[Congressional Record Volume 166, Number 199 (Tuesday, November 24, 2020)]
[Extensions of Remarks]
[Pages E1067-E1068]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]





  IN SUPPORT OF SCIENTIFIC INTEGRITY AT THE DEPARTMENT OF THE INTERIOR

                                 ______
                                 

                           HON. JARED HUFFMAN

                             of california

                    in the house of representatives

                       Tuesday, November 24, 2020

  Mr. HUFFMAN. Madam Speaker, I rise today with great concern. Even on 
their way out the door, the Trump administration's ``favor factory'' at 
the Interior Department continues to try to deliver for well-connected 
interests. We have been conducting oversight over these efforts 
throughout this Congress, and I want to share with my colleagues just 
one of the documents we have been provided, which clearly outlines a 
political agenda overriding science, the law, and the public interest. 
I am hopeful that the courts and the incoming administration will be 
able to reinstate scientific integrity to the policymaking process.

         United States Department of Commerce, National Oceanic 
           and Atmospheric Administration, National Marine 
           Fisheries Service,
                                                   Sacramento, CA.
     Date: July 1, 2019
     Memorandum for: ROC LTO Consultation, ARN# 151422-WCR2016-
         SA00300
     From: Howard Brown
     Subject: Long-term Operation of the Central Valley Project 
         and State Water Project: Consultation Process
       I am the Policy Advisor for the Reinitiation of 
     Consultation on the Long-term Operation of the Central Valley 
     Project and State Water Project. This memo is intended to 
     capture, from my own professional perspective, elements of 
     the consultation that were unusual in nature and that may 
     have denigrated the scientific integrity of the Endangered 
     Species Act (ESA) Section 7 process. I have over 18 years 
     working for NOAA Fisheries (NMFS) and have extensive 
     experience writing and reviewing BOs, many of which were 
     complicated and controversial. This consultation was not like 
     any other that I have been involved. From the beginning of 
     this consultation it was clear to me that the pendulum was 
     always going to swing in the favor of political decisions 
     being made by the Department of Interior (DOI) at the expense 
     of the ESA Section 7 process and scientific integrity.
     General
       The timeline for the consultation was directed by an 
     October 19, 2018, Memorandum from the White House. The 
     Memorandum directed Reclamation to issue a final Biological 
     Assessment (BA) by January 31, 2018 and for NMFS to issue a 
     final Biological Opinion ``BO'' within 135 day of receiving 
     this date. The timeline for completing this consultation was 
     completely unrealistic, given the complexity of the action. 
     From my perspective, the aggressive schedule was established 
     to set us up for failure, or at the very least to make it 
     difficult to incorporate the best available scientific 
     information into the NMFS BO or for us to complete a 
     credible, repeatable, defensible analysis.
       The lead Federal representative assigned to oversee the 
     project seemed biased in the execution of his role and 
     routinely favored the positions of the Bureau of Reclamation 
     (Reclamation). This seemed unusual to me and I would have 
     expected this representative to serve the role more 
     independently. The representative repeatedly referred to 
     Reclamation as ``we'' or ``our'', which indicated to me that 
     he was essentially serving as an extension of the agency.
     Development of the Biological Assessment
       NMFS was very engaged in the development of the BA. Almost 
     immediately after the October 19, 2018 Memorandum, we 
     provided Reclamation with a proposed outline that would allow 
     for ease-of-integration into the NMFS Biological Opinion BO, 
     and we provided an annotated list of the recent science and 
     biological models that we felt should be considered. We also 
     participated in almost every ``Tiger Team'' meeting up until 
     the lapse of Federal appropriations triggered a month long 
     Federal furlough. Our mindset was to be cooperative and 
     solution oriented and to provide technical and scientific 
     support to Reclamation to help them develop and analyze a 
     proposed action for the BA with the final objective of 
     supporting a ``no-jeopardy'' BO.
       Soon after we shared the outline and list of science and 
     models we were directed to stop sharing electric documents 
     with Reclamation. This made it very difficult to provide 
     useful information in a timely manner, made it difficult to 
     provide meaningful comments to Reclamation, made it difficult 
     to share best available science to Reclamation.
       Reclamation used Google Drive as used as a platform for 
     developing the BA. The U.S. Fish and Wildlife Service (USFWS) 
     had access to the drive but not NMFS. We made multiple 
     requests to be granted access and were told that it was a DOI 
     technical issue that could not be resolved. We offered to 
     help resolve the matter and our IT specialist contacted 
     Reclamation's IT staff with emails and phone calls, but 
     Reclamation never responded. The lack of access made it very 
     difficult to keep up with the latest version of the BA.
       NMFS provided high-level comments on the first draft of the 
     BA that we were able to review. We provided our comments 
     verbally and left hard copies with Reclamation. Despite 
     several requests for Reclamation to follow-up on how they 
     addressed our comments, we never received a response.
       We did begin providing comments to Reclamation that we 
     passed onto their staff using portable thumb drives.
       One of the comments that we made most often, was that the 
     description of the proposed action was ambiguous and would be 
     difficult to analyze. This applied to their description of 
     Core Water Operations, but also to their suite of 
     conservation actions, that later became known as 
     Collaborative Actions. We informed Reclamation that without 
     more details about how actions would be implemented, NMFS 
     would have to apply conservative assumptions that would 
     benefit the conservation of the species. I recall that we 
     made this kind of statement multiple times but did not get 
     much traction in terms of developing more specificity.
       NMFS made recommendations to use established, peer reviewed 
     biological models to support the analysis of the BA because 
     we felt that the use of these models represented the 
     application of best available science. DOI solicitors at the 
     meeting questioned the use of a model represented best 
     available science and Reclamation staff said told us that 
     although they did not disagree, they had been directed to not 
     use biological modeling to support the analysis of the BA. 
     From my view, this was one of the first attempts to influence 
     the scientific integrity of the consultation process.
       Reclamation developed a ``without action'' scenario for the 
     Environmental Baseline of the BA, arguing that that in a 
     consultation on an ongoing action, a without-action scenario 
     must be applied in order to isolate the effects of the 
     action. The without-action scenario entailed no future 
     operations of the Central Valley Project and State Water 
     Project: in other words, no discretionary regulation of flows 
     through the system, including, for example, storing and 
     releasing water from reservoirs and delivering water 
     otherwise required by contract. We had significant concerns 
     with this approach. The first was that this application is 
     not consistent with the regulatory definition of 
     Environmental Baseline; we argued that the analysis in the 
     Environmental Baseline should be consistent with the 
     regulatory definition. The second is that this scenario 
     has no basis in reality and that it should not be applied 
     because it only serves to confuse the analysis. Our third 
     concern was that we were not consulting on an ongoing 
     operation; although many of the operational elements were 
     similar, the action was fundamentally different in that 
     exports were proposed to increase significantly and many 
     of the actions from the previous consultation, most 
     notably the Reasonable and Prudent Alternative (RPA) from 
     the NMFS BO were excluded from the action.
       Reclamation then carried this without action scenario 
     forward into their effects analysis as a ``without action 
     analysis'' (WOA) and completed a wholly comparative analysis 
     where the proposed action was compared against the WOA. This 
     set up a fundamental flaw in the consultation because it made 
     it appear that the effects of the action were better in 
     comparison to the WOA. This flaw was not isolated only to the 
     BA because Reclamation and DOI spent much time and effort 
     seeking to apply this approach to the NMFS BO.
       In contrast to the development of the NMFS BO, the process 
     of developing the BA seemed to have very little oversight 
     from the lead Federal representative even though the NMFS 
     team was routinely briefing and elevating areas of serious 
     concern. Although we routinely elevated areas of concern 
     there did not seem to be much effort to address our concerns. 
     In fact, we were routinely told that although our elevated 
     concerns were legitimate, there was simply not enough time to 
     address them in the BA and that we would have to work through 
     them during the drafting of the BO. This created another 
     fundamental flaw in the process because rather than 
     cooperating to make adjustments to the proposed action, we 
     were forced to analyze ambiguous action descriptions that had 
     very little detail or analyze actions that had seemingly 
     significant effects. This placed unreasonable burden on NMFS 
     during the drafting of the BO.
     Development of the Biological Opinion
       NMFS received the first ``Final'' BA on January 21, 2018. 
     We immediately started our

[[Page E1068]]

     review. Within hours we were told by Reclamation to stop our 
     review until they had a chance to make some changes.
       On February 5, 2019, Reclamation submitted a second 
     ``Final'' BA and NMFS continued to review the document. We 
     spent the next several weeks carefully reviewing the proposed 
     action and analysis and quickly determined that we did not 
     have sufficient information to initiate ESA Section 7 
     consultation. Under any other circumstance, we would have 
     notified the lead Federal action agency that the BA did not 
     meet the minimum standards for initiating consultation and we 
     would not have initiated the consultation. Most 
     significantly, the BA did not have a clear description of the 
     action to be covered.
       After completing our review if the BA, NMFS spent 
     approximately two weeks in focus-group meetings with 
     Reclamation trying to get a better understanding of the 
     proposed action. My sense is that the meetings were helpful 
     but that staff still felt that they were managing a lot of 
     ambiguity.
       NMFS also began to take on the biological modeling that we 
     had recommended for the BA. Reclamation was supportive of 
     this effort and made their consulting teams available to help 
     with modeling runs. We also had to find funds to support the 
     NMFS Southwest Fisheries Science Center to conduct a run of 
     the Winter-run Life Cycle Model. We felt that the results of 
     these modeling efforts were critical to our mandate to apply 
     the best available scientific information to the BO. Taking 
     on these modeling commitments was a significant task and took 
     away staff time from actually drafting the BO.
       In April, Reclamation issued a third ``Final'' BA and our 
     staff spent a considerable amount of time understanding the 
     changes and incorporating them into the BO.
       In late April, DOI started to insist that we share the 
     draft BO much sooner that we had planned. Our original plan 
     had a joint Reclamation, WIIN Act Public Water Agency and 
     Independent Peer Review scheduled for late May. We were 
     directed by the lead Federal representative to start sharing 
     the drafts sections of the BO, while the sections were very 
     much in the early drafting stage. This initiated a sequence 
     of events and meetings that consumed much of our available 
     time and were almost impossible for our drafting team to 
     recovery from.
       During the first wave of reviews we received over 500 
     comments on the Shasta section, nearly 190 comments on the 
     Delta and hundreds of comments on other sections. We were 
     directed into all-day Tiger Team meetings and Director 
     meetings to clarify the characterization of the proposed 
     action and to scrutinize our effects analysis. The lead 
     Federal representative routinely made statements that our 
     effects analysis was ``an extreme worse-case scenario'' and 
     that it was hard to understand how we were having trouble 
     with the 4-tiered Shasta Cold Water Temperature Management 
     Plan when ``at the end of the day we have a much bigger cold 
     water pool and that should only help us''. These statements 
     were not helpful and only added to the confusion and emerging 
     divide between NMFS and Reclamation.
       Although the staff-level Tiger Team meetings were costly in 
     terms of time and staff resources they were important because 
     once we were able to focus on the priority comments, we took 
     the time to get into details of the proposed action and 
     effects at a level that we were not able to during the focus 
     group sessions. These working sessions improved the quality 
     of the BO. During these meetings, I reflected that this is 
     exactly how the Section 7 consultation process should work, 
     but unfortunately, the time constraints did not allow for 
     this deliberation between agencies to run a more natural 
     course.
       These meetings were followed by a series of Director-level 
     elevations to resolve matters related to the NMFS analysis of 
     effects on Shasta temperature management and juvenile fish 
     loss at the export facilities. We agreed to a general course 
     of action to develop management objectives for Shasta 
     temperatures and loss at the export facilities. Accomplishing 
     this task would take time and a two week extension was 
     granted to the consultation period to allow us to work 
     through this and to ``clean up the analysis''. The final BO 
     would now be due on July 1, 2019.
       As we moved toward WIIN Act Public Water Agency and 
     Independent Scientific Peer Review, DOI's concern with our 
     analysis began to breach the scientific integrity of the 
     process. Most significant was, what I believe was a political 
     decision to extract our ``Integration and Synthesis'' section 
     from the Effects Analysis for the review. The Integration and 
     Synthesis section is, perhaps, the most important part of any 
     BO, because it is in this section that our ``jeopardy 
     analysis'' occurs; where we actually complete the aggregate 
     analysis that supports our conclusion. The direction to 
     extract this section from review, particularly Independent 
     Scientific Peer Review, seemed completely contradictory to 
     the NOAA policy on scientific integrity from NOAA 
     Administrative Order 202-735D: Scientific Integrity. This 
     order was issued to promote a culture of scientific integrity 
     and excellence and establishes an understanding that there 
     must be a commitment between scientists, managers and those 
     who set policy to follow a code of scientific conduct and 
     ethics. I feel that in being directed to extract this section 
     was in direct conflict with the goals of the policy.
       On June 14, 2019, Reclamation issued a revision to the 
     proposed action. NMFS had to review the revision and 
     incorporate the changes into the analysis of the BO. Due to 
     time constraints, we accomplished this through supplemental 
     analyses that were essentially tagged on to the end of the 
     Shasta and Delta analyses. This was not ideal, and from my 
     perspective, did not meet Reclamation's satisfaction, but it 
     was the best we could do given time constraints.
       Although we spent quite a bit of time working directly with 
     Reclamation to accurately characterize the proposed action 
     and we spent more time independently working on the effects 
     analysis. A second review of the draft BO signaled to DOI 
     that they were still not pleased with the way or effects 
     analysis was reading. Based on this a second extension to the 
     consultation is currently being considered.
       Ultimately, the NMFS Central Valley Office completed a 
     draft BO that we sent to Barry Thom, the WCR Regional 
     Administrator, on July 1, 2019. I believe that, considering 
     the time constraints and the complexities of this 
     consultation, that this BO does a good job of analyzing the 
     effects of Reclamation's proposed action and that the draft 
     conclusion of the BO is sound and supported by the best 
     available science.

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