Vogel's declaration

March 11, 2003

By David A. Vogel

Natural Resource Scientists, Inc.

P.O. Box 1210

Red Bluff, California 96080

530-527-9587

dvogel@resourcescientists.com

I, David A. Vogel, declare as follows:

1. I am trained as a fisheries scientist and have worked in this discipline for the past 28 years. I have a Master of Science degree in Natural Resources (Fisheries) received from the University of Michigan in 1979 and a Bachelor of Science degree in Biology received from Bowling Green State University in 1974. I previously worked for the U.S. Fish and Wildlife Service (USFWS) for 14 years and the National Marine Fisheries Service (NMFS) for one year. My employment with the USFWS was in the Fishery Research Division and the Fishery Resources Division. During my tenure with the federal government, I received numerous superior and outstanding achievement awards and commendations, including Fisheries Management Biologist of the Year Award for six western states.

For the past 13 years I have been a consulting fisheries scientist, primarily working on fishery resource issues in the western United States. I have worked on biological resource projects in the states of California, Oregon, Washington, South Dakota, North Dakota, Wyoming, Nevada, New Jersey, Hawaii, and along the Gulf of Mexico. I have worked as a consulting fisheries scientist on behalf of federal, state, and county governments, Indian tribes, and numerous other public and private groups. I am presently the Principal Scientific Investigator for research projects on salmon on behalf of federal and state agencies in California.

I have extensive knowledge of the habitat requirements for fish species in rivers, streams, lakes, reservoirs, and estuaries. During my employment with the USFWS from 1981 to 1990, I directed a large program to perform research on salmon in California's Central Valley and developed fishery resource restoration measures. I also performed numerous research projects on salmon for the USFWS in many rivers and streams in the Pacific Northwest. I have performed research projects on coho salmon, as well as many other species. I have personally conducted and supervised evaluations of the relationship between variable flow regimes and fish populations, including work relied on by state and federal agencies. I have worked for the U.S. Department of Justice, the U.S. Department of Interior, the California Attorney General's Office and other entities as an expert witness on fishery resource issues.

2. For more than a decade, I have advised the Klamath Water Users Association (KWUA) on Klamath River basin fishery resource issues. I was a principal contributor of biological information for the 1992 Biological Assessment on Long-Term Operations of the Klamath Project. I was the principal author of the "Initial Ecosystem Restoration Plan for the Upper Klamath River Basin" in 1993 and one of the primary contributing authors to the Upper Basin Amendment to the Klamath River fishery restoration program. I have prior knowledge and work experience in the Klamath River through my work with the USFWS and served as the Acting Project Leader for the Klamath River salmon projects in the mid-1980s. Additionally, I became very familiar with Klamath River salmon issues through my representation on the California Department of Fish and Game's (CDFG) Salmon Smolt Quality Committee during an eight-year period in the 1980s and through various temporary assignments as the USFWS Division Manager for fishery resources in California, Idaho, and Nevada during the late 1980s. I was a peer reviewer of the recently published report by the National Research Council's (NRC) Klamath Committee of the National Academy of Sciences entitled, "Scientific Evaluation of Biological Opinions on Endangered and Threatened Fishes in the Klamath River Basin, Interim Report."

3. I am very familiar with the Endangered Species Act (ESA) Section 7 Consultation process through my prior work with the USFWS and as a consultant, and have been involved with numerous other Section 7 Consultations on threatened or endangered species. In 2002, I provided testimony to the U.S. Congress House Resources Committee concerning the use of peer review for scientific decisions under the ESA.

4. In April 2002 I submitted a declaration (Exhibit 1 and Attachments A through D) in support of an amicus curiae brief filed by KWUA in opposition to motion for temporary restraining order in Pacific Coast Federation of Fishermen's Associations et al. vs. U.S. Bureau of Reclamation and NMFS.

5. I have reviewed Ms. Pierce's, Mr. Belchik's, and Mr. Orcutt's declarations in support of the plaintiffs' motion filed in this matter, the 2002 and prior NMFS Biological Opinions on the Operations of the Klamath Project, the January 2003 CDFG fish kill report, the Hardy Phase I report and draft Hardy Phase II report, the National Academy of Sciences' NRC "Scientific Evaluation of Biological Opinions on Endangered and Threatened Fishes in the Klamath River Basin," and many other related reports and documents related to the Klamath River basin.

6. As an initial matter, it is important to note that the declarations by Ms. Pierce, Mr. Belchik, and Mr. Orcutt in reference to the September 2002 fish kill actually focus on Chinook salmon, a non-ESA listed species, not coho salmon, an ESA-listed threatened species. Mr. Belchik's and Mr. Orcutt's declarations disclose that only a very small percentage of the dead fish observed were coho salmon. The CDFG fish kill report estimated that only 0.5% to 1.5% of the fish were coho salmon. CDFG reported that only 13 dead coho were observed during the agency's surveys and, of that number, only 3 were wild fish and the rest were hatchery fish.

7. Ms. Pierce, Mr. Belchik, and Mr. Orcutt refer to the draft Hardy Phase II report to support their arguments that increased Iron Gate Dam releases would have prevented the fish kill located more than 170 miles downstream (Figure 1). Having reviewed the draft Hardy Phase II report, I found no data, analyses, or discussion on this topic applicable to prevention of a fish kill in the lower Klamath River. Instead, the draft Hardy Phase II report was based on a computer modeling exercise and field work to recommend instream flows for physical habitats for salmon (e.g., spawning and rearing).

8. In my April 2002 declaration, I described the problems associated with reliance on the draft Hardy Phase II report. The report is still in draft format and my opinion on the inappropriate use of it remains the same.

9. Recently, I conducted a much more extensive review of the draft Hardy Phase II report and found numerous major errors. This report, which Ms. Pierce, Mr. Belchik, and Mr. Orcutt rely on in their declarations, contains fatal flaws which are discussed, in part, below.

10. I examined some of the field sites used for the draft Hardy Phase II report and found that those areas were notably non-representative of the majority of fish habitats in the Klamath River; it appears that those sites I examined may have been chosen more for ease of access. Many of the most-representative fish habitats in the Klamath River are more difficult to access than the Hardy Phase II study sites I examined. This is one reason, among many, why I believe the ultimate computer modeling outputs in the draft Hardy Phase II report are artificially skewed to erroneously conclude that very high Iron Gate Dam releases are needed for salmon in the main stem Klamath River.

11. One of the major errors occurred in the draft Hardy Phase II report when the authors assumed, without supporting data, that habitat usage of Chinook fry in the main stem Klamath River should be used as a surrogate for coho fry, despite well-known differences in habitat criteria between the species. This erroneous, unsubstantiated assumption alone brings into serious question the validity of conclusions in the draft Hardy Phase II Report. The NRC Klamath Committee also recognized the deficiency of such an assumption in their letter report to NMFS. The NRC Committee stated: "In evaluating modeling results for other life stages, the committee was skeptical of analogies that were drawn between habitat requirements of coho and chinook salmon, because their life histories differ in important ways."

12. Additionally, authors of the draft Hardy Phase II Report introduced invalid mathematical computations into computer-modeled fish habitat that skewed outputs to conclude very high flows would create more salmon rearing habitat. Their modifications created an enormous impact on the final output of estimated salmonid habitat without supporting evidence. As a consequence, the draft Hardy Phase II Report greatly under-represented ideal habitats found in the main stem channel. The assumptions on salmon rearing habitat presented in that report are nearly opposite of those derived from numerous studies in other river systems. The best empirical evidence to date indicates that the draft Hardy Phase II Report's assumptions on main stem Klamath River rearing habitat do not accurately reflect a correct modeling of fish habitat conditions known elsewhere to be suitable. As a result, there is by no means a consensus as to what constitutes good or ideal rearing habitat for juvenile salmon in the Klamath River.

13. I also found that the draft Hardy Phase II Report was severely constrained by biological data collection during high flow conditions that created unintentional, but severe, bias in the results. This problem was further compounded by inappropriate sampling techniques that resulted in misinterpretation of fish utilization of habitats in the Klamath River. The consequence was that a large disproportionate sampling of selective habitats combined with high flow conditions occurred during the Phase II study. These circumstances are a plausible explanation of why salmonid rearing in the Klamath River was erroneously presumed to be so different in the draft Hardy Phase II report from that widely known to occur elsewhere. It would also explain why the draft Phase II Report's computer modeling results showed almost no suitable rearing habitat within the main river channel.

14. In my opinion, the process leading to the draft Hardy Phase II report was severely constrained and flawed by exclusion of other expertise, stakeholders, and knowledgeable individuals. In conducting instream flow studies, the U.S. Geological Survey emphasized the value of bringing in outside experts, use of neutral parties, and numerous other techniques to improve the validity of such studies. Clearly, much more work needs to be accomplished to rectify the mistakes made in the Phase II process. To date, technical input to stakeholders involved with the Phase II process by outside experts and other stakeholders has not been welcomed. Until that obstacle is overcome, it will be difficult to develop a more comprehensive and objective assessment of habitat needs for anadromous salmonids in the Klamath River.

15. Much of Ms. Pierce's and Mr. Belchik's declarations focus on water temperatures in the Klamath River. Water temperatures are extremely important in this issue because of the adverse impact high water temperatures can have on salmon (such as causing disease outbreaks described in Mr. Belchik's declaration). The topic is also important because of how water project operations can, or cannot, affect water temperatures in riverine areas important to salmon. The following provides information to correct some misleading information provided in their declarations.

16. During late summer and early fall of 2002, I conducted a field investigation to assess water temperatures in the main stem Klamath River. The study was performed because of potential issues arising from naturally dry hydrologic conditions and possible attendant effects of water temperatures on fall-run Chinook salmon in the main stem Klamath River downstream of Iron Gate Dam. I expected that results would be valuable in providing scientific information that could be utilized to improve future management of Klamath River Basin water resources. Main stem water temperatures were measured hourly just prior to and during the fall-run Chinook salmon migration season.

17. I found that water temperatures in the upper Klamath River downstream of Iron Gate Dam during September 2002 were unsuitable for adult salmon. This finding was similar to that of previous studies. As expected, a normal seasonal cooling trend at the end of September and early October provided the moderating influence lowering Klamath River temperatures to tolerable levels for salmon.

18. Ms. Pierce's and Mr. Belchik's declarations state that water temperatures at Iron Gate Dam were 6 degrees cooler than water temperatures in the vicinity of the fish kill more than 170 miles downstream of Iron Gate Dam. They suggest, but do not describe how, increased Iron Gate Dam releases in the upper river could have ameliorated water temperatures in the lower river. I examined Mr. Belchik's data for maximum water temperatures measured in the area of the fish kill at River Mile 6 and maximum water temperatures at River Mile 183 (7 miles downstream of Iron Gate Dam). Those data are shown in Figure 2. Ms. Pierce and Mr. Belchik are incorrect in assuming that water temperatures in the upper river were 6 degrees cooler than the area of the fish kill. Maximum water temperatures in the upper Klamath River were much higher than the lower river just prior to the fish kill and very similar during the time of the fish kill.

19. There is no evidence to indicate that increasing upper Klamath reservoir releases during late summer or early fall during naturally dry hydrologic conditions, such as occurred in September 2002, would benefit salmon. In fact, because of a variety of meteorological, physical, and biological reasons, artificially increasing flows at that time would probably be harmful. This is due to the fact that Iron Gate Dam discharges are too warm for salmon during much of September. Additionally, there is no evidence that releasing more water from Iron Gate Dam during early or mid-September could have prevented a fish kill more than 170 river miles downstream because upper main stem temperatures were within the range known to cause mortality or reproductive failure in salmon. The gradual declining temperatures in the Klamath River downstream of Iron Gate Dam during the fall are primarily attributable to normal seasonal declines in ambient air temperatures, not river flow.

20. In 1994, I co-authored a technical report, which concluded that any increased flows from Iron Gate Dam, pulsed or otherwise, to benefit adult salmon should only occur during late September or early October to coincide with normal seasonal declines in air temperatures and concomitant cooler river flows. Earlier seasonal increased releases from Iron Gate Dam are unlikely to provide biological benefits because the water is naturally too warm. Based on my research in 2002, my conclusions remain the same.

21. My conclusions concerning the effect of Iron Gate Dam releases and upper main stem Klamath River water temperatures in the fall are similar to the findings of other researchers. For example, Deas and Orlob (1999) found the following: "During early fall, mean daily measured water temperatures are fairly uniform throughout the river system. However, by late fall it is apparent that temperatures are decreasing in the downstream direction by late fall, i.e., after October 1. During this period, releases from Iron Gate Dam are generally at temperatures above equilibrium and the reservoir is acting as a heat source to the river."

22. Therefore, Ms. Pierce's, Mr. Belchik's, and Mr. Orcutt's arguments are lacking because they do not articulate how increased releases from Iron Gate Dam could have prevented the fish kill more than 170 river miles downstream of the dam. If the primary cause of the fish kill was warm water, it was physically impossible for Iron Gate Dam to cool the river down to tolerable levels for salmon.

23. However, unlike the upper Klamath River during September, the Trinity River does have cold water suitable for salmon. I examined and compared the maximum water temperatures during September 2002 at the following three locations: 1) the Klamath River downstream of Iron Gate Dam, 2) the Trinity River downstream of Lewiston Dam, and 3) the lower Klamath River at river mile 6 in the area of the fish kill (Figure 1). Those data are shown in Figure 3. As is clearly evident, although water temperatures downstream of Iron Gate Dam were as warm or warmer than the area of the fish kill during most of September, water temperatures in the upper Trinity River were much cooler and within the suitable, if not optimal, range for salmon. The significance of this fact is that, prior to the time of the fish kill in the lower Klamath River, water temperatures were hostile for salmon in the main stem downstream of Iron Gate Dam, whereas temperatures in the main stem Trinity River downstream of Lewiston Dam were suitable for salmon. Increased Iron Gate Dam releases could not have cooled down the upper main stem Klamath River but increased Lewiston Dam releases undoubtedly could have cooled down at least a portion of the main stem Trinity River downstream of Lewiston Dam providing thermal refuge for salmon in that area of the basin. Notably, Ms. Pierce, Mr. Belchik, Mr. Orcutt, and the CDFG fish kill report do not disclose or discuss the important biological relevance of this fact. Instead they chose to focus only on Iron Gate Dam releases.

24. Mr. Belchik's declaration asserts that 2002 was unique because there was a large salmon run and low Iron Gate Dam flows. He postulates that this circumstance is an explanation for the fish kill in September 2002. Contrary to his claim, 1988 had a much larger salmon run than 2002 and the lower Klamath River flows were similar to that observed in 2002. According to the CDFG fish kill report, in 1988 the lower Klamath River flow during September was 2,130 cfs, the salmon run was 215,322 fish and there was no consequent fish kill; in 2002, the lower Klamath River flow during September was 2,129 cfs and the salmon run was 132,600 fish. These facts provide empirical evidence that his assumption is invalid.

25. Mr. Belchik also asserts that toxic substances could not have caused the fish kill, but he does not disclose an important fact revealed in the CDFG fish kill report: water samples were not taken until 7 days after the onset of the fish kill. Therefore, that potential source of mortality is still in question. To date, I am unaware of any evidence ruling out the possibility that toxic substances may have caused the fish kill.

26. There are data provided in Mr. Belchik's declaration that he apparently overlooked and contrast with his conclusions. This information provides some evidence of probable causal factors for the fish kill. As noted in Figure 7 of Mr. Belchik's declaration, a pronounced, and uncharacteristic, cooling trend in the lower river occurred in late August. According to the CDFG fish kill report, an early, uncharacteristic peak run of salmon occurred concurrently in the lower river. Those data suggest that large numbers of salmon likely entered the lower river earlier than usual in response to the sudden cooling trend. However, a pronounced warming trend followed which exposed the undoubtedly crowded fish that had already entered the river to stressful conditions. By the second week in September 2002, a precipitous decline in water temperatures occurred that likely prompted even more fish to enter the lower river.

Stress in fish is cumulative, so it is important to examine sequences of events that may result in this phenomenon. Those fish already chronically stressed would have been exposed to additional stress and more crowded conditions in this sequence of events. This scenario created ideal conditions for a fish kill that occurred when water temperatures suddenly and uncharacteristically increased to stressful levels by the third week in September (Figure 7 in Mr. Belchik's declaration). I examined daily air temperatures during this period (using weather data reported from Yreka, California) and found close correspondence to the changes in water temperatures in the lower river (Figure 4).

In summary, it appears that large numbers of salmon entered the lower Klamath River earlier than usual, were exposed to two dramatic and uncharacteristic cooling and warming conditions that were chronically and cumulatively stressful to fish. At the same time, riverine conditions in the upper Klamath River were unsuitably warm for salmon because the normal seasonal cooling trend had not yet occurred. These data indicate that September 2002 was unique, but not for the reasons portrayed in Mr. Belchik's declaration or CDFG's fish kill report. Until I acquire additional data on the topic, my opinion is that the combination of those factors is probably the most plausible reason for the fish kill.

27. In comparison to the incident on the Klamath River, it is important to note that a large fish kill of spring-run Chinook salmon occurred in Butte Creek, California in the summer of 2002. CDFG estimated that approximately 3,000 adult spring-run Chinook, a federally listed threatened species, died in Butte Creek downstream of Centerville Head Dam. CDFG attributed this fish kill to a combination of warm water and overcrowding of fish causing a disease outbreak of columnaris. Unlike the situation on the Klamath, CDFG suggested the kill was a result of natural conditions and did not cite the fundamental cause of the fish kill to water project operations in Butte Creek. Unlike the Klamath River, where small numbers of a threatened species died, very large numbers of a threatened species died in Butte Creek. Also, unlike the situation on the Klamath, CDFG referred to this unfortunate event in Butte Creek as a "die-off" not a "fish kill."

28. I have reviewed CDFG's Klamath River fish kill report and found several major errors. I am currently preparing an in-depth review of that report pending receipt of information and data requested from the USFWS. Among the errors I uncovered was the inappropriate use of monthly average air temperatures and monthly average water temperatures to derive conclusions on potential cause and effects on the fish kill. The use of monthly averages can mask important daily changes in temperatures stressful to fish such as that previously described and illustrated. Mr. Belchik's declaration also pointed out this error in CDFG's report. Additionally, I found that CDFG incorrectly plotted water temperature data collected in the area of the fish kill. As can be seen from Figure 5, CDFG mistakenly plotted water temperature data in the lower river skewed four days earlier than when the data were actually collected. The significance of this is that CDFG's report misrepresented important water temperature data collected just prior to and during the period of the fish kill. If CDFG had correctly plotted the data, it would have shown a correspondence of the sudden increase in water temperatures during the period when large numbers of salmon were present in the lower river and died. Additionally, CDFG's (and Mr. Belchik's) speculation concerning a physical fish passage barrier in the lower Klamath River is not supported because: 1) fish passage occurred in other years with similar or less flow; and 2) data in the CDFG report demonstrates fish passage occurred during the flow conditions present prior to the fish kill. A lengthy discussion in the report, based on these errors, should be wholly dismissed and reexamined correctly.

29. In my opinion, the best available scientific data and information indicate that the continued operation and maintenance of historical flows at Iron Gate Dam will not jeopardize coho salmon. Furthermore, in my opinion the operations of Iron Gate Dam during the summer and fall of 2002 did not cause and could not have prevented the fish kill in the lower Klamath River. Large numbers of salmon entered the lower Klamath River earlier than usual and were exposed to two dramatic and uncharacteristic cooling and warming conditions causing disease outbreak from warm water and crowded conditions. The combination of these factors was chronically and cumulatively stressful to fish and is probably the most plausible reason for the fish kill. Although it remains speculative if increased Trinity reservoir releases could have prevented the fish kill, the main stem Trinity River portion of the Klamath River Basin (unlike the upper Klamath River main stem) was much cooler and within the suitable range for salmon during September 2002. This could have potentially provided thermal refuge in a least some portion of the main stem Trinity River downstream of Lewiston Dam.

I declare under penalty of perjury that the foregoing is true and correct. Executed this 11th day of March 2003, at Red Bluff, California.

David A. Vogel