Handling of Fisheries Report Criticized
Audit Says the Agency Violated Rules in Making Revisions
DAVID WHITNEY / Sacramento Bee 14jul2005
WASHINGTON — Officials at a federal fisheries agency violated internal rules last year in revising a biological report to conclude that Central Valley Project water diversions would not harm endangered fish, according to an audit released Wednesday by the Commerce Department's independent inspector general.
The audit grew out of a report in The Bee last October that biologists at NOAA Fisheries, an arm of the National Oceanic and Atmospheric Administration, were ordered to revise their determination that salmon and steelhead trout would be jeopardized by the water diversions from the Delta.
While the audit did not review whether the biologists' conclusions were wrong, it quoted others as saying that their jobs in the review process were cut short by superiors. One said that there was "a basic disconnect between the scientific analysis and the conclusion."
"This is a very damaging report," said Rep. George Miller, D-Martinez, a leading player in Delta water policy.
Miller said the report demonstrates that "raw politics" and manipulation of science were behind the agency's handling of the biological opinion, which in an early draft had concluded that fish would be harmed by the water diversions.
The opinion focused on the impact new water contracts would have on fish. Since then, the Bureau of Reclamation has been working to complete the new contracts with 245 agricultural and municipal users.
Jeff McCracken, a bureau spokesman in Sacramento, said Wednesday that the contracts represent deliveries of about 6 million acre-feet of water annually for the next 25 years.
He said about two-thirds of those contracts have been signed and that environmental work is under way on contract sales south of the Delta.
The new contracts are of shorter duration by 15 years and at four times the cost of the 40-year contracts they replace, McCracken said.
While the audit confirmed the internal processes were violated within the fisheries agency, it did not substantiate reports in the October Bee story that the Bureau of Reclamation had been given an early draft concluding there would be harm to fish, and the Bureau of Reclamation then offered suggested revisions.
"There was no evidence in the administrative record to support the claim that the draft jeopardy opinion was provided to the Bureau of Reclamation for comment," the audit said. That conclusion was similar to what the inspector general at the Interior Department concluded in an earlier report.
The audit targeted, although not by name, James Lecky, the former assistant administrator of the National Marine Fisheries Service's Southwest regional office. Lecky has since been promoted to director of protected resources in Washington, where he is the agency's head of Endangered Species Act issues and a frequent witness before Congress.
The audit said that Lecky "circumvented key internal controls established to ensure the integrity of the biological opinion."
What can be done to clean up the mess now is not clear.
The fisheries agency said it is reviewing procedures and trying to arrange for an outside review of the science underlying the opinion.
Miller dismissed that as the agency trying after the fact to find someone who would apply the facts and affirm the opinion's conclusion.
"This undermines the criteria now in place for the entire operations of the Central Valley Project," Miller said. "They've got to rescind the biological opinion. We've got to get the taint and the corruption out of the system, and we've got to go back to square one."
Miller predicted that the issue was destined to end up in court in a challenge of the water contracts that have been signed as a result of the fisheries agency's no-jeopardy conclusion.
Efforts to reach Lecky or obtain additional comment from the fisheries agency were not successful.
According to the audit, the fisheries service's regional office began consulting with the Bureau of Reclamation about the effect of the water diversions on fish before it had sufficient information to proceed.
"To determine whether the regional office typically proceeded without sufficient information, we examined the administrative record for 10 other consultations," the report said. "There were no cases in which a formal consultation proceeded without sufficient information, as occurred with (this) opinion."
The audit said the Southwest office then failed to follow its internal processes for ensuring the quality of the opinion. A regional coordinator whose job it was to ensure that the opinion made use of the best possible science and complied with policy told auditors she didn't complete her review because Lecky "stepped in."
"The coordinator told us she would not have signed off on the opinion because of her belief that there is a basic disconnect between the scientific analysis and the conclusion," the report said.
When interviewed by auditors, Lecky said that he believed he had been doing the job of the regional coordinator, and it quoted him as saying that he had "stepped in because the dialogue that was occurring between staff and (the coordinator) wasn't producing a sound analysis."
The opinion also did not get the required review by agency lawyers, even though the attorney assigned to work on it said he made comments that had to be addressed before he would sign off. The opinion was cleared without any evidence in the record that that it had been reviewed by legal counsel.
In a cover letter to Commerce Department officials, Inspector General Johnnie E. Frazier called the findings "particularly troubling" because of the agency's long-standing efforts to improve its handling of biological opinions.
In May, Lecky, identified as a senior adviser for intergovernmental programs for the fisheries service, testified before the Senate Environment and Public Works Committee on the Endangered Species Act and ways to make it work more smoothly.
Against the light of the inspector general's opinion, Lecky's testimony seemed especially compelling.
In his prepared remarks, Lecky said the agency "understands the importance of improving the quality of conclusions drawn from data used to implement the Endangered Species Act and ensuring that decisions are based on the best data available."
"This has proved difficult in situations where policy decisions must be made when the information is limited," he said.
source: http://www.sacbee.com/content/politics/v-print/story/13230123p-14072810c.html 14jul2005