Date: September 30, 2006

To: New Mexico Department of Game and Fish

Attn: Kirk Patten

P.O. Box 25112

Santa Fe, NM 87504

\(505\) 476-8055

\(505\) 476-8131 fax

<kirk.patten@state.nm.us>

From: Ann McCampbell, MD

11 Esquila Rd

Santa Fe, NM 87508

\(505\) 466-3622

<DrAnnMcC@aol.com>

Re: Restoration of Rio Grande Cutthroat Trout (*Oncorhynchus clarki
virginalis*) and the Native Fish Community to the Upper Rio Costilla
Watershed; Draft Environmental Assessment

COMMENTS

According to the National Environmental Protection Act (NEPA), all
federal agencies

must prepare a detailed statement about the environmental impacts of
major Federal

actions significantly affecting the quality of the human environment.

Section 1508.11 of the implementing regulations by the Council on
Environmental

Quality (CEQ) defines "*Environmental impact statement*" as a "*detailed
written*

*statement as required by section 102(2)(C) of the Act*".

Sec. 1508.27 of CEQ regulations provides guidance on the meaning of
"*significantly*". Under this section \-- "*Significantly" as used in
NEPA requires considerations of both context and intensity*."

In determining context, *"(b)oth short- and long-term effects are
relevant*."

In determining intensity, ten points should be considered. Of these, at
least five apply to the proposed project.

1.  "*Impacts that may be both beneficial and adverse. A significant
    effect may exist even if the Federal agency believes that on balance
    the effect will be beneficial*."

Killing all fish in 150-176 stream miles and potentially 25 lakes, along
with the causing the death of most macroinvertebrates and some
amphibians, as well as interrupting the food web of animals that depend
on fish or insects, will have a "significant" impact on the environment.
The fact that killing all the fish is the intended outcome, and believed
to be beneficial by proponents of the project, does not alter the
significance of the action.

3\. "*Unique characteristics of the geographic areas such as proximity
to historic or cultural resources, park lands, prime farmlands,
wetlands, wild and scenic rivers, or ecologically critical areas*."

The proposed project area contains Outstanding Natural Resource Waters,
ecologically-critical wetlands, and water bodies eligible for
designation under the Wild and Scenic Rivers Act. Downstream of the
project area are organic farms which constitute prime farmlands.

4\. "*The degree to which the effects on the quality of the human
environment are likely to be highly controversial*."

At a minimum, there is significant controversy among experts regarding
the long-term impacts on macroinvertebrates following piscicide use.
\[See enclosed documents by freshwater invertebrate specialist, Nancy
Erman and the U.S. District Court Memorandum and Order granting a
Preliminary Injunction to halt the Silver King Creek Paiute Cutthroat
Trout Recovery Project.\]

There are also conflicting opinions on the long-term impacts to
amphibian populations, as well as conflicting expert opinions on whether
any of the ingredients in the proposed piscicides have carcinogenic,
mutagenic, or fetotoxic effects.

In addition, there is controversy in the local communities, with many
downstream residents opposing the use of piscicides in the project area.

5.  "*The degree to which the possible effects on the human environment
    are highly uncertain or involve unique or unknown risks*."

The long and even short-term impacts of piscicide use have never been
fully evaluated. There has never been, to my knowledge, a comprehensive
pre-treatment survey of aquatic, riparian, and terrestrial biota and
long-term post-treatment monitoring of these organisms. Therefore, the
proposed project's possible effects on the environment are highly
uncertain and unknown.

Although there has been some macroinvertebrate monitoring,
macroinvertebrates have never been surveyed at the species level, thus
it has not been possible to determine the adverse impacts to all
macroinvertebrate species. It is uncertain whether, for example, rare
invertebrate species have been extirpated by previous piscicide
applications.

In particular, the macroinvertebrates have not been surveyed at the
species level in the proposed project area, nor are there plans to
monitor macroinvertebrates at the species level following piscicide
applications. Therefore, the assessment of the impacts to
macroinvertebrates will be incomplete and remain highly uncertain. The
potential impact to rare macroinvertebrates that may be, but are not
known to be, present represents another unknown risk.

Similarly, the impacts to amphibians of piscicide use in the proposed
project area are uncertain. There has not been, nor are their plans to
perform, an amphibian survey in the project area or do post-treatment
monitoring. Therefore, the impacts to amphibians will remain highly
uncertain.

The California Department of Pesticide Regulation refused to register
Fintrol (active ingredient antimycin) in 2001, citing the lack of basic
toxicology data on the product in 22 categories. \[See enclosed letter
itemizing data gaps\]. Thus, there is a high degree of uncertainty as to
the potential environmental impacts of Fintrol use.

There is no analytical method to measure antimycin at field
concentrations, therefore, the dose of antimycin to which the
environment is exposed is uncertain and unknown.

The majority of the ingredients in Prentox Fish Toxicant Powder are
unknown.

The potential impact of piscicide use on the certification of downstream
organic growers is uncertain and unknown.

Contrary to claims in the draft EA (environmental assessment), the
potential of piscicides to harm humans, livestock, or wildlife who drink
water in or downstream of the project area is unknown. The draft EA
focused primarily on acute effects and did not address potential impacts
to reproduction and development, cognitive abilities, or the ability to
find food and avoid predators.

The New Mexico Department of Health has concerns about the possible
adverse health effects of human exposure to antimycin used in native
fish restoration projects. The Department is on record as stating that
without further toxicological study, it can not determine the potential
adverse effects, i.e., the risks remain uncertain.

It is unknown how many applications of piscicides will be made in the
project area, therefore the magnitude of the impacts cannot be
calculated and are unknown.

It is unknown to what degree the proposed action will have an adverse
impact on endangered, threatened, or sensitive species. According to the
draft EA, a threatened or endangered species consultation by the U.S.
Fish and Wildlife Service has not been completed. The draft EA only
provided a cursory analysis of the potential impacts to threatened,
endangered, and sensitive species and in the case of birds, made
unsubstantiated claims that they would easily feed elsewhere following
piscicide applications. This analysis falls short of the "detailed"
evaluation required by NEPA.

10\. "*Whether the action threatens a violation of Federal, State, or
local law or requirements imposed for the protection of the
environment*."

The proposed use of piscicide in the Valle Vidal violates the federal
Clean Water Act and state water standards that permit "***no
degradation***" of water quality in waters designated as Outstanding
Natural Resource Waters (ONRWs).

It is also a violation of the Clean Water Act to apply a point source
pollutant, such as piscicides, to waters of the United States without a
NPDES (National Pollutant Discharge Elimination System) permit. \[See
*Headwaters, Inc. v. Talent Irrigation*\].

The proposed action also violates the Wild and Scenic Rivers Act.
Chuckwagon, Foreman, Gold, Little Costilla, and Vidal creeks are
eligible for designation as "*wild*" rivers under the Wild and Scenic
Rivers Act. These rivers must receive protection as if they were already
designated as such. A "*wild*" river is a "*river ... with watersheds or
shorelines essentially primitive and **waters unpolluted***". Polluting
these waters with piscicides would, therefore, violate this Act.

**For all the reasons listed above, it is clear that the proposed
project will have a significant impact on the human environment and thus
an EIS (Environmental Impact Statement) must be prepared. A joint EIS
should be prepared by the New Mexico Department of Game and Fish
(NMDGF), the U.S. Forest Service, and the U.S. Fish and Wildlife Service
(USFWS).**

In addition to doing additional analyses of topics covered in the EA
(and recommended in my scoping comments dated February 27, 2006), the
EIS should address the following deficiencies in the draft EA.

1.  There is no documentation that the presence of white suckers in
    upper Comanche Creek is negatively impacting the pure Rio Grande
    cutthroat trout (RGCT) that reside there.

2.  There is no comparative analysis of the relative harm to the RGCT of
    taking no action in those areas versus having the RGCT repeatedly
    electroshocked, handled, injected with an electronic chip, having
    fins clipped for genetic analysis, transported to another location,
    being exposed to new environments, and electroshocked and
    transported to their original location.

3.  There is no restoration plan for Rio Grande chubs or Rio Grande
    suckers. There is no Need for Action demonstrated with respect to
    these species, except for vague statements about anticipated
    problems in the future. There is no analysis of the risks and
    benefits of the proposed restoration efforts. There is no definition
    of "purity" for these species. Taking action to "restore" RG chubs
    and suckers without a restoration plan violates NM Department of
    Game & Fish piscicide protocol.

4.  The alternative of No Concurrent Restoration of Rio Grande Chub and
    Rio Grande Sucker should have been analyzed in detail.

5.  The EIS should also analyze an alternative that combines decreasing
    the genetic purity standard for RGCT, genetic swamping, increased
    angling, netting, reducing water in Costilla Reservoir, ceasing the
    stocking of non-native fish, angler education to discourage illegal
    transplantation, and taking advantage of natural events that
    eliminate fish. The EA only analyzed these measures individually,
    which led to erroneous conclusions about their uselessness.

6.  The EA contained no analysis of the impact of global warming on the
    alternatives. The EIS must include this.

Thank you for allowing me to comment on this proposed project. Please
send me all documents regarding this project as they become available.

Respectfully submitted,

Ann McCampbell, MD

[Enclosures]{.underline}:

Findings of Fact & Conclusions of Law Re: WQCC Hearing by Ann McCampbell

Antimycin/Rotenone Fact Sheet by Ann McCampbell

WQCC Technical Testimony by Ann McCampbell

"Purity" and the Rio Grande Cutthroat by M.H. Dutch Salmon

U.S. District Ct. Order issuing preliminary injunction for Silver King
Creek Pauite

Cutthroat Trout Recovery Project

Declaration of Nancy Erman in support of TRO for Silver King Creek
Pauite Project

Comments to U.S. EPA Re: Rotenone Risk Assessment by Nancy & Don Erman

Memorandum to NM Game Commissioners from Nancy Erman

Draft NPDES permit by California State Water Resources Control Board re:
monitoring

requirements for rotenone use

Chemical Analysis of CFT Legumine

Abstracts of articles linking rotenone with Parkinson's Disease

Macrobenthic Analysis for S. Ponil Creek by Steven Sanders, NMDGF

Letter from California Department of Pesticide Regulation to Fintrol
manufacturer

USFWS notice of candidate status review for RGCT, June 11, 2002

[Cc's (without enclosures)]{.underline}:

Governor Bill Richardson

Senator Jeff Bingaman

Representative Tom Udall

New Mexico Game Commission