------------------------------- In subsection (a), before clause (1), the words "which has been or may be" are omitted as unnecessary. In subsection (b)(1), the words "said lands in fee simple absolute, or such less" are omitted as unnecessary. In subsection (b)(2), the words "deemed to be" are omitted as unnecessary. -End- -CITE- 40 USC Sec. 3115 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3115. Irrevocable commitment of Federal Government to pay ultimate award when fixed -STATUTE- (a) Requirement for Irrevocable Commitment. - Action under section 3114 of this title irrevocably committing the Federal Government to the payment of the ultimate award shall not be taken unless the head of the executive department or agency or bureau of the Government empowered to acquire the land believes that the ultimate award probably will be within any limits Congress prescribes on the price to be paid. (b) Authorized Purposes of Expenditures After Irrevocable Commitment Made. - When the Government has taken or may take title to real property during a condemnation proceeding and in advance of final judgment in the proceeding and has become irrevocably committed to pay the amount ultimately to be awarded as compensation, and the Attorney General believes that title to the property has been vested in the Government or that all persons having an interest in the property have been made parties to the proceeding and will be bound by the final judgment, the Government may expend amounts appropriated for that purpose to demolish existing structures on the property and to erect public buildings or public works on the property. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1146.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3115(a) 40:258c. Feb. 26, 1931, ch. 307, Sec. 3, 46 Stat. 1422. 3115(b) 40:258e. Feb. 26, 1931, ch. 307, Sec. 5, 46 Stat. 1422; Pub. L. 91-393, Sec. 4, Sept. 1, 1970, 84 Stat. 835. -------------------------------------------------------------------- In subsection (b), the words "possession of" are omitted as unnecessary. -End- -CITE- 40 USC Sec. 3116 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3116. Interest as part of just compensation -STATUTE- (a) Calculation. - The district court shall calculate interest required to be paid under this subchapter as follows: (1) Period of not more than one year. - Where the period for which interest is owed is not more than one year, interest shall be calculated from the date of taking at an annual rate equal to the weekly average one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of taking. (2) Period of more than one year. - Where the period for which interest is owed is more than one year, interest for the first year shall be calculated in accordance with paragraph (1) and interest for each additional year shall be calculated on the amount by which the award of compensation is more than the deposit referred to in section 3114 of this title, plus accrued interest, at an annual rate equal to the weekly average one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the beginning of each additional year. (b) Distribution of Notice of Rates. - The Director of the Administrative Office of the United States Courts shall distribute to all federal courts notice of the rates described in paragraphs (1) and (2) of subsection (a). -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1146.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3116(a) 40:258e-1 (less Feb. 26, 1931, ch. 307, Sec. last sentence). 6, as added Pub. L. 99-656, Sec. 1(2), Nov. 14, 1986, 100 Stat. 3668; Pub. L. 106-554, Sec. 1(a)(7) [Sec. 307(a)], Dec. 21, 2000, 114 Stat. 2763A-635. 3116(b) 40:258e-1 (last sentence). -------------------------------------------------------------------- -End- -CITE- 40 USC Sec. 3117 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3117. Exclusion of certain property by stipulation of Attorney General -STATUTE- In any condemnation proceeding brought by or on behalf of the Federal Government, the Attorney General may stipulate or agree on behalf of the Government to exclude any part of the property, or any interest in the property, taken by or on behalf of the Government by a declaration of taking or otherwise. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3117 40:258f. Oct. 21, 1942, ch. 618, 56 Stat. 797. -------------------------------------------------------------------- The words "that may have been, or may be" are omitted as unnecessary. -End- -CITE- 40 USC Sec. 3118 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3118. Right of taking as addition to existing rights -STATUTE- The right to take possession and title in advance of final judgment in condemnation proceedings as provided by section 3114 of this title is in addition to any right, power, or authority conferred by the laws of the United States or of a State, territory, or possession of the United States under which the proceeding may be conducted, and does not abrogate, limit, or modify that right, power, or authority. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3118 40:258d. Feb. 26, 1931, ch. 307, Sec. 4, 46 Stat. 1422. -------------------------------------------------------------------- The words "State, territory, or possession of the United States" are substituted for "State or Territory" for consistency in the revised title and with other titles of the United States Code. -End-

Time-tested practice of amending: Wrongful Detainer.

E.P.A. TIMES-UP!

Identify agencies that should serve: Instituting structural, procedural, and role changes aimed at the EPA moving sailing away.

EPA Administrator Lisa Jackson abandons the EPA helm!

Historic progress: "I will leave the EPA confident the ship is sailing in the right direction."
Please Provide a comprehensive review of all facets of undertaking this federal enforcement case.

Alternatives For Managing The Nation’s Complex

Unmistakable indications of intent to take and use.

The CFR Title covering environmental protection alone contains at least 88,852 specific regulatory restrictions.


4,995 EPA rules appeared in the Winter Unified Agenda from 1999-2011. Over the same period, 7,161 EPA final rules were published in the Federal Register. Its most recent edition is the one for fall 2011. The spring 2012 edition was never published and the fall 2012 edition is now overdue. In the fall 2011 edition, the EPA had 318 new rules.

Small Entity Representatives (SERs), to provide advice and recommendations on the proposed rule to the panel. EPA seeks self-nominations directly from small entities that may be subject to the rule requirements. Self-nominations may be submitted through the link below and must be received by December 20, 2010.

The requirements will be developed under the Comprehensive Environmental Response, Compensation and Liability Act, commonly called Superfund.

The Regulatory Flexibility Act requires EPA to establish a federal panel for rules that may have a significant economic impact on a substantial number of small entities. The SBAR panel will include representatives from the Small Business Administration, the Office of Management and Budget and EPA.

Small Business Panel on Financial Responsibility Requirements for Hard Rock Mining

What is the Implication of the Proposed Rulemaking on Small Entities?

Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, establishes certain regulatory authorities concerning financial responsibility requirements. Specifically, the statutory language addresses the promulgation of regulations that require classes of facilities to establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances. EPA recognizes that financial responsibility is an important policy tool for ensuring that the clean-up of contaminated sites is not left as a burden for the public. In a July 28, 2009 Federal Register notice , EPA identified classes of facilities within the hard rock mining industry as those for which the Agency will first develop financial responsibility requirements under CERCLA Section 108(b).

As discussed in that notice, EPA research indicates that the hard rock mining industry typically operates on a large scale, with releases of toxic chemicals to the environment and in some situations, subsequent exposure of humans, organisms, and ecosystems to hazardous substances on a similarly large scale. The metal mining industry released nearly 1.15 billion pounds of hazardous substances in 2007. The hard rock mining industry is responsible for polluting 3,400 miles of streams and 440,000 acres of land. Approximately 10,000 miles of rivers and streams may have been contaminated by acid mine drainage from the metal mining industry. The severity of consequences as a result of releases of and exposure to hazardous substances is evident in the enormous costs associated with past and projected future actions necessary to protect public health and the environment.

EPA's preliminary analyses currently show that approximately 298 companies (or 81% of the potentially regulated universe) are small entities.

What is a Small Business Advocacy Panel?

EPA is developing a proposed rule that would require financial responsibility for classes of facilities within the hard rock mining industry. At this time, EPA is unable to determine the economic impact of our proposed rule. EPA is proceeding with formation of a Small Business Advocacy Review (SBAR) Panel because the rule may have a significant impact on a substantial number of small entities.

The Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act (RFA/SBREFA) requires EPA to convene an SBAR Panel for a proposed rule unless the agency can certify that the rule will not have a significant economic impact on a substantial number of small entities. The Panel process offers an opportunity for small businesses, small governments, and small not-for-profit organizations (collectively referred to as small entities) to provide advice and recommendations to ensure that EPA carefully considers small entity concerns. The Panel itself is comprised of federal employees from EPA, the Office of Management and Budget, and the Small Business Administration's Office of Advocacy. Small Entity Representatives (SERs) provide advice and recommendations to the Panel. Typically, EPA prefers that SERs be owner-operators of small businesses, small organization officials, or small government officials. Other representatives, such as trade associations that exclusively or at least primarily represent potentially regulated small entities, may serve as SERs. These other representatives are evaluated on a case by case basis.


How Can I Get Involved?

You may potentially be subject to this rulemaking and are eligible to serve as a Small Entity Representative (SER), if you are the owner or operator of a small hard rock mining facility. In the July 2009 notice, EPA defined hard rock mining to include classes of facilities that extract, beneficiate or process metals (e.g., copper, gold iron, lead, magnesium, molybdenum, silver, uranium, and zinc) and non-metallic, non-fuel minerals (e.g., asbestos, phosphate rock, and sulfur). EPA notes that certain non-fuel hard rock mining sectors (e.g. construction sand and gravel) were not included among those hard rock mining facilities identified in the notice. ( See Note 1. ) As mentioned above, other representatives that exclusively or at least primarily represent potentially regulated small entities may also serve as SERs, as well.

You may nominate yourself to serve as a SER.

$1.5 million at center of internal EPA battle over Superfund contractor’s alleged overbilling

EXCLUSIVE: Fifteen months after a report charged the Environmental Protection Agency with failing adequately to oversee Superfund cleanup efforts at some of the country’s most toxic waste dumps, the EPA’s internal watchdog and EPA management are battling over $1.5 million that the inspectors said in the probe was illegally overbilled between 2008 and 2012 by the clean-up contractor.

The EPA’s Inspector General Office wants EPA to get the money back. EPA management is balking, despite at least two “dispute resolution” meetings between the two sides in March and May.

Meantime, the contractor, a Colorado-based engineering and consulting behemoth named CH2M Hill, continues to operate under the disputed contract, which has a total potential value of more than $116 million before its final expiry in June 2016.

CH2M Hill’s total ongoing business with EPA amounts to ten times that amount: more than $1.16 billion through July 2014, according to EPA records.

CLICK HERE FOR EPA CONTRACT RECORDS

Making the tug-of-war more piquant is the fact that CH2M Hill in March last year—only a month before publication of the disputed report-- paid $18.5 million to the Department of Justice to settle an overbilling fraud that allegedly  between 1999 and 2008 at another hyper-toxic cleanup site, the Department of Energy’s Hanford nuclear site, home of the world’s first plutonium production reactor.

[pullquote]

Under the agreement, CH2M Hill also had to consent to a corporate monitor for three years at the Hanford site, pay $500,000 for unspecified  “accountability measures” to prevent further billing fraud, and cooperate in continuing fraud investigations.

The two cases are otherwise unrelated. In the current EPA internal dispute, the major sticking-point issue is not whether CH2M Hill engaged in fraud—no such claims have been made-- but whether EPA itself  ignored  federal contracting rules in favor of its own internal regulations  in allowing the alleged double-billing circumstances to arise. 

A number of questions sent by Fox News to CH2M Hill earlier this week regarding contract EPS90804 had not been answered before this story was published.

But there is also a broader issue involved:  how EPA, an agency that has recently threatened to impose crippling fines on a rancher for building a small cattle pond on his property, actually carries out its job, including its financial responsibilities, at some of the biggest and most expensive pollution sites in the country, and how much it takes the word of contracting firms like CH2M Hill for their efforts in the process.

In other words, “how do you know you are doing what you are supposed to be doing?” said one EPA official familiar with the case. “It’s a major issue.”

Just how major—not only in terms of money but of the potential exposure of humans and wildlife to dangerous chemicals and their byproducts as a result-- is underlined in carefully cloaked bureaucratic prose in the Inspector General’s report of the disputed contract.

It said there “may be an EPA-wide problem” in how the agency handles contracts like the one  known as EPS90804, a three-year, renewable document that was originally signed in 2008 by the chief administrator of EPA’s region 9, a huge swath of territory that includes California, Arizona, Nevada, Hawaii, as well as various Pacific island territories and autonomous tribal areas in the south-west.

CLICK HERE FOR THE REPORT

In the case of EPS90804, the aim was to clean up a variety of Superfund sites in the South-West and the Pacific through a cascade of separate “task orders” under the umbrella agreement, known in EPA parlance as a “remedial action contract,” or RAC. The contract was expected to expand over time to allow different sites to be added.

In 2008 the administrator was Wayne Nastri, a Bush Administration appointee. He was replaced in November 2009 by an Obama Administration selection: Jared Blumenfeld, previously director of San Francisco’s Department of the Environment under Demoractic then-Mayor Willie Brown, once the longest-serving speaker of the California State Assembly. Blumenfled is an attorney who, according to his official biography, “has worked for the Natural Resources Defense Council (NRDC), the Sierra Club Legal Defense Fund, and the International Fund for Animal Welfare.”

According to the EPA website, region 9 staff currently comprise “a talented and diverse team of more than 800 scientists, engineers, inspectors, environmental specialists, analysts, lawyers and administrative staff working to protect human health and the environment across eight time zones.”

At the time of the Inspector General’s report, EPA had issued 64 task orders worth $97.8 million under the contract. The Inspector General’s staff looked at only 18 percent of them —but they covered nearly two-thirds of the total spending.

The results of that year-long examination in 2013 were sobering. Among the mostly California venues that the Inspector General’s staff examined were nearly $40 million worth of work at the Iron Mountain Mine near Redding, a noxious gold and silver mining locale since the Civil War and a designated Superfund site since 1983; the Frontier Fertilizer site near Davis, CA, where many pesticides were dumped; and a site formerly known as the B.F. Goodrich site near Rialto, where rocket-fuel propellants, among other things, were tested.

All of those highly dangerous sites are close to important groundwater and drinking water sources for local residents and beyond.

When it came to supervising the “remediation” work under EPS90804, however, the report charged, among other things, that EPA employees who were supposed to monitor the contract:

--ignored federal rules that they verify that personnel for the contractor have the qualifications necessary to execute the contract, thus increasing the “risk of the contractor substituting lesser-qualified staff while EPA pays the rate for fully qualified individuals;” 

--in some cases relied on the contractor’s work plans rather than the official scope of work of the various projects to determine what was supposed to be done;

-- ended up not being billed for 46 of 229 individuals originally identified as “key staff”  in work plans, but got bills for 846 people—82 percent of the total—who were not identified in the plans;

--often didn’t take notes or otherwise keep track of changes in “deliverables” in meeting with the contractor, thus relying on the contractor’s records;

--also failed frequently to document the quality of any of the “deliverables” received, and in two cases offered no documentation at all;

--in some cases, weren’t familiar with the overall contract, or hadn’t read it.

EPS90804 is what the federal government calls a “time and materials” contract, also known as a “fixed rate indefinite delivery/indefinite quantity award term contract,”  meaning that contractors bill for hours worked—with no specified ceiling-- at specified rates along with the cost of materials (which can include subcontracts, according to rules cited by the Inspector General).

(On the EPA’s website, it is now listed more vaguely as an “indefinite quantity” arrangement.)

According to one knowledgeable official, such time and materials contracts are “pervasive” at EPA—where the full extent of  required pollution clean-ups may not be known for years, as various layers of contamination are uncovered.  The contracts are also highly expensive, open-ended, and provide “no incentive to the contractor for cost control or labor efficiency,” according to the Inspector General’s  original report.

They are a device that President Barack Obama himself has been trying to discourage since 2009, when he issued a memo ordering agencies to minimize the risk and maximize the value of government contracts. They were further restricted by Congress the same year. EPA itself has been trying to discourage time and materials contracts as a cost-saving measure. 

But EPA still wasn’t trying all that hard, according to yet another Inspector General’s report, issued just a month before the examination of EPS90804.  Despite the headquarters order to cut back on high-cost contracts, “flexibility” allowed EPA’s ten regions to use them virtually at their discretion. “The regions’ resistance to change is well documented through the years,” the Inspector General sardonically noted in March, 2013.

CLICK HERE FOR THE REPORT

The resistance is apparently still operative.

While agreeing with many changes suggested in the  report on EPS90804 for ensuring that employees take notes and use verification procedures, both region 9 administrator Blumenfeld and senior EPA managers declared that they didn’t think that verification of the credentials of a contractor’s employees, as one example, was necessary or required.

One top manager went further. If EPA has a policy direct that the agency review credentials of all those working on tasks, the report relates that he said, “the requirement needs to be changed.”

And on the issue of alleged overbilling—involving a federal rule that forbids giving contractors a “profit” on materials included in the contract, which the Inspector General’s office declared that EPS90804 specifically and inexplicably violated--the administrators were equally adamant in refusing to ask for the money back.

How that issue, at least, is decided will ultimately depend on one of EPA’s topmost management—whoever that may turn out to be. Under dispute resolution procedures, after a “final” fruitless meeting held on May 29, the issue went to EPA’s Deputy Administrator, Robert Perciasepe, for a final decision.

Perciasepe was supposed to make the decision by July 15. This week, however, he ha announced that he will step down from his job next month.

According to an official in the Inspector General’s office, EPA has now asked for a delay in the final decision on EPS90804’s costly overbilling issue until August 15.

George Russell is editor-at-large of Fox News and can be found on Twitter @GeorgeRussell

Click here for more stories by George Russell

George Russell is editor-at-large of Fox News



Amount


Date Reason For Modification
-- 5/10/18 Other Administrative Action

ARCHITECT-ENGINEER ENVIRONMENTAL SERVICES, IRON MOUNTAIN MINE LONG TERM RESPONSE ACTION OVERSIGHT. THE PURPOSE OF THIS MOD IS TO EXTEND THE POP END DATE TO 3/23/2019.

-- 11/30/17 Other Administrative Action

ARCHITECT-ENGINEER ENVIRONMENTAL SERVICES, IRON MOUNTAIN MINE LONG TERM RESPONSE ACTION OVERSIGHT

$19.2k 2/10/17 Other Administrative Action

ARCHITECT-ENGINEER ENVIRONMENTAL SERVICES, IRON MOUNTAIN MINE LONG TERM RESPONSE ACTION OVERSIGHT

-- 9/1/16 Other Administrative Action

ARCHITECT-ENGINEER ENVIRONMENTAL SERVICES, IRON MOUNTAIN MINE LONG TERM RESPONSE ACTION OVERSIGHT

$51.8k 5/18/16 Other Administrative Action

ARCHITECT-ENGINEER ENVIRONMENTAL SERVICES, IRON MOUNTAIN MINE LONG TERM RESPONSE ACTION OVERSIGHT

-- 3/21/16 Other Administrative Action

ARCHITECT-ENGINEER ENVIRONMENTAL SERVICES, IRON MOUNTAIN MINE LONG TERM RESPONSE ACTION OVERSIGHT

$20.5k 1/15/16 Other Administrative Action

A&E ENVIRONMENTAL SERVICES, IMM

-- 8/4/15 Other Administrative Action

A&E ENVIRONMENTAL SERVICES, IMM

$32.5k 5/18/15 Other Administrative Action

A&E ENVIRONMENTAL SERVICES, IMM

-- 4/29/15 Other Administrative Action

A&E ENVIRONMENTAL SERVICES, IMM

Publication: U. S. Fish and Wildlife Service. 1994. Endangered and Threatened Wildlife and Plants; Reclassification of the Sacramento River Winter-Run Chinook Salmon From Threatened to Endangered Status. Federal Register, vol. 59, no. 56. 13836.

ITIS records citing this publication
 
 Kingdom Animalia
  Oncorhynchus tshawytscha (Walbaum in Artedi, 1792) -- valid -- Chinook salmon, king salmon, salmón boquinegra, saumon chinook



Chinook Salmon - Protected

Oncorhynchus tshawytscha

Illustration of a Chinook salmon.
Quick Facts

Weight
40 pounds, but can be up to 120 pounds
Lifespan
Up to 6 years
Length
3 feet
Threats
Habitat impediments (dams), Habitat degradation, Habitat loss, Commercial and recreational fishing, Climate change
Location
California, Oregon, Washington, Alaska,

Protected Status

ESA Endangered
Sacramento River winter-run, Upper Columbia River spring-run
ESA Threatened
California coastal, Central Valley spring-run, Lower Columbia River, Puget Sound, Snake River fall-run, Snake River spring/summer-run, Upper Willamette River
ESA Candidate
Upper Klamath-Trinity River
ESA Experimental Population
Central Valley spring-run in the San Joaquin River XN, Upper Columbia River spring-run in the Okanogan River subbasin XN

Quick Facts

Weight
40 pounds, but can be up to 120 pounds
Lifespan
Up to 6 years
Length
3 feet
Threats
Habitat impediments (dams), Habitat degradation, Habitat loss, Commercial and recreational fishing

About the Species

Chinook salmon are anadromous fish, which means they can live in both fresh and saltwater. Chinook salmon have a relatively complex life history that includes spawning and juvenile rearing in rivers followed by migrating to saltwater to feed, grow, and mature before returning to freshwater to spawn. They are vulnerable to many stressors and threats including blocked access to spawning grounds and habitat degradation caused by dams and culverts. Two species of chinook salmon are listed as endangered under the Endangered Species Act, seven species are listed as threatened under the ESA, and one species is a candidate for listing under the ESA.

The Sacramento River Winter-run Chinook is one of NOAA Fisheries' Species in the Spotlight.   

NOAA Fisheries is committed to conserving and protecting chinook salmon. Our scientists and partners use a variety of innovative techniques to study, learn more about, and protect this species.

Learn more about chinook salmon

ESA Endangered

2 evolutionarily significant units

  • Sacramento River winter-run
  • Upper Columbia River spring-run

ESA Threatened

7 evolutionarily significant units

  • California coastal
  • Central Valley spring-run
  • Lower Columbia River
  • Puget Sound
  • Snake River fall-run
  • Snake River spring/summer-run
  • Upper Willamette River

ESA Candidate

1 evolutionarily significant unit

  • Upper Klamath-Trinity River

ESA Experimental Population

2 evolutionarily significant units

  • Central Valley spring-run in the San Joaquin River XN
  • Upper Columbia River spring-run in the Okanogan River subbasin XN

Scientific Classification

Taxonomic Hierarchy
       
 KingdomAnimalia  – Animal, animaux, animals  
    SubkingdomBilateria   
       InfrakingdomDeuterostomia   
          PhylumChordata  – cordés, cordado, chordates  
             SubphylumVertebrata  – vertebrado, vertébrés, vertebrates  
                InfraphylumGnathostomata   
                   SuperclassActinopterygii  – ray-finned fishes, spiny rayed fishes, poisson épineux, poissons à nageoires rayonnées  
                      ClassTeleostei   
                         SuperorderProtacanthopterygii   
                            OrderSalmoniformes  – saumons, salmons  
                               FamilySalmonidae  – salmonids, trouts and salmons, truchas y salmones, truites et saumons, salmons, trouts  
                                  SubfamilySalmoninae   
                                     GenusOncorhynchus Suckley, 1861 – Pacific salmon  
                                        SpeciesOncorhynchus tshawytscha (Walbaum in Artedi, 1792) – Chinook salmon, salmón boquinegra, king salmon, saumon chinook  
       
















"Covenant to Establish a Commonwealth benevolent flexible purpose trust association to assist homeless and for prohibition against discrimination federal joint venture collection of payments due to advisory to assist.

Invasion of a legally protected interest made it impossible to protect entanglement with religion & safety inspections. Standing to bring challenged constitutionality exception action implementing program demonstration order with due respect to individuals freedom regarding the uncertainty applicable to matters of substantive law & procedure to which denial of due process caused injury to their moral principles and aesthetic sensibilities in effect at the time of establishment.


 


 
US ESA: Listed Threatened the Snake River spring/summer Evolutionarily Significant Unit, as published in Federal Register Volume 57, Number 78, Pages 14653 - 14663, April 22, 1992  
US ESA: Change in status from Threatened to Endangered the Sacramento River winter-run population, as published in Federal Register Volume 59, Number 2, Pages 440 - 450, January 04, 1994  
US ESA: Petition to list as threatened or endangered the mid-Columbia River summer Evolutionarily Significant Unit not warranted according to 12-month petition finding, as published in Federal Register Volume 59, Number 184, Pages 48855 - 48860, September 23, 1994  
US ESA: Proposal to list as endangered withdrawn the Snake River fall Evolutionarily Significant Unit, as published in Federal Register Volume 63, Number 7, Pages 1807 - 1811, January 12, 1998  
US ESA: Proposal to list as endangered withdrawn the Snake River spring/summer Evolutionarily Significant Unit, as published in Federal Register Volume 63, Number 7, Pages 1807 - 1811, January 12, 1998  
US ESA: Listed Endangered the Upper Columbia River spring-run Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 56, Pages 14308 - 14328, March 24, 1999  
US ESA: Listed Threatened the Upper Willamette River Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 56, Pages 14308 - 14328, March 24, 1999  
US ESA: Listed Threatened the Lower Columbia River Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 56, Pages 14308 - 14328, March 24, 1999  
US ESA: Listed Threatened the Puget Sound Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 56, Pages 14308 - 14328, March 24, 1999  
US ESA: Proposal to list as threatened withdrawn for the Southern Oregon and Northern California Coastal Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 179, Pages 50394 - 50415, September 16, 1999  
US ESA: Proposal to list as threatened withdrawn for the California Central Valley fall-run Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 179, Pages 50394 - 50415, September 16, 1999  
US ESA: Proposal to list as threatened withdrawn for the Snake River fall Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 179, Pages 50394 - 50415, September 16, 1999  
US ESA: Listed Threatened the California Coastal Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 179, Pages 50394 - 50415, September 16, 1999  
US ESA: Listed Threatened the Central Valley spring-run Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 179, Pages 50394 - 50415, September 16, 1999  
US ESA: Petition to list as threatened or endangered the Upper Klamath and Trinity Rivers Evolutionarily Significant Unit not warranted according to 12-month petition finding, as published in Federal Register Volume 77, Number 63, Pages 19597 - 19605, April 02, 2012


1
CALIFORNIA CENTRAL VALLEY RECOVERY DOMAIN
5-Year Status Review:
Summary and Evaluation of
Sacramento River Winter-Run Chinook Salmon ESU
National Marine Fisheries Service
West Coast Region
December 2016
2
5-YEAR REVIEW
Central Valley Recovery Domain
Species Reviewed Evolutionarily Significant Unit (ESU) or
Distinct Population Segment
Chinook Salmon
(O. tshawytscha)
Sacramento River Winter-run Chinook
Salmon ESU
1.0 GENERAL INFORMATION
1.1 Preparers and Reviewers
1.1.1. NMFS West Coast Region:
Preparers:
Brycen Swart1 (916) 930-3712 Brycen.Swart@noaa.gov
Reviewers:
Brian Ellrott1 (916) 930-3612 brian.ellrott@noaa.gov
Maria Rea1 (916) 930-3600 maria.rea@noaa.gov
Scott Rumsey2 (503) 872-2791 scott.rumsey@noaa.gov
1.1.2. Southwest Fisheries Science Center
Rachel C. Johnson3 (707) 826-3688 rachel.johnson@noaa.gov
Steven T. Lindley3 (831) 420-3921 steve.lindley@noaa.gov
Michael O’Farrell3 (831) 420-3976 michael.ofarrell@noaa.gov
1.2 Introduction
Many west coast salmon and steelhead (Oncorhynchus sp.) stocks have declined substantially
from their historic numbers and now are at a fraction of their historical abundance. There are
several factors that contribute to these declines, including: overfishing, loss of freshwater and
estuarine habitat, hydropower development, poor ocean conditions, and hatchery practices.
These factors, among others, led to NOAA’s National Marine Fisheries Service (NMFS) listing
of 28 salmon and steelhead stocks in California, Idaho, Oregon, and Washington under the
Federal Endangered Species Act (ESA).
1 California Central Valley Office, 650 Capitol Mall, Suite 5-100, Sacramento, CA 95814
2 Protected Resources Division, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232
3 Southwest Fisheries Science Center, Fisheries Ecology Division, 110 Shaffer Road, Santa Cruz, CA 95060
3
The ESA, under Section 4(c)(2), directs the Secretary of Commerce to review the listing
classification of threatened and endangered species at least once every five years. After
completing this review, the Secretary must determine if any species should be: (1) removed from
the list; (2) have its status changed from threatened to endangered; or (3) have its status changed
from endangered to threatened. The term “threatened species” is defined under the ESA as any
species which is likely to become an endangered species within the foreseeable future throughout
all or a significant portion of its range. An “endangered species” under the ESA is any species
which is in danger of extinction throughout all or a significant portion of its range.
The most recent listing determinations for west coast salmon and steelhead occurred in 2005 and
2006. NMFS previously completed a 5-year status review in 2011 and concluded that the status
of the Sacramento River (SR) winter-run Chinook salmon Evolutionarily Significant Unit (ESU)
should remain as endangered. This document summarizes NMFS’s current 5-year review of the
ESA-listed SR winter-run Chinook salmon ESU.
1.2.1 Background on Listing Determinations
Under the ESA, a species, subspecies, or a distinct population segment (DPS) may be listed as
threatened or endangered. To identify the proper taxonomic unit for consideration in an ESA
listing for salmon NMFS draws on its “Policy on Applying the Definition of Species under the
ESA to Pacific Salmon” (ESU Policy) (56 FR 58612). According to this policy guidance,
populations of salmon that are substantially reproductively isolated from other con-specific
populations and are representing an important component in the evolutionary legacy of the
biological species are considered to be an ESU. In its listing determinations for Pacific salmon
under the ESA, NMFS treated an ESU as constituting a DPS, and hence a ‘‘species.’’
Artificial propagation (fish hatchery) programs are common throughout the range of ESA-listed
west coast salmon and steelhead. On June 28, 2005, NMFS announced a final policy addressing
the role of artificially propagated Pacific salmon and steelhead in listing determinations under
the ESA (70 FR 37204). Specifically, this policy: (1) establishes criteria for including hatchery
stocks in ESUs and DPSs; (2) provides direction for considering hatchery fish in extinction risk
assessments of ESUs and DPSs; (3) requires that hatchery fish determined to be part of an ESU
or DPS to be included in any listing of those units; (4) affirms our commitment to conserving
natural salmon and steelhead populations and the ecosystems upon which they depend; and (5)
affirms our commitment to fulfilling trust and treaty obligations with regard to the harvest of
some Pacific salmon and steelhead populations, consistent with the conservation and recovery of
listed salmon ESUs and steelhead DPSs.
To determine whether a hatchery program was part of an ESU or DPS, NMFS convened the
Salmon and Steelhead Hatchery Advisory Group (SSHAG), which evaluated all hatchery stocks
and programs and divided them into 4 categories (NMFS 2003):
Category 1: The hatchery population was derived from a native, local population; is released
within the range of the natural population from which it was derived; and has experienced only
4
relatively minor genetic changes from causes such as founder effects, domestication or non-local
introgression.
Category 2: The hatchery population was derived from a local natural population, and is
released within the range of the natural population from which it was derived, but is known or
suspected to have experienced a moderate level of genetic change from causes such as founder
effects, domestication, or non-native introgression.
Category 3: The hatchery population is derived predominately from other populations that are
in the same ESU/DPS, but is substantially diverged from the local, natural population(s) in the
watershed in which it is released.
Category 4: The hatchery population was predominately derived from populations that are not
part of the ESU/DPS in question; or there is substantial uncertainty about the origin and history
of the hatchery population.
Based on these categorical delineations, hatchery programs in SSHAG categories 1 and 2 are
included as part of an ESU or DPS (70 FR 37204) although hatchery programs in other
categories may also be included in an ESU or DPS under certain circumstances.
Because the new hatchery listing policy changed the way NMFS considered hatchery fish in
ESA listing determinations, NMFS conducted new status reviews and ESA-listing
determinations for west coast salmon ESUs and steelhead DPSs using this policy. On June 28,
2005, NMFS issued final listing determinations for 16 ESUs of Pacific salmon (including the SR
winter-run Chinook salmon ESU) and on January 5, 2006, NMFS issued final listing
determinations for 10 DPSs of steelhead.
On August 15, 2011 we noticed the availability of the 5-year reviews and listing
recommendations for 11 ESUs of Pacific salmon and 6 DPSs of steelhead, including SR winterrun
Chinook salmon, and determined the status should remain as endangered as was determined
in 2005 (76 FR 50447).
1.3 Methodology used to complete the review:
A public notice announcing NMFS’s intent to conduct 5-year status reviews for the 28
ESUs/DPSs of west coast anadromous salmonids was published in the Federal Register on
February 6, 2015 (80 FR 6695). This notice initiated a 60-day period for the public to provide
comments to NMFS related to the status of the species being reviewed. The West Coast Region
(WCR) of NMFS coordinated informally with the State co-managers to ensure they were
informed about the status review and had an opportunity to provide any comments or
information. No comments relevant to SR winter-run Chinook salmon were provided during the
60-day period.
5
Following the comment period, three main steps were taken to complete the 5-year status review
for the SR winter-run Chinook salmon. First, the NMFS-Southwest Fisheries Science Center
(SWFSC) reviewed any new and substantial scientific information that had become available
since the 2010 status review and produced an updated biological status summary report (herein
cited as Williams et al. 2016 and referred to as the “viability report”). The viability report was
intended to determine whether or not the biological status of SR winter-run Chinook salmon had
changed since the 2010 status review was conducted. Next, the California Central Valley Office
(CCVO) reviewed the viability report and assessed whether the five ESA listing factors (threats)
changed substantially since the 2010 status review. To assess whether the five ESA listing
factors have changed substantially since 2010, several key documents were reviewed such as the
Federal Register notices identified in Tables 1 and 2 and other relevant publications including:
(1) 5-year Status Review Report: Summary and Evaluation of Sacramento River Winter-
Run Chinook Salmon ESU (NMFS 2011a)
(2) Central Valley Salmon and Steelhead Recovery Plan (NMFS 2014)
(3) Discussions with California Department of Fish and Wildlife (CDFW) and the U.S.
Fish and Wildlife Service (USFWS) on watershed assessments and recovery action
implementation status
(4) Biological Opinion on the Long-term Operations of the Central Valley Project and
State Water Project (NMFS 2009)
(5) Grandtab 2015
(6) Framework for assessing viability of threatened and endangered Chinook salmon and
steelhead in the Sacramento-San Joaquin Basin (Lindley et al. 2007)
Finally, the CCVO staff considered the viability report, the current threats to the species,
recovery action implementation, and relevant conservation measures before making a
determination whether the listing status of SR winter-run Chinook salmon should be down listed
(i.e., endangered to threatened), delisted from the ESA list, or remain unchanged. CCVO
biologists assimilated information from various sources to support this review and the reviews of
Central Valley spring-run Chinook salmon and California Central Valley steelhead.
1.4 Background – Summary of Previous Reviews, Statutory and Regulatory
Actions, and Recovery Planning
1.4.1 FR Notice citation announcing initiation of this review:
80 FR 6695; February 6, 2015
1.4.2 Listing history
The SR winter-run Chinook salmon ESU was first listed as “threatened” in 1989 under an
emergency rule (Table 1). In 1994, NMFS reclassified the ESU as an endangered species due to
several factors, including: (1) the continued decline and increased variability of run sizes since
its listing as a threatened species in 1989; (2) the expectation of weak returns in coming years as
6
the result of two small year classes (1991 and 1993); and (3) continuing threats to the species.
On June 14, 2004, NMFS proposed to reclassify the ESU as threatened (69 FR 33102; June 14,
2004) primarily because of increasing run sizes and the implementation of numerous
conservation efforts in the Central Valley. Following the comment period on the proposed
reclassification and additional analysis, NMFS issued a final listing determination on June 28,
2005 (see Table 1) concluding that the ESU was “in danger of extinction” due to risks associated
with its reduced diversity and spatial structure, and therefore, warranted continued listing as an
endangered species under the ESA (70 FR 37160).
Table 1. Summary of the listing history under the Endangered Species Act for the SR
winter-run Chinook salmon ESU.
Salmonid Species ESU Name Original Listing Revised Listing(s)
Chinook Salmon
(O. tshawytscha)
Sacramento River Winterrun
Chinook salmon
FR notice: 54 FR 32085
Date listed: 8/4/1989
Classification: Threatened
(emergency interim rule)
FR notice: 55 FR 12191
Date listed: 4/2/1990
Classification: Threatened
(emergency interim rule)
FR notice: 55 FR 46515
Date listed: 11/5/1990
Classification: Threatened
FR notice: 59 FR 440
Date: 1/4/1994
Re-classification:
Endangered
FR notice: 70 FR 37160
Date listed: 6/28/2005
Classification: reaffirmed
classification as Endangered
1.4.3 Associated rulemakings
The ESA requires NMFS to designate critical habitat for any species it lists under the ESA.
Critical habitat is defined as: (1) specific areas within the geographical area occupied by the
species at the time of listing, on which are found those physical or biological features essential to
the conservation of the species, and those features which may require special management
considerations or protection; and (2) specific areas outside the geographical area occupied by the
species if the agency determines that the area itself is essential for conservation of the species.
NMFS designated critical habitat for this ESU in 1993 (Table 2).
Section 4(d) of the ESA directs NMFS to issue regulations necessary and advisable to conserve
species listed as threatened. This applies particularly to “take,” which can include any act that
kills or injures fish, and may include habitat modification. The ESA automatically prohibits the
7
take of species listed as endangered, In 1990, a 4(d) protective regulation was promulgated for
this threatened ESU that applied the section 9 take prohibitions and also created several “limits”
or exemptions for specific activities consistent with the conservation and recovery of threatened
salmonids. With the 1994 reclassification of the ESU as endangered, the 1990 4(d) rule no
longer applied to Sacramento River winter-run Chinook, and ESU was automatically afforded
the section 9 take prohibitions.
Table 2. Summary of rulemaking for 4(d) protective regulations and critical habitat for
the SR winter-run Chinook salmon.
Salmonid Species ESU Name 4(d) Protective
Regulations
Critical Habitat
Designations
Chinook Salmon
(O. tshawytscha)
Sacramento River winterrun
Chinook salmon
FR notice: 55 FR 46515
Date: 11/5/1990*
FR notice: 58 FR 33212
Date: 6/16/1993
*Note: The 1990 4(d) rule was later superseded by the 1994 reclassification of this ESU as
endangered (see Table 1).
1.4.4 Review History
Numerous scientific assessments have been conducted to assess the biological status of this ESU.
A list of those assessments is provided in Table 3.
Table 3. Previous scientific assessments for the SR winter-run Chinook salmon ESU.
Salmonid
Species
ESU Name Document Reference
Chinook Salmon
(O. tshawytscha)
Sacramento
River Winter-run
Chinook salmon
National Marine Fisheries Service. 1996. Recommendations for the Recovery of
the Sacramento river Winter-run Chinook Salmon. Recovery Team. Long Beach.
CA. 211 pages.
Myers, J. M., R. G. Kope, G. J. Bryant, D. Teel, L. J. Lierheimer, T. C.
Wainwright, W. S. Grant, F. W. Waknitz, K. Neely, S. T. Lindley, and R. S.
Waples. 1998. Status Review of Chinook Salmon from Washington, Idaho,
Oregon, and California., Report No. NMFSNWFSC-35. NOAA Tech. Memo. U.S.
Department of Commerce.
National Marine Fisheries Service. 1999. Status review update for deferred
ESUs of West Coast Chinook salmon (Oncorhynchus tshawytscha) from
Washington, Oregon, California, and Idaho. Memorandum dated 16 July 1999, to
U. Varanasi, Northwest Fisheries Science Center, and M. Tillman, Southwest
Fisheries Science Center, from M. Schiewe, Northwest Fisheries Science Center,
Montlake, Washington.
Lindley, S.T., R. Schick, B.P. May, J.J. Anderson, S. Greene, C. Hanson, A. Low,
D. McEwan, R.B. MacFarlane, C. Swanson, and J.G. Williams. 2004. Population
structure of threatened and endangered Chinook salmon ESU in California's
Central Valley basin. NMFS Southwest Science Center NOAA-TM-NMFSSWFSC-
360. Santa Cruz, CA.
Good, T.P., R.S. Waples, and P. Adams. 2005. Updated status of federally listed
ESUs of West Coast salmon and steelhead. U.S. Dept. Commerce, NOAA Tech.
Memo. NMFS-NWFSC-66, 598 p.
National Marine Fisheries Service. 2005. Final assessment of the National
Marine Fisheries Service’s critical habitat analytical review teams (CHARTs) for
8
seven salmon and steelhead evolutionarily significant units (ESUs) in California.
July. Prepared by the NOAA Fisheries, Protected Resources Division, Long
Beach, California.
Lindley, S.T., R. Schick, E. Mora, P. B. Adams, J. J. Anderson, S. Greene, C.
Hanson, B. P. May, D. R. McEwan, R. B. MacFarlane, C. Swanson, and J. G.
Williams. 2007. Framework for assessing viability of threatened and endangered
Chinook salmon and steelhead in the Sacramento-San Joaquin Basin. San
Francisco Estuary and Watershed Science 5(1), Article 4: 26 pages.
Williams, T. H., S. T. Lindley, B. C. Spence, and D. A. Boughton. 2011. Status
Review Update for Pacific Salmon and Steelhead Listed under the Endangered
Species Act: Update to January 5, 2011 Report. National Marine Fisheries Service,
Southwest Fisheries Science Center. Santa Cruz, CA.
Williams, T.H., B.C. Spence, D.A. Boughton, R.C. Johnson, L. Crozier, N.
Mantua, M. O’Farrell, and S.T. Lindley. 2016. Viability assessment for Pacific
salmon and steelhead listed under the Endangered Species Act: Southwest. 2
February 2016 Report to National Marine Fisheries Service – West Coast Region
from Southwest Fisheries Science Center, Fisheries Ecology Division 110 Shaffer
Road, Santa Cruz, California 95060.
1.4.5 Species’ Recovery Priority Number at start of 5-year review
On June 15, 1990, NMFS issued guidelines (55 FR 24296) for assigning listing and recovery
priorities. For recovery plan development, implementation, and resource allocation, NMFS
assesses three criteria to determine a species’ recovery priority number from 1 (high) to 12 (low):
(1) magnitude of threat; (2) recovery potential; and (3) conflict with development projects or
other economic activity. NMFS re-evaluated the recovery priority numbers for listed species as
part of the FY2013-FY2014 ESA Biennial Report to Congress (NMFS 2015). As a result of the
re-evaluation, the recovery potential for SR winter-run Chinook salmon increased, causing the
species’ recovery priority number to change from 3 to 1. Regardless of a species' recovery
priority number, NMFS remains committed to continued efforts to recovery all ESA-listed
species under our authority.
1.4.6 Recovery Plan or Outline
9
In 2014, NMFS released a final multi-species recovery plan that addresses all three listed
salmonids in the California Central Valley, including the SR winter-run Chinook salmon ESU
(Table 4).
Table 4. Recovery Priority Number and Endangered Species Act Recovery Plans for SR
winter-run Chinook salmon.
Salmonid
Species
ESU Name Recovery
Priority
Number
Recovery Plans
Chinook Salmon
(O. tshawytscha)
Sacramento
River Winterrun
Chinook
Salmon
1 Name of Plan: Recovery Plan for the Evolutionarily
Significant Units of Sacramento River Winter-run Chinook
Salmon and Central Valley Spring-run Chinook Salmon and
the Distinct Population Segment of California Central Valley
Steelhead (July 2014)
Plan Status: Final
http://www.westcoast.fisheries.noaa.gov/protected_species/salmon_
steelhead/recovery_planning_and_implementation/
(West Coast Region salmonid Recovery Plans)
2.0 REVIEW ANALYSIS
2.1 Delineation of Species under the Endangered Species Act
2.1.1 Is the species under review a vertebrate?
ESU/DPS Name YES* NO**
Sacramento River Winter-run Chinook Salmon X
* if “Yes,” go to section 2.1.2
** if “No,” go to section 2.2
2.1.2 Is the species under review listed as a DPS?
ESU/DPS Name YES* NO**
Sacramento River Winter-run Chinook Salmon X
* if “Yes,” go to section 2.1.3
** if “No,” go to section 2.1.4
2.1.3 Was the DPS listed prior to 1996?
ESU/DPS Name YES* NO** Date Listed if Prior to 1996
Sacramento River Winter-run Chinook Salmon X 1989
* if “Yes,” give date go to section 2.1.3.1
** if “No,” go to section 2.1.4
10
2.1.3.1 Prior to this 5-year review, was the DPS classification reviewed
to ensure it meets the 1996 policy standards?
In 1991, NMFS issued a policy to provide guidance for defining ESUs of salmon and steelhead
that would be considered for listing under the ESA (56 FR 58612; November 20, 1991). Under
this policy, a group of Pacific salmon populations is considered an ESU if it is substantially
reproductively isolated from other con-specific populations and it represents an important
component in the evolutionary legacy of the biological species. In listing the SR winter-run
Chinook salmon ESU, NMFS treated the delineated ESU as a DPS, and hence a “species”, under
the ESA. Although finalized after the listing of this ESU, the 1996 DPS policy affirmed that a
stock of Pacific salmon is considered a DPS if it represents an ESU of a biological species and
concluded that NMFS’s ESU policy was a detailed extension of the joint DPS policy. In
summary, therefore, the ESU meets the 1996 DPS policy standards.
2.1.4 Summary of relevant new information regarding the delineation of
the ESUs/DPSs under review
The SR winter-run Chinook salmon ESU is represented by a single naturally-spawning
population that has been displaced from nearly all of its historical spawning habitat by the
construction of Shasta and Keswick dams. Based on this review, there is no new information
indicating that the current freshwater and estuarine geographic boundary of this ESU should be
changed or that the population does not constitute an ESU.
USFWS manages a Conservation Hatchery Program for this ESU which is located at the
LSNFH. This hatchery program supplements the natural population according to strict guidelines
developed in conjunction with NMFS. Based on a review of available genetic and other
information, this hatchery stock was considered part of the SR winter-run Chinook ESU and was
listed in 2005 (70 FR 37160). Based on that review, there is no new information indicating that
this hatchery stock has diverged significantly from the natural spawning population or that there
have been substantial changes in the hatchery management since the last status review.
In 2015, the USFWS, NMFS, and CDFW collectively decided to initiate a Captive Broodstock
Program using juvenile hatchery fish from the Conservation Hatchery Program. This decision
was in response to threats to the ESU caused by the continuation of extreme drought conditions
in California’s Central Valley. The goals of a new Captive Broodstock Program, listed in order
of priority, will be to provide : 1) a genetic reserve of SR winter-run Chinook salmon in a safe
and secure environment to be available for use as hatchery broodstock for the Integrated-
Recovery Supplementation Program in the event of a catastrophic decline in the abundance; 2) a
future source of winter-run Chinook salmon to contribute to multi-agency efforts to reintroduce
winter-run Chinook salmon upstream of Shasta Dam and into restored habitats of Battle Creek;
and 3) a future source of winter-run Chinook salmon to fulfill the needs of research projects.
As part of this 5-year review, we reevaluated the relatedness of SR winter-run Chinook ESU
hatchery programs. We determined that the fish being reared to maturity at the LSNFH to
11
establish a Captive Broodstock Program are part of the current ESA listing. These captive fish
were taken as juveniles directly from the Conservation Hatchery Program and no outside fish
were incorporated to establish a new stock. Rather than being released as juveniles, these
captive fish from the Conservation Hatchery Program are being reared and maintained at the
LSNFH into adulthood. As such, the captive winter-run Chinook at the LSNFH are a component
of the Conservation Hatchery Program and should be considered as part of the listing of SR
winter-run Chinook, as it is currently defined (79 FR 20802; April 14, 2014).
While the captive fish at the LSNFH are currently a component of the Conservation Hatchery
Program and regarded as part of the listed ESU, we recognize that the future intent is to use the
progeny of these captive fish in support of different conservation and recovery goals than the
Conservation Hatchery Program. Next year, 2017, will be the first year that these fish retained
from the Conservation Hatchery Program will be mature and ready to spawn. The progeny from
those matings will be retained, establishing the Captive Broodstock Program. This Captive
Broodstock Program will represent a new hatchery stock of SR winter-run Chinook being
propagated at the LSNFH.
The Captive Broodstock Program, once established in 2017, will be no more divergent relative to
the local natural population(s) than what would be expected between closely related natural
populations within the SR winter-run Chinook salmon ESU. As such, consistent with the 2005
Hatchery Listing Policy, we recommend revising the ESU listing to include the Captive
Broodstock Program, in addition to the Conservation Hatchery Program, as part of the listed SR
winter-run Chinook ESU. While both hatchery programs will both be propagated at the LSNFH,
identifying these two hatchery programs as distinct components of the listed ESU will recognize
their differing conservation goals, their unique broodstock and rearing practices, and their
respective potential for future genetic divergence relative to the local natural population(s).
2.2 Recovery Criteria
2.2.1 Does the species have a final, approved recovery plan containing
objective, measurable criteria?
ESU/DPS Name YES NO
Sacramento River Winter-run Chinook Salmon X
The ESA requires recovery plans to incorporate (to the maximum extent practicable) objective,
measurable criteria which, when met, would result in a determination in accordance with the
provisions of the ESA that the species can be removed from the Federal List of Endangered and
Threatened Wildlife and Plants (50 CFR 17.11 and 17.12). NMFS issued a final approved
recovery plan for this ESU in 2014. The plan contains recovery criteria that are objective and
measurable, and reflect the best available and most-up-to-date information on the biology of this
ESU and its habitat and address both biological parameters as well as the 5 listing factors. The
12
biological recovery criteria in the 2014 recovery plan are based on the Viable Salmon Population
(VSP) criteria developed by McElhany et al. (2000).
2.2.2 Adequacy of recovery criteria.
2.2.2.1 Do the recovery criteria reflect the best available and most up
to date information on the biology of the species and its
habitat?
ESU/DPS Name YES NO
Sacramento River Winter-run Chinook Salmon X
The biological recovery criteria in the recovery plan are based on the best available information.
2.2.2.2 Are all of the 5 listing factors that are relevant to the species
addressed in the recovery criteria?
ESU/DPS Name YES NO
Sacramento River Winter-run Chinook Salmon X
The recovery plan contains threat abatement recovery criteria that address each of the five listing
factors.
2.2.3 List the recovery criteria as they appear in any final or interim
recovery plan, and discuss how each criterion has or has not been met,
citing information
The Central Valley Chinook salmon and steelhead recovery plan contains criteria indicating that
the SR winter-run Chinook salmon ESU must have three viable populations in the Basalt and
Porous Lava Diversity Group in order to support a delisting determination. Criteria for assessing
population extinction risk were developed by the Central Valley Technical Recovery Team
(TRT) (Lindley et al. 2007) and have been incorporated into the recovery plan (Table 5). A
population that meets the low extinction risk criteria described in Table 5 is considered to be
viable (NMFS 2014). The TRT incorporated the four viable salmonid population parameters
from McElhany et al. (2000) into assessments of population viability, and two sets of population
viability criteria were developed, expressed in terms of extinction risk. The first set of criteria
deal with direct estimates of extinction risk from population viability models. If data are
available and such analyses exist and are deemed reasonable for individual populations, such
assessments may be efficient for assessing extinction risk. In addition, the TRT also provided
simpler criteria. The simpler criteria include population size (and effective population size),
population decline, catastrophic rate and effect, and hatchery influence. For a population to be
considered at low risk of extinction (i.e., defined as < 5 percent chance of extinction within 100
13
years) the population viability assessment must demonstrate that risk level or all of the following
criteria must be met:
• Effective population size is > 500 -or- census population size is > 2,500
• No productivity decline is apparent
• No catastrophic events occurring or apparent with the past 10 years
• Hatchery influence is low (as determined by levels corresponding to different amounts,
durations and sources of hatchery strays)
Table 5. Criteria for assessing the level of risk of extinction for populations of Pacific
salmonids in the Central Valley of California. Overall risk is determined by the highest
risk score for any category (Lindley et. al. 2007).
Risk of extinction
Criterion High Moderate Low
Extinction risk and PVA > 20% within 20 yrs > 5% within 100 yrs < 5% within 100 yrs
- or any ONE of - - or any ONE of - - or ALL of -
Population sizea Ne ≤ 50 50 < Ne ≤ 500 Ne > 500
- or - - or - - or -
N ≤ 250 250 < N ≤ 2500 N > 2500
Population decline Precipitous declineb Chronic decline or
depressionc
No decline apparent
or probable
Catastrophe, rate, and
effectd
Order of magnitude
decline within one
generation
Smaller but
significant declinec Not apparent
Hatchery influencef High Moderate Low
a – Census size N can be used if direct estimates of effective size Ne are not available, assuming Ne/N = 0.2.
b – Decline within last two generations to annual run size ≤ 500 spawners, or run size > 500 but declining at ≥ 10%
per year over the past 10 years. Historically small but stable population not included.
c – Run size has declined to ≤ 500, but now stable.
d – Catastrophes occurring within the last 10 years.
e – Decline < 90% but biologically significant.
f – See Figure 3 for assessing hatchery impacts.
2.3 Updated Information and Current Species Status
2.3.1 Analysis of VSP Criteria
14
Summary of Previous Biological Review Team (BRT) Conclusions
Good et al. (2005) found that viability of the SR winter-run Chinook salmon ESU was consistent
with “in danger of extinction.” The major concerns of the BRT were that there is only one
extant population, and it is outside of its historical spawning distribution in an artificiallymaintained
habitat that is vulnerable to drought and other catastrophes. In the most recent past
assessment, Williams et al. (2011) found that the viability of the ESU had changed little since the
2005 review and found that it did not appear that there was a change in extinction risk.
Brief Review of Technical Recovery Team (TRT) Documents and Findings
The TRT delineated four historical independent populations of the SR winter-run Chinook
salmon ESU. The spawning areas of three of these historical populations (upper Sacramento,
McCloud, and Pit rivers) are above the impassable Keswick and Shasta dams, while Battle Creek
(location of the fourth population) is presently unsuitable for winter-run Chinook salmon due to
high summer water temperatures. Using data through 2004, Lindley et al. (2007) found that the
mainstem Sacramento River population was at a low risk of extinction. The ESU as a whole,
however, was not considered viable because there is only one naturally-spawning population and
it is not within the range of its historical spawning habitat. An emerging concern was the rising
levels of LSNFH-origin fish spawning in natural areas (mean=8%, t=10 years), although the
duration and extent of this introgression was still consistent with a low extinction risk as of 2010.
New Data and Updated Analyses
Since the 2010 viability assessment, routine escapement data have continued to be collected
allowing viability statistics to be updated (Table 6). The Red Bluff Diversion Dam (RBDD)
gates were operated in the up/out position during some or all of the winter-run immigration
period since 2001 and removed in 2012 to provide unimpaired salmon passage year-round
(NMFS 2009). These modifications also changed the ability to count SR winter-run Chinook
salmon adults at the RBDD fish ladders (NMFS 2009). Population estimates from 2001 to
present are derived exclusively from mark-recapture estimates from the carcass survey (Figure
1).
Table 6 shows the viability metrics for SR winter-run Chinook salmon abundance and trends in
the LSNFH and in the Sacramento River. Like many other populations of Chinook salmon in the
Central Valley, SR winter-run Chinook salmon have declined in abundance since 2005 with
recent decadal lows of 827 spawners in 2011. Escapement in 2011 represents the lowest run
since the construction and operation of the LSNFH conservation hatchery in 1997. Both the
current total population size (N; LSNFH = 645; Sacramento River = 11,125) and mean
population sizes (Ŝ; LSNFH = 215; Sacramento River = 3,708) satisfy the low risk criterion (N >
2500).
The point estimate for the 10-year trend in run size is negative (-0.15), suggesting a 15% per year
decline in the population (Table 6). The slope is marginally not different than ‘0’, yet it is clear
that the population has been steadily declining rather than increasing over the past decade. The
maximum year-to-year decline in population size has reached 67%, an increase from 38% in the
previous 2010 viability assessment (Williams et al. 2011). However, the percent decline does
15
not exceed the catastrophic decline criteria (>90% decline in one generation or annual run size <
500 spawners; Lindley et al. 2007).
Figure 1: Time series of escapement for SR winter-run Chinook salmon populations (a)
used as broodstock at LSNFH and (b) spawning in-river. Estimates for in-river spawners
is the average number of adults counted at Red Bluff Diversion Dam and the carcass
survey mark-recapture estimates (when available). Note: only mark-recapture estimates
used beginning in 2009; Data source: Azat 2014.
Table 6: Viability metrics for SR winter-run Chinook salmon ESU. Total population size
(N) is estimated as the sum of estimated run sizes over the most recent three years. The
mean population size (Ŝ) is the average of the estimated run sizes for the most recent 3
years (2012-2014). Population growth rate (or decline; 10-year trend) is estimated from the
slope of log-transformed estimated run sizes. The catastrophic metric (Recent Decline) is
the largest year-to-year decline in total population size (N) over the most recent 10 such
ratios.
16
Population N Ŝ 10-year trend (95% CI) Recent Decline (%)
LSNFH winter chinook 645 215.0 0.102 (-0.019, 0.222) 2.7
SR winter-run chinook 11125 3708.3 -0.155 (-0.345, 0.034) 67.4
The observed levels of hatchery influence exceed the low-extinction risk criteria met in the
previous viability assessment and place the genetic integrity of the population at a moderate risk
of extinction (Figure 2; Lindley et al. 2007). Since the beginning of hatchery production at
LSNFH in 1997, the proportion of SR winter-run Chinook salmon spawning in the river that is of
hatchery origin has increased (Figure 2). Prior to 2005, the proportion of LSNFH-origin
spawners in the river was between 5% to 10%, consistent with guidelines from the Hatchery
Scientific Review Group for conservation hatcheries (Figure 2; California HSRG 2012).
However, the hatchery proportion has increased since 2005 and reached ~20% in 2005, 2014,
and >30% in 2012. The average over the last 12 years (approximately four generations) is 13%
(SD= ±8%) with the most recent generation at 20% hatchery influence, placing the population at
a moderate risk of extinction (Table 7; Figure 3).
17
Figure 2: Percentage of SR winter-run Chinook salmon spawning in-river of hatchery
origin; Data source: CDFW Doug Killam, unpublished.
Table 7. Average percentage of SR winter-run Chinook salmon river spawners that are
hatchery origin over a varying (cumulative) number of years. One generation (g1) consists
of the most recent 3 years; two generations (g2) the most recent 6 years; three generations
(g3) the most recent 9 years; four generations (g4) the most recent 12 years. Data source:
CDFW Doug Killam (unpublished 2014).
g1 g2 g3 g4
Average hatchery influence 20% 15% 13% 13%
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Figure 3. Percentage of hatchery-origin spawners and the resulting risk of extinction due
to hatchery introgression from different sources of strays over multiple generations- low
(green), moderate (yellow), and high (red). Model using “best-management practices” was
used in the SR winter-run Chinook salmon assessment based on the breeding protocols at
the LSNFH. Figure reproduced from Lindley et al. 2007.
2.3.2 Five-Factor Analysis (threats, conservation measures, and regulatory
mechanisms)
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Section 4(a)(1) of the ESA and the listing regulations (50 CFR Part 424) set forth procedures for
listing species. NMFS must determine, through the regulatory process, the listing status based
upon any one or a combination of the following factors: (1) the present or threatened destruction,
modification, or curtailment of its habitat or range; (2) overutilization for commercial,
recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of
existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued
existence.
Previous reviews of this ESU identified a wide range of factors as being responsible for its
decline including: blockage of access to historic habitat, other passage impediments, degradation
of remaining available habitat, unscreened water diversions, heavy metal pollution from mine
runoff, disposal of contaminated dredge sediments in San Francisco Bay, ocean harvest,
predation, drought effects, losses of juveniles at the Central Valley Project (CVP) and State
Water Project (SWP) Sacramento-San Joaquin Delta (Delta) pumping facilities, and elevated
water temperatures at the spawning grounds. Since 1994, many factors have been addressed, or
at least impacts have been reduced, through regulatory and other mechanisms (e.g., reduced
harvest impacts, Iron Mountain Mine clean up, Anderson-Colusa Irrigation District fish ladder,
screening of water diversions, altered CVP water operations that improve passage and reduce
predation, and construction of a temperature control device on Shasta Dam, etc.). The last status
review described numerous threats to this ESU, but chief among them was that it was comprised
of only one population which was very small and wholly dependent on artificially-created
spawning and rearing conditions (i.e., cold water releases below Shasta Dam). New information
relating to each of these five listing factors is discussed below, including discussion of important
conservation efforts being made to protect the species, where appropriate.
2.3.2.1 Present or threatened destruction, modification or curtailment of its
habitat or range:
Blockage of historical habitat by Shasta and Keswick dams
Loss of historic spawning and rearing habitat for this ESU remains a major threat as Shasta and
Keswick dams completely displace the naturally-spawning population to the mainstem
Sacramento River downstream of the two dams. As required in 2009 NMFS Biological Opinion
and Conference Opinion on the Long-term Operation of the CVP and SWP (CVP/SWP
biological opinion), the Bureau of Reclamation (Reclamation) along with NMFS, the California
Department of Water Resources (DWR), CDFW, and USFWS have taken a number of steps
towards reducing this threat and re-introduce SR winter-run Chinook salmon into the McCloud
River, including: (1) formation of the Interagency Fish Passage Steering Committee in 2010 to
provide technical, management, and policy direction for the fish passage program; and (2)
evaluation of salmonid spawning and rearing habitat above Shasta Dam in 2013. Currently
Reclamation is leading the development of a fish passage pilot plan which is scheduled to be
completed in 2016, with implementation beginning in 2017. NMFS regulatory work, including
having an experimental population designation rule in place, is scheduled to be completed by the
fall of 2016. Implementation of the 3-year pilot plan is scheduled to be completed in 2019.
Reintroduction is expected to be a long-term program with no specific completion date.
20
Hydroelectric development on Battle Creek
Hydrological development has eliminated approximately 48 miles of potential habitat in Battle
Creek. The Battle Creek Salmon and Steelhead Restoration Project (BCSSRP) will eventually
remove five dams on Battle Creek, install fish screens and ladders on three dams, and end the
diversion of water from the North Fork to the South Fork. When the program is completed, a
total of 42 miles of mainstem habitat and 6 miles of tributary habitat will be opened up to
anadromous salmonids and will allow for successful reintroduction of the SR winter-run
Chinook salmon ESU. The BCSSRP began in 2010 with the removal of Wildcat Diversion Dam
and it is nearing its final implementation phase with completion expected by 2020, depending on
funding. DWR contributed a total of $12 million of discretionary funds in 2011 and 2012 for
restoration Phase 1B and Phase 2 as required in the CVP/SWP biological opinion. A
reintroduction plan is currently being written and is scheduled to be completed in August 2016.
Implementation of the reintroduction plan will begin soon after, when a lead agency is identified
and funding has been secured. Completion for the reintroduction is dependent on the rate of
successful colonization.
Warm water releases from Shasta Dam
The SR winter-run Chinook salmon population is artificially maintained through cold water
releases in the summer from the reservoir behind Shasta and Keswick dams in order to provide
spawning and rearing habitat below the two dams. Reclamation has struggled to maintain an
adequate cold water pool in critically dry years and extended drought periods in order to
maintain suitable temperatures for winter-run Chinook salmon egg incubation, fry emergence,
and juvenile rearing in the Sacramento River. Through the CVP/SWP biological opinion,
Reclamation has created and implemented improved Shasta Reservoir storage plans and yearround
Keswick Dam release schedules and procedures to provide cold water for spawning and
rearing since 2010.
However, the threat of warm water releases from Shasta Dam still remains a significant stressor
to winter-run Chinook salmon, especially given the recent extended drought in California from
2012 through 2015. Warm water releases from Shasta Reservoir in 2014 and 2015 contributed to
5.6% and 4.2% egg-to-fry survival rates to RBDD in 2014 and 2015, respectively. Under
varying hydrologic conditions from 2002 to 2013, winter-run Chinook salmon egg-to-fry
survival ranged from three to nearly 10 times higher than in 2014 and 2015. Measures taken to
reduce this threat and improve Shasta Reservoir cold water pool management have been to: (1)
relax Wilkins Slough navigational flow requirements; (2) relax D-1641 Delta water quality
requirements; (3) delay Sacramento River Settlement Contractor depletions, and transfer a
volume of their water in the fall rather than increase depletions throughout the summer; (4) target
slightly warmer temperatures during the SR winter-run Chinook salmon holding period (before
spawning occurs); (5) replace the Spring Creek temperature control curtain in Whiskeytown
Reservoir in 2011 (installation of the Oak Bottom temperature control curtain in Whiskeytown
Reservoir is scheduled to be completed in 2016); and (6) install the Shasta Dam temperature
control device curtain in 2015. Other efforts to reduce the threat of warm water releases from
Shasta Dam include improving reservoir, meteorologic, and hydrologic modeling and monitoring
21
in order to most efficiently manage the reservoir’s limited amount of cold water, installation of
additional temperature monitoring stations in the upper Sacramento River to better monitor realtime
water temperatures, and enhanced redd, egg, and juvenile SR winter-run Chinook salmon
monitoring.
Juvenile and adult passage constraints at Red Bluff Diversion Dam (RBDD)
The RBDD on the Sacramento River impeded both upstream migration of adult fish to spawning
habitat and downstream migration of juveniles. Since 2012, the gates at RBDD have been open
year-round to allow unimpeded upstream and downstream fish passage, as required through the
CVP/SWP biological opinion and as part of $113 million American Recovery and Reinvestment
Act funded fish passage improvement project by the Tehama Colusa Canal Authority. The
completion of this project to allow unimpeded fish passage has eliminated this threat.
Loss of rearing habitat
Urban and agriculture development along with levee construction and channelization for flood
control, and water delivery operations have resulted in reduced rearing habitat, migration
corridors, and food web production for juvenile winter-run Chinook salmon in the Sacramento
River Basin and Delta. To mitigate some of these effects, the CVP/SWP biological opinion
contains actions for improving 17,000 to 20,000 acres of floodplain and tidal marsh habitat that
is favorable for juvenile salmon rearing in the Lower Sacramento River and Delta. Planning for
restoration began in 2011. Lead agencies and partners are undergoing National Environmental
Policy Act/California Environmental Quality Act alternative formulation and analysis for
environmental planning and permitting. Restoration actions are scheduled to be completed by
2023.
The state and federal public water agencies required to mitigate the ecological impacts of the
CVP and SWP in the Delta are largely helping to fund the $300 million California EcoRestore
initiative introduced in 2015 to help coordinate and advance at least 30,000 acres of habitat
restoration in the Delta in the next 4 years. A broad range of habitat restoration projects will be
pursued, including projects to address aquatic, sub-tidal, tidal, riparian, floodplain, and upland
ecosystem needs. Twenty four projects have been tracked by California EcoRestore that are in
various stages of development from conceptual to complete. Funding for habitat enhancements
unassociated with mitigation will come primarily from Propositions 1 and 1E, the AB 32
Greenhouse Gas Reduction Fund, and local, federal, and private investment.
The Central Valley Project Improvement Act (CVPIA) has funded several habitat restoration
projects from 2010 to 2015 to benefit SR winter-run Chinook salmon, including a side channel
rehabilitation at Painter’s Riffle in 2014. Reclamation has also identified six floodplain and side
channel enhancement projects that will create approximately 37 acres of new or re-established
floodplain and side channel habitat between RM 300.5 (i.e., 1.5 miles downstream of Keswick
Dam) and RBDD (RM 242). In addition, gravel augmentation has occurred along the Upper
Sacramento River to increase the availability of spawning and rearing habitat.
Private entities have developed a number of conservation banks along the Sacramento River, in
22
the Delta, and Suisun Marsh over the past 5 years. Together they have created over 1,000 acres
of riparian, floodplain, and tidal aquatic habitat to benefit juvenile SR winter-run Chinook
salmon. In addition, changes in levee maintenance practices have included "self-mitigating"
features such as vegetative rock, constructing levee toe benches that allow for the planting of
riparian vegetation, grading rock sizes to reduce piscivorous predator habitat and installing
instream woody material to create shoreline refugia for emigrating juveniles. Physical habitat
monitoring has shown the riparian mitigation is in itself successful, however, fishery monitoring
has not demonstrated these features to be effective when compared to natural bank conditions.
Water exports in the southern Delta
A significant effect of CVP and SWP water operations is diversion of out-migrating juveniles
from the north Delta tributaries into the interior Delta through the open Delta Cross Channel.
Instead of migrating directly to the outer estuary and then to sea, these juveniles are caught in the
interior Delta and subjected to pollution, predators, and altered food webs that cause either direct
mortality or impaired growth. The CVP/SWP biological opinion mandates additional gate
closures beyond those in Water Rights Order Decision 1641 to minimize these adverse effects to
winter-run. Additionally, since 2010, DWR, Reclamation, USGS, NMFS, and USFWS have
been investigating various engineering solutions to prevent emigrating salmonids from entering
Georgiana Slough and into the interior Delta. Installation of barriers at Georgiana Slough are
expected to be completed by 2022.
In addition, the continued pumping and diversion of water from the CVP and SWP export
facilities in the south Delta causes reverse flows, leading to loss of juveniles migrating out from
the Sacramento River system in the interior Delta and more juveniles being exposed to the State
and Federal pumps, where they are salvaged at the facilities. In order to reduce the number of
juveniles exposed to the interior Delta and reduce mortality from entrainment and salvage at the
export facilities, the CVP/SWP biological opinion limits Old and Middle River flow levels,
curtails exports when protected fish are observed near the export facilities, and improved fish
screening and salvage operations. Furthermore, through the CVP/SWP biological opinion there
has been enhanced real time fish monitoring, development of an enhanced particle tracking
modeling, and formation of the Collaborative Science and Adaptive Management Program to
better understand fish presence and distribution in the Delta, Delta hydrologic conditions, and
CVP and SWP water operations impacts to ESA species in the Delta.
Also, in 2015 the state of California introduced the California WaterFix (CWF), an initiative to
modernize the state's aging water delivery system through a water conveyance system that would
include new points of water diversion in the north Delta in concert with improvements to the
current through-Delta water export system in the south Delta. Actions under discussion include
operation of a dual conveyance system and measures to reduce other stressors to the Delta
ecosystem and sensitive species. An analysis of the effects of CWF on winter-run Chinook
salmon has not been completed yet. The U.S. Bureau of Reclamation, which is the lead agency
for the CWF, is completing a biological assessment on the effects of the CWF on SR winter-run
Chinook salmon and other listed species, and NMFS is planning on preparing a biological
opinion on those effects once the biological assessment is completed.
23
Entrainment in a large number of unscreened or poorly screened water diversions
In order to reduce entrainment of juvenile winter-run Chinook salmon from unscreened water
diversions, the CVP/SWP biological opinion requires that Reclamation shall screen priority
diversions as identified in the CVPIA Anadromous Fish Screen Program (AFSP). Since 2010,
the AFSP has provided cost share funding to complete 15 fish screen projects on the Sacramento
River resulting in the screening of diversions with a total capacity of 1,241 cubic feet per second
(cfs). The larger diversions over 150 cfs in size on the mainstem Sacramento River have already
been screened or are currently proposed for screening. However, there are many small- and
moderate-sized unscreened diversions (up to 150 cfs) on the Sacramento River. The AFSP and
Ecosystem Restoration Program conducted a fish entrainment monitoring study at 11 diversions
on the Sacramento River (ranging from 9 cfs to 128 cfs) from 2009 through 2012 to obtain
critical fish entrainment monitoring data in order to better understand the potential effects of
diversions on fish losses and to assist resource managers in evaluating which diversions are most
important to screen.
Water operations can create false attraction cues that cause adult SR winter-run Chinook salmon
to deviate from the mainstem Sacramento River migration corridor and become stranded in
agricultural fields behind flood bypass weirs. SR winter-run Chinook salmon have been
observed to navigate up the Colusa Basin Drain (CBD) into various agricultural diversions and
drainages (USBR and DWR 2012). Once they enter the CBD, there is no upstream route for the
fish to return to the Sacramento, so they eventually perish and are lost from production. In 2013,
over 600 stranded adult SR winter-run Chinook salmon and Central Valley spring-run Chinook
salmon were observed. Seining and trapping efforts transferred 47 of the SR winter-run Chinook
salmon to LSNFH for spawning. An estimated 319 SR winter-run Chinook salmon died in the
Colusa Basin canals (Killam et al. 2014). In 2015, a picket weir was installed at the Knights
Landing Outfall Gates to block adult upstream migrating SR winter-run Chinook salmon from
potentially straying into the CBD. In 2016, Reclamation District 108 is proposing to construct a
new permanent Wallace Weir in the Yolo Bypass to block upstream migrating SR winter-run
Chinook salmon from potentially straying into the CBD, and a fish collection facility to return
the adult fish back to the Sacramento River.
Water Quality
In general, water degradation or contamination can lead to either acute toxicity, resulting in death
when concentrations are sufficiently elevated, or more typically, when concentrations are lower,
to chronic or sublethal effects that reduce the physical health of the organism. Chronic or
sublethal effects lessen organism survival over an extended period of time due to compromised
physiology or behavioral changes that lessen the organism's ability to carry out its normal
activities. Since the last status review, the overall status trends show improvements to water
quality in the Sacramento River and Delta from discharges of agricultural operations, urban,
suburban areas, mining, and industrial sites. Emphasis on wastewater treatment plant upgrades,
24
development and implementation of total maximum daily load programs (TMDLs)4, and
adoption of new water quality standards (i.e., Basin Plans) have all aided in protecting and
contributing to a healthy functioning aquatic ecosystem. In the Sacramento River and Delta,
TMDL values have been approved for cadmium, copper, zinc, diazinon, and chlorpyrifos, which
have been helpful in improving water quality. In addition, TMDLs are in development for
organochlorine, mercury, pesticides, and selenium (SWRCB 2015). In recent years, NOAA
scientists have investigated and consulted on the direct and indirect effects of pesticides on
individual ESA listed species, the foodwebs on which they depend, and at the population level.
New testing methods, reasonable and prudent alternatives (i.e., buffer requirements and no-spray
zones), and programs, such as regulating the discharge from agricultural lands, have been
developed to begin minimizing impacts of pesticides.
Despite improvements to water quality in the Sacramento River and Delta, water quality
pollution remains a threat for the conservation and recovery of SR winter-run Chinook salmon
and their habitat. Many potentially harmful chemicals and contaminants of emerging concern
(pharmaceuticals) have yet to be addressed. Innovative and sustainable solutions such as green
infrastructure and low-impact design (LID) are needed to manage pollutants as close to the
source as possible. If these solutions can be applied at a broader scale, LID technology, policies,
and watershed scale programs have the potential to maintain and/or restore hydrologic and
ecological functions in a watershed, thereby improving water quality for ESA listed species and
the ecosystem on which the species depend.
Conclusion
As discussed above, there are promising habitat restoration, fish passage programs, and other
projects being implemented and evaluated that, if successful, would greatly expand SR winterrun
Chinook salmon spawning and rearing habitat. Likewise, there has been implementation of
Recovery Actions with the potential for substantial habitat improvements. Although some key
habitat improvement actions have begun, much work has yet to be implemented. Large scale
fish passage and habitat restoration actions are needed for improving the SR winter-run Chinook
salmon ESU viability.
While some conservation measures have been successful in improving habitat conditions for the
SR winter-run Chinook salmon ESU since it was listed in 1989, fundamental problems with the
quality of remaining habitat still remain (see Lindley et al. 2009, Cummins et al. 2008, and
NMFS 2014). As such, the habitat supporting this ESU remains in a highly degraded state and it
is unlikely that habitat quality has substantially changed since the last status review in 2010
(NMFS 2011). Overall, major habitat expansion and restoration for SR winter-run Chinook
salmon has not occurred as of this review, and because of that, the loss of historical habitat and
the degradation of remaining habitat continue to be major threats to the SR winter-run Chinook
salmon ESU.
4 The maximum amount of pollutants that a body of water can receive while still meeting water quality standards.
25
2.3.2.2 Overutilization for commercial, recreational, scientific, or educational
purposes
Ocean Harvest Impacts
SR winter-run Chinook salmon have a more southerly ocean distribution relative to other
California Chinook salmon stocks, and are primarily impacted by fisheries south of Point Arena,
California. SR winter-run Chinook salmon age-3 ocean fishery impact rate estimates for the
region south of Point Arena (an approximation of the exploitation rate) are currently available for
2000–2013, and have remained relatively stable over this time period, averaging 16% (Figure 4).
Fisheries in 2008 and 2009 were closed south of Point Arena owing to the collapse of the
Sacramento River fall-run Chinook salmon stock and insufficient data (i.e., insufficient codedwire
tag recoveries) exist for estimating a SR winter-run Chinook salmon impact rate in 2010. If
years 2008-2010 are omitted, the average age-3 impact rate is 19% (PFMC 2015).
Figure 4. Sacramento River winter-run Chinook salmon age-3 ocean impact rate south of
Point Arena for years 2000–2013. Estimates are sourced from PFMC (2015). The impact
rate could not be estimated in 2010 due to insufficient coded-wire tag recoveries.
There have been several layers of ocean salmon fishery regulations implemented to protect SR
winter-run Chinook salmon beginning in the early 1990s. For example, a substantial portion of
the SR winter-run Chinook salmon ocean harvest impacts used to occur in February and March
recreational fisheries south of Point Arena, but fisheries at that time of the year have been closed
since the early 2000s. O’Farrell and Satterthwaite (2015) hindcasted SR winter-run Chinook
salmon age-3 ocean impact rates back to 1978, extending the impact rate time series beyond the
range of years where direct estimation is possible (2000-2013). Their results suggest that there
were substantial reductions in ocean impact rates prior to 2000 and that the highest impact rates
occurred in a period between the mid-1980s and late-1990s.
0%
20%
40%
60%
80%
100%
2000 2002 2004 2006 2008 2010 2012
SRWC age-3 ocean impact rate south of
Point Arena
year
26
One component of the Reasonable and Prudent Alternative (RPA) from the 2010 Pacific Salmon
Fishery Management Plan Biological Opinion (NMFS 2010) specified that new fishery
management objectives must be established. The implementation of the RPA resulted in the
development of a harvest control rule which was first used for ocean fishery management in
2012. That harvest control rule specifies the age-3 ocean impact rate limit based on the
geometric mean number of spawners from the previous 3 years (Figure 5). The limits to the
impact rate imposed by the harvest control rule is an additional control on ocean fisheries which
still includes previously existing constraints on fishery opening and closing dates and minimum
size limits south of Point Arena. From 2012 to 2015, the SR winter-run Chinook salmon harvest
control rule has specified maximum allowable forecast impact rates ranging from 12.9% to
19.0%.
Figure 5. Current SR winter-run Chinook salmon harvest control rule (NMFS 2010).
There is no explicit cap on the age-3 impact rate if the three-year geometric mean number
of spawners exceeds 5000.
In summary, the available information indicates that, with the exception of 2008-2010 when the
ocean salmon fishery was closed or heavily restricted, the level of SR winter-run Chinook
salmon fishery impacts has not changed appreciably since the 2010 salmon and steelhead
viability assessment (Williams et al. 2011), yet there have been additional ocean fishery
regulations implemented with the purpose of reducing exploitation of SR winter-run Chinook
salmon when average population size is reduced.
Freshwater Angling Impacts
27
What little SR winter-run Chinook salmon freshwater harvest that existed historically was
essentially eliminated beginning in 2002, when Sacramento Basin Chinook salmon fishery
season openings were adjusted so that there would be little temporal overlap with the SR winterrun
Chinook salmon spawning migration and spawning period. However, early arriving fish
may still be harvested prior to January 1. Additionally, higher densities of fish in this portion of
the river may lead to higher early harvest rates. Higher densities of fish, particularly below
dams, likely create opportunities for both illegal poaching of salmon and the inadvertent or
intentional snagging of fish. In addition, the upper Sacramento River supports substantial
angling pressure for rainbow trout. Rainbow trout fishers tend to concentrate in locations and at
times where winter-run Chinook are actively spawning (and therefore concentrated and more
susceptible to impacts). By law, any SR winter-run Chinook salmon inadvertently hooked in this
section of river must be released without removing it from the water, however, SR winter-run
Chinook salmon are impacted as a result of disturbance and the process of hook-and-release.
Also, because the taking of salmon is permitted after August 1, some late spawning winter-run
Chinook salmon may be taken.
Scientific Research
For over two decades, research and monitoring activities conducted on SR winter-run Chinook
salmon have provided resource managers with a wealth of important and useful information
regarding the populations. For example, juvenile fish trapping efforts have enabled the
production of population inventories, and coded wire, passive integrated transponder (PIT), and
acoustic tagging efforts have increased the knowledge of abundance by providing information on
migration timing and survival. By issuing research authorizations, NMFS has allowed
information to be acquired that has enhanced resource managers’ abilities to make more effective
and responsible decisions to sustain populations, mitigate adverse impacts on SR winter-run
Chinook salmon, and implement recovery efforts. The resulting information has improved our
knowledge of the respective species’ life histories, specific biological requirements, genetic
make-up, migration timing, responses to human activities (positive and negative), and survival in
the rivers and ocean. And that information, as a whole, is critical to the species’ recovery.
Over the last five years, the detrimental effects (i.e. slight reductions in juvenile and adult
abundance and productivity) on SR winter-run Chinook salmon from scientific research has been
minimal and have no appreciable effect on the species’ diversity or structure. Moreover, the
actions have provided lasting benefits for the ESU and all habitat effects have been negligible.
Conclusion
Because regulatory mechanisms designed to minimize the impacts of ocean harvest, freshwater
angling, and scientific research on SR winter-run Chinook salmon are in place, it is highly
unlikely that overutilization has been a key factor limiting this ESU over the last five years.
2.3.2.3 Disease or predation
Disease
Naturally-occurring pathogens pose a greater threat to this ESU than other Central Valley
28
Chinook salmon runs since it is comprised of only a single population and its abundance is very
low. As the population abundance continues to be low or possibly even decline further the
probability increases that disease outbreak could significantly impact the remaining wild
population. Artificially-propagated Chinook salmon have been impacted by disease outbreaks at
some Central Valley hatcheries and therefore potential disease outbreaks at the LSNFH could
pose a risk to wild fish. Infection hematopoietic necrosis virus (IHNV) is commonly detected in
51-81% of SR winter-run Chinook salmon returning to LSNFH and Renibacterium
salmoninarum, the causative bacterium for bacterial kidney disease (BKD), can be detected in
SR winter-run Chinook salmon adults at low levels of infection (i.e., 3-30%) (HSRG 2014).
Despite efforts to increase the number of SR winter-run Chinook salmon used for broodstock
during 2015, pathologists from the California-Nevada Health Laboratory noted a dramatic
decline in health, and an increase in the prevalence and severity of fish pathogens in the adults
collected at Keswick Dam (Voss and True 2015). Poorer water quality, and possibly
concentration of fish pathogens in the Sacramento River and Shasta Reservoir contributed to
multiple infections in adult SR winter-run Chinook salmon with compromised immune systems
and decreased stamina, leading to a higher occurrence of pre-spawn mortality. In 2015, prespawn
mortality was 27% compared to 16% in 2014 and pre-spawn mortality levels generally
below 20% in previous years. No single clear cut infectious process appeared to be causing the
overall elevated mortality. Rather, a mix of bacterial pathogens in adults that contributed
individually, or in multiple concurrent infections, to mortality despite antibiotic therapies that
should have reduced the growth of these bacterial pathogens.
A pilot sentinel trial was conducted by the USFWS California-Nevada Fish Health Center in late
September 2015 to assess potential disease risk to wild SR winter-run Chinook salmon fry (Foott
2016). Sentinel late-fall Chinook salmon, exposed to the Sacramento River for 5 days in late
September at Balls Ferry and Red Bluff, were highly infectious with Ceratonova shasta. The
level of infectivity was sufficient to cause disease and mortality. Eighty juvenile SR winter-run
Chinook salmon were collected at the RBDD rotary screw trap between October 15 – November
19, 2015, and sampled for histological examination. C. shasta were observed in 15% of the
sample set. These infections were largely at an early stage, indicating a recent exposure to the
parasite. Fry had reared for weeks in locations with little to no C.shasta infectivity. These
observations do not support a significant role for C.shasta infection in the low egg to fry
estimates generated from the RBDD trap data in 2015. However, the disease could have
impaired survival of out-migrant SR winter-run Chinook salmon fry in 2015 as C.shasta is a
progressive disease and the early stage infections could go to a disease state over time. Future
disease surveys for the upper Sacramento River and their impact on SR winter-run Chinook
salmon are being proposed for 2016.
Predation
Predation is an ongoing threat to this ESU throughout the Sacramento River and Delta where
there are high densities of non-native (i.e., striped bass, small-mouth bass, and largemouth bass)
and native species (e.g., pikeminnow, rainbow trout) that prey on juvenile salmon. In the ocean,
and even the Delta environment, salmon are common prey for harbor seals and sea lions,
29
although the impacts on SR winter-run Chinook salmon are unknown. The presence of manmade
structures, including water diversions, in the Sacramento River and Delta contribute to
increased predation levels by altering the predator-prey dynamics that favor predatory species
(Michel personal communication 2015). In addition, the altered hydrology of the Delta due to
CVP and SWP water project operations has created favorable conditions for non-native predators
(e.g., decreased salinity, decreased turbidity, increased water clarity, etc.). While the available
data analyses have generated valuable information regarding aspects of the predation process in
the Delta, they do not provide unambiguous and comprehensive estimates of fish predation rates
on juvenile salmon nor on population-level effects for SR winter-run Chinook salmon in the
Delta (Grossman et al. 2013).
Since 2010, steps have been taken to reduce juvenile SR winter-run Chinook salmon predation in
the CVP and SWP fish collection facilities in the southern Delta, including studies on the use of
electric barriers, carbon dioxide, netting, aquatic weed control, electrofishing, a fishing incentive
program, construction of a fishing pier, refurbishment of the fish salvage release site, and the
expected completion of two additional release sites in 2017. In 2011, CDFW proposed to
modify striped bass sport fishing regulations to allow additional harvest in an effort to reduce
striped bass predation on the listed species in the Delta, however the California Fish and Game
rejected the proposed changes. In the Sacramento River, removing the gates at the RBDD yearround
since 2012 has minimized the impacts of predation at the dam. In addition, numerous
studies have been conducted and are currently being in the Central Valley to understand the
effects of predation on salmonid populations, including SR winter-run Chinook salmon. Based
on preliminary results of acoustic telemetry studies of LSNFH SR winter-run Chinook salmon
from 2013 to 2015, survival rates to the ocean varied from 5% to 12% with lowest survival
occurring in the middle Sacramento River every year (Ammann personal communication 2015).
It is assumed that much of this mortality experienced by these fish is likely due to an increase in
predators, exposure time, or the metabolic rate for predators (i.e., due to warmer water
temperatures).
Conclusion
Disease and predation are persistent problems that can adversely affect SR winter-run Chinook
salmon. New information from the USFWS and the LSNFH indicates that the threat of disease
may have increased in severity since the last status review due to the low flows and high
temperature in Sacramento River from drought conditions. And although there have been
actions to understand and reduce predation, it is unclear whether these action have substantially
decreased the overall level of predation throughout the Sacramento River and Delta.
2.3.2.4 Inadequacy of existing regulatory mechanisms
Laws relevant to the protection and restoration of SR winter-run Chinook salmon include the
ESA, the Magnuson-Stevens Fishery Conservation and Management Act, the CVPIA, the
Federal Power Act, the Fish and Wildlife Coordination Act, the Clean Water Act, the National
Environmental Policy Act, and numerous State laws administered by CDFW, DWR, or the
SWRCB. These laws and associated regulations generally provide adequate mechanisms for
30
recovering winter-run Chinook salmon (52 FR 6041, 6046; February 27, 1987); however some
of the goals of these existing mechanisms have not yet been achieved.
2.3.2.5 Other natural or manmade factors affecting its continued existence:
Artificial Propagation Programs
Captive broodstock and conservation hatchery programs were established for the SR winter-run
Chinook salmon ESU in the early 1990s. These programs were established to augment the
naturally-spawning population in the Sacramento River as well as to provide a captive
broodstock in case the natural population was unexpectedly decimated. The captive broodstock
program was discontinued in 2007 based on the increased and sustained abundance of the
natural spawning population.
Strict guidelines have been in place for the number of hatchery fish that can be spawned together
with naturally-spawning fish at LSNFH; however, the genetic integrity of the natural population
is still threatened from having passed through several population bottlenecks in the 1990s when
the population numbered less than 200 individuals. Unlike typical production-oriented hatchery
programs, the SR winter-run Chinook salmon conservation program at LSNFH does not have a
fixed annual target for juvenile production. Rather, production levels are dictated by the number
of broodstock that are collected and spawned annually, which is dependent upon the estimated
upriver escapement of SR winter-run Chinook salmon. The broodstock collection limit is 15%
of the estimated upriver escapement, with an upper limit of 120 broodstock per brood year (i.e.,
when run sizes >800). To maintain genetic diversity in the event of very low abundance, no less
than 20 SR winter-run Chinook salmon adults are collected for broodstock regardless of run size.
The typical annual production level anticipated when broodstock collections are maximized is
approximately 250,000 smolts. Along with adhering to these strict guidelines, several innovative
propagation techniques and genetic markers have been developed to guide what is considered a
very successful conservation program.
However, since 2012, California has been in the midst of one of the most severe droughts on
record and SR winter-run Chinook salmon are experiencing the consequences of low water
storage and a limited volume of cold water in Shasta Reservoir. In response to the drought
impacts, USFWS, NMFS, and CDFW decided in 2015 to reinitiate a SR winter-run Chinook
salmon Captive Broodstock Program. Together with the Conservation Hatchery Program, the
SR winter-run Chinook salmon Captive Broodstock Program is expected to increase the security
of the SR winter-run Chinook salmon ESU by rearing a captive population in a safe and secure
environment, to be available for use as hatchery broodstock in the event of a catastrophic decline
in the abundance of winter-run Chinook salmon spawners in the Sacramento River.
Furthermore, the Captive Broodstock Program will potentially be used to re-establish SR winterrun
Chinook salmon to native habitats upstream of Shasta Dam and to Battle Creek and
potentially for research purposes.
Another recent change in operations at LSNFH is the expansion of normal winter-run Chinook
salmon propagation activities for the conservation program, an emergency action that was
31
initially implemented in 2014 to partially mitigate for the continuing drought and its effects on
naturally spawning SR winter-run Chinook salmon in the Sacramento River. This multi-agency
decision was based on forecasts of precipitation and reservoir storage levels that provided a
clearer picture of environmental conditions that would be present in the Sacramento River during
SR winter-run Chinook salmon spawning, egg incubation and juvenile rearing. Elevated water
temperatures in the upper Sacramento River during the summer and fall of 2014 resulted in
extremely low survival of naturally-produced SR winter-run Chinook salmon eggs and fry.
Increased broodstock collection during 2014 allowed for the release of approximately 612,000
juvenile SR winter-run Chinook salmon, almost three times the normal production, in order to
make up for the anticipated substantial losses in natural production. A similar approach was
attempted for 2015, however LSNFH staff have clearly noted a decline in health, and increase in
prevalence and severity of fish pathogens in the adults collected at LSNFH during the past 2
years of the most extreme drought conditions. This occurrence has significantly increased the
level of pre-spawn mortality at LSNFH, reducing the potential for increased production.
This effort to increase hatchery production during 2014 and 2015 was in response to prolonged
drought conditions, and should be discontinued with improving environmental conditions and
increased in-river survival. Although this provides a near-term benefit through an overall
increase in abundance, broodstock management will be extremely important in subsequent years
to ensure that the large proportion of returning adult hatchery-origin winter-run Chinook salmon
do not negatively affect the genetic integrity (through domestication selection, etc.) of the natural
population.
Species Identification for Regulatory Purposes
Determining survival through the Delta, entrainment losses at the Delta export pumps, the
proportion of fish that enter the interior Delta, and eventual survival to the ocean, all depend on
accurate means of identification and the ability to discriminate SR winter-run Chinook salmon
from other Central Valley Chinook salmon races. Currently, monitoring and identification of
juvenile SR winter-run Chinook salmon is based on a modified length-at-date growth curve
developed was developed for the Delta, however, the growth curves are not adjusted annually for
differences in emergence timing or poor rearing conditions. As a result, there is overlap between
the individual salmon races.
Since 2010, a couple of studies have found the use of genetic identification as a more accurate
and improved way of identifying Central Valley Chinook salmon race and estimation of
population size. Harvey and Stroble (2013) compared genetic identification versus length-atdate
race assignments of juvenile Chinook salmon salvaged from the CVP and SWP pumping
operations in the south Delta. Pyper et al. (2013) estimated juvenile Chinook salmon abundance
by run assignment using genetic markers for catch in midwater trawling at the confluence of the
Sacramento and San Joaquin rivers near Chipps Island. Both studies found SR winter-run
Chinook salmon DNA assignments had the closest fit to their expected length-at-date range, with
only a few fish overlapping the adjacent late-fall run and spring-run Chinook salmon ranges.
However, relatively large numbers of fall, late-fall, and spring-run Chinook salmon overlapped
with the SR winter-run Chinook salmon length criteria. Consequently, use of DNA assignments
32
provided much more accurate, and reduced, annual estimates of run composition for SR winterrun
Chinook salmon, which were one half to one sixth of the run compositions based on lengthat-
date criteria across years at the both the salvage facilities and at Chipps Island. These studies
show that genetic tools have the potential to improve estimation of population sizes and
corresponding take of SR winter-run Chinook salmon.
Climate Change
Climate experts predict physical changes to ocean, river and stream environments along the West
Coast that include: warmer atmospheric temperatures resulting in more precipitation falling as
rain rather than snow; diminished snow pack resulting in altered stream flow volume and timing;
increased winter flooding; lower late summer flows; a continued rise in stream temperatures;
increased sea-surface temperatures; increased ocean acidity; sea-level rise; altered estuary
dynamics; changes in the timing, duration and strength of nearshore upwelling, and altered
marine and freshwater food-chain dynamics [see Williams et al. (2016) for a more detailed
discussion of these and other projected long-term impacts due to climate change]. These long-term
climate, environmental and ecosystem changes are expected, in turn, to cause changes in salmon
and steelhead distribution, behavior, growth, and survival. While an analysis of ESU/DPS-specific
vulnerabilities to climate change by life stage has not been completed, Williams et al. (2016)
summarizes climate change impacts that will likely be shared among salmon and steelhead
ESUs/DPSs. Both freshwater and marine productivity and survival tend to be lower in warmer years
for most salmon and steelhead populations considered in this assessment. These trends suggest that
many populations might decline as mean air temperature rises. However, the magnitude and timing
of these and other changes, and specific effects on individual salmon and steelhead ESUs/DPSs,
remain unclear.
Drought Conditions
California has experienced well below average precipitation in each of the past 4 water years
(2012, 2013, 2014 and 2015), record high surface air temperatures the past 2 water years (2014
and 2015), and record low snowpack in 2015. Some paleoclimate reconstructions suggest that
the drought conditions experienced over the last 4 years were the most extreme in the past 500 or
perhaps more than 1,000 years. Anomalously-high surface temperatures have made this a “hot
drought,” in which high surface air temperatures substantially amplified annual water deficits
during the period of below average precipitation.
The SR winter-run Chinook salmon ESU is highly vulnerable to drought conditions. The
combination of low precipitation and high temperatures results in less cold water available in the
Shasta reservoir to control instream water temperatures downstream in the Sacramento River.
The resulting increased in-river water temperature resulting from such drought conditions
reduces the availability of suitable holding, spawning, and rearing conditions in the Sacramento
River. The lack of cold water stored behind Shasta Dam, in combination with water release
decisions, led to a loss of stream temperature control below Shasta Dam in September 2014.
Stream temperatures that exceeded the 56°F daily average temperature limit in SR winter-run
Chinook salmon spawning areas contributed to 5.6% and 4.2% egg-to-fry survival rates to
RBDD in 2014 and 2015, respectively.
33
Ocean Conditions
Much of the northeast Pacific Ocean, including parts typically used by SR winter-run Chinook
salmon, experienced exceptionally high upper ocean temperatures beginning early in 2014 and
areas of extremely high ocean temperatures continue to cover most of the northeast Pacific
Ocean. A “warm blob” formed offshore of the Pacific Northwest region in fall 2013 (Bond et al.
2015). Off the coast of Southern and Baja California, upper ocean temperatures became
anomalously warm in spring 2014, and this warming spread to the Central California coast in
July 2014. In fall 2014, a shift in wind and ocean current patterns caused the entire northeast
Pacific domain to experience unusually warm upper ocean temperatures from the West Coast
offshore for several hundred kilometers. In spring 2015 nearshore waters from Vancouver Island
south to San Francisco mostly experienced strong and, at times, above average coastal upwelling
that created a relatively narrow band (~50 to 100 km wide) of near normal upper ocean
temperatures, while the exceptionally high temperature waters remained offshore and in coastal
regions to the south and north.
Adult SR winter-run Chinook salmon returns for WY 2016 and for the next 2 to 3 years
(depending on ocean residence times, maturing in 2015, 2016, 2017 and 2018) have likely been
negatively impacted by poor stream and ocean conditions. The 2015/16 tropical El Niño favored
a more coastally-oriented warming of the Northeast Pacific Ocean over the fall and winter that
persisted into spring 2016. Ocean migrants from brood year 2015 will likely encounter an ocean
strongly influenced by (if not dominated by) a subtropical food-web that favors poor early
marine survival for SR winter-run Chinook salmon (O’Farrell and Mantua, unpublished analysis
in prep).
Multiple dry years in a row could potentially devastate this ESU. While SR winter-run Chinook
salmon have historically been able to withstand droughts, the currently diminished habitat,
abundance, spatial structure, and diversity of the ESU, and the increased frequency and duration
of droughts predicted to occur as climate change progresses suggest that SR winter-run Chinook
salmon are likely much more vulnerable to drought today than they were historically. Prolonged
drought andshifts in the timing and/or amount of snowmelt runoff could easily render most
existing SR winter-run Chinook salmon habitat unsuitable due to elevated water temperatures.
2.4 Synthesis
The SR winter-run Chinook salmon ESU was first listed as threatened in 1989 and then
reclassified as endangered in 1994. The ESU consists of only one naturally-spawning population
that spawns in the upper Sacramento River. Critical habitat includes the entire mainstem
Sacramento River (including riparian habitat along the bank) from Keswick Dam downstream to
and including the Delta. There is no new information indicating the ESU boundary should be
changed; however, if a new population is established in Battle Creek or if the ESU is
reintroduced above Shasta Dam, the existing ESU boundary will need to be reexamined.
The Central Valley Technical Recovery Team delineated four historical independent populations
34
of this ESU. The spawning areas for three of these historical populations are above the
impassable Keswick and Shasta dams, while the fourth population (Battle Creek) is presently
unsuitable for SR winter-run Chinook salmon due to high summer water temperatures. Lindley
et al. (2007) developed viability criteria for Central Valley salmonids and, using data through
2004, found that the mainstem Sacramento River population was at low risk of extinction (see
Table 5), but that the ESU as a whole remained at a high risk of extinction because there is only
one naturally-spawning population, and it is not within its historical range.
The 2010 status review concluded that the SR winter-run Chinook salmon ESU’s poor status had
not changed from previous assessments. The ESU’s status has declined since the 2010 status
review, with the single spawning population on the mainstem Sacramento River no longer at a
low risk of extinction (Table 9). New information indicates an increased extinction risk to SR
winter-run Chinook salmon. The larger influence of the hatchery broodstock in addition to the
rate of decline in abundance over the past decade has placed the population at a moderate risk of
extinction.
Table 9. Extinction risk summary for the Sacramento River winter-run Chinook salmon
population by criteria described in Lindley et al. (2007) for the 2010 and 2015 review
periods. Overall risk to the population is determined by the highest risk score for any
criterion.
2010 Status Review 2015 Status Review
Population Size Low risk Low risk
Population Decline Low risk Moderate risk
Catastrophe, rate and effect Low risk Low risk
Hatchery Influence Low risk Moderate risk
Many of the factors originally identified as being responsible for the decline of this ESU are still
present, though in some cases they have been reduced by regulatory actions (e.g., NMFS
CVP/SWP biological opinion in 2009, an ocean harvest biological opinion in 2010, and actions
implemented under the CVPIA). Despite efforts to reduce these and other threats (e.g.,
controlling water temperatures with cold water releases, annual spawning gravel augmentation,
stabilizing mainstem flows, unimpeded fish passage at RBDD, harvest restrictions, and reduction
in Delta export pumping), the ESU has continued to decline in abundance. Harvest-related
impacts have generally remained the same as they were prior to the ocean fishery closures in
2008 and 2009 and a significantly limited fishery in 2010. Similarly, impacts from predation
have generally remained unchanged since the last status review. In contrast, impacts from
factors such as drought, diseases, and poor survival conditions have increased since the last
status review and most likely have contributed substantially to the declining abundance of the
ESU.
SR winter-run Chinook salmon abundance has declined during recent periods of unfavorable
ocean conditions (2005-06), and droughts (2007-09) and are expected to continue to be low due
35
to drought conditions in 2012-15. The low adult returns in 2011 created a potential increase in
vulnerability to a year class, yet the progeny from this cohort had relatively high survival
resulting in positive cohort replacement rate (3.5) from this numerically weak brood (Azat 2014).
Poor early life stage survival during the consecutive drought conditions (2012-2015) coupled
with potential poor ocean conditions and hatchery production practices may further impact SR
winter-run Chinook salmon survival-to-adulthood and risk of extinction. Temperature
conditions during egg development and fry emergence were suboptimal over the duration of SR
winter-run Chinook salmon rearing in 2014 and 2015 due to reduced cold water in Shasta
Reservoir for these life stages. The egg-to-fry survival estimate at RBDD for brood years 2014
and 2015 were 5.6% and 4.2%, respectively, which are significantly lower than the average of
26.4% (coefficient of variation = 37.9%) for brood years 2002-2012 measured at RBDD
(Poytress et al. 2014). Potential impacts to these cohorts would be observed in viability criteria
once adults return in 2015 and onward.
The SR winter-run Chinook salmon ESU is likely at a lower extinction risk with a sustainable
LSNFH population and naturally-spawning population than it would be with just a single
naturally-spawning population, at least in the near term. Yet, reliance on production from
LSNFH and potential introgression between natural-origin SR winter-run Chinook salmon is
increasing (Figure 2). In an attempt to prevent the loss of SR winter-run Chinook salmon
cohorts during the 2013-2015 droughts, a greater number of spawners were brought into the
LSNFH as broodstock (Figure 1). The LSNFH also produced and released three times as many
juveniles in 2014. Thus, it reasons that in years where mortality of natural-origin fish may be
particularly high and LSNFH production is significantly increased, the contribution of LSNFHorigin
fish to the returning adult spawners may elevate the overall risk of extinction of SR
winter-run Chinook salmon due to genetic impacts from LSNFH. Potential impacts would
manifest in viability criteria evaluations in escapement years 2016 and onward, unless hatchery
introgression is minimized through active adult management on the spawning grounds.
In summary, the most recent biological information suggests that the extinction risk of this ESU
has increased since the last status review largely due to extreme drought and poor ocean
conditions. The best available information on the biological status of the ESU and new threats to
the ESU indicate that its ESA classification as an endangered species is appropriate and should
be maintained. Long-term recovery of this ESU will require improved freshwater habitat
conditions, abatement of a wide range of threats, and the establishment of additional spawning
areas in Battle Creek and the McCloud River.
3.0 RESULTS
3.1 Classification Recommendation
Based on a review of the best available information, NMFS recommends that the SR winter-run
Chinook salmon ESU remain listed as an endangered species.
36
3.2 ESU Boundary and Hatchery Stocks
Available genetic and other information supports the current boundary of this ESU and,
therefore, NMFS recommends no changes in the ESU boundary. As described in Section 2.1.4,
we recommend revising the ESU listing to include the Captive Broodstock Program once it is
established in 2017, in addition to the Conservation Hatchery Program, as part of the listed SR
winter-run Chinook ESU.
4.0 RECOMMENDATIONS FOR FUTURE ACTIONS
• Re-establish SR winter run Chinook salmon in Battle Creek and the McCloud River to
their historical spawning and rearing habitats to reduce the risk of extinction of species
from lost resiliency and increased vulnerability to catastrophic events.
• Improve management of Shasta Reservoir coldwater storage in order to provide suitable
habitat temperatures for SR winter-run Chinook salmon spawning, egg incubation, fry
emergence and juvenile rearing in the Sacramento River.
• Restore floodplain habitat in the Yolo Bypass for SR winter-run Chinook salmon to
improve juvenile rearing and provide fish passage in the Yolo Bypass to reduce
migratory delays and loss from straying into agricultural diversions.
• Continue partnership and support of the Collaborative Adaptive Management Team
(CAMT) and the Salmon Scoping Team (SST); installation of barriers at Georgiana
Slough and other key junctions; improve enhanced particle tracking modeling; and realtime
salmon monitoring and water export management in the Delta.
• Alter project operations to return the Sacramento River and Delta to more ecologically
functional flow regimes and restore habitat to create an ecosystem more conducive for
native fish populations and reduce the presence of exotic species.
• Enhance SR winter-run Chinook salmon monitoring in order to reduce uncertainty in lifestage
impacts and assist in management. Specific recommendations include
incorporating genetic run identification for species identification, bolstering estimates of
juvenile abundance and cohort strength across their life history, integrating fish survival
and behavioral data with water quality monitoring, and developing and collecting data for
life history diversity, fish condition, and vital rates at multiple locations.
• Develop and implement quantitative modeling tools that link water project operations,
temperature management, and habitat restoration actions to SR winter-run Chinook
salmon population dynamics to improve our ability to make science-informed
management decisions.
37
5.0 REFERENCES
Azat, J. 2014. GrandTab 2014. California Central Valley Chinook Population Database Report.
California Department of Fish and Wildlife, Fisheries Branch.
http://www.dfg.ca.gov/fish/Resources/Chinook/CValleyAssessment.asp.
Baldwin, D. H., J. A. Spromberg, T. K. Collier, and N. L. Scholz. 2009. A Fish of Many Scales:
Extrapolating Sublethal Pesticide Exposures to the Productivity of Wild Salmon
Populations. Ecological Applications 19(8):2004-2015.
California HSRG (California Hatchery Scientific Review Group). 2012. California Hatchery
Review Report. Prepared for the US Fish and Wildlife Service and Pacific States Marine
Fisheries Commission. June 2012.
Cummins, K., C. Furey, A. Giorgi, S. Lindley, J. Nestler, and J. Shurts. 2008. Listen to the
River: An Independent Review of the CVPIA Fisheries Program.
Fisher, F. 1992. Chinook Salmon, Onchorhynchus tshawytscha, growth and occurrence in the
Sacramento – San Joaquin River System. CDFG, Inland Fisheries Division.
Foott, J.S. 2016. Parasite infection of juvenile late fall and winter-run Chinook in the Sacramento
River: September – November 2015 observations in the Balls Ferry to Red Bluff reach.
Memorandum to Interested Parties. U.S. Fish and Wildlife Service, California-Nevada
Fish Health Center, Anderson, CA. 15 January 2016.
Good, T. P., R. S. Waples, and P. Adams (editors). 2005. Updated status of federally listed ESUs
of West Coast salmon and steelhead. U.S. Department of Commerce, NOAA Technical
Memorandum NMFS-NWFSC-66.
Grossman, G.D., T. Essington, B. Johnson, J. Miller, N.E. Monsen, and T.N. Pearsons. 2013.
Effects of Fish Predation on Salmonids in the Sacramento River – San Joaquin Delta and
Associated Ecosystems. 25 September 2013.
Harvey, B., and C. Stroble. 2013. Comparison on genetic versus Delta Model Length-at-Date
race assignment for juvenile Chinook salmon at state and federal south Delta salvage
facilities. California Department of Water Resources, Division of Environmental
Services, Environmental Water Quality and Estuarine Studies, Aquatic Ecology Section.
March 2013.
HSRG (Hatchery Scientific Review Group). 2014. On the Science of Hatcheries: An updated
perspective on the role of hatcheries in salmon and steelhead management in the Pacific
Northwest. A. Appleby, H.L. Blankenship, D. Campton, K. Currens, T. Evelyn, D. Fast,
38
T. Flagg, J. Gislason, P. Kline, C. Mahnken, B. Missildine, L. Mobrand, G. Nandor, P.
Paquet, S. Patterson, L. Seeb, S. Smith, and K. Warheit. June 2014.
Johnson, R.C. and S.T. Lindley. 2016. Central Valley Recovery Domain. Pages 48 – 52 in T.H.
Williams, B.C. Spence, D.A. Boughton, R.C. Johnson, L. Crozier, N. Mantua, M.
O’Farrell, and S.T. Lindley. 2016. Viability assessment for Pacific salmon and steelhead
listed under the Endangered Species Act: Southwest. 2 February 2016 Report to National
Marine Fisheries Service – West Coast Region from Southwest Fisheries Science Center,
Fisheries Ecology Division 110 Shaffer Road, Santa Cruz, California 95060.
Killam D., M. Johnson, and R. Revnak. 2014. Chinook salmon populations of the upper
Sacramento River Basin in 2013. California Department of Fish and Wildlife, RBFO
Technical Report No. 02-2014.
Laetz, C. A., D.H. Baldwin, T.K. Collier, V. Hebert, J.D. Stark, and N. L. Scholz. 2009. The
Synergistics Toxicity of Pesticides Mixtures: Implications for Risk Assessment and the
Conservation of Endangered Pacific Salmon. Environmental Health Perspectives
117(3):348-353.
Lindley, S. T., and M. S. Mohr. 2003. Modeling the effect of striped bass (Morone saxatilis) on
the population viability of Sacramento River winter-run Chinook salmon (Oncorhynchus
tshawytscha). Fishery Bulletin 101: 321–331.
Lindley, S. T., R. S. Schick, B. P. May, J. J. Anderson, S. Greene, C. Hanson, A. Low, D.
McEwan, R. B. MacFarlane, C. Swanson, and J. G. Williams. 2004. Population Structure
of Threatened and Endangered Chinook Salmon ESUs in California's Central Valley
Basin. U.S. Department of Commerce, NOAA Technical Memorandum NOAA-TMNMFS-
SWFSC-360.
Lindley, S. T., R. S. Schick, E. Mora, P. B. Adams, J. J. Anderson, S. Greene, C. Hanson, B. P.
May, D. McEwan, R. B. MacFarlane, C. Swanson, and J. G. Williams. 2007. Framework
for Assessing Viability of Threatened and Endangered Chinook Salmon and Steelhead in
the Sacramento-San Joaquin Basin. San Francisco Estuary and Watershed Science
5(1):26.
Macneale, K. H., P.M. Kiffney, and N.L. Scholz. 2010. Pesticides, Aquatic Food Webs, and the
Conservation of Pacific Salmon. . Frontiers in Ecology and the Environment 8:475-482.
McElhany, P., M. H. Ruckelshaus, M. J. Ford, T. C. Wainwright, and E. P. Bjorkstedt. 2000.
Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units. U.S.
Department of Commerce, NOAA Technical Memorandum NMFS-NWFSC-42.
NMFS (National Marine Fisheries Service). 2003. Hatchery Broodstock Summaries and
Assessments for Chum, Coho, and Chinook Salmon and Steelhead stocks within
39
Evolutionary Significant Units listed under the Endangered Species Act. Northwest and
Southwest Fisheries Science Centers. Seattle, WA and La Jolla, CA.
NMFS (National Marine Fisheries Service). 2009. Biological and conference opinion on the
Operating Criteria and Plan (OCAP) for the long-term operations of the Central Valley
Project and State Water Project with recommendations for Essential Fish Habitat.
National Marine Fisheries Service, Southwest Region, Sacramento, CA. June 4, 2009.
NMFS (National Marine Fisheries Service). 2010. Endangered Species Act Section 7
Consultation Biological Opinion: Authorization of Ocean Salmon Fisheries Pursuant to
the Pacific Coast Salmon Fishery Management Plan and Additional Protective Measures
as it affects Sacramento River Winter Chinook Salmon. National Marine Fisheries
Service, Southwest Region, Protected Resources Division. April 30, 2010.
NMFS (National Marine Fisheries Service). 2011a. Central Valley Recovery Domain 5-Year
Review: Summary and Evaluation of Sacramento River Winter-run Chinook Salmon
ESU. National Marine Fisheries Service, Southwest Region, Long Beach, CA.
NMFS (National Marine Fisheries Service). 2011b. Endangered Species Act Section 7
Consultation Draft Conference and Biological Opinion for United States Environmental
Protection Agency Registration of 2, 4-D, Triclopyr Bee, Diuron, Linuron, Captan, and
Chlorothalonil.
NMFS (National Marine Fisheries Service). 2013. Endangered Species Act Section 7
Consultation Draft Conference and Biological Opinion for United States Environmental
Protection Agency Registrations of Pesticides Containing Diflurbenzuron, Fenbutatin
Oxide, and Propargite.
NMFS (National Marine Fisheries Service). 2014. Recovery Plan for the Evolutionarily
Significant Units of Sacramento River Winter-Run Chinook Salmon and Central Valley
Spring-Run Chinook Salmon and the Distinct Population Segment of California Central
Valley Steelhead. California Central Valley Area Office.
NMFS (National Marine Fisheries Service). 2015. Species in the Spotlight: Survive to Thrive,
Recovering Threatened and Endangered Species, FY 2013-2014 Report to Congress. U.S.
Department of Commerce, Washington DC.
O’Farrell, M.R., and W.H. Satterthwaite. 2015. Inferred historical fishing mortality rates for an
endangered population of Chinook salmon (Oncorhynchus tshawytscha) population.
Fishery Bulletin 113:341-351.
PFMC (Pacific Fishery Management Council). 2015. Preseason Report I: Stock Abundance
Analysis and Environmental Assessment Part 1 for 2015 Ocean Salmon Fishery
Regulations. (Document prepared for the Council and its advisory entities.) Pacific
40
Fishery Management Council, 7700 NE Ambassador Place, Suite 101, Portland, Oregon
97220-1384.
Pyper, B., T. Garrison, S. Cramer, P.L. Brandes, D.P. Jacobson, and M.A. Banks. 2013. Absolute
abundance estimates of juvenile spring-run and winter-run Chinook salmon at Chipps
Island. Delta Science of the Delta Stewardship Council. Grant Agreement Number 1094.
1 July 2013.
Scholz, N. L., E. Fleishman, I. W. L. Brown, M.L. Johnson, M.L. Brooks, C. L. Mitchelmore,
and a. D. Schlenk. 2012. A Perspective on Modern Pesticides, Pelagic Fish Declinces,
and Unknown Ecological Resilience in Highly Managed Ecosystems. Biosciences
62(4):428-434.
Spromberg, J. A. and N. L. Scholz. 2011. Estimating the Future Decline of Wild Coho Salmon
Populations Resulting from Early Spawner Die-Offs in Urbanizing Watersheds of the
Pacific Northwest, USA. Integrated Environmental Assessment and Management
7(4):648-656.
SWRCB (California State Water Resources Control Board). 2015. 2012 California Integrated
Report (Clean Water Act Section 303(d) List / 305(b) Report)
http://www.waterboards.ca.gov/water_issues/programs/tmdl/integrated2012.shtml
USBR and DWR (U.S. Bureau of Reclamation and California Department of Water Resources).
2012. Yolo Bypass salmonid habitat restoration and fish passage implementation plan:
Long-term operation of the Central Valley Project and State Water Project Biological
Opinion. Reasonable and Prudent Alternative Actions 1.6.1 and 1.7.
Voss, A. and K. True. 2015. Winter Run Chinook Salmon 2015 Annual Report. U.S. Fish and
Wildlife Service, California-Nevada Fish Health Center. Anderson, CA.
Williams, T. H., S. T. Lindley, B. C. Spence, and D. A. Boughton. 2011. Status Review Update
for Pacific Salmon and Steelhead Listed under the Endangered Species Act: Update to
January 5, 2011 Report., National Marine Fisheries Service, Southwest Fisheries Science
Center. Santa Cruz, CA.
Williams, T.H., B.C. Spence, D.A. Boughton, R.C. Johnson, L. Crozier, N. Mantua, M.
O’Farrell, and S.T. Lindley. 2016. Viability assessment for Pacific salmon and steelhead
listed under the Endangered Species Act: Southwest. 2 February 2016 Report to National
Marine Fisheries Service – West Coast Region from Southwest Fisheries Science Center,
Fisheries Ecology Division 110 Shaffer Road, Santa Cruz, California 95060.

NATIONAL MARINE FISHERIES SERVICE
5-YEAR REVIEW
CALIFORNIA CENTRAL VALLEY DOMAIN
Sacramento River Winter-run Chinook Salmon ESU
Current Classification: Endangered
Recommendation resulting from the 5-Year Review: Retain current ESA classification as
Endangered and current ESU boundary.
REGIONAL OFFICE APPROVAL:
Approve:
Maria Rea
Assistant Regional Administrator
California Central Valley Office
West Coast Region
41


Thats still atleast $8,000 (thousand dollars) per fish! -ed.


NOAA Technical Memorandum NMFS
JULY 2016
VIABILITY ASSESSMENT FOR PACIFIC SALMON
AND STEELHEAD LISTED UNDER THE
ENDANGERED SPECIES ACT: SOUTHWEST
Thomas H. Williams
Brian C. Spence
David A. Boughton
Rachel C. Johnson
Lisa G. Crozier
Nathan J. Mantua
Michael R. O’Farrell
Steven T. Lindley
NOAA-TM-NMFS-SWFSC-564
U.S.


5.1 Sacramento River Winter-run Chinook Salmon ESU
ESU Boundary Delineation
The Sacramento River Winter-run Chinook Salmon (SRWRC) ESU includes winter-run
Chinook salmon spawning in the mainstem Sacramento River below Keswick Dam and
Livingston Stone National Fish Hatchery (LSNFH). No new information suggests that the
boundary of this ESU should change or that its status as an ESU should change.
Summary of Previous Assessments
Good et al. (2005) concluded that the status of SRWRC ESU was endangered. The major
concerns of the Biological Review Team (BRT) were that there is only one extant
population, and it is outside of its historical spawning distribution in an artificially
maintained habitat that is vulnerable to drought. In the most recent assessment, Williams
et al. (2011) found that the viability of the ESU had changed little since the 2005 review
and found that it did not appear that there was a change in extinction risk.
Brief Review of TRT Documents and Previous Findings
The TRT delineated four historical independent populations of SRWRC. The spawning
areas of three of these historical populations are above the impassable Keswick and
Shasta dams, while Battle Creek (location of the fourth population) is presently
84
unsuitable for winter-run Chinook salmon due to high summer water temperatures.
Lindley et al. (2007) developed viability criteria for Central Valley salmonids,
summarized in Table 5.1. Using data through 2004, Lindley et al. (2007) found that the
mainstem Sacramento River population was at low risk of extinction. The ESU as a
whole, however, could not be considered viable because there is only one naturally
spawning population, and it is not spawning within the range of its historical spawning
habitat. An emerging concern was rising levels of LSNFH-origin fish spawning in natural
areas (mean=8%; t=10 years). However, the duration and extent of this introgression was
still consistent with a low extinction risk as of 2010.
New Data and Updated Analyses
Since the 2010 viability assessment, routine escapement data have continued to be
collected allowing viability statistics to be updated (Table 5.2). The Red Bluff Diversion
Dam (RBDD) gates were operated in the up/out position during some or all of the winterrun
immigration period since 2001, but were since removed in 2012 to provide
unimpaired salmon passage year-round which changed the ability to count SRWRC
adults at the RBDD fish ladders (NMFS 2009a). Population estimates from 2001 to
present are derived exclusively from mark-recapture estimates from carcass surveys
(Figure 5.1).
Table 5.2 shows the viability metrics for SRWRC abundance and trends in the LSNFH
and in the Sacramento River. Like many other populations of Chinook salmon in the
Central Valley, SRWRC have declined in abundance since 2005 with recent decadal lows
of 827 spawners in 2011 (Figure 5.1). Escapement in 2011 represents the lowest run size
since the construction and operation of the LSNFH in 1997. Both the current total
population size (N; LSNFH = 645; Sacramento River = 11,125) and mean population
sizes (Ŝ; LSNFH = 215; Sacramento River = 3,708) satisfy the low risk criterion (N >
2500).
However, the point estimate for the 10-year trend in run size is negative (-0.15),
suggesting a 15% per year decline in the population (Table 5.2). The slope is marginally
not different than ‘0’, yet it is clear that the population has been steadily declining rather
than increasing over the past decade. The maximum year-to-year decline in population
size has reached 67%, an increase from 38% in the previous 2010 viability assessment
(Williams et al. 2011). However, the percent decline does not exceed the catastrophic
decline criteria (>90% decline in one generation nor annual run size < 500 spawners;
Lindley et al. 2007).
These observed levels of hatchery influence exceed the low-extinction risk criteria met in
the previous viability assessment and place the genetic integrity of the population at a
moderate risk of extinction (Lindley et al. 2007). Since the beginning of hatchery
production at LSNFH in 1997, the proportion of hatchery-origin SRWRC spawning in
the river has increased (Figure 5.1). Prior to 2005, the proportion of LSNFH-origin
spawners in the river was between 5% to 10%, consistent with guidelines from the
Hatchery Scientific Review Group for conservation hatcheries (Figure 5.2; California
HSRG 2012). However, the hatchery proportion has increased since 2005 and reached
~20% in 2005, 2014 and >30% in 2012. The average over the last 12 years
85
Table 5.1. Criteria for assessing the level of extinction risk for populations of Pacific
salmonids in the Central Valley of California. Overall risk is determined by the
highest risk score for any criterion (modified from Lindley et al. 2007).
Risk of extinction
Criterion High Moderate Low
Extinction risk and
PVA
> 20% within 20 yrs > 5% within 100 yrs < 5% within 100 yrs
- or any ONE of - - or any ONE of - - or ALL of -
Population sizea Ne ≤ 50 50 < Ne ≤ 500 Ne > 500
- or - - or - - or -
N ≤ 250 250 < N ≤ 2500 N > 2500
Population decline Precipitous declineb
Chronic decline or
depressionc
No decline apparent
or probable
Catastrophe, rate, and
effectd
Order of magnitude
decline within one
generation
Smaller but
significant declinee
Not apparent
Hatchery influencef High Moderate Low
a – Census size N can be used if direct estimates of effective size Ne are not available, assuming Ne/N = 0.2.
b – Decline within last two generations to annual run size ≤ 500 spawners, or run size > 500 but declining
at ≥ 10% per year over the past 10 years. Historically small but stable population not included.
c – Run size has declined to ≤ 500, but now stable.
d – Catastrophes occurring within the last 10 years.
e – Decline < 90% but biologically significant.
f – See Figure 5.3 for assessing hatchery impacts.
Table 5.2. Viability metrics for Sacramento River Winter-run Chinook Salmon ESU
populations. Total population size (N) is estimated as the sum of estimated run sizes over
the most recent three years. The mean population size (Ŝ) is the average of the estimated
run sizes for the most recent three years. Population growth rate (or decline; 10 year
trend) is estimated from the slope of log-transformed estimated run sizes. The
catastrophic metric (Recent Decline) is the largest year-to-year decline in total population
size (N) over the most recent 10 such ratios.
Population N Ŝ 10-year trend (95% CI) Recent Decline (%)
LSNFH winter-run Chinook 645 215.0 0.102 (-0.019, 0.222) 2.7
Sacramento River winter-run
Chinook
11125 3708.3 -0.155 (-0.345, 0.034) 67.4
86
Figure 5.1. Time series of escapement for Sacramento River Winter-run Chinook Salmon
used as broodstock at Livingston Stone National Fish Hatchery and Sacramento River
mainstem spawners. Estimates for in-river spawners is the average number of adults
counted at Red Bluff Diversion Dam and the carcass survey mark-recapture estimates
(when available). Note: only mark-recapture estimates are used beginning in 2009; data
from Azat (2014).
(approximately four generations) is 13% (SD= ±8%) with the most recent generation at
20% hatchery influence, placing the population at a moderate risk of extinction (Table
5.3; Figure 5.3).
87
Figure 5.2. Percentage of in-river spawning Sacramento River Winter-run Chinook
Salmon that are of hatchery-origin; Data source: Killam 2014.
Table 5.3. Average percentage of hatchery-origin Sacramento River Winter-run Chinook
salmon spawners over a varying (cumulative) number of years. One generation (g1)
consists of the most recent three years; two generations (g2) the most recent six years;
three generations (g3) the most recent nine years; four generations (g4) the most recent
12 years. Data source: Killam 2014).
g1
generation
g2 g3 g4
Average hatchery influence
20% 15% 13% 13%
88
Harvest Impacts12
Sacramento River Winter-run Chinook Salmon (SRWRC) have a more southerly ocean
distribution relative to other California Chinook salmon stocks, and are primarily
impacted by fisheries south of Point Arena, California. Sacramento River Winter-run
Chinook Salmon age-3 ocean fishery impact rate estimates for the region south of Point
Arena (an approximation of the exploitation rate) are currently available for 2000–2013,
and have remained relatively stable over this time period, averaging 16% (Figure 5.4).
Fisheries in 2008 and 2009 were closed south of Point Arena owing to the collapse of the
Sacramento River Fall-run Chinook salmon stock and insufficient data exist for
estimating a SRWRC impact rate in 2010. If years 2008–2010 are omitted, the average
age-3 impact rate is 19% (PFMC 2015b).There have been several layers of ocean salmon
fishery regulations implemented for SRWRC beginning in the early 1990s. For example,
a substantial portion of the SRWRC ocean harvest impacts used to occur in February and
March recreational fisheries south of Point Arena, but fisheries at that time of the year
have been closed since the early 2000s. O’Farrell and Satterthwaite (2015) hindcasted
SRWRC age-3 ocean impact rates back to 1978, extending the impact rate time series
beyond the range of years where direct estimation is possible (2000–2013). Their results
suggest that there were substantial reductions in ocean impact rates prior to 2000 and that
the highest impact rates occurred in a period between the mid-1980s and late-1990s.
One component of the Reasonable and Prudent Alternative (RPA) from the 2010
Biological Opinion (NMFS 2010) specified that new fishery management objectives must
be established. The implementation of the RPA resulted in the development of a harvest
control rule which was first used for ocean fishery management in 2012. That harvest
control rule specifies reductions in the age-3 ocean impact rate when the geometric mean
number of spawners from the previous three years is reduced (Figure 5.5). The limits to
the impact rate imposed by the harvest control rule is an additional control on ocean
fisheries which still includes previously existing constraints on fishery opening and
closing dates and minimum size limits south of Point Arena. Between 2012 and 2015, the
SRWRC harvest control rule has specified maximum allowable forecast impact rates
ranging from 12.9% to 19.0%.
What little SRWRC freshwater harvest that existed was essentially eliminated beginning
in 2002 when Sacramento River Chinook salmon fishery season openings were adjusted
to reduce the temporal overlap with the SRWRC spawning migration and spawning
period.
In summary, the available information indicates that the level of SRWRC fishery impacts
has not changed appreciably since the 2010 salmon and steelhead viability assessment
(Williams et al. 2011), yet there have been additional ocean fishery regulations
implemented with the purpose of reducing exploitation of SRWRC when average
population size is reduced.
12 Harvest impacts section prepared by Michael O’Farrell
89
Figure 5.3. Percentage of hatchery-origin spawners and the resulting risk of extinction
due to hatchery introgression from different sources of strays over multiple generations
for Sacramento River Winter-run Chinook salmon. Low (green), moderate (yellow), and
high (red). Model using “best-management practices” was used in the winter-run
assessment based on the breeding protocols at the Livingston Stone National Fish
Hatchery for Sacramento River Winter-run Chinook Salmon. The group/parameter
“strays from outside of ESUs” was used to assess impacts of introgression between
Central Valley Spring- and Fall-run Chinook Salmon ESUs at the Feather River
Hatchery. Figure reproduced from Lindley et al. (2007).
90
Figure 5.4. Sacramento River Winter-run Chinook Salmon age-3 ocean impact rate
(percent) south of Point Arena, California for years 2000–2013. Estimates are sourced
from PFMC (2015b). The impact rate could not be estimated in 2010 due to insufficient
coded-wire tag recoveries.
Figure 5.5. Current Sacramento River Winter-run Chinook Salmon harvest control rule.
There is no explicit cap on the age-3 impact rate if the three-year geometric mean number
of spawners exceeds 5000.
91
Summary and Conclusions
The overall viability of Sacramento River Winter-run Chinook Salmon has declined since
the 2010 viability assessment, with the single spawning population on the mainstem
Sacramento River. New information available since Williams et al. (2011) indicates an
increased extinction risk to this ESU. The larger influence of the hatchery broodstock in
addition to the rate of decline in abundance over the past decade has placed the
population at an increased risk of extinction (Table 5.4).
The SRWRC population has declined during recent periods of unfavorable ocean
conditions (2005–2006), and droughts (2007–2009) and are expected to continue to be
low due to drought conditions in 2012–2015. The low adult returns in 2011 created a
potential increase in vulnerability to a year class, yet the progeny from this cohort had
relatively high survival resulting in a positive cohort replacement rate (3.5) from this
numerically weak cohort (Azat 2014).
Poor early life stage survival during the most recent consecutive drought years of 2012–
2015, coupled with poor ocean conditions and hatchery production practices (see Chapter
2) may further impact SRWRC survival-to-adulthood and risk of extinction. Temperature
conditions during egg development and fry emergence were suboptimal over the duration
of SRWRC rearing in 2014 and 2015 due to reduced cold water storage and subsequent
release in/from Shasta Reservoir for this life stage. The egg-to-fry survival estimate for
brood year 2014 is 5.9%, which is a significant departure from the average of 24.8% for
brood years 1996–2014 measured at RBDD (Poytress et al. 2016). Potential impacts to
these cohorts would be observed in viability criteria once adults return in 2015 and
beyond.
Water operations can influence the routing of upper Sacramento River-origin water
through agricultural fields and can create false attraction cues that cause SRWRC to
deviate from the mainstem Sacramento River migration corridor and become stranded in
agricultural fields behind flood bypass weirs. SRWRC have been observed to navigate up
the Colusa Basin Drain for 40–70 miles before being blocked at weirs delaying and/or
preventing successful migration (CALFED 2000, USFWS 2001, USBR and DWR 2012).
In 2013, 600+ stranded adult SRWRC and CVSRC were observed, with a total of 312
adults relocated to the mainstem Sacramento River or the Livingston Stone National Fish
Hatchery for use as broodstock (Killam et al. 2014). It is likely that survival for rescued
adults that were stranded in the Colusa Basin Drain was low and that not all stranded
adults were rescued. Thus, the loss of adults due to stranding prior to spawning can be
demographically costly to the population.
The SRWRC ESU is likely at a lower extinction risk with a sustainable LSNFH
population and naturally spawning population than it would be with just a single naturally
spawning population, at least in the near-term. Yet, reliance on production from LSNFH
and potential introgression between natural-origin SRWRC is increasing (Figure 5.2). In
an attempt to prevent the loss of SRWRC cohorts during the 2013–2015 prolonged
drought, a greater number of spawners were brought into the LSNFH as broodstock
(Figure 5.1). The hatchery also produced and released three times as many juveniles.
Thus, in years where mortality of natural-origin fish may be particularly high and LSNFH
production is significantly increased, the contribution of LSNFH-origin fish to the
92
Table 5.4. Summary of Sacramento River Winter-run Chinook salmon extinction risk by
population criteria described in Lindley et al. (2007) for the 2010 and 2015 review
periods. Overall risk is determined by the highest risk score for any criterion.
2010 Status Review 2015 Status Review
Population size Low risk Low risk
Population decline Low risk Moderate risk
Catastrophe, rate, and effect Low risk Low risk
Hatchery influence Low risk Moderate risk
returning adult spawners may elevate the overall risk of extinction of SRWRC due to
genetic impacts from the hatchery. Potential impacts would manifest in viability criteria
evaluations in escapement from the year 2016 and beyond, unless hatchery introgression
is minimized through active adult management on the spawning grounds. The use of
adult segregation weirs to manage gene flow between natural- and hatchery-origin fish in
rivers is commonly conducted in Oregon and Washington to minimize impacts of
hatchery fish on the genetic integrity of the overall population (HSRG 2014).
The viability of the SRWRC ESU will be improved by re-establishing winter-run
Chinook salmon in their historical spawning and rearing habitat. Projects to reintroduce
SRWRC into Battle Creek and upstream from Shasta Reservoir are in the planning
phases, and if successful, would significantly benefit SRWRC. Genetic management
plans will be critical for conserving the long-term genetic integrity of SRWRC, the
success of the reintroduction efforts, and achieving a low-extinction risk to the portion of
the population downstream Shasta Dam.
Lastly, the development and implementation of quantitative modeling tools that link
water project operations, temperature management, and habitat restoration actions to
SRWRC population dynamics will greatly improve our ability to make science-informed
management decisions (Hendrix et al. 2014; Caldwell et al. 2015).
93



  Reach and comprehend likewise the
exception applicable securing exclusive rights provisions
 regarding certain matters of substantive law and procedure challenged constitutionality action
 to bring sovereignty malpractice patently without reasonable foundation or due process
 and the necessity that springs from the right vested that there inheres value and imports power
 
over government appropriating private property and the duty private in nature of standing
 that does not foster excessive government.



Noble domain proper exercise to enforce comprehensive federal field preemption cause of action,
 by proper means the vehicle by which to evaluate exactions not supported by evidence or reasonable justification
 and compensation remedy for a regulatory taking that continues as long as the government agency endures
 
whether substantive due process or takings, and whether money is "property."
]useful arts not being readily ascertainable by other persons.

 

Rural Utilities Service high acts over government sovereignty;
 subordination held
with jurisdiction & standing to bring action
because federal money was spent wrongfully
 taking or appropriating and maintaining.


   Actual
occupancy & community welfare efforts that are reasonable
 
protecting value under the circumstances and promoting recognition
 by name and constitutional provision right.


Relief from certain existing claims.
Implied action for the knowing violation of "important, non-discretionary" rules and implied remedy 

for the violation of "important, non-discretionary" rules whose violation permits aggrieved individuals 

to sue in federal court. 
Sec. 252. 
administrative practice or enforcement policy of any such agency with respect to the class to which he belongs.

 

“Like a thief in the night” made impossible on the ground “without foundation”.

TRANSFER OF FUNCTIONS                       

      Functions relating to enforcement and administration; applicability of "area of production" regulations.

The constitutional rule that "one man's junk is another's gold,"

 

"The only thing necessary for evil to triumph is for good men to do nothing." –Sir Edmund Burke

 

"My presence here is special. I am here as result of a forced bill of pain and penalty against my Life, Liberty and pursuit of Happiness."

 

I bring charges for violations of 18 USC §§ 242 and 241, and under 42 USC §§ 1988 and 1983.

satisfying the “manifest injustice” standard of Style Rule 16(e).

 

"In times of universal deceit, telling the truth will be a revolutionary act." --George Orwell

 

-CITE- 30 USC Sec. 351 -EXPCITE- TITLE 30 CHAPTER 7 -HEAD- Sec. 351. Definitions -STATUTE- As used in this chapter 'United States' includes Alaska. 'Acquired lands' or 'lands acquired by the United States' include all lands heretofore or hereafter acquired by the United States to which the 'mineral leasing laws' have not been extended, including such lands acquired under the provisions of the Act of March 1, 1911 (36 Stat. 961, 16 U.S.C., sec. 552).

 

A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and he carries his banners openly. But the traitor moves among those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government Itself. For the traitor appears not traitor, he speaks in the accents familiar to his victims and he wears their face and their garments, and he appeals to the baseness that lies deep in the hearts of all men.


He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of a city, he infects the body politic So that it can no longer resist. A murderer is less to be feared."

 

"Debt begins in Admiralty whether on land or navigable waters."


United States v. $5,372.85 United States Coin and Currency, 283 F.Supp. 904, 905-06 (S.D.N.Y. 1968)

42 USC § 1986 - Action for neglect to prevent

Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.

 

Corruptissima re publica plurimae leges


"When the republic is at its most corrupt the laws are most numerous"


--Publius (or Gaius) Cornelius Tacitus (ca. 56 – ca. 117) a senator and a historian of the Roman Empire.

 

'The Judicial Department comes home in its effects to every man's fireside; it passes on his property, his reputation, his life, his all. Is it not, to the last degree important, that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience? * * * I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary.' – Chief Justice Marshall, in the course of the debates of the Virginia State Convention of 1829--1830 (pp. 616, 619),

 

Comment

The Ninth Circuit has held the common law test for materiality, as reflected in the

last sentence of this instruction, is the standard to use when false statement statutes

such as 18 U.S.C. § 1001 are charged. United States v. Peterson, __ F.3d ___, 2008 WL

3388737 (9th Cir. Aug.13, 2008) (citing United States v. Gaudin, 515 U.S. 506, 509

(1995)). “The false statement need not have actually influenced the agency, and the

agency need not rely on the information in fact for it to be material.” United States v.

Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998); see also United States v. Matsumaru,

244 F.3d 1092, 1101 (9th Cir. 2001).

No mental state is required with respect to the fact that a matter is within the

jurisdiction of a federal agency, and the false statement need not be made directly to

the government agency. United States v. Green, 745 F.2d 1205, 1208-10 (9th Cir.1984).

There is no requirement that the defendant acted with the intention of influencing the

government agency. United States v. Yermian, 468 U.S. 63, 73 & n. 13 (1984). The initial

determination whether the matter is one within the jurisdiction of a department or

agency of the United States—apart from the issue of materiality—should be made by the

court as a matter of law. United States v. F.J. Vollmer & Co., Inc., 1 F.3d 1511, 1518

(7th Cir. 1993).

To make a false statement “willfully” under Section 1001, the defendant must

have the specific intent to make a false statement. Specific intent does not require evil

intent but only that the defendant act deliberately and with knowledge. United States v.

18 U.S.C. § 1001 read and learn 2 / 2

Heuer, 4 F.3d 723, 732 (9th Cir. 1993).

Materiality must be demonstrated by the government, United States v. Oren, 893

F.2d 1057, 1063 (9th Cir. 1990); United States v. Talkington, 589 F.2d 415, 416 (9th

Cir.1978), and must be submitted to the jury. Gaudin, 515 U.S. at 506. Actual reliance is

not required. Talkington, 589 F.2d at 417. The materiality test applies to each allegedly

false statement submitted to the jury. Id.

Depending on the facts in evidence, it may be appropriate to amend this

instruction with language requiring specific jury unanimity (e.g., “with all of you

agreeing as to which statement was false and material”). See Instruction 7.9 (Specific

Issue Unanimity).

Source:

http://207.41.19.15/web/sdocuments.nsf/dcf4f914455891d4882564b40001f6dc/a403f522ad2c4d3b882

564ba007d8f6b?OpenDocument

"A jury in a federal criminal case cannot convict unless it unanimously finds that

the Government has proved each element." Richardson v. United States, 526 U.S.

813, 817 (1999) (continuing criminal enterprise prosecution).

 

In 1698, Lord Holt recognized “three sorts of damages, any of which would be sufficient

ground to support this action”:

(1) The damage to a man’s fame, as if the matter whereof he is

accused be scandalous. . . . (2) [Damages] done to the person;

as where a man is put in danger to lose his life, or limb, or liberty,

which has been always allowed a good foundation of such

an action . . . . (3) [Damages] to a man’s property, as where he is

forced to expend his money in necessary charges, to acquit himself

of the crime of which he is accused . . . .8

 

“three ‘absolute rights of every Englishman’” were property, liberty,

and personal security, with liberty meaning only freedom of movement, while personal security included “‘reputation.’

 

(“The gravamen of [abuse of process] is not the wrongfulness of the prosecution, but some extortionate perversion of

lawfully initiated process to illegitimate ends.”); Keeton et al., supra note 6, § 121, at 897–98 (“[I]f the defendant prosecutes an innocent plaintiff for a crime without

reasonable grounds to believe him guilty, it is malicious prosecution; if he prosecutes him with such grounds to extort payment of a debt, it is abuse of process.”)

 

In such a case, relief may be available in a federal court

under § 1983, which authorizes “constitutional torts” by creating private

rights of action against any person who, “under color of [state law],”

causes injuries by violating an individual’s federal constitutional or statutory

rights.17 Section 1983, however, “is not itself a source of substantive

rights, but a method for vindicating federal rights elsewhere conferred by

those parts of the United States Constitution and federal statutes that it

describes.”18 Therefore, in order to bring a malicious prosecution claim

under § 1983, malicious prosecution must be deemed a deprivation of a

right “secured by the Constitution.”19 This Note argues that a malicious

prosecution violates the Fourth Amendment right to be free from “unreasonable searches and seizures.”20

 

Monetary damages may be similarly available in a suit against persons acting under

color of federal law. See Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388, 391–97 (1971) (holding that Fourth Amendment includes right of

action against federal officials). But see Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68–70

(2001) (“In 30 years of Bivens jurisprudence we have extended its holding only twice . . . .

[W]e have consistently rejected invitations to extend Bivens . . . .”); id. at 75 (Scalia, J.,

concurring) (characterizing Bivens as “a relic” and limiting it to its precise facts); Erwin

Chemerinsky, Federal Jurisdiction § 9.1.2, at 595–96 (4th ed. 2003) (“[A] reconsideration

of Bivens may occur as the composition of the Court changes.”); Richard H. Fallon, Jr. et

al., Hart & Wechsler’s The Federal Courts and the Federal System 816–21 (5th ed. 2003)

[hereinafter Hart & Wechsler] (discussing “retrenchment” of Bivens doctrine); Matthew G.

Mazefsky, Casenote, Correctional Services Corporation v. Malesko: Unmasking the Implied

Damage Remedy, 37 U. Rich. L. Rev. 639, 654–55 (2003) (discussing whether Bivens is

dead).

18. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). 19. 42

Committee Notes on Rules—2001 Amendment

The final sentence of Rule 82 is amended to delete the reference to 28 U.S.C. §1393, which has been repealed.

Style Comment

The recommendation that the change be made without publication carries with it a recommendation that style changes not be made. Styling would carry considerable risks. The first sentence of Rule 82, for example, states that the Civil Rules do not “extend or limit the jurisdiction of the United States district courts.” That sentence is a flat lie if “jurisdiction” includes personal or quasi-in rem jurisdiction. The styling project on this rule requires publication and comment.

 Jurisdiction, once challenged, is to be proven, not by the court, but by the party attempting to assert jurisdiction. The burden of proof of jurisdiction lies with the asserter. The court is only to rule on the sufficiency of the proof tendered. See McNutt v. GMAC, 298 US 178. The origins of this doctrine of law may be found in Maxfield's Lessee v Levy, 4 US 308.

 

“It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.” Cohens v. Virginia, 19 U.S. 264, 404, 5 L.Ed. 257, 6 Wheat. 264 (1821)

 

“However late this objection has been made, or may be made in any cause, in an inferior or appellate court of the United States, it must be considered and decided, before any court can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.” Rhode Island v. Massachussetts, 37 U.S. 657, 718, 9 L.Ed. 1233 (1838)

 

Where there is no jurisdiction over the subject matter, there is, as well, no discretion to ignore that lack of jurisdiction. [John J. Joyce v. United States of America, 474 F.2d 215, 219] Joyce v. U.S., 474 F.2d 215, 219 (C.A.3 (Pa.), 1973)

 

transfusio unius creditoris in alium.

 

"A departure by a court from those recognized and established requirements of law, however close apparent adherence to mere form in method of procedure, which has the effect of depriving one of a constitutional right, is an excess of jurisdiction." Wuest v. Wuest, 127 P2d 934, 937.

 

"Agency, or party sitting for the agency, (which would be the magistrate of a municipal court) has no authority to enforce as to any licensee unless he is acting for compensation. Such an act is highly penal in nature, and should not be construed to include anything which is not embraced within its terms. (Where) there is no charge within a complaint that the accused was employed for compensation to do the act complained of, or that the act constituted part of a contract." Schomig v. Kaiser, 189 Cal 596.

 

"When acting to enforce a statute and its subsequent amendments to the present date, the judge of the municipal court is acting as an administrative officer and not in a judicial capacity; courts in administering or enforcing statutes do not act judicially, but merely ministerially". Thompson v. Smith, 154 SE 583.

 

"A judge ceases to sit as a judicial officer because the governing principle of administrative law provides that courts are prohibited from substituting their evidence, testimony, record, arguments, and rationale for that of the agency. Additionally, courts are prohibited from substituting their judgment for that of the agency. Courts in administrative issues are prohibited from even listening to or hearing arguments, presentation, or rational." ASIS v. US, 568 F2d 284.

 

"The elementary doctrine that the constitutionality of a legislative act is open to attack only by persons whose rights are affected thereby, applies to statute relating to administrative agencies, the validity of which may not be called into question in the absence of a showing of substantial harm, actual or impending, to a legally protected interest directly resulting from the enforcement of the statute." Board of Trade v. Olson, 262 US 1; 29 ALR 2d 1051.

 

 “Congress shall have Power . . . to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. CONST. art. I, § 8, cl. 2.

 

See United States v. 80.5 Acres of Land, 448 F.2d 980, 983 (9th Cir.1971) ( “[T]he necessity of taking or appropriating private property for public use is legislative in nature and one over which the courts lack jurisdiction.”).

 

the Uniform Trade Secrets Act defines a “trade secret” as:

[I]nformation . . . that: (i) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

 

"[t]he government may not take property like a thief in the night; rather, it must announce its intentions and give the property owner a chance to argue against the taking." Clement v. City of Glendale, 518 F.3d 1090, 1093 (9th Cir. 2008).

 

[I]n every political sovereign community there inheres necessarily the right and

the duty of guarding its own existence, and of protecting and promoting the

interests and welfare of the community at large. This power and this duty are

to be exerted not only in the highest acts of sovereignty, and in the external

relations of governments; they reach and comprehend likewise the interior

polity and relations of social life, which should be regulated with reference to

the advantage of the whole society. This power, denominated the eminent

domain of the state, is, as its name imports, paramount to all private rights

vested under the government, and these last are, by necessary implication, held

in subordination to this power, and must yield in every instance to its proper

exercise.

West River Bridge Co. v. Dix, 47 U.S. 507, 531–32 (1848). See also 1A-3 JULIUS L.

SACKMAN, NICHOLS ON EMINENT DOMAIN ' 3.01[1–2] (Matthew Bender & Company,

Inc., 3rd ed. 2006) (1982).

Eminent domain is the power of the sovereign to take property for public use,

without the owner's consent, and upon making just compensation. This

authority “springs from . . . a necessity of government,” and is considered to be

an essential attribute of sovereignty. Eminent domain authority is predicated

upon the superior right of the state over private property. It comes into being

with the establishment of the government and continues as long as the

government endures. Eminent domain authority does not require recognition

by constitutional provision, but exists in absolute and unlimited form.

(Footnotes omitted).

 

"Section 302 of the Department of Agriculture

Reorganization Act of 1994, P.L. 103-354, created the Rural Utilities Service with jurisdiction over the

rural electric, telephone, waste, and water programs formerly under REA and the Farmers Home

Administration." Id. at n.28.2.

 

The police power is reserved to the states through the Tenth Amendment to

the United States Constitution which reads, "The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the

people." U.S. CONST. amend. X.

 

"The courts should not assume the role which our system assigns to Congress".

 

we do “not substitute [our] judgment for a legislature's judgment as to what constitutes a public use ‘unless the use be palpably without Midkiff, 467 U.S. at 241, 104 S.Ct. 2321reasonable foundation.’  (quoting United States v. Gettysburg Elec. Ry. Co., 160 U.S. 668, 680, 16 S.Ct. 427, 40 L.Ed. 576 (1896)).

 

The arbitrary and capricious standard15 appears to derive from

both statutory and constitutional roots, although it does not appear

in the United States Constitution or most state constitutional texts.

 

Mr. Justice Brandeis' classic statement of the proposition merits reiteration ... "We

may strike down the statute ... on the ground that, in our opinion, the measure is

arbitrary, capricious or unreasonable. We have power to do this, because the due

process clause has been held by the Court applicable to matters of substantive law

as well as to matters of procedure."

 

The terms "arbitrary" and "capricious" embrace a concept which emerges from the

due process clauses of the Fifth and Fourteenth Amendments of the United States

Constitution and operates to guarantee that the acts of government will be grounded

on established legal principles and have a rational factual basis. A decision is arbitrary

or capricious when it is not supported by evidence or when there is no reasonable

justification for the decision.

Canty v. Board of Educ., 312 F. Supp. 254, 256 (S.D.N.Y. 1970) (footnote omitted and

emphasis added); see also Richardson v. Belcher, 404 U.S. 78, 84 (1971); cJ. J. NOWAK, R.

ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW 490 n.57 (3d ed. 1986) (citing Van Alstyne,

Cracks in "the New Property": Adjudicative Due Process in the Administrative State, 62

CORNELL L. REV. 445, 487 (1977) (asserting that the Court has not clearly accepted the

constitutional status of the arbitrariness test».

17 "[T]here is no place in our Constitutional system for the exercise of arbitrary power."

Garfield v. United States, 211 U.S. 249, 262 (1908). This assertion is given eloquent lip service

in many cases involving judicial review of legislative administrative decision making. See, e.g.,

General Protective Comm. v. Securities & Exchange Comm'n, 346 U.S. 521 (1954); Jones v.

City of Portland, 245 U.S. 217 (1917); Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803);

Bush v. Martin, 251 F. Supp. 484 (S.D. Tex. 1966).

 

On administrative "questions of law," the judicial review is far more likely to be phrased

in terms of the appropriateness of judicial substitution of judgment than in terms of arbitrariness,

raising issues that similarly turn on degrees of deference.


federal preemption can be of four types: express, conflict, obstacle, and field.  Express preemption is found where there is a statement of preemption.  Conflict preemption is present where compliance with both federal and state or local law is impossible.  Obstacle preemption occurs where the state or local law is an obstacle to the execution of federal law.  Lastly, field preemption arises where the federal government has manifested an intent, through comprehensive regulation, to occupy an entire subject matter of law.


Mar 26 2013 8:00AM to Mar 27 2013 5:00PM Marquette University, Milwaukee, WI

This is a bi-annual meeting of the industry advisory board and center members to assess ongoing research and set priorities for new research directions.

Implication Doctrine's Implications for the Nature and Role of the Federal Courts, divining from silence an intent to create or foreclose private actions, or for that matter an intent to do anything, is admittedly an inexact science.

In addition to the security measures described below, the property owner has posted the property to discourage trespassers.

 "substantial burden,"

When a law is decided through a system of "individualized assessments," strict scrutiny applies. Id. at 884. Strict scrutiny requires the government to prove its law rests on a "compelling interest" and is narrowly tailored. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993).

Through the Looking Glass of Eminent Domain:
Exploring the "Arbitrary and Capricious" Test and Substantive Rationality Review of Governmental Decisions

The establishment, after 30 years is not even willing to correct an essential test that caused the failure of the Clean Water Act.

Scientists are increasingly finding evidence that everyday chemicals, pharmaceuticals and human hormones pass right through the treatment plants and into waterways across the country.

Fixing a problem that’s a century in the making

How did we get here?

told you so

"it’s just a lot harder to make progress after you’ve eaten that low lying fruit."

Watershed Based Permitting

Getting Paid for Stewardship: An Agricultural Community Water Quality Trading Guide (PDF) (59 pp, 3.3MB,

No More 'next several years'.

No good deed goes unpunished: the CERCLA BFPP defense in the wake of Ashley II

Amy
                                    L. Edwards Author page »

In 2002 the U.S. Congress enacted the Small Business Liability Relief and Brownfields Revitalization Act (the 2002 Brownfields Amendments), offering property owners the specter of relief from the joint, strict and several liability scheme of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund). It did so by adding certain Landowner Liability Protections (LLPs) under the Act: the bona fide prospective purchaser (BFPP) defense (42 U.S.C. §§ 9601(40) and 9607(r)) and the contiguous property owner (CPO) defense (42 U.S.C. § 9607(q)), and a modified “innocent landowner” defense (42 U.S.C. § 9601(35)(B)(i)(II)). The BFPP defense is particularly noteworthy because it explicitly allows a purchaser to buy land with knowledge that it is contaminated, yet have a potential defense to federal Superfund liability.1

In the intervening eight years, neither EPA nor the courts have done much to clarify the scope of the LLPs or to provide a roadmap regarding how to maximize the likelihood of qualifying for any of these protections. Now, at least one trial court has offered some guidance on the BFPP defense and, in the process, probably made these protections even more ephemeral than ever.2 In fact, the most likely outcome is more litigation between the parties as they have even more issues about which to argue.

Background of the Case

Ashley II of Charleston, LLC vs. PCS Nitrogen, Inc. et al., 2010 U.S. Dist. LEXIS 104772 (Civ. Action No. 2:05-cv-2782-MBS) (D.S.C. Oct. 13, 2010), decided by the U.S. District Court for the District of South Carolina on October 13, 2010, involved a number of cost recovery and contribution actions by current and former owners and operators of 43 acres of industrial land in Charleston, South Carolina. Phosphate fertilizer plants had operated on and near the site since the late 1880s and had caused extensive contamination, including lead, arsenic, polyaromatic hydrocarbons (PAHs) and acidic (low pH) conditions. The Environmental Protection Agency (EPA) determined that the site met the requirements for initiating a Non-Time-Critical Removal Action under the National Contingency Plan (NCP). While there are a number of interesting CERCLA issues in the case, the case is particularly noteworthy for its analysis of what might be required to qualify for the BFPP defense under the 2002 Brownfields Amendments.

Ashley II of Charleston, LLC (Ashley) was a sophisticated brownfields redevelopment company that had purchased the site shortly after passage of the 2002 Brownfields Amendments. Ashley intended to redevelop the site into a mixed-use project. It conducted a Phase I Environmental Site Assessment (ESA) prior to purchasing the Holcombe and Fair Parties’ (27.62 acres) portion of the site in 2003. Ashley promptly contacted EPA to determine whether EPA needed any “specific cooperation, assistance, access or the undertaking of any reasonable steps” on the site. EPA sent Ashley an information request in 2004, to which Ashley promptly responded. Ashley collected over 450 soil samples to characterize and delineate known environmental conditions on the site. Ashley secured the site by providing access controls (fencing, gates and “no trespassing” signs) and periodic inspections. A contractor for EPA had conducted Phase I and Phase II Remedial Investigations between 1999 and 2001, and EPA had published an initial remediation plan in October of 2005. Ashley provided access to EPA in 2007 and submitted revised remediation plans in March and October of 2008.

Ashley conducted a Phase I Environmental ESA prior to purchasing the Allwaste (2.99 acres) portion of the site in 2008. This Phase I ESA identified the concrete pads and sumps on the site as “Recognized Environmental Conditions” and observed that there was evidence of staining and cracks, prior spillage, and elevated levels of contaminants in the soil and ground water. In total, Ashley spent approximately $195,000 assessing the environmental conditions on the site and estimated that cleanup would cost approximately $8-9 million.

In June of 2008, shortly after taking title, Ashley retained a consulting firm to demolish the remaining structures on the Allwaste parcel, but did not remove the underground structures, including cement pads, sumps, trenches and underground pipes. Runoff was able to collect in these structures and, according to the court, overflow with some degree of regularity. Ashley did not retain its own consultant to evaluate the sumps until September of 2009, and that consultant concluded that the sumps were not leaking. Ashley also did not assess the contents of a debris pile that it had been aware of since 2006, or remove this debris pile which contained hazardous substances, until 2008.

As part of its agreement to acquire the site, Ashley had also agreed to release and indemnify the prior owners, the Holcombe and Fair Parties, from all environmental claims, including response costs under the Environmental Laws.3 Upon learning that EPA was considering bringing cost reimbursement claims against the Holcombe and Fair Parties, Ashley contacted EPA, saying such an action would discourage Ashley’s future development activities.

In September 2005 Ashley had sued PCS Nitrogen, Inc.,4 a prior owner/operator of the site, seeking a declaratory judgment that PCS was liable for the expected remediation costs and for Ashley’s previously incurred costs. PCS, in turn, brought contribution claims against Ashley and several former owners and operators of the site,5 claiming that they were Potentially Responsible Parties (PRPs) and had liability for the environmental conditions on the site. Several of those parties filed counterclaims or cross-claims against the other parties. The court bifurcated the case into liability and allocation phases.

The court rejected PCS’s argument that the harm was divisible or that there was a reasonable basis for apportionment of those costs under the Supreme Court’s Burlington Northern6 decision. Instead, the court used equitable factors in the contribution action to allocate those costs among the parties. The court ultimately concluded that the following parties had liability for the listed percentages of the cleanup costs at the site:

Ross (fertilizer plant owner for 60 years, 1906-1966) 45%

PCS (conducted manufacturing operations for six years)7 30%

Holcombe and Fair Parties (former owners who engaged in earthmoving) 16%

RHCE (current tenant) 1%

Allwaste (former owner) 3%

Ashley8 (current owner) 5%

City of Charleston (former right-of-way holder) 0%

Key Holdings Relating to the BFPP Defense

The court analyzed in detail whether Ashley qualified as a BFPP under the 2002 Brownfields Amendments. It concluded that Ashley had satisfied five of the eight elements9 of the defense, but had failed to satisfy the remaining three. A number of the court’s conclusions are troubling for parties hoping to qualify for the BFPP defense in the future.

Whether All Disposals Occurred Before Taking Title. The District Court concluded that “disposals” were likely to have occurred after Ashley tore down the structures on the Allwaste parcel, leaving the sumps in place and allowing them to fill with rainwater. The court appeared to be particularly troubled by the fact that Ashley did not test under the concrete pads, sumps or trench to determine if the soil beneath these structures was contaminated. Ashley attempted to offer expert testimony that no disposals had occurred, but this testimony was stricken at trial. Accordingly, the court found that Ashley had not met its burden of proof10 that no disposals had occurred after it acquired the site. In other words, the new property owner must be prepared to prove a negative – that “no disposals” occurred.

It is particularly noteworthy that the court appeared to interpret “disposals” and “releases” differently. On a separate element of the defense – whether Ashley had provided all legally required notices – Ashley’s position was that no releases of hazardous substances had occurred that would have required notice to EPA or the state environmental agency. The court agreed that the record did not establish that any releases had occurred subsequent to Ashley’s acquisition of title. Accordingly, the court concluded that Ashley had satisfied its burden of proof on this element of the defense.

Whether the Purchaser Exercised Appropriate Care. Pointing to EPA’s Common Elements Guide11 and existing case law on “due care,” the court concluded that Ashley had not satisfied the “appropriate care” element of the BFPP defense. The court appeared to be particularly troubled by the fact that Ashley had not cleaned out and filled the sumps on the Allwaste parcel when it demolished the above-ground structures, but had instead left them exposed to the elements. Ashley’s decision to test, clean and fill the sumps in 2009 came too late, according to the court, to prevent possible releases. The court was also troubled by Ashley’s failure to prevent a debris pile from accumulating, to investigate the contents of that debris pile, or to remove the debris pile for over a year. The court considered these failures to be a lack of “appropriate care.” Ashley’s failure to maintain the crushed rock on the site, which was serving as a “cap” over much of the arsenic and lead contamination, was additional evidence of the lack of “appropriate care” in the court’s view.

Whether the Purchaser Was a Potentially Responsible Party or Affiliated With a Potentially Liable Party. In the aspect of the decision that is probably most troubling, the court concluded that Ashley had not met its burden of proof that it was not a PRP or affiliated with PRPs. First, apparently ignoring the language in section 9607(r) of the statute,12 it pointed to the fact that current owners and operators of a facility are liable for response costs, and that Ashley was the current owner of a majority of the site where hazardous materials were still leaching through the soils. Second, the court determined that Ashley’s efforts to dissuade EPA from recovering response costs from the Holcombe and Fair Parties, the prior owners whom Ashley had indemnified, revealed “just the sort of affiliation Congress intended to discourage.” Ashley II, slip op., at 103. This so-called affiliation precluded application of the BFPP defense.

What the Case May Mean for Future Brownfields Transactions

While Ashley II is binding case law only in the state of South Carolina, this decision is likely to have a significant chilling effect on future brownfields transactions throughout the country. If a sophisticated brownfields developer, which cooperated fully with the EPA and state environmental agency and which responsibly investigated the condition of the property, cannot qualify for the BFPP defense, then who can? Among other things, a number of determinations made by the court need to be clarified in future decisions, EPA guidance or congressional amendments to CERCLA if the BFPP defense is ever going to provide meaningful protection to brownfields redevelopers.

“Disposal.” The Ashley II court interpreted the phrase “disposal” to mean something more than “releases” or “threatened releases” that must be reported to regulatory officials.13 Pointing to the Fourth Circuit’s decision in Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837 (4th Cir. 1992), the court suggested that “disposal” does not have to include active involvement in dumping or placement of hazardous waste on a site, but could include spillage or leakage of the waste, or movement or dispersal of the waste. So, is passive migration of existing contamination through soil or groundwater enough to constitute “disposal”? If a broad interpretation of this phrase is upheld, in which the continued leakage or passive migration of contamination is sufficient to constitute “disposal,” then virtually no owner of a brownfields site will ever qualify for the BFPP defense. Surely, this cannot be what Congress intended when it enacted the BFPP defense.

Appropriate Care/Due Care. Despite finding earlier that no “releases” had occurred on the site after Ashley had acquired title, the court then determined that Ashley had not complied with the “appropriate care” elements of the defense. The “appropriate care” element of the defense is focused on stopping any continuing releases, preventing any threatened future releases, and preventing or limiting human, environmental or natural resource exposure to any previously released hazardous substance. In this regard, the court appears to have used the terms “disposals” and “releases” interchangeably. The court was influenced in part by the fact that Ashley’s consultant had identified the sumps and concrete pads as recognized environmental conditions (RECs). Is the REC designation (which simply means the presence or likely presence of hazardous substances or petroleum products under conditions that indicate an existing release, a past release, or a material threat of a release) now going to be enough to trigger heightened appropriate care requirements? What if the consultant had discussed these features but not designated them as a REC?

In light of the court’s broad interpretation of Ashley’s “appropriate care” obligation, it will behoove every brownfields redeveloper to examine its site carefully to determine whether there are any existing structures, waste piles or other areas of concern that may be contributing to continuing releases, threatened future releases, leakage or passive migration on the site and to address those threats promptly. While the site in question had been contaminated for more than 100 years, the court seemed particularly troubled by the fact that Ashley took a couple of years to sample, clean and fill underground sumps and to remove a debris waste pile, and that it failed to maintain the crushed rock as an adequate cover or cap on portions of the site.

The court also found that the former owners, the Holcombe and Fair Parties, had failed to exercise “due care” by waiting to put crushed stone on various parcels until those parcels had been leased, by failing to inform environmental authorities about the contamination and by failing to properly maintain certain stormwater detention ponds. Ashley II, slip op., at 88-89.

Affiliation Issue. Prospective purchasers will need to consider seriously whether they should release and indemnify a party who is clearly a PRP under CERCLA. It is not clear from the Ashley II decision whether every environmental indemnification might be considered to be proof of “affiliation” in future cases. Assuming that the mere existence of an environmental indemnity does not defeat the defense, the new owner should certainly refrain from taking any action with the regulators that might be construed as discouraging them from taking enforcement action against a PRP, even if that means that the new owner will be forced to honor an environmental indemnity that it has entered into in order to facilitate the sale.

Grading/Soil Movement. While not discussed in the sections of the opinion dealing with the BFPP defense, the court discusses elsewhere whether grading, excavating and proof rolling of contaminated soil could be sufficient to constitute “disposal,” thereby making the party engaging in those activities a PRP. The court concluded that it could. Ashley II, slip op., at 68-69. Most brownfields redevelopers will need to move potentially contaminated dirt around a site. If they do so responsibly, will this simple action be enough to void the BFPP defense? If so, virtually no one will ever qualify for the BFPP defense.

LURs/Institutional Controls. While the court concluded that Ashley had met its burden of proof on this element of the defense, it left open the question of what it means to be “in compliance with any land use restrictions” and to not impede “the effectiveness or integrity of any institutional controls.” Ashley’s environmental representative argued that there were no land use restrictions or unusual institutional controls in place on the site, and that it was in compliance with any controls that were being used. The court concluded that Ashley had met its burden of proof on this issue. This element of the defense could be more troublesome in future cases. For example, over the past couple of years, there has been a heated debate among the regulated community about the meaning of the term “land use restrictions,” and it seems reasonable to suggest that the court’s conclusion is consistent with the “narrow view” on this issue. In particular, the court did not consider the crushed stone, which constituted an engineering control on the site, to be a land use restriction.

Conclusion

Ashley II has now made it much more difficult to redevelop contaminated brownfields sites. It is clear that there are many potential pitfalls in trying to qualify for the defense, and that other PRPs and the court will probe every potential weakness in the defense. Congress, EPA and the courts should strongly consider what further guidance may be necessary to give the BFPP defense real teeth in order to satisfy its intended purpose. In the meantime, for anyone considering redevelopment of a seriously contaminated site, it would be prudent to obtain a “reasonable steps” letter from the EPA and to avoid incurring significant assessment and cleanup costs unless you are prepared to spend substantial sums litigating your entitlement to recoup those costs from the truly responsible parties.

Strategic Sourcing: Improved and expanded use (could save billions).

28. Precious Metals Primary Forms

43. Maintenance, Repair or Alteration of Real Property: Miscellaneous Buildings

45. Other Research and Development: Applied Research and Exploratory Development

49. Other Research and Development: Basic Research

50. Maintenance Repair and Rebuilding of Equipment: Communication, Detection and Coherent Radiation Equipment

Consent decree is unfair, inadequate, & unreasonable. Unmistakable existence of collusion, fraud, & tortious conduct aimed to injure the interests of non-settling defendants, and compounding the injury to the nation and the environment.

Stimulating Research Related to the Science of Broadening Participation

Jurisdictional Failings

Ed Rivera  on Article III courts

United States District Court = Administrative Article I (legislative)
or
Article IV (territorial) court

District Court of the United States = Article III (judicial) court

Brief on jurisdiction located  HERE

Federal vs. National  Federal vs. National

Jurisdiction Over Federal  Areas Within the States

Howard FreemanJURISDICTION

Seven Elements Of Jurisdiction

40 U.S.C.A.
                                  3112 Federal jurisdiction:  40 U.S.C.A. § 3112
(Formerly cited as 40 USCA § 255)

FEDERAL JURISDICTION    (alternative site)
JURISDICTION CASES:
SUPREME COURT
CIRCUIT COURT
STATE

Unmistakable indications of intent to take site & intent to use site & intent to take agency & site authority
Otherwise indicated appropriate overwhelming overlying priority emergent rights. Factor's objective:

Greater Stakeholder Involvement

Many stakeholders know how the current process for developing and applying risk assessments lacks credibility and transparency. That is because of failure to involve stakeholders adequately as active participants at appropriate points in the risk-assessment and decision-making process rather than as passive recipients of the results. Risk assessment has become the dominant public policy tool for making choices based on limited resources to protect public health and the environment.

We all know how important it is to not just know what your local hazards and risks are but to also practice what to do in the event of an emergency....


Nearly 11 million children in the developing world will have died this year from causes related to malnutrition. Hunger is the world's number one health risk, killing more people every year than AIDS, malaria and tuberculosis combined.

Merry Christmas, Happy New Year.

"The alarm bells are going off all over the place," "We are in a crisis and treating it like a process where we can dither away forever." Alden Meyer, the Union of Concerned Scientists

The U.S. National Science and Technology Council Subcommittee on Disaster Reduction (SDR) publication Grand Challenges for Disaster Reduction includes a set of Implementation Plans for various natural hazards, which provide further definitions and descriptions of these hazards. Research projects related to these hazards are among, but not limited to, those that would fit in the scope of Hazards SEES:

Coastal Inundation (http://www.sdr.gov/docs/185820_Coastal_FINAL.pdf)

Drought (http://www.sdr.gov/docs/185820_Drought_FINAL.pdf)

Earthquake (http://www.sdr.gov/docs/185820_Earthquake_FINAL.pdf)

Flood (http://www.sdr.gov/docs/185820_Flood_FINAL.pdf)

Heat Wave (http://www.sdr.gov/docs/185820_Heatwave_FINAL.pdf)

Hurricane (http://www.sdr.gov/docs/185820_Hurricane_FINAL.pdf)

Landslide and Debris Flow (http://www.sdr.gov/docs/185820_Landslide_FINAL.pdf)

Space Weather (http://www.sdr.gov/docs/185820_Space_FINAL.pdf)

Tornado (http://www.sdr.gov/docs/185820_Tornado_FINAL.pdf)

Tsunami (http://www.sdr.gov/docs/185820_Tsunami_FINAL.pdf)

Volcano (http://www.sdr.gov/docs/185820_Volcano_FINAL.pdf)

Wildland Fire (http://www.sdr.gov/docs/185820_Wildfire_FINAL.pdf)

Winter Storm (http://www.sdr.gov/docs/185820_Winter_FINAL.pdf)

severe
                                                          storm


Tributary named in honor of the “offerings of Christ.”

The only entry missing from Spanish army officer Jose Gabriel Maraga’s diary, which was kept from Sept. 25 through Oct. 23, 1808, was the entry for Oct. 8 – the day that he "discovered" the Sacramento River.

Notwithstanding any provision of the SOW, the United States and the State retain all of their access authorities and rights, as well as all of their rights to require land/water use restrictions, including enforcement authorities related thereto, under CERCLA, RCRA, and any other applicable federal or State law, statutes, or regulations.  (NONE!)

Iron Mountain Mines is currently seeking an earthen dam hazardous waste containment expert on the siting of class A and B disposal cells in FEMA zone D,E,F, seismic locations within 1 mile to directly upon known active faults.
With a particular focus on the arranger liability FAILING Applicable or Relevant and Appropriate Requirements 
(Void for vagueness & illegitimate animus; bill of attainder crime of infamy ex post facto law. abolish CERCLA.)
If there were ever a time for Congress to step in and resolve this issue once and for all, it is now.

The term "United States", when used in its territorial meaning, encompasses the areas of land defined in Article I, Section 8, Clause 17 (1:8:17) and 4:3:2, nothing more. In this respect, the "United States" is a separate Nation which is foreign with respect to the States united by and under the Constitution, because the "United States" as such has never applied for admission to the Union of States known as the "United States of America". Accordingly, statutory "citizens of the United States" who are "subject to the jurisdiction thereof" are defined in the wording of the so called 14th Amendment and of The Civil Rights Acts. At best, this so-called Amendment is a "private Act" rather than a public act which designates a class of people who are unique to the territorial jurisdiction of the District of Columbia, the Federal Territories and Possessions, and the land which has been ceded by the Legislatures of the 50 States to the foreign nation-state of the "United States" for forts, magazines, arsenals, dock-yards and "other needful buildings" (see 1:8:17 and 4:3:2)

CHAPTER 62, 1871
16 United States Statutes at Large 419
FORTY FIRST CONGRESS SESSION III.
CHAPTER 62, 1871 CHAP. LXII. --
An act to provide a Government for the District of Columbia.

Be it enacted by the Senate and House of Representatives of the United States in Congress assembled, That all that part of the territory of the United States included within the limits of the District of Columbia be, and the same is hereby, created into a government by the name of the District of Columbia, by which name it is hereby constituted a body corporate for municipal purposes, and may contract and be contracted with, sue and be sued, plead and be impleaded, have a seal, and exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions of this act.

Title 5 U.S.C. §556(d)
"When jurisdiction is challenged the burden of proof is on the government."

"No sanction can be imposed absent proof of jurisdiction."
"Once challenged, jurisdiction cannot be ´assumed´, it must be proved to exist!"
Stanard v. Olesen, 74 S.Ct. 768

"The law requires PROOF OF JURISDICTION to appear on the Record of the administrative agency and all administrative proceedings." Hagans v. Lavine, 415 U.S. 533

Setting targets: Senior leadership to facilitate change “in the light of the character and value of the property involved.”

Suppose you were an idiot – and suppose you were a member of Congress. But I repeat myself –Will Rogers

Ripening Across the Country

Prohibition times-up!
Is there buzz in your community?

Taking a little bit too much time to stand up and "take responsibility as arranger of this mess." 

It's not easy to manage a Superfund site, but it's also not a piece of cake to own or lease

Suggestions for other defendants with expectations for the elusive benefits of CERCLA.

sure?
Liability under CERCLA, (otherwise known as the Superfund statute) is strict. Divisibility offered hope,
but the lower courts have been reluctant to adopt it. Both defendants and their insurers are wondering why?
(REQUEST FOR A ROLL OF COMMON SENSE ISSUE?)
Justice Thomas in U.S. v. Atlantic Research Corp. stated "[w]e assume without deciding that § 107(a) provides for joint and several liability.” The Supreme Court and many other judicial bodies have repeatedly stated that if Congress has deleted a proposal for a particular rule or remedy, and did so as a part of a legislative compromise, that deletion should be recognized and given effect by the courts. So far this rule of statutory construction has been disregarded.

River wrangles unresolved: Leadership Disaster


“[t]he Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

Every time water washes over hard surfaces, it picks up pollutants. Even an area the size of the average homeowner’s roof contributes about 35,000 gallons of runoff each year in the Northwest. And that runoff ends up in the nearest waterway — not the nearest water treatment facility.

“Approximately 50 percent of the region believes that stormwater is treated, is captured and conveyed to a treatment plant of some type. When in fact, this doesn’t take place. Nearly all of this water goes off totally untreated,” says Giles Pettifor, who is part of the municipal stormwater permit team for King County’s Department of Natural Resources and Parks.

How did we get here?

Pettifor explains that we have to remember that governments didn’t require effective stormwater controls on development until 1990, after amendments were made in 1987 to the Clean Water Act.

“If you look at regional development, about two thirds of the region was developed prior to that time period,” Pettifor says. “So the vast majority of the land surface around here has no controls on it.”

Clean Water: The Next Act - A Radio Special

Dec. 27, 2012 | EarthFix

Meet Colin Bailey. He is the executive director of Environmental Justice Coalition for Water. He took EarthFix’s Ashley Ahearn to the confluence of the Sacramento and American Rivers to talk about the Clean Water Act and environmental justice. “Without the Clean Water Act there’s no doubt that we would not be as effective in our work,” he says. “It is an important tool for the communities that we serve.”

Clean Water Act’s Anti-Pollution Goals Prove Elusive

July 18, 2012 | EarthFix/InvestigateWest

For at least the last four years, this automobile shredder and metal recycler has dumped more pollutants into the river than allowed under the federal Clean Water Act, government records show. The levels have ranged higher than 250 times above what’s known to harm salmon that migrate through the river.

The Seattle Iron & Metals story is emblematic of widespread failures in the nation’s efforts to end the toxic pollution that modern life has unleashed on America’s rivers, lakes and bays. The Clean Water Act, passed by a large bipartisan majority of Congress 40 years ago, was intended to eliminate water pollution by 1985. Congress declared: “It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited.” 

Yet in the Pacific Northwest, as across the nation, the Clean Water Act has fallen far short of its goals. A majority of Northwest waterways fail to meet federally approved water-quality standards. An investigation by EarthFix and InvestigateWest reveals: 

  • Whole categories of polluters are effectively exempt from penalties when they dump pollutants illegally. This affects thousands of facilities. 

  • Violations of the Clean Water Act in the Northwest occur routinely, yet citations and financial penalties are relatively rare.  

  • Government bodies are among the most prolific violators, especially those that manage aging sewage-treatment plants and stormwater pipes that dump polluted rainwater runoff directly into waterways. 

IMPAIRED WATERS

Partially as a result of lax enforcement, large proportions of Pacific Northwest waterways violate water quality standards set under the Clean Water Act. These waterways, deemed “impaired,” are unfit for their intended uses, including swimming, fishing, drinking, boating and giving a place to live to fish and wild animals.  In Washington, about 80 percent of tested rivers and streams are impaired. That figure is 67 percent in Oregon and 55 percent in Idaho. Nationwide the figure is estimated at nearly 40 percent.

And these are the only the waters that have been tested. None of the states in the Pacific Northwest has fully checked out all their waterways. 

According to the latest figures available from EPA, Washington has fully assessed only 3 percent of its rivers and streams. Oregon has evaluated 40 percent of its rivers and streams, and Idaho has appraised 60 percent.  (Because the states have different systems for judging what constitutes a full assessment of a waterway, those numbers are not directly comparable.)

Failure to assess waterways matters. The quality of a body of water is used to determine how much pollution it can handle: the cleaner a body of water, the more likely additional pollution can be allowed. 

These pollution assessments are used to set the discharge limits for companies like Seattle Iron & Metals, and for cities and others holding permits permit to discharge pollution.

In a recent interview with EarthFix, the EPA’s top administrator, Lisa Jackson, said lack of assessment remains an issue nationally. One-third of the nation’s waterways that are supposed to be “fishable and swimmable” are not, she said. 

“And that’s just a third of the ones we know about,” Jackson said. “We don’t assess all our waters.”

Cities And Towns Still Struggle To Control Sewage 40 Years After The Clean Water Act

Oct. 2, 2012 | EarthFix

To help communities build and upgrade wastewater collection and treatment systems in the years after the Clean Water Act’s passage, the federal government handed out billions of dollars in grants. But most of those federal grants are gone, replaced by loans. At the same time, those federally subsidized municipal wastewater systems have aged.

When wastewater treatment plants fail, the environment takes the hit, and so do the people who want to use public waters for drinking water, food or recreation. 

These days, local governments’ budgets won’t cover the improvements needed to control pollution discharges. Many are coping with: 

  • Aging sewer lines
  • Aging or under-capacity wastewater treatment plants
  • Proper plant operation and maintenance
  • New water quality regulations
  • A lack of financial resources

State and federal records show that Washington’s 223 cities racked up more than 1,500 pollution discharge violations in the past two years. Idaho’s 124 cities tallied more than 1,700 in the past three years. Comparable data are not readily available for Oregon, but its 49 largest cities had at least 150 discharge violations during the past three years. 

Big city issues

Over the past several decades, metro areas like Portland and Seattle have spent billions of dollars trying to get their sewage under control. Many of their problems have been linked to combined sewer overflows, or CSOs

The overflows are a function of sewers built decades ago to carry both sewage and stormwater. When heavy rains fall, the sudden surge of water can overpower the system and send raw sewage directly into the surface water. That worked well until about the 1950s, when people decided it wasn’t a good idea to send raw sewage into their rivers and streams.

Fixing CSOs has been an expensive undertaking.

Federal level realities

The federal government recognized the problems small communities were having meeting their wastewater pollution permits long ago. In 1992, the U.S. General Accounting Office reviewed the outcomes of making the federal grant program a revolving loan program. The GAO report concluded that the loan program:

  • “will not generate nearly enough funds to close the tremendous gap between wastewater treatment needs and available resources.”
  • will pose particular problems for small communities, many of whom cannot repay loans at any interest rate and have difficulty competing with larger communities for loans.

In 2009, the U.S. Environmental Protection Agency estimated the gap between future needs and current spending on wastewater infrastructure of $150 billion to $400 billion for the entire country. The same year, the American Society of Civil Engineers gave the nation a “D-“ for its wastewater infrastructure.

Polluting The Water With Toothpaste, Shampoo, And Drugs

Sept. 12, 2012 | OPB

There are 126 toxic chemicals on the Clean Water Act priority pollutant list. But not a single pollutant has been added to that list since 1977.

So there are no legal limits for most of the household chemicals that are showing up in the water today. Most of them haven’t been studied enough to know how much is too much to put in a waterway.

EPA is actually required to regulate all pollutants under the Clean Water Act – even the ones that aren’t on the priority pollutant list. But the agency has been slow to act on that part of the law.

How We Got Into Such A Mess With Stormwater

Oct. 17, 2012 | KCTS9

Stormwater is a toxic cocktail of sediment, grease, road grime, tire wear and any litter small enough to slip into storm drains.

And that’s just what can be seen. There’s much more.

Microscopic particles of heavy metals like zinc and copper are commonly found in urban runoff. There’s also oil and petroleum-based hydrocarbons. Fertilizers and pesticides also wash off lawns and into waterways. Even pet excrement contributes a significant amount of bacteria to urban creeks and streams.

Thursday marks the 40th anniversary of the Clean Water Act. When it first took effect, stormwater pollution was not the top priority. What’s known as “point source pollution” — dumping of toxic pollutants from a particular, often industrial site — was the first focus. But in the decades since, stormwater pollution, also known as “non-point source pollution,” has taken the lead when it comes to carrying the most contaminants to U.S. waterways.

Stormwater is a toxic cocktail of sediment, grease, road grime, tire wear and any litter small enough to slip into storm drains.

And that’s just what can be seen. There’s much more.

Microscopic particles of heavy metals like zinc and copper are commonly found in urban runoff. There’s also oil and petroleum-based hydrocarbons. Fertilizers and pesticides also wash off lawns and into waterways. Even pet excrement contributes a significant amount of bacteria to urban creeks and streams.

Thursday marks the 40th anniversary of the Clean Water Act. When it first took effect, stormwater pollution was not the top priority. What’s known as “point source pollution” — dumping of toxic pollutants from a particular, often industrial site — was the first focus. But in the decades since, stormwater pollution, also known as “non-point source pollution,” has taken the lead when it comes to carrying the most contaminants to U.S. waterways.

Clean Water Act’s Anti-Pollution Goals Prove Elusive

July 18, 2012 | EarthFix/InvestigateWest
Much of the pollution on Seattle's Duwamish River comes from decades ago, but Seattle Iron and Metal, a metal recycler, is one of the ongoing present-day polluters of the river. | credit: Katie Campbell | rollover image for more

CWA series logo 500px w
                                      description

Beside Seattle’s notoriously polluted Duwamish River, an excavator scoops up small pieces of waste metal and slings them onto a rusty mountain at Seattle Iron & Metals Corp.  A pile of flattened cars and trucks squats nearby amid vast sheets of scrap metal.

For at least the last four years, this automobile shredder and metal recycler has dumped more pollutants into the river than allowed under the federal Clean Water Act, government records show. The levels have ranged higher than 250 times above what’s known to harm salmon that migrate through the river. 

The company, which declined to comment for this story, has reported its violations to the government, as required by law. But instead of punishing the metal recycler, the Washington Department of Ecology encouraged the company to reduce its pollution levels.  The agency also searched for a legal way to make Seattle Iron & Metals’ pollution limits more lenient, and says it plans to relax them soon.

The Seattle Iron & Metals story is emblematic of widespread failures in the nation’s efforts to end the toxic pollution that modern life has unleashed on America’s rivers, lakes and bays. The Clean Water Act, passed by a large bipartisan majority of Congress 40 years ago, was intended to eliminate water pollution by 1985. Congress declared: “It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited.” 

Yet in the Pacific Northwest, as across the nation, the Clean Water Act has fallen far short of its goals. A majority of Northwest waterways fail to meet federally approved water-quality standards. An investigation by EarthFix and InvestigateWest reveals: 

  • Whole categories of polluters are effectively exempt from penalties when they dump pollutants illegally. This affects thousands of facilities. 

  • Violations of the Clean Water Act in the Northwest occur routinely, yet citations and financial penalties are relatively rare.  

  • Government bodies are among the most prolific violators, especially those that manage aging sewage-treatment plants and stormwater pipes that dump polluted rainwater runoff directly into waterways. 

The U.S. Environmental Protection Agency, which is ultimately responsible for enforcing the Clean Water Act, has handed over that responsibility to 46 of the 50 states, including Washington and Oregon. In Idaho, the EPA handles that job. 

(Ashley Ahearn from EarthFix/KUOW reports from the Duwamish River.)

IMPAIRED WATERS

Partially as a result of lax enforcement, large proportions of Pacific Northwest waterways violate water quality standards set under the Clean Water Act. These waterways, deemed “impaired,” are unfit for their intended uses, including swimming, fishing, drinking, boating and giving a place to live to fish and wild animals.  In Washington, about 80 percent of tested rivers and streams are impaired. That figure is 67 percent in Oregon and 55 percent in Idaho. Nationwide the figure is estimated at nearly 40 percent.

And these are the only the waters that have been tested. None of the states in the Pacific Northwest has fully checked out all their waterways. 

According to the latest figures available from EPA, Washington has fully assessed only 3 percent of its rivers and streams. Oregon has evaluated 40 percent of its rivers and streams, and Idaho has appraised 60 percent.  (Because the states have different systems for judging what constitutes a full assessment of a waterway, those numbers are not directly comparable.)

Failure to assess waterways matters. The quality of a body of water is used to determine how much pollution it can handle: the cleaner a body of water, the more likely additional pollution can be allowed. 

These pollution assessments are used to set the discharge limits for companies like Seattle Iron & Metals, and for cities and others holding permits permit to discharge pollution.

In a recent interview with EarthFix, the EPA’s top administrator, Lisa Jackson, said lack of assessment remains an issue nationally. One-third of the nation’s waterways that are supposed to be “fishable and swimmable” are not, she said. 

“And that’s just a third of the ones we know about,” Jackson said. “We don’t assess all our waters.” 


(EPA Administrator Lisa Jackson in a May 4 interview with Bonnie Stewart of EarthFix/OPB.)

LICENSES TO POLLUTE

Ecotrope

CProfita1MichaelClapp_web_face0

OPB’s Cassandra Profita is busy this summer blogging about water in the Northwest. Keep up with her and all her findings at Ecotrope’s Clean Water: The Next Act.

Instead of ending pollution by 1985, as Congress envisioned, the Clean Water Act has evolved into a system that makes it legal to pollute. 

It didn’t start out that way. In the two decades that followed the law’s passage, it curtailed the worst toxic pollution of industry and government. “The water quality in Idaho – and this is true nationally – is way better,” said Justin Hayes, program director of the Idaho Conservation League.  “The Clean Water Act has had amazing beneficial impacts.”

In Oregon, regulators point to extensive water quality improvements for the Willamette and Tualatin rivers. The Willamette, once so fouled by industrial wastes that it became a Superfund site, has been cleaned up enough that this weekend it will be the site of the annual Portland Bridge Swim, a race that passes under all 11 bridges over the river in the city.

“Do we have fishable and swimmable waters everywhere that was set in the goal? Well, not everywhere. But we certainly have improved our water bodies a lot,” said Dick Pedersen, director of Oregon’s Department of Environmental Quality. “… But we still have a long way to go.”

Here’s how the Clean Water Act was supposed to work: Each polluter gets a permit – a legal right to dump wastewater with set concentrations of pollutants. Then, every five years when the permit has to be renewed, lower pollution limits made possible by updated technologies were supposed to kick in. Eventually, pollution would be eliminated. 

“Well, that turned out to be not feasible, or possible or practical,” Pedersen said.   Four decades later, Pedersen’s department and regulators in other states are having trouble simply keeping up with permit renewal cycles, which means dischargers continue to pollute based on out-of-date permits. 

According to an Oregon DEQ report, for example, more than two-fifths of polluters were operating on out-of-date permits at the end of 2011.

Clean Water Act Violators: 2009-2012

CWA violators map legend

POLLUTERS ESCAPE SCRUTINY

Not only are hundreds of permits out of date in the Pacific Northwest, some categories of polluters aren’t even monitored for violations. 

Regulators in Oregon have stopped reviewing some reports that companies and institutions have to file detailing the levels of pollution in their discharges. These reports are supposed to alert regulators to violations.

A lack of resources has affected the ability of regulators to adequately review all discharge reports, DEQ’s Pedersen said. “So we have to triage and prioritize what we do with the fewer staff that we have.” 

EarthFix Poll: Does Clean Water Matter?

A new public opinion poll finds that water quality ranks as Northwesterners’ top environmental concern. Davis, Hibbitts & Midghall Research asked 1,200 residents in Washington, Idaho and Oregon about their environmental concerns. Sixty percent said they worried about drinking water. Continue reading…

In the agency’s northwest office, the loss of one worker left the equivalent of 3.5 full-time employees to review the discharge reports for more than 1,600 pollution permits. The same 3.5 employees also have to develop new permits, renew expiring permits, conduct on-site inspections and write and follow through on enforcement actions. 

As a result of the staff loss, regulators in that office quit reviewing the discharge reports filed by 163 permit holders. Those included vineyards, fisheries and the sewage treatment plants of a few small cities. 

Similar staffing issues have stymied Washington’s Ecology Department enforcement efforts. Two years ago it stopped pursuing violations that come to light in discharge reports covered by certain classes of pollution permits, said Nancy Kmet, an Ecology environmental engineer.  

The polluters who are getting a free pass include boatyards, gravel miners, fruit packers and industrial facilities of various stripes – more than 4,400 companies, Ecology records indicate. 

“We don’t have the staff to address thousands of violations,” Kmet said. “We do the best we can.” 

PERMIT VIOLATIONS

Even when regulators do flag polluters who are violating their permits, government databases indicate they seldom face fines or enforcement action.  Over the last 3½ years in Washington, only 55, or about 10 percent, of the 572 polluters who reported dumping in excess of legal limits faced formal enforcement action, and just 6 percent faced fines, records show. In Idaho, the figures were 20 percent and 11 percent.

Comparable figures aren’t readily available in Oregon because of the state’s lack of computerized records.  However, information is available about how polluters classified as “major” compare in the three states. According to the EPA’s Environmental Compliance History Online database and Washington’s Permit and Reporting Information System:

  • In Oregon, 64 percent of the facilities reported violating limits on how much they could dump, but no more than 18 percent faced formal enforcement action such as an administrative order or a fine. 

  • In Idaho, 52 percent of the polluters violated their permits, but no more than 22 percent faced binding enforcement action. 

  • In Washington, 74 percent violated the permits but only 18 percent faced binding enforcement action.

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State regulators say they are too short-staffed to go after every violation – and that they don’t want to move immediately to punitive measures when a more collaborative approach can bring many polluters into line.

“You can fine them a whole bunch of money. Another way is you can work with them and try to bring them into compliance,” Pedersen said. 

VIOLATIONS IGNORED

The EPA has called states out for poor enforcement.  The federal agency’s inspector general reported in December, 2011 that state enforcement programs for the Clean Water Act and two other environmental laws “are underperforming,” remarking “performance is low across the board.”

“Noncompliance is high and the level of enforcement is low,” inspectors reported. “EPA does not consistently hold states accountable for meeting enforcement standards, has not set clear and consistent national benchmarks, and does not act effectively to curtail weak and inconsistent enforcement by states.”

It’s a nationwide problem, affecting even major polluters classified as being “significant non-compliers.”  In a 2007 report, EPA auditors who reviewed 44 of the approximately 3,600 major factories, sewage-treatment plants and other facilities regulated under the Clean Water Act nationwide found long delays in enforcement over a three-year period. That tiny fraction of the nation’s polluters dumped 51 million pounds more pollutants than allowed under the law over the three-year period, the EPA Inspector General reported

In the Northwest, “We are having no trouble finding people in gross violation of their permits,” said Chris Wilke, executive director of the Puget Soundkeeper Alliance. “You pull 20 files and you may easily find five or ten that are in violation.”

Chris Wilke
Chris Wilke (credit: Katie Campbell)

Wilke’s Seattle-based environmental group files lawsuits against polluters alleging violations of the Clean Water Act. Last week it sued Seattle Iron & Metals Corp. 

Beyond these suits to enforce the Clean Water Act on specific polluters, environmentalists also have  repeatedly and successfully filed broader lawsuits in all three states claiming that the government is failing to carry out the law. Such suits have forced states to adopt stricter water-quality standards and to mandate clean-up plans, for example. But even those changes have not been enough to bring pollution under control.

State regulators know there are problems. 

Over the last two decades Washington’s Department of Ecology has been getting more money and staff for its water-quality division, with its budget nearly tripling since 1994. However, over the same period, the number of permits under its watch has greatly increased.

Those budget increases also came with additional responsibilities, including a lot of emphasis on controlling polluted rainwater runoff, said Don Seeberger, deputy program manager of Ecology’s water-quality division. Yet the agency is partly dependent on the very businesses that it regulates.  Permit fees help fund government oversight, and those fees drop when recessions hit. 

“We know that the more inspections you do, the better the compliance with the regulations,” Seeberger said. “It’s not whether we have the work. It’s whether we have the money.”   Understaffing is not the only factor driving the underenforcement noted by EPA inspectors, though.

Even with all the staffers he could want, “I think it would be a mistake to go after every single violation, at least until you understand the violation,” said Kelly Susewind, manager of the Washington Ecology Department’s clean-water program.

Susewind said the agency will start going after violations of dumping permits identified in the discharge reports at some point. When? “I can’t give you a date, but it’s not far in the future,” he said. Pressed for a time frame, Susewind said, “The next few years.”

THE TOLERANT APPROACH

Instead of using their punitive enforcement tools right away, both Oregon and Washington have chosen a friendlier path.

Susewind said the reason relatively few Clean Water Act violators face fines or other enforcement actions is that regulators have opted to first offer violators technical assistance.  Next comes what the agency calls education. And if that doesn’t work, a lawbreaker may get a nasty letter from the agency, classified as an “informal enforcement action.” 

Only a small number of facilities require formal enforcement efforts, Susewind said. That means issuing a citation, and possibly a fine.  But Ecology really doesn’t want to see that happen, he said, because most polluters want to do the right thing.

While a violation is ongoing, Ecology tries to “understand the circumstances that led to that (violation),” Susewind said. “Sometimes it’s something that’s beyond someone’s control.  Is it something they’ve corrected that we’re confident won’t happen again? 

“If it’s an ongoing violation, are they taking all the steps necessary to eliminate it? And if they aren’t complying and aren’t on a path to comply, then we step to our next resort, which is formal penalties.”

Oregon regulators have adopted a similar philosophy, first working with permit holders to help them comply with their limits. But in cases where the permit holders know what to do, that changes.

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“If it’s just poor operation and not meeting conditions, then I don’t think we should have a whole lot of patience on that at all,” Pedersen said. 

John Ledger, vice president of Associated Oregon Industries, said Oregon’s enforcement process is not unreasonable. Regulators go through a long series of decisions before taking action, he said.

“Willful violations are looked at askance by everybody,” he said. “It’s just like driving a car, he said. No one likes a reckless driver.” 

GOVERNMENT IS PART OF THE PROBLEM

While many of the worst industrial polluters were brought under control decades ago, it’s government-run facilities that turn up more and more as the worst water polluters. 

The North Idaho Correctional Institution, for example, racked up 4,048 violations of the Clean Water Act in just 4 ½ years, according to EPA records. 

The violations are largely the result of the prison’s antiquated sewage treatment system. The facility, built on Radar Road, started life as a Cold War-inspired radar installation built by the U.S. Air Force in 1956. It was finished in 1959, but deemed obsolete by the mid-60s. Then in 1974 the state grabbed it for a minimum-security prison.

Today, the facility’s sewage treatment system is in such disrepair that state officials say they may have to spend up to $6 million to fix it.  

The prison near Cottonwood, Idaho, houses up to 414 lawbreakers, while breaking the law itself by dumping sewage into an unnamed stream that flows into Lawyer Creek. 

To satisfy the EPA, the Idaho Department of Corrections in April agreed to study the system to figure out what’s wrong. 

“EPA has been great to work with,” said Josh Tewalt, deputy director of the Idaho Department of Corrections. 

Although required to get a permit under the 1972 Clean Water Act to dump sewage, the prison did not do so until 2004. Tewalt said that permit – still in effect even though it was to have expired in 2009 – set pollution limits that were too strict.

“No one is killing fish. Are we in violation of our permit? Yes,” Tewalt said. “Are we talking about severe environmental degradation and killing fish? Absolutely not.”

Lawyer Creek, where the prison’s discharge ends up, violates Clean Water Act standards for fecal coliform, ammonia and nutrients, according to EPA records. Those pollutants often come from sewage and are harmful to coldwater fish. The EPA classified the creek as “impaired” for swimming and other direct contact by people. 

“The bottom line for exceeding a permit is, it’s against the law,” said Sara Arkle of the Idaho Conservation League. “If everybody were allowed to exceed their limits, we’d have really dirty water.”   In May the state signed a consent agreement that obligates the prison to study the situation and submit a plan to fix the problems by April 1, 2014.

Robert Grandinetti, a U.S. EPA compliance official, said his agency cannot explain why this facility is only now addressing problems that presumably date back many years. 

“I can’t give you a great reason why it took so long other than they weren’t a priority,” Grandinetti said.    A recent count of facilities with a double-digit number of dumping violations in Idaho since January 2009 showed that 20 of the 25 were government-run.

In Seattle, the government-run King County International Airport, also known as Boeing Field, dumps its stormwater runoff into the Duwamish just upstream from Seattle Iron & Metal. It’s also one of the latest targets of lawsuits by the Puget Soundkeeper organization. The pipe carries stormwater, the foul rainwater runoff that flows off hard surfaces such as streets, parking lots – and in this case, tarmac – that regulators and others agree is one of the most widespread and intractable of the nation’s water-pollution problems.

“We‘ve seen it puking muddy water. We’ve seen it discharging orange water,” says Wilke of Soundkeeper.

Rochelle Ogershok, a spokeswoman for King County, wrote in response:

“King County Airport staff work diligently to comply with all requirements of the Clean Water Act … Even before the lawsuit was filed, the airport was already in the process of installing over $2 million in additional capital improvements to address stormwater runoff.”

ENDING POLLUTION BY PERMITTING IT

Environmentalists contend there are several legal loopholes in the way the Clean Water Act is being enforced that have hampered their efforts to make waterways more pristine. One of those loopholes is pertinent to the Seattle Iron & Metals case. 

The company has been dumping zinc and copper — two highly toxic heavy metals – into a stream already so polluted that it’s been declared a Superfund site.

Both metals are harmful to fish.  Even at trace concentrations, copper stuns salmon, causing them to lose their crucial sense of smell. Zinc leads to altered behavior, changes in body chemistry, impaired reproduction and reduced growth. The amount of copper the company reported dumping into the Duwamish was up to 18 times the level that affects salmon. For zinc, it was more than 260 times what’s known to harm the fish. 

Washington’s Ecology Department issued a violation notice to Seattle Iron & Metal in August 2008 – eight months after the company first reported violating its permit, records show. That was nearly four years ago. Time passed, and the violations continued.

Now Ecology is proposing a solution: The agency plans to grant the company what’s known as a “mixing zone,” said Ecology’s Ed Abbasi, the staffer assigned to the case. 

Basically, that means that materials can be dumped in toxic amounts, as long as regulators are convinced the effects of dilution will make it non-toxic by the time it reaches a specified distance from the dump site. Mixing zones are controversial, since they are not explicitly permitted in the Clean Water Act, but rather by an interpretation of the law by EPA. 

Records show the company asked for a mixing zone in 2002, but it was not granted. 

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In more recent years the company’s pollution levels have remained high, Abbasi acknowledged. However, the company worked to reduce pollution in accordance with Abbasi’s recommendations. That, he said, explains why he did not level any fines. It also made the company eligible for a mixing zone. 

“They have been improving their discharge,” Abbasi said. “They are under an order to make improvements.”  

He said the new permit, which he expects to issue later this year, would reduce the company’s zinc discharges to about one-sixth the highs the company was seeing in the past. Under the zinc limit Abbasi said he plans to impose, the company’s zinc discharge would still be 45 times higher than levels studies show harm fish.

Seattle Iron & Metals is only one of about 6,000 facilities permitted to dump pollution into Washington’s waters.  

Just as Puget Soundkeeper Association has sued Seattle Iron & Metals and numerous other businesses in the Puget Sound area, Columbia Riverkeeper filed lawsuits against a number of firms on both sides of the Columbia River. The Hood River, Ore.,-based environmental group has used the citizen’s suit provisions of the Clean Water act to go after log yards, scrap yards, plastics manufacturers, truck yards and, memorably, a shipping terminal where lots of bulk chemicals including petroleum coke and potash were stored in the open so that pollutants were carried away in rainwater runoff.

Columbia Riverkeeper’s director, Brett VandenHeuvel, said lawsuits like these are a measure of how much progress remains for the Clean Water Act to work as it was intended.    “In 1972 we were going to stop using our rivers as dumping grounds and we’re nowhere near there,” VandenHeuvel said.  “State and federal regulators don’t even try to meet that goal any more and that’s a problem.

“That’s a colossal failure.” 

Clarification: July 25, 2012. This story was updated to reflect that the states have different criteria for considering a waterway fully assessed.

CWA series logo 700px

InvestigateWest is a non-profit newsroom based in Seattle that covers the Pacific Northwest. EarthFix is a public media project of seven NPR and PBS stations in Washington, Oregon, and Idaho.

There’s more to come in our series, “Clean Water: The Next Act:”

  • Development-related pollution in the form of rainwater runoff poses an increasing threat to water quality.

  • Clean water isn’t just under threat from big facilities, urban development, and runoff from suburban sprawl. In the rural Northwest, logging and farming practices are degrading our rivers and streams.

  • Waterways increasingly contain potentially dangerous residues of the lotions, potions and pills that keep us well and clean and smelling nice – a threat the Clean Water Act was never intended to stem.

  • Sewage treatment remains a major source of water pollution, with increasing numbers of governments struggling financially and beset by aging wastewaster treatment facilities. 

(This story was reported and written by Robert McClure with Bonnie Stewart. The map was produced by Jason Alcorn with Bonnie Stewart. Audio report by Ashley Ahearn. Photos and video by Katie Campbell.)

© 2012 EarthFix/InvestigateWest

GRAND PRIZE FOR SMALL PROJECTS: INNOVATIVE PHYTOREMEDIATION PROCESS UTILIZES LANDFILL LEACHATE AS A RESOURCE IN LIEU OF TRADITIONAL DISPOSAL AS A WASTE
American Academy of Environmental Engineers (AAEE), Excellence in Environmental Engineering Awards, 2012

The AAEE recognized Leggette, Brashears & Graham, Inc. for the first-ever use of vetiver plants for landfill leachate treatment in the western hemisphere. The standard for leachate disposal (load, haul, and dump) has been expanded by the concept of utilizing leachate as a resource. The use of vetiver for leachate phytoremediation was further advanced by incorporating a specialized subsurface drip-irrigation system to distribute leachate year-round. Details at http://www.aaee.net/E32012GPSmallProjects.php.

AIR FORCE STANDS UP SINGLE UNIT TO EXECUTE GLOBAL CE OPERATIONS
Briggs, M.
Air Force Civil Engineer Center Public Affairs News Release, 2 Oct 2012

Effective 1 October 2012, the Air Force Center for Engineering and the Environment (AFCEE) and Air Force Real Property Agency merged with the Air Force Civil Engineer Support Agency to form the Air Force Civil Engineer Center (AFCEC), a new civil engineering field operating agency. AFCEC functions encompass the areas of construction, energy, environment, housing, operations, planning, real property, and readiness and emergency management. The Environmental Center of Excellence will operate in the Kelly Annex at Joint Base San Antonio-Lackland. http://www.af.mil/news/story.asp?id=123320540
Additionally, the Environment Operations and Services (EOS) effort, which addresses environmental needs at Air Force installations, is on hold as a result of the AFCEC standup, pending further review by the government. https://www.fbo.gov/notices/d3b225c8b8319c37655ac16b911d6996

provided to clarify and improve the function

Subject:
 Job-Related Education and Training Resources
  From:
To:

Visit JobCenter.USA.gov for information about professional certifications, registered apprenticeships, occupational licenses, and other opportunities that may help you get ahead.

In addition to education and training resources, you can use the job center to search for a job and learn about various career paths.

Is your safety program unethical?

Ethics and Safety: How To Keep Your Program on the Right Side of the Fence (and the Law)

"code of silence" when an accident occurs, making it difficult to find out what really happened so that you can prevent a recurrence.

Judicial Conference of the United States to revisit the need

for a More Coherent Federal Judicial Data System

CDFG workshop walkout: Agency’s attempt to take water and property rights from landowners.

STANDING and JURISDICTION Standing is a requirement grounded in Article III of the United States Constitution, and a defect in standing cannot be waived by the parties. Chapman v. Pier 1 Imports (US.) Inc., 631 F.3d 939,954 (9th Cir. 2011). A litigant must have both constitutional standing and prudential standing for a federal court to exercise jurisdiction over the case. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). Constitutional standing requires the plaintiff to "show that the conduct of which he complains has caused him to suffer an ´injury in fact´ that a favorable judgment will redress." Id. at 12. In comparison, "prudential standing encompasses the general prohibition on a litigant´s raising another person´s legal rights." Id. (citation and quotation signals omitted); see also Oregon v. Legal Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009).
Microscopic particles of heavy metals like zinc and copper are commonly found in urban runoff.

Hatching Salmon in the Classroom For Hands-on Learning

the chance to learn about biology through an observation-based approach.

Ensure Free Movement of People and Commerce. 

Joint & Several Trespassers Ejectment

"best management practices" that suit local conditions. ‘out of the ballpark’

"Dam failures are still concerns". former EPA Project Manager Rick Sugarek
AVALANCHE! RUN FOR YOUR LIVES! 

A myriad of vulnerabilities cascading consequences.

Government liabilities arising out of errors, omissions and negligent acts

$7,074,500,000 – treble damages = $21,223,500,000 U.S.A. liability

Not so fast, EPA

EPA Project Manager Accused of Hiding Information, Pursuit of EPA Clarifications Expressed

For the heads of executive departments and agencies; another hard look essential to facilitating:
EPA begins new review of Superfund cleanup required in cases where wastes are managed on-site.

Future Mission - Managing for Results: Work Related to the Interim Crosscutting Priority Goals

The U.S. Environmental Protection Agency is kicking off, stymied by a lack of reliable data.

Development of Earth-based Ground Infrastructure

Contract Management: High-Level Attention Needed; Data and Oversight Problems Hamper Opportunities.

Freedom of transit is guaranteed throughout the entire territory of the union.

The noteworthy failure of [the] government or any alleged agency thereof to at any time rebut anything appearing on this website constitutes a legal admission of the fidelity and accuracy of the materials presented, which are offered in good faith and prepared as such by Freedom School and any and all [third] parties affiliated or otherwise. THIS IS AN ELECTRONIC AGREEMENT AND IS A LEGALLY BINDING CONTRACT, EQUIVALENT TO A SIGNED, WRITTEN CONTRACT BETWEEN PARTIES - If the government, or anyone else, wants to assert that any of the religious and/or political statements appearing on this website are not factual or otherwise in error, then they as the moving party have the burden of proof, and they must responsively meet that burden of proof under the Administrative Procedures Act 5 U.S.C. § 556(d) and under the due process clauses found in the Fifth, Sixth, and Seventh Amendments to the national Constitution BEFORE there will be response to any summons, questions, or unsubstantiated and slanderous accusations. Attempts at calling presented claims "frivolous" without specifically rebutting the particular claim, or claims, deemed "frivolous" will be in deed be "frivolous" and prima facie evidence that shall be used accordingly.

Next-Generation National Nanotechnology Infrastructure Network (NG NNIN)


Program Solicitation
NSF 13-521

NSF
                                          Logo

National Science Foundation

Directorate for Engineering

Directorate for Mathematical & Physical Sciences

Directorate for Computer & Information Science & Engineering

Directorate for Biological Sciences

Directorate for Geosciences

Directorate for Social, Behavioral & Economic Sciences

Directorate for Education & Human Resources

Office of International Science and Engineering

Letter of Intent Due Date(s) (required) (due by 5 p.m. proposer's local time):

April 01, 2013

Full Proposal Deadline(s) (due by 5 p.m. proposer's local time):

May 13, 2013

IMPORTANT INFORMATION AND REVISION NOTES

A revised version of the NSF Proposal & Award Policies & Procedures Guide (PAPPG), NSF 13-1, was issued on October 4, 2012 and is effective for proposals submitted, or due, on or after January 14, 2013. Please be advised that the guidelines contained in NSF 13-1 apply to proposals submitted in response to this funding opportunity. Proposers who opt to submit prior to January 14, 2013, must also follow the guidelines contained in NSF 13-1.

Please be aware that significant changes have been made to the PAPPG to implement revised merit review criteria based on the National Science Board (NSB) report, National Science Foundation's Merit Review Criteria: Review and Revisions. While the two merit review criteria remain unchanged (Intellectual Merit and Broader Impacts), guidance has been provided to clarify and improve the function of the criteria. Changes will affect the project summary and project description sections of proposals. Annual and final reports also will be affected.

A by-chapter summary of this and other significant changes is provided at the beginning of both the Grant Proposal Guide and the Award & Administration Guide.

Please note that this program solicitation may contain supplemental proposal preparation guidance and/or guidance that deviates from the guidelines established in the Grant Proposal Guide.

SUMMARY OF PROGRAM REQUIREMENTS

General Information

Program Title:

Next-Generation National Nanotechnology Infrastructure Network (NG NNIN)

Synopsis of Program:

The National Nanotechnology Infrastructure Network (NNIN) will reach its ten year authorized award life at the end of Fiscal Year 2013. The National Science Foundation is announcing in this solicitation an open competition to establish a Next-Generation National Nanotechnology Infrastructure Network (NG NNIN) for Fiscal Years 2014-2018.

NNIN has enabled major discoveries, innovations, and contributions to education and commerce within all disciplines of nanoscale science, engineering, and technology through NSF support of a national network of university-based user facilities. These facilities have provided open access to leading-edge nanotechnology fabrication and characterization tools, instrumentation, and expertise for users across the nation from academia, small and large industry, and government. The core mission of NNIN has included national-level education and outreach programs to enable a diverse science and engineering workforce, the study of societal and ethical implications of nanotechnology including issues of environment, health, and safety, as well as important modeling and simulation capabilities.

The new competition for the NG NNIN will build on the concept of NNIN with a much broadened scope and user base. Support is being provided by all NSF Directorates and the Office of International Science and Engineering as an integral part of the NSF investment in Nanoscale Science and Engineering.


The Federal Constitution for the United States of America, at Article 1, Section 8, Clause 17, states, in pertinent part, that the Congress can exercise exclusive Legislation "over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, . . ."

40 USCS 255 contains the following, clearly stated requirement:

"Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted." [emphasis added]

And the second paragraph of interpretive note 14 of 40 USCS 255 states:

"In view of 40 USCS § 255, no jurisdiction exists in United States to enforce federal criminal laws, unless and until consent to accept jurisdiction over lands acquired by United States has been filed in behalf of United States as provided in said section, and fact that state has authorized government to take jurisdiction is immaterial. Adams v. United States (1943) 319 US 312, 87 L Ed 1421, 63 S Ct 1122." [emphasis added, case copy attached]

Please send the requested copies as soon as possible to the exact location shown above in the "From:" section.

How Sites are Deleted from the NPL


EPA may delete a final NPL site if it determines that no further response is required to protect human health or the environment. Under Section 300.425(e) of the National Contingency Plan (55 FR 8845, March 8, 1990), a site may be deleted where no further response is appropriate if EPA determines that one of the following criteria has been met:

  • EPA, in conjunction with the State, has determined that responsible or other parties have implemented all appropriate response action required.

  • EPA, in consultation with the State, has determined that all appropriate Superfund-financed responses under CERCLA have been implemented and that no further response by responsible parties is appropriate.

  • A Remedial Investigation/Feasibility Study has shown that the release poses no significant threat to public health or the environment and, therefore, remedial measures are not appropriate.

Since 1986, EPA has followed these procedures for deleting a site from the NPL:

  • The Regional Administrator approves a "close-out report" that establishes that all appropriate response actions have been taken or that no action is required.

  • The Regional Office obtains State concurrence.

  • EPA publishes a notice of intent to delete in the Federal Register and in a major newspaper near the community involved. A public comment period is provided.

  • EPA responds to the comments and, if the site continues to warrant deletion, publishes a deletion notice in the Federal Register.

Sites that have been deleted from the NPL remain eligible for further Superfund-financed remedial action in the unlikely event that conditions in the future warrant such action. Partial deletions can also be conducted at NPL sites.

Guidance for Deleting Sites from the National Priorities List

Deleting Resource Conservation and Recovery Act (RCRA) Facilities

US EPA Revises Guidance to Encourage Renewable Energy on Contaminated Land

On December 5, 2012, US EPA issued a “Revised Enforcement Guidance Regarding the Treatment of Tenants under the CERCLA Bona Fide Prospective Purchaser Provision.”  US EPA undertook this effort to encourage reuse of contaminated properties for renewable energy development. However, the updated guidance is broad enough to apply to other tenant situations and may justify consideration of "all appropriate inquiries" in more lease situations.

The problem that US EPA is trying to address with this guidance is that a key Superfund 'landowner liability protection' (think limited and conditioned defense to liability) – for bona fide prospective purchasers (42 USC §§ 9601(40), 9607(q)(1)(C) and 9607(r)(1)), which provides a defense even where an acquirer knows of the existence of contamination at the time of acquisition – is not available to those who lease contaminated property unless the tenant’s landlord meets the requirements of the defense. In other words, according to the language of CERCLA itself, a tenant’s bona fide prospective purchaser defense must be derived from the defense of an eligible landowner.

 

This can be an obstacle to attracting renewable energy projects to contaminated properties. Most renewable energy project developers do not want to buy contaminated land. They do, however, need sufficient rights in the property developed to justify and secure the significant financial investment that will be needed, for example, to put a solar farm on a closed and capped landfill. A lease with a term tailored to the project’s horizon may provide the right balance and allow the developer to ensure that it is not stuck owning unwanted land and potential liability when the project has run its course. 

 

Under the revised policy issued last week, US EPA indicates that it will use its enforcement discretion not to pursue a tenant that meets the criteria of the bona fide prospective purchaser defense (including for example, conducting a pre-lease Phase I) even though the tenant is not a itself a “purchaser,” and even where the tenant’s landlord is not eligible for the defense, for example, because he or she owned the property when disposal occurred there.

 

This may help get more solar farms on more closed landfills (or other renewable energy projects at contaminated sites), which is a very good idea for a number of reasons, including the long term security and operation and management of the property. First, though, the basic economics of the project must be strong enough to overcome the inherent complications and associated additional time and costs, as well as lingering risks, involved in building on land where significant contamination remains. With strong fundamental project economics, the additional costs and lingering risks can be managed. US EPA’s sincere, though much conditioned, message in this revised guidance that it will be reluctant to pursue such developers will help.  For more on US EPA’s encouragement of the development of renewable energy projects on contaminated sites see Re-Powering America’s Land

 

Of course, any potential liability under Pennsylvania’s or other state’s law would also need to be sorted through as well.    In that regard, it is worth noting that Act 2 releases of liability can extend to a person “who develops or otherwise occupies the identified site.” See 35 P.S. §6026.501(a)(2).



Court finds personal jurisdiction over foreign business under a conspiracy theory

The Delaware Supreme Court recently held that a foreign business entity was subject to personal jurisdiction in the state of Delaware under a conspiracy theory. The foreign defendant allegedly conspired with other defendants to divest the plaintiff of his interest in a joint venture, which plan was accomplished, in part, by causing the dissolution of a Delaware limited liability company (LLC) co-founded by the plaintiff. The Delaware Supreme Court held that in order to establish personal jurisdiction over a foreign entity under a civil conspiracy theory, facts must be alleged from which the court can infer that the foreign defendant knew or should have known that the conspiracy would have a Delaware nexus. The lower court found this requirement lacking, and held that the foreign defendant did not know about the Delaware connection until after the Delaware LLC had been dissolved. The Delaware Supreme Court disagreed with the trial court’s analysis as to both the foreign defendant’s knowledge and the overall scope of the conspiracy, reasoning that even if there was no direct evidence that the foreign defendant knew about the dissolution before it occurred, the facts established that the defendant should have known it was dealing with a Delaware company. Further, the Delaware Supreme Court found that the conspiracy did not begin or end with the dissolution of the Delaware company and that the foreign defendant knew that its business partner had been a Delaware entity shortly after the dissolution, while the conspiracy was still ongoing. On these bases, the Delaware Supreme Court reversed the lower court’s dismissal of the action for lack of personal jurisdiction.

Matthew v. Flakt Woods Group SA, C.A. No. 5957-VCN (Del. Supr. Nov. 20, 2012).


California Court of Appeal applies three-year limitation under Delaware law to claim against dissolved Delaware corporation

In Greb v. Diamond Int’l Corp., 2010 Cal. App. LEXIS 566 (Cal. App. 1st Dist. Apr. 26, 2010), the California Court of Appeal for the First District affirmed the trial court’s dismissal of a personal injury claim against a dissolved Delaware corporation, holding that the claim was filed more than three years after dissolution of the corporation in violation of Delaware General Corporation Law Section 278. In doing so, the Court made it clear that, for purposes of lawsuits filed in California against dissolved non-California corporations, the law of the state of incorporation controls whether claims are timely filed.  

Plaintiffs alleged that Mr. Greb had suffered injury from exposure to asbestos and asbestos-containing products. They filed a complaint in California state court against Diamond International Corporation on December 22, 2008. Diamond International, however, was dissolved on July 1, 2005. Section 278 of the Delaware General Corporation Law bars suits against dissolved Delaware corporations filed more than three years after the dissolution. To avoid this bar, plaintiffs argued that they were entitled to file a lawsuit in California under Section 2010 of the California Corporations Code section 2010, which permits lawsuits to be filed against a dissolved corporation irrespective of the date of dissolution.

The Court of Appeal ultimately concluded that Delaware law is applicable and controlling. The Court noted that Section 299(1) of the Restatement (Second) of Conflict Laws states that whether a corporation continues its existence after it has been dissolved or suspended is decided by the state of incorporation. The Supreme Court of the United States, in Oklahoma Gas Co. v. Oklahoma, 273 U.S. 257, 259-60 (1927), recognized this principle, stating that the existence of a corporation after dissolution “concerns the fundamental law of the corporation enacted by the State which brought the corporation into being.” Courts in other jurisdictions, including the federal courts in New York, have followed this by enforcing Delaware’s three-year bar on lawsuits filed against dissolved Delaware corporations.

The Court of Appeal also considered California authority. Although California courts have held generally that the law of the state of incorporation determines the consequence of corporate dissolution, the court in North American Asbestos Corp. v. Superior Court, 180 Cal. App. 3d 902 (1986), held that Section 2010 of the California Corporations Code prevails over foreign corporation laws that limit survival periods of dissolved corporations. The Court in Greb, however, held that the ruling in North American Asbestos erroneously attempted to apply legislative intent where statutory authority clearly establishes that Section 2010 should not apply to foreign corporations. The Court also noted that the holding in North American failed to address Riley v. Fitzgerald, 178 Cal. App. 3d 871 (1986), which held to the contrary and was issued only two months earlier. Ultimately, the Court found North American to be unpersuasive.

The ruling in Greb reinforces the trend in California courts to apply the law of the state of incorporation to claims involving foreign corporations, a trend that adds to certainty for all parties embroiled in corporate litigation in California.


storm cloud

Whether or not the United States has jurisdiction is a Federal question. See Mason Co. v. Tax Commission, 302 U.S. at 197.

For there to be any real progress toward changing the culture and restoring accountability, there must be new leadership.
(Suspicions that foundation-supported non-government organizations have exerted an inordinate and improper influence.)

TERMINATION OF WAR AND EMERGENCIES Joint Res. July 25, 1947, ch. 327, Sec. 3, 61 Stat. 451, provided that in the interpretation of former 40 U.S.C. 276a-5, the date July 25, 1947, was to be deemed to be the date of termination of any state of war theretofore declared by Congress and of the national emergencies proclaimed by the President on September 8, 1939, and May 27, 1941. -End- -CITE- 40 USC Sec. 3148 01/03/2012 (112-90)

But if state law provides for trying an issue by jury—or for trying the issue of compensation by jury or commission or both—that law governs.

The Challenge of Citing Nonprecedential Decisions and Specific Passages

¶14 Citation reform, prompted by the shift to electronic media and urged upon the nation’s courts in the late 1990s, found little support among federal judges. Despite strong recommendations and blueprints from the American Bar Association (ABA) and American Association of Law Libraries (AALL) augmented by advocacy on the part of the Justice Department’s Antitrust Division, the proposal moved nowhere with the federal courts.[26] Rule 32.1 ought to reopen the matter. Strong as the arguments are for using court-applied sequence and paragraph numbers instead of volume and page numbers drawn from the commercially produced Federal Reporter as the core citation elements for precedential decisions, they become even more compelling when applied to the more numerous nonprecedential ones. Consider the following example. On January 4, 2007, the Federal Circuit released an eleven-page nonprecedential decision in the case of DESA IP, LLC. v. EML Technologies, LLC. With a system of non-proprietary and medium neutral citation of the sort that nearly one-quarter of the states have now adopted, one could cite to the court’s discussion of the weight to be given expert testimony in that case as follows:

DESA IP, LLC. v. EML Techs., LLC., 2007 USApp (Fed) 1 NP, ¶17.

New report, by an independent council of Presidentially-appointed experts, prioritizes the top scientific challenges facing agriculture and offers recommendations on how best to meet those challenges in the years ahead, with an emphasis on current practices within research universities and the USDA.

The DOJ’s police authority:
664 Territorial Jurisdiction
Of the several categories listed in 18 U.S.C. § 7, Section 7(3) is the most significant, and provides:
The term "special maritime and territorial jurisdiction of the United States," as used in this title, includes: . . .
(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or
any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.

The police power is vested in the States and not the federal government. See Wilkerson v.
Rahrer , 140 U.S. 545, 554, 11 S.Ct. 865, 866 (1891) (the police power "is a power originally
and always belonging to the States, not surrendered to them by the general government, nor
directly restrained by the constitution of the United States, and essentially exclusive"); Union
National Bank v. Brown, 101 Ky. 354, 41 S.W. 273 (1897); John Woods &Sons v. Carl, 75 Ark.
328, 87 S.W. 621, 623 (1905); Southern Express Co. v. Whittle, 194 Ala. 406, 69 So.2d 652, 655
(1915); Shealey v. Southern Ry. Co. , 127 S.C. 15, 120 S.E. 561, 562 (1924) ("The police power
under the American constitutional system has been left to the states. It has always belonged to
them and was not surrendered by them to the general government, nor directly restrained by the
constitution of the United States … Congress has no general power to enact police regulations
operative within the territorial limits of a state"); and McInerney v. Ervin, 46 So.2d 458, 463
(Fla. 1950)
"No sanction can be imposed absent proof of jurisdiction." Standard v Olson, 74 S.Ct.
768. "It has also been held that jurisdiction must be affirmatively shown and will not be
presumed." Special Indem. Fund v Prewitt, 205 F2d 306, 201 OK. 308

The Supreme Court says the government has an obligation to ascertain bona fide authority:
“Anyone entering into an arrangement with the government takes the risk of having accurately
ascertained that he who purports to act for the government stays within the bounds of this
authority.” Federal Crop Insurance v. Merrill, 33 U.S. 380 at 384 (1947).
The Federal Rules of Civil Procedure even states there is no jurisdiction inside the States:
“ ‘Act of Congress’ includes any act of Congress locally applicable to and in force in the
District of Columbia, in Puerto Rico, in a territory or in an insular possession.” See 18 USC,
Rule 54 of the Federal Rules of Criminal Procedure. Note: There is NO reference to the 50
“states.”
The IRS must establish jurisdiction or it will be sanctioning FRAUD: “Silence is a species
of conduct, and constitutes an implied representation of the existence of facts in question. When
silence is of such character and under such circumstances that it would become a fraud, it will
operate as an Estoppel.” Carmine v. Bowen, 64 U.S. 932
“Silence can only be equated with fraud where there is a legal or moral duty to speak or
where an inquiry left unanswered would be intentionally misleading. ... We cannot condone this
shocking conduct by the IRS. Our revenue system is based upon the good faith
of the taxpayers and the taxpayers should be able to expect the same from government in its
enforcement and collection activities .... This sort of deception will not be tolerated and if this is
the ‘routine’ it should be corrected immediately.” [U. S. v. Tweel, 550 F.2d 297, 299
(1977)][quoting U.S. v. Prudden, 424 F.2d 1021, 1032 (1970)]
The USC codifies the Constitutional requirement at Article I, Section 8, Clause 17 and
proscribes the procedure and required documentation for the federal government to successfully
assert jurisdiction inside one of the fifty states. To wit: 40 USCS § 255 (now 3111 and 3112)
clearly and specifically requires that a "notice of acceptance" is to be filed "with the Governor of
such State or in such manner as may be prescribed by the laws of the State where such lands are
situated." "Such lands," of course, referring to those lands that the federal government, through
its agents, is claiming exclusive or concurrent jurisdiction over the people living thereon.
The text of § 255 concludes with the statement "Unless and until the United States has
accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively
presumed that no such jurisdiction has been accepted." [Emphasis added]
Obviously, if the requirements of Article 1, Section 8, Clause 17 of the Constitution of the
United States are not complied with, and/or if the procedural requirements of 40 USCS § 255 are
not complied with, then no public servant who is acting as an agent of the United States, i.e. the
federal government, has any bona fide authority whatsoever to attempt to force compliance with
any federal law, rule, code, statute, etc. on anyone living in such an area that is not subject to any
bona fide jurisdiction of the federal government.
In support of this rather obvious conclusion, the second paragraph of interpretive note 14 of
40 USCS § 255 says: "In view of 40 USCS § 255, no jurisdiction exists in United States to
enforce federal criminal laws, unless and until consent to accept jurisdiction over lands
acquired by United States has been filed in behalf of United States as provided in said
section, and fact that state has authorized government to take jurisdiction is immaterial. Adams
v. United States (1943) 319 US 312, 87 L Ed 1421, 63 S Ct 1122." (plaintiff’s emphasis).
[Federal jurisdiction] " ...must be considered in the light of our dual system of government
and may not be extended. . .in view of our complex society, would effectually obliterate the
distinction between what is national and what is local and create a completely centralized
government." United States v. Lopez, 514 U.S. 549, 115 S.Ct.1624 (1995

If it quacks...

carpe anas (The law of natural selection. A lame duck is usually a dead duck.)

An emphasis on current practices within research universities and the USDA.

Report to the President on Agricultural Preparedness & the Agriculture Research Enterprise, by the Council

TROLLING

The President’s Council of Advisors on Science and Technology (PCAST) today presented a report on the importance of USDA’s leadership in agricultural research. The Council is a diverse group of individuals appointed by the President from across the basic and applied scientific community to advise the President and the Executive Office of the President on key scientific issues.

Report to the President on Agricultural Preparedness & the Agriculture Research Enterprise, by the Council, concludes that the United States is the undisputed world leader in agricultural production today, but also cautions that U.S. agriculture also faces a number of challenges that are poised to become much more serious in the years ahead.

There is no question that the report recognizes American agriculture and USDA’s leadership in agricultural science and research as critical to the efforts to ensure greater food security and a better future for everyone.

As to conditions in state laws which affect the substantial rights of a litigant, the district courts would be bound to give them effect without any rule on the subject. Accordingly we present two alternative revisions. One suggestion supported by a majority of the Advisory Committee is as follows:

(k) Condemnation Under a State's Power of Eminent Domain. The practice herein prescribed governs in actions involving the exercise of the power of eminent domain under the law of a state, provided that if the state law makes provision for trial of any issue by jury, or for trial of the issue of compensation by jury or commission or both, that provision shall be followed.

We call attention to the fact that the proposed rule does not contain a provision for the procedure to be followed in order to exercise the right of the United States to take immediate possession or title, when the condemnation proceeding is begun. There are several statutes conferring such a right which are cited in the original notes to the May 1948 draft * * *. The existence of this right is taken into account in the rule. In paragraph (c)(2), * * * it is stated: “Upon the commencement of the action, the plaintiff need join as defendants only the persons having or claiming an interest in the property whose names are then known.” That is to enable the United States to exercise the right to immediate title or possession without the delay involved in ascertaining the names of all interested parties. The right is also taken into account in the provision relating to dismissal (paragraph (i) subdivisions (1), (2), and (3), * * *); also in paragraph (j) relating to deposits and their distribution.

The power of eminent domain under the law of a state. See Boom Co. v. Patterson, 1878, 98 U.S. 403, 25 L.Ed. 206; Searl v. School District No. 2, 1888, 8 S.Ct. 460, 124 U.S. 197, 31 L.Ed. 415; Madisonville Traction Co. v. Saint Bernard Mining Co., 1905, 25 S.Ct. 251, 196 U.S. 239, 49 L.Ed. 462. In the Madisonville case, and in cases cited therein, it has been held that condemnation actions brought by state corporations in the exercise of a power delegated by the state might be governed by procedure prescribed by the laws of the United States, whether the cases were begun in or removed to the federal court. See also Franzen v. Chicago, M. & St. P. Ry. Co., C.C.A.7th, 1921, 278 F. 370, 372.

Rule 70. Enforcing a Judgment for a Specific Act

(a) Party's Failure to Act; Ordering Another to Act. If a judgment requires a party to convey land, to deliver a deed or other document, or to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be done—at the disobedient party's expense—by another person appointed by the court. When done, the act has the same effect as if done by the party.

(b) Vesting Title. If the real or personal property is within the district, the court—instead of ordering a conveyance—may enter a judgment divesting any party's title and vesting it in others. That judgment has the effect of a legally executed conveyance.

(c) Obtaining a Writ of Attachment or Sequestration. On application by a party entitled to performance of an act, the clerk must issue a writ of attachment or sequestration against the disobedient party's property to compel obedience.

(d) Obtaining a Writ of Execution or Assistance. On application by a party who obtains a judgment or order for possession, the clerk must issue a writ of execution or assistance.

(e) Holding in Contempt. The court may also hold the disobedient party in contempt.

Notes

(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Notes of Advisory Committee on Rules—1937

Compare [former] Equity Rules 7 (Process, Mesne and Final), 8 (Enforcement of Final Decrees), and 9 (Writ of Assistance). To avoid possible confusion, both old and new denominations for attachment (sequestration) and execution (assistance) are used in this rule. Compare with the provision in this rule that the judgment may itself vest title, 6 Tenn.Ann.Code (Williams, 1934), §10594; 2 Conn.Gen.Stat. (1930), §5455; N.M.Stat.Ann. (Courtright, 1929), §117–117; 2 Ohio Gen.Code Ann. (Page, 1926), §11590; and England, Supreme Court of Judicature Act (1925), §47.

§122 [now 1656] (Creation of new district or transfer of territory; lien)


Why comply with ARARs?

Section 121(d) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), requires attainment of federal and state applicable or relevant and appropriate requirements (ARARs). Subpart E, Section 300.400(g) "Identification of applicable or relevant and appropriate requirements," of the National Oil and Hazardous Substance Pollution Contingency Plan (NCP) (55 FR 8666) describes the process for attaining these ARAR requirements.

What difference does it make whether a requirement is "applicable" or "relevant and appropriate"?

"Applicable requirements mean those cleanup standards, standards of control, or other substantive environmental protection requirements, criteria, or limitations promulgated under Federal environmental or State environmental or facility siting law that specifically address a hazardous substance, pollutant, contaminant, remedial action, location, or other circumstance found at a CERCLA site" (55 FR 8814). Therefore, an applicable requirement is a requirement that a private party would have to comply with by law if the same action were being undertaken apart from CERCLA authority. all jurisdictional prerequisites of the requirement must be met in order for the requirement to be applicable.

If a requirement is not applicable, it still may be relevant and appropriate. "Relevant and appropriate requirements mean those cleanup standards [that] . . . address problems or situations sufficiently similar to those encountered at the CERCLA site that their use is well suited to the particular site" (55 FR 8817). A requirement that is relevant and appropriate may not meet one or more jurisdictional prerequisites for applicability but still make sense at the site, given the circumstances of the site and the release. In evaluating the relevance and appropriateness of a requirement, the eight comparison factors in 40 CFR 300.400(g)(2) should be carefully considered.

Once a requirement is relevant and appropriate, it must be complied with as if it were applicable. However, there are significant differences between the identification and analysis of the two types of requirements. "Applicability" is a legal and jurisdictional determination, while the determination of "relevant and appropriate" relies on professional judgment, considering environmental and technical factors at the site. Moreover, there is more flexibility when determining relevant and appropriate: a requirement may be "relevant," in that it covers situations similar to those at the site, but may not be "appropriate" and, therefore, may not be well suited to the site. In some situations, only portions of a requirement or regulation may be judged relevant and appropriate; if a requirement is applicable, however, all substantive parts must be followed.

Are there different types of ARARs?

EPA classified (this is not a regulatory requirement) ARARs into three categories: (1) chemical-specific, (2) location-specific, and (3) action-specific, depending on whether the requirement is triggered by the presence or emission of a chemical, by a vulnerable or protected location, or by a particular action.

  • Chemical-specific ARARs are typically health- or risk-based numerical values or methodologies which, when applied to site-specific conditions, are expressed as numerical values that represent cleanup standards (i.e., the acceptable concentration of a chemical at the site). Examples of chemical-specific ARARs include non-zero maximum contaminant level goals (MCLGs) and maximum contaminant levels (MCLs) established under the Safe Drinking Water Act, and federal water quality criteria (FWQC) established under the Clean Water Act. As a general rule, if more than one chemical-specific ARAR exists for a particular contaminant, the most stringent should be applied.
  • Location-specific ARARs are restrictions on the concentration of hazardous substances or the conduct of activities in environmentally sensitive areas. An example of a location-specific restriction on the concentration of hazardous substances is the RCRA land disposal restrictions (LDR) prohibiting hazardous waste placement into or onto the land (e.g., landfills and salt domes) until waste-specific treatment standards are met. Examples of restrictions on the conduct of activities in environmentally sensitive areas include floodplains, wetlands, and locations where endangered species or historically significant cultural resources are present.
  • Action-specific ARARs are usually technology- or activity-based requirements or limitations on actions or conditions taken with respect to specific hazardous substances. An example is the LDR requirement to recover mercury from high inorganic mercury nonwastewaters using roasting or retorting. Action-specific ARARs do not determine the remedial alternative; rather, they indicate how a selected alternative must be achieved. RCRA and the Clean Water Act provide the majority of action-specific ARARs.

CERCLA Section 121, "Cleanup Standards," applies to remedial actions that the Agency determines should be taken under CERCLA Sections 104 and 106 authority.

last week, Judge Griesbach wrote the sentence that most CERCLA defendants have been waiting 30 years to hear:  “It … seems doubtful that a defendant can ever be found to be an arranger if he did not know the substance in question is hazardous.”  For a statute in which liability has always been held to be strict and without fault, a judicial pronouncement that liability hinges on the defendant’s knowledge is nothing short of stunning.

Settling CERCLA litigation is a minefield, but armed with a carefully developed and executed strategy, a CERCLA plaintiff can successfully bring finality to the government’s claims without hindering its ability to seek contribution from other PRPs for an equitable share of remediation costs.


Chief Justice Marshall’s sage observation that “general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected,but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” Cohens v. Virginia, 6 Wheat. 264, 399 (1821).

The rule is that a permanent physical occupation of property authorized by government is a taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982). So, too, is a regulation that permanently requires a property owner to sacrifice all economically beneficial uses of his or her land. Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1019 (1992).

“Where real estate is actually invaded by super induced additions of water, earth, sand, or other material . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Id., at 181.

Once the government’s actions have worked a taking of property, “no subsequent action by the government can re- lieve it of the duty to provide compensation for the period during which the taking was effective.” First English, 482 U. S., at 321. See also Tahoe-Sierra, 535 U. S., at 337

The determination whether a taking has occurred includes consideration of the property owner’s distinct investment­ backed expectations, a matter often informed by the law in force in the State in which the property is located. Lucas, 505 U. S., at 1027–1029; Phillips v. Washington Legal Foundation, 524 U. S. 156, 164 (1998).

 

Flooding cases, like other takings cases, should be assessed with reference to the “particular circumstances of each case,” and not by resorting to blanket exclusionary rules. United States v. Central Eureka Mining Co., 357 U. S. 155, 168 (1958)

 

When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking. See Loretto, 458 U. S., at 435, n. 12 (temporary physical invasions should be assessed by case-specific factual inquiry); Tahoe-Sierra, 535

U. S., at 342 (duration of regulatory restriction is a factor for court to consider); National Bd. of YMCA v. United States, 395 U. S. 85, 93 (1969)

 

(c) When regulation or temporary physical invasion by government interferes with private property, time is a factor in determining the existence vel non of a compensable taking. See, e.g., Loretto v. Tele­prompter Manhattan CATV Corp., 458 U. S. 419, 435, n. 12. Also rel­evant to the takings inquiry is the degree to which the invasion is in­tended or is the foreseeable result of authorized government action. See, e.g., John Horstmann Co. v. United States, 257 U. S. 138, 146. So, too, are the character of the land at issue and the owner’s “rea­sonable investment-backed expectations” regarding the land’s use, Palazzolo v. Rhode Island, 533 U. S. 606, 618, as well as the severity of the interference, see, e.g., Penn Central, 438 U. S., at 130–131.

 

The Takings Clause is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960).

 

See also First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 318–319 (1987); Penn Central Transp. Co. v. New York City, 438 U. S. 104, 123–125 (1978). And “[w]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner.” Tahoe-Sierra Preserva­tion Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 322 (2002) (citing United States v. Pewee Coal Co., 341 U. S. 114, 115 (1951)).

 

Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. See supra, at 9; John Horstmann Co. v. United States, 257 U. S. 138, 146 (1921)

 

The char­acter of the land at issue and the owner’s “reasonable investment-backed expectations” regarding the land’s use. Palazzolo v. Rhode Island, 533 U. S. 606, 618 (2001).

 

We are endeavoring to reclaim the land through a resto­ration program. The prospect of reclamation, however, does not dis­qualify a landowner from receipt of just compensation for a taking. United States v. Dickinson, 331 U. S. 745, 751(1947)


11-597 Arkansas Game and Fish Comm’n v. United States (12/4/2012)
Cabacera del Rio Buenaventura ex jure naturæ status quo ante bellum
Earthquake Hazards Reduction Act. The National Earthquake Hazards Reduction Program (NEHRP) was established by the U.S. Congress when it passed the Earthquake Hazards Reduction Act of 1977, Public Law (PL) 95?124. [ [ At the time of its creation, Congress' stated purpose for NEHRP was "to reduce the risks of life and property from future earthquakes in