396 HAYES STREET, SAN FRANCISCO, CA 94102 KEVIN P.

BUNDY
T: (415) 552-7272 F: (415) 552-5816 Attorney
www.smwlaw.com bundy@smwlaw.com

February 6, 2020

Via E-Mail

Ms. Michelle Siebal

State Water Resources Control Board
Division of Water Rights –
Water Quality Certification Program
P.O. Box 2000
Sacramento, CA 95812-2000
E-Mail: WR401Program@waterboards.ca.gov

Re: Lower Klamath Project Recirculated Draft EIR

Dear Ms. Siebal:

This firm represents the Native Fish Society in matters relating to the
proposed Lower Klamath License Surrender Project (“Project”). On behalf of our client,
we have reviewed the Recirculated Portions of the Draft Environmental Impact Report
(“RDEIR”) and respectfully submit these comments to help ensure that agency decision-
makers fully comply with the California Environmental Quality Act (“CEQA”), Public
Resources Code § 21000 et seq., and the CEQA Guidelines, California Code of
Regulations, Title 14, § 15000 et seq. (“Guidelines”).

This letter follows several prior letters regarding this Project: (1) a letter
from this firm dated February 26, 2019, commenting on the Draft Environmental Impact
Report (“DEIR”); (2) a comment letter submitted February 26, 2019, by the Native Fish
Society and a coalition of scientists, conservation groups, and interested business entities
regarding the DEIR; and (3) a comment letter dated July 23, 2018, submitted by the
Native Fish Society together with a coalition of scientists, conservation groups, and
interested business entities on the Project scoping document (collectively, the “Prior
Ms. Michelle Siebal
February 6, 2020
Page 2

Comments”). This letter incorporates the Prior Comments, and the references cited in the
Prior Comments, as if fully set forth herein.1

The RDEIR does not consider many of the topics discussed in the Prior
Comments. Nor does it respond to issues raised in the Prior Comments for the most part.
Moreover, the EIR as a whole does not contain the full analysis requested in the coalition
comments on the scoping document. All of the Prior Comments thus remain relevant and
applicable to the EIR as a whole. The comments that follow focus primarily on the
RDEIR’s analysis of greenhouse gas (“GHG”) emissions and energy impacts, as well as
its updated discussion of the No Hatchery Alternative.

I. The RDEIR’s analysis of GHG and energy impacts is deficient.

The RDEIR fails to disclose, analyze, and propose adequate mitigation for
the Project’s GHG emissions and energy impacts in accordance with CEQA.

The RDEIR uses a “no net increase” threshold to measure the significance
of GHG emissions. (RDEIR at RE-3-68.) Accordingly, any increase in GHG emissions
over existing conditions is considered significant. This is not an unreasonable threshold
per se, but it is a quantitative threshold; accordingly, the RDEIR’s significance
conclusions in relation to the threshold must be supported by a quantitative analysis and
evidence. “[W]hen [an] agency chooses to rely completely on a single quantitative
method to justify a no-significance finding, CEQA demands the agency research and
document the quantitative parameters essential to that method.” (Center for Biological
Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, 228.)

The RDEIR fails to provide an adequate quantitative analysis here because

it does not quantify emissions from the two hatcheries that would continue to operate for
eight years under the Project. The RDEIR attempts to quantify GHG emissions from
virtually every other component of the Project, from construction to reservoir drawdown
to sediment mobilization. (See RDEIR at RE-3-72 to -75.) For the Iron Gate and Fall
Creek Hatcheries, in contrast, the RDEIR states only that because emissions from
operation of the hatcheries are “expected” to be lower than emissions from the four
existing Lower Klamath Project facilities plus Iron Gate Hatchery (RDEIR at RE-3-70 to
-71), “no net increase” in emissions would occur as a result of maintaining Iron Gate

1
For ease of reference, attached as Exhibits F and G hereto are copies of a scientific
study and a North Coast Regional Water Quality Control Board order cited and discussed
in this firm’s February 26, 2019 comment letter.
Ms. Michelle Siebal
February 6, 2020
Page 3

Hatchery and reopening Fall Creek Hatchery. (RDEIR at RE-3-81.) The RDEIR reaches
the same conclusion regarding energy impacts. (RDEIR at RE-3-77.)

The RDEIR’s approach is impermissible for several reasons. First, it omits

critical information about the Project. The Project explicitly includes operation of the two
hatcheries for eight years. Yet the GHG and energy analysis—which quantifies both
construction and operational emissions from all other components of the Project—fails to
disclose both emissions and energy usage from hatchery operation. The RDEIR’s
statement that hatchery operations will result in “no net increase” in emissions or energy
usage (see RDEIR at RE-3-77, -81) is merely conclusory and unsupported by any
analysis. An “EIR must contain facts and analysis, not just the bare conclusions of the
agency.” (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124
Cal.App.4th 1184, 1197 [quotation omitted].)

Second, the RDEIR improperly—and misleadingly—treats the hatcheries

as having no emissions. Even the RDEIR’s conclusory “no net increase” statement
suggests that GHG emissions and energy usage from hatchery operations will be greater
than zero; nothing in the RDEIR supports a conclusion that the hatcheries will have zero
emissions. Yet Table RE-3.10-10 (RDEIR at RE-3-81) effectively treats operational
hatchery emissions under the Project as zero by failing to add them to the sum of other
Project construction emissions. As a result, the quantitative “Total Emissions” figures
provided in the RDEIR omit emissions associated with hatchery operations, and are thus
incomplete and inaccurate. Omission of information about hatchery emissions and energy
usage prejudices both informed decision-making and development of adequate
mitigation, and deprives the RDEIR’s significance conclusions of necessary evidentiary
support. (See Center for Biological Diversity, 62 Cal.4th at 228.)

Third, by comparing energy emissions from one component of the

Project—ongoing operations at two hatcheries—to total existing emissions from all four
dams and one hatchery, the RDEIR offers a meaningless and misleading comparison. The
comparison CEQA requires here is between the proposed Project as a whole (removal of
the dams plus operation of two hatcheries) and existing environmental conditions
(operation of the four dams and Iron Gate Hatchery), not between one component of the
proposed project and existing conditions. (See CEQA Guidelines § 15125(a); see also
Friends of Oroville v. City of Oroville (2013) 219 Cal.App.4th 832, 842–843 [rejecting
GHG analysis where EIR improperly compared project emissions to inappropriate
standards and failed to quantify emissions from component of project].) Indeed, by
separating out hatchery operations from the rest of the Project and concluding they will
cause “no net increase, the RDEIR engages in improper “piecemeal” analysis. Under
CEQA, the “project” that must be analyzed is the “whole of an action” under
Ms. Michelle Siebal
February 6, 2020
Page 4

consideration. CEQA Guidelines § 15378(a). CEQA thus clearly prohibits an approach

by which “environmental considerations . . . become submerged by chopping a large
project into many little ones,” each with lesser effects, in order to avoid analysis of the
project in its entirety. (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263,
283–284.) Here, the RDEIR effectively segments ongoing hatchery operations from the
rest of the Project in order to dismiss their GHG and energy impacts as insignificant. This
is unlawful.

Fourth, and finally, the RDEIR does not justify its failure to quantify
hatchery emissions. Nowhere does the RDEIR explain why, of all the construction and
operational emissions quantified in the document, hatchery emissions could not also be
quantified. Put another way, the RDEIR fails to explain or justify its apparent decision to
pursue a qualitative analysis of GHG emissions and energy impacts from one portion of
the overall Project. As shown in the literature review attached as Exhibit A and
accompanying scientific materials, there are ample resources available to support at least
a good-faith effort to quantify emissions from the hatchery component of the Project and
include them in the analysis. The Board therefore should undertake this analysis, and
make a determination as to whether this portion of the EIR should be recirculated, before
proceeding with the Project.

II. The RDEIR’s proposed mitigation for GHG impacts is inadequate.

The RDEIR proposes a single mitigation measure that addresses only a

portion of the Project’s GHG emissions. Mitigation Measure ENR-1 would require the
applicant to purchase and retire carbon offsets for the Project’s construction emissions.
Offsets could be purchased from the California Air Resources Board (“CARB”),
California Air Pollution Control Officers Association (“CAPCOA”), the Siskiyou County
Air Pollution Control District, or “any other equivalent or verifiable registry” dealing in
carbon credits. Offsets also would be required to meet several “criteria,” including that
they be real, “additional/surplus,” quantifiable, enforceable, validated, and permanent.
(RDEIR at RE-3-83.) Mitigation Measure ENR-1 does not, however, require any offsets
for the Project’s operational emissions.

Mitigation Measure ENR-1 is inadequate in a number of ways. First and

foremost, the actual effect of GHG offset credits on overall atmospheric emissions is
inherently uncertain. (See Haya et al. 2016; attached as Exhibit B.) Even the most
rigorous offset protocols—such as those established by CARB for compliance with
California’s Cap and Trade program—are beset with uncertainties and likely
overestimate emissions reductions. (See Haya 2019; attached as Exhibit C.)
Ms. Michelle Siebal
February 6, 2020
Page 5

Second, Mitigation Measure ENR-1 fails to incorporate adequate standards

to ensure offset quality. The measure identifies a few sources of offsets, but does not
provide any evidence that offsets purchased from those sources or “any other equivalent
or verifiable registry” will meet adequate standards. CARB may issue offsets for
purposes of Cap and Trade compliance, but it does not typically issue voluntary offsets
for other purposes (such as CEQA mitigation). CAPCOA nominally operates a GHG
offset exchange (http://www.ghgrx.org/), but as of January 31, 2020, no GHG credits
were listed as available. (See GHGRx home page; attached as Exhibit D.) It is not clear
that the Siskiyou County APCD has any functioning GHG offset program, or that any
credits issued by the APCD would meet adequate standards. Absent specific requirements
for evaluating the protocols used by these (and other) registries to issue credits, there is
no evidence that the measure’s standards will be met. On the contrary, there is ample
evidence that offset credits available on the voluntary market do not constitute real,
additional emissions reductions. For example, one study of offsets under the Kyoto
Protocol’s Clean Development Mechanism—which is still used by some offset registries,
such as Verra—concluded that 85% of the reductions credited to the programs were
questionable. (See Cames et al. 2016; attached as Exhibit E). An open-ended list of
possible sources of credits is not an adequate standard for mitigation.

Third, the measure’s reference to “other equivalent or verifiable

registr[ies]” introduces further uncertainty about what standards might apply, and how
they might be evaluated. The measure provides no standards for determining what other
registries might be “equivalent or verifiable,” and does not identify the person or entity
responsible for making this determination. As a result, the measure fails to satisfy
CEQA’s requirement that mitigation measures be “fully enforceable.” (CEQA Guidelines
§ 15126.4(a)(2).) Moreover, the measure improperly defers mitigation by failing to
articulate “specific performance standards” for offset quality verification and the
“potential action(s)” necessary to achieve those standards. (Id., § 15126.4(a)(1)(B).)

Fourth, the RDEIR’s requirement that offsets be “additional/surplus” is

vague and insufficient. “Additional” and “surplus” are not necessarily the same thing.
While “surplus” generally refers to an emissions reduction not otherwise required by law
or regulation, “additional” also means that the action would not have been undertaken for
any other reason—in other words, that the emissions reductions embodied in the credit
would not have occurred but for the offset program. (See Health & Safety Code §
38562(d)(2) [to be additional, reductions must be “in addition to any greenhouse gas
emission reduction otherwise required by law or regulation, and any other greenhouse
gas emission reduction that otherwise would occur”; emphasis added]; Cal. Code Regs.,
tit. 17, §§ 95802(a) (“‘Additional’ means, in the context of offset credits, greenhouse gas
Ms. Michelle Siebal
February 6, 2020
Page 6

emission reductions or removals that exceed any greenhouse gas reduction or removals
otherwise required by law, regulation or legally binding mandate, and that exceed any
greenhouse gas reductions or removals that would otherwise occur in a conservative
business-as-usual scenario”; emphasis added].) This two-part “additionality” requirement
simply reflects basic physics: an offset credit based on reductions that would have
happened anyway, for whatever reason, does not actually offset anything.

Finally, the RDEIR fails to justify its conclusion that operational GHG
emissions from the Project cannot be mitigated. The RDEIR claims that mitigation for
emissions from reservoir drawdown and sediment release is infeasible “in light of federal
preemption,” and because these emissions are part of the “fast carbon cycle” and thus
would be unenforceable without the applicant’s agreement. (See RDEIR at RE-3-89, -93
to -94.) These conclusory, unexplained statements cannot support a finding of
infeasibility. “An EIR that incorrectly disclaims the power and duty to mitigate identified
environmental effects based on erroneous legal assumptions is not sufficient as an
informative document.” (City of San Diego v. Board of Trustees of California State
University (2015) 61 Cal.4th 945, 956 [quotation omitted].) The RDEIR fails to explain
and justify its refusal to propose mitigation for the Project’s non-construction emissions.

III. The Board should adopt the No Hatchery Alternative.

The omissions and inadequacies in the RDEIR’s GHG and energy analysis
detailed above undermine a full and robust discussion of the No Hatchery Alternative.
The RDEIR simply concludes that the No Hatchery Alternative would result in greater
emissions reductions relative to existing conditions than the proposed Project. (RDEIR at
RE-4-23.) While this conclusion is likely correct, it can and should be supported with
adequate data and analysis.

Correcting the deficiencies discussed above would facilitate the alternatives

analysis CEQA requires. Specifically, quantification of emissions from hatchery
operations under the proposed Project would enable a more meaningful comparison
among alternatives—and would likely show that the GHG and energy benefits of the No
Hatchery Alternative are considerable. Moreover, quantification would further
demonstrate that adoption of the No Hatchery Alternative would result in certain,
measurable reductions in emissions that could reduce the Project’s reliance on uncertain
GHG offsets.

That said, even without correction of these deficiencies, the RDEIR clearly
shows that the Project as proposed cannot be approved, and that the No Hatchery
Alternative must be adopted in its stead. CEQA prohibits a public agency from approving
Ms. Michelle Siebal
February 6,2020
PageT

a project that has signihcant environmental impacts if there are feasible alternatives or
mitigation measures that would reduce or avoid those impacts. (Pub. Resources Code $$
21002,21002.1(b).) Moreover, before approving a project despite significant
environmental impacts, the agency must expressly find that mitigation measures or
alternatives identified in the EIR are infeasible. (Pub. Resources Code $$ 21081(aX3).)

The Board cannot make a defensible finding that the No Hatchery

Alternative is infeasible on this record. As discussed in the Prior Comments, the No
Hatchery Alternative is both feasible and environmentally superior to the propose{
Project. Nothing in the RDElR-notwithstanding its flaws-shows otherwise. Indeed, the
RDEIR confirms that the No Hatchery Alternative "accomplishes the applicant's stated
goals" and would reduce GHG and energy impacts relative to the Project. (RDEIR at RE-
4-23 to -24.)The Board therefore must adopt the No Hatchery Alternative.

Thank you very much for your consideration of these comments.

Very truly yours,

SHUTE, MIHALY & WEINBERGER LLP

Kevin P. Bundy

Attachments: See attached Exhibit List

cc Mark Sherwood, Native Fish Society

1206556.3

SHUTE, MIHAL)
t- -vzElNBE.RCERrrp
Ms. Michelle Siebal
February 6, 2020
Page 8

Exhibit List

Exhibit Title/Description
A Chris Frissell. (Jan. 21, 2020). Published Literature Pertaining to
Quantification of CO2 Emissions From Fish Hatchery and Other
Aquaculture Operations: A Non-exhaustive Annotated Review (includes
copies of literature reviewed).
B Haya, B., A. Strong, E. Grubert & D. Cullenward. (2016). Carbon
Offsets in California: Science in the Policy Development Process. In
Communicating Climate-Change and Natural Hazard Risk and
Cultivating Resilience, eds. J. L. Drake, Y. Y. Kontar, J. C.
Eichelberger, S. T. Rupp & K. M.Taylor, 241-254. Switzerland:
Springer.
C Haya, B. (2019). The California Air Resource Board’s U.S. Forest
Projects offset protocol underestimates leakage. GSPP Working Paper.
D GHGRX.ORG home page (visited Jan. 31, 2020).
E Cames, M., R. O. Harthan, J. Füssler, M. Lazarus, C. M. Lee, P.
Erickson & R. Spalding-Fecher. (2016). How additional is the Clean
Development Mechanism? Berlin.
F Joseph H. Anderson, George R. Pess, Richard W. Carmichael, Michael
J. Ford, Thomas D. Cooney, Casey M. Baldwin & Michelle M. McClure
(2014) Planning Pacific Salmon and Steelhead Reintroductions Aimed at
Long-Term Viability and Recovery, North American Journal of
Fisheries Management, 34:1, 72-93, DOI:
10.1080/02755947.2013.847875.
G California Regional Water Quality Control Board, North Coast Division.
California Water Code Section 13267 Investigative Order R1-2017-0051
(Sept. 29, 2017).