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Sacramento – A National Marine Fisheries Service (NMFS) scientist testified in a lawsuit that his own agency violated federal laws, contributing to a massive fish kill in the Klamath River, according to a deposition transcript released today by Public Employees for Environmental Responsibility (PEER).NMFS biologist Michael Kelly testified under court order over the objections of the Department of Justice.

The lawsuit, filed by Earthjustice on behalf of Pacific Coast Federation of Fishermen’s Associations and others, seeks redress against the Bureau of Reclamation (BuRec) and NMFS in connection with the long-term plan for instream flows in the Klamath River -a plan that led to last September’s massive fish kill. The Klamath fish kill was the largest in the history of the Pacific Northwest in which at least 33,000 adult salmon, including threatened coho salmon, died. On February 19, a federal magistrate judge ordered that Earthjustice attorneys be allowed to depose Kelly to help fill “significant gaps in the administrative record.”

According to Kelly’s deposition testimony, NMFS’s own science pointed to conditions in the final plan that may have lead to jeopardy:

“(This) is explained in the effects analysis of the final biological opinion. For example, we (NMFS) say that the expected adverse effects to the population due to flows from October through February would be such that the (coho) population’s distribution, numbers and reproduction would be adversely affected…When you then take the reasonable and prudent alternative and look at what mechanism’s in place…there is nothing that will enable you to provide flows using water bank or other sources to address effects during all seasons… So here we’ve …clearly said… that this risk to the population essentially amounted to, potentially, jeopardy all by itself.[A]nd we don’t provide a mechanism to address those effects.” Deposition Transcript, pages 68-70.

Last October, Kelly lodged a whistleblower disclosure with the Office of Special Counsel (OSC).Kelly was the technical lead on the team that prepared a “jeopardy opinion” for a BuRec plan that restricted flows in the lower Klamath River in order to provide full delivery of irrigation water. In his disclosure, Kelly charged that the plan was approved without a required analysis of impacts to threatened coho salmon.

Shortly after the court ordered Kelly to testify, OSC formally decided it will not ask NMFS’s parent agency to investigate his charges of wrongdoing, noting that a federal district court is the more appropriate forum for addressing allegations that NMFS violated federal laws.

In denying Kelly’s request for the investigation, OSC declined to be the arbiter of”conflicting science” but Kelly argues the science was all pointing one way and that the problem, regardless of the fish kill, was the unlawful failure by NMFS to analyze potential impacts:

“Even the National Academy of Sciences’ report suggests that low fall and winter flows can cause adverse effects to coho due to restricted access to tributary streams. So even when deferring to the NAS report, we still have to analyze whether our anticipated reduction in the population results in a viable population over time. No such analysis is made; therefore, according to the rationale of the final opinion, the alternative plan still has elements that can cause jeopardy. By law, the agency cannot believe that an alternative may result in jeopardy, and we intentionally didn’t provide the analysis to demonstrate otherwise. I assert that there are other reasons for analyses of population effects over time that we ignored. But you don’t even need to compare the draft and final biological opinions like I suggest in my whistleblower disclosure — evidence of violation is in the final biological opinion itself.”

The reduced water levels resulted in concentrations of fish that accelerated the spread of pathogens that killed the fish, according to a January 2003 report by biologists with the California Department of Fish and Game.

“Without this lawsuit, there would be no examination of the events leading up to an environmental tragedy of enormous proportions,” commented Karen Schambach, California PEER Director, whose organization filed the OSC disclosure on Kelly’s behalf.”There has been almost a complete abdication of responsibility by Congress, which has scheduled no hearings, and the Department of Interior, which is blocking the release of two reports on the causes of the fishkill. The public must now rely on this court for justice.”


Read Mike Kelly’s deposition.

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