The following is my testimony at the informational hearing on the Prospect Island Fish Kill held by Lois Wolk, chair of the Assembly Committee Parks and Wildlife.

The hearing started with opening comments by Wolk, followed by testimony by government agency representatives, testimony by fishing and local community representatives, and public comment.

The governmental agency representatives were John Davis, Regional Director of the Bureau of Reclamation, Chuck Armor, Regional Manager, Department of Fish and Game, Bay-Delta and Leo Winterwit, Deputy Director, CALFED Bay Delta Program.

The fishing and local community representatives were Jim Crenshaw, President, California Sportfishing Protection Alliance, Doug Lovell, Director, Allied Fishing Groups, Gary Adams, President, California Striped Bass Association, Jeffrey Nash,  a local fishermen who played a leadership role in the fish rescue, and myself. Wolk and the fishing group representatives asked some hard questions of the agency folks, including why the fish kill occurred in the first place, why the governmental regulatory processes broke down during the levee repair project, why the necessary permits were apparently not obtained, how the Bureau was going to mitigate for the fish kill and how the agencies were taking measures now to prevent similar occurrences in the future.

Dan

 Testimony of Dan Bacher at Assembly Water, Parks, and Wildlife Committee, Dec. 6, Rio Vista  

My name is Dan Bacher. I’m the editor of the Fish Sniffer magazine and a board member of Water 4 Fish, a coalition of organizations working to restore the Bay-Delta Estuary and Klamath River. I am also an advisory board member of Restore the Delta.

I became aware of the massive fish kill on Wednesday, November 20, when Bob McDaris, owner of Cliffs Marina in Freeport, called me and informed me that thousands of striped bass and other fish were stranded in very shallow water at Prospect Island. He wanted to organize a volunteer fish rescue.

McDaris and a local hay farmer, John Soto, had gone out prospecting for ducks on Prospect Island  the day before. Instead of finding ducks, they discovered a huge fish kill in progress on the island, where a contractor for the Bureau of Reclamation was pumping water back into Miner Slough after a levee repair. McDaris said that he saw thousands of striped bass, two sturgeon, two steelhead, hundreds of bluegill, two king salmon and lots of carp stranded or dead in the remaining water. 

McDaris said he had also contacted Bob Simms, host of the KFBK Outdoor Show, and members of the California Striped Bass Association and others to see what we could do about rescuing the fish. Simms had contacted the DFG on Tuesday about the hundreds of dead small bluegill, crappie, threadfin shad and other fish that he saw while fishing in Miner Slough near the pumps while they were still operating.  On Wednesday, Cal Kellogg, Fish Sniffer associate editor, also called CALTIP regarding the fish kill.

That afternoon McDaris, KFBK Radio reporters Bob Moffitt and Brendan Gage and I went by boat to the area of the levee repair. We slogged through the mud in waders and saw schools of thousands of stripers with their dorsal fins, backs and tails out of the water as they struggled to survive. I saw a dozen dead striped bass, along with one dead bluegill and a couple of dead pike minnows in the tiny fraction of Prospect Island that we surveyed.

After returning from the island, I contacted Jeff McCracken, spokesman for the U.S. Bureau of Reclamation. He said the agency, after being alerted by anglers and others about stranded fish, ordered the pumping suspended. However, he said because of the holiday weekend many key federal and state staff were gone and wouldn’t be available until Monday.  

On the following day, Thanksgiving Day, CBS 13 TV reporter Tony Lopez captured the scope of the devastation in stunning video footage of the fish kill taken from a helicopter over the island. Other gripping footage of the fish kill by other TV stations followed

On Sunday, McCracken informed me that the Bureau of Reclamation and DFG biologists checked the island and the DFG gave the approval to remove the dead fish. The next day DD-M Crane and Rigging Company, DFG and Bureau staff removed the dead fish and installed aerators.

McDaris told me on Tuesday, November 27, that McCracken would allow several us out on the island the following day to see if there were fish still alive to be rescued.  McDaris, and I went to the Island the afternoon of November 28. We found thousands of striped bass still alive. There were also many dead striped bass in the muddy wallow that we waded through. We saw fish dying as we were there. 

The following day, McDaris invited me to attend a meeting with DFG officials and Jeff McCracken.  On Friday, November 30 at 11:00 am., Bureau of Reclamation and DFG staff met with myself, McDaris,  Bob Simms, and Jeff Nash, a local angler, at the Bureau of Reclamation offices on Cottage Way. 

McCracken said he had already consulted with the Solicitor's office and Department of Justice to get the go-ahead for the rescue. While McCracken cooperated with the anglers wanting to do the rescue, the DFG provided no support for the effort.

Terry Foreman, Fisheries Program Manager of the DFG’s Fisheries Branch  told us, "The Bureau got a black eye, we got a black eye, and you may get a black eye if the fish die after being released,” he said. “It won’t look good.”

In response to a direct question by McDaris, "Can we do the rescue today?," Foreman said that he couldn't give approval since the levee repair was a Bureau project, not a state project. "We are not giving you permission to do the fish rescue. We are just consulting with you before you do it,” said Foreman.

He made it clear that the DFG wouldn't have staff assisting with the rescue, although it would have a game warden on site.

In spite of the DFG’s lack of support for the fish rescue, the rescue was a success.  During the three days of the rescue from November 30 to December 2, a huge force of volunteers saved 1831 stripers.

Anglers using nets and buckets also transported largemouth bass, bluegill, Sacramento blackfish, tule perch, Sacramento splittail, catfish and other fish from a seep in the levee where a variety of fish species were concentrated. When you include baitfish and fry, many thousands of fish in addition to the stripers were saved.

While I was there Saturday and Friday, I didn't see any fish that died when put back into the water. The concern that DFG staffer Terry Foreman voiced about potential fish mortality during the Friday meeting was completely unfounded, as evidenced by the overwhelming success of the rescue operation.

From my experience with this disaster, I have four major points to make:

1.       There appears to have been a complete regulatory breakdown in the events leading to, during and after the fish kill. For example, DFG went AWOL in its mission to protect California’s public trust resources by not requiring the Bureau to get a CESA take permit or a streambed alteration permit. Also, the Central Valley Regional Water Control Board should have required a 401 Clean Water Act permit for the levee repair.

2.       The U.S. Fish and Wildlife Service and NOAA Fisheries, who approved the Bureau of Reclamation project, made a tragic miscalculation of the amount of fish that would be impacted by the levee repair. An area like Prospect Island, with abundant vegetation, cover and forage, is ideal habitat for an array of Delta fish species. Draining an area like this is very destructive, without finding a way to do a fish rescue, because the flooded island is an area where fish from throughout the Delta system congregate. 

3.       When the state and federal governments were informed of the fish kill, their slowness in reacting and taking corrective action borders on absurdity. They appeared to have no contingency plan in effect for an event like this taking place on a holiday weekend. In my opinion, this fish kill constituted an emergency that should have required the canceling of vacation and the immediate implementation of an emergency plan to save the fish while removing the dead ones.

4.       While Bureau of Reclamation staff finally cooperated with McDaris, Jeff Nash and other anglers that wanted to rescue fish, why was the DFG so uncooperative with anglers? The DFG should have embraced with open arms the volunteer help of anglers in rescuing fish.

I will conclude my testimony with a mitigation proposal. Bank fishermen have been kicked off public waters in the North Delta since 2001 by the Solano and Yolo County sheriff's departments and the district attorneys of those counties, at the urging of the reclamation districts. These closures constitute de facto no fishing zones that were imposed without any public comment process or due process.

If the Bureau of Reclamation and the reclamation districts had allowed public shore fishing access to Prospect Island, Miner Slough the Sacramento Deepwater Channel and other public waterways, as guaranteed by the California Constitution, this fish kill would have been exposed earlier. It was only because Bob McNaris, Jeff Nash, myself and others decided to trespass on the no fishing/no public access zone that this fish kill was ever exposed.   

Solution: I propose, that for mitigation to the loss to California's fisheries because of the fish kill, that the Bureau donate Prospect Island to the state of California to be maintained as a public fishing access to Miner Slough and the Sacramento Deepwater Channel. I propose that Lois Wolk author a bill to make the property into the "Prospect Island Public Fishing Access and Wildlife Area" modeled after the "Oroville Wildlife Area. I also propose that the island itself be reflooded to provide fish and wildlife habitat, since this is some of the best habitat on the Delta. 

Not only should the Bureau donate the land, they should pay for its maintenance in perpetuity. In addition, I recommend that the Bureau be required by the state legislature to mitigate for the direct losses of fish (all of them) at the federal CVP pumping plant near Tracy.

Except for three years when the Bureau signed on to an agreement with DFG, they have not mitigated for any losses at their pumps. I request the legislature to mandate that they mitigate for the damage they've done and will continue to do at the Delta pumps, as well as the damage to public trust resources caused by the recent fish kill.