Exhibit 1

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 1 of 25
DEPARTMENT OF THE ARMY 

CORPS OF ENGINEERS, NORTHWEST DIVISION 

PO BOX2870 

PORTLAND OR 97208·2870 

RECORD OF DECISION 

DOUBLE-CRESTED CORMORANT MANAGEMENT PLAN TO REDUCE PREDATION OF 

JUVENILE SALMONIDS IN THE COLUMBIA RIVER ESTUARY ENVIRONMENTAL IMPACT 

STATEMENT 

DECISION 

This Record of Decision (ROD) documents my decision and rationale for adopting the DoubleCrested Cormorant Management Plan as described in Chapter 5 of the Double-Crested 

Cormorant Management Plan to Reduce Predation of Juvenile Salmonids in the Columbia River 

Estuary Final Environmental Impact Statement (FEIS). The selected management plan is 

consistent with the National Oceanic and Atmospheric Administration's National Marine 

Fisheries Service (NOAA Fisheries) 2014 Supplemental Biological Opinion and Reasonable and 

Prudent Alternative (RPA) for the Federal Columbia River Power System (FCRPS) issued on 

January 17,2014. 1 The Biological Opinion's RPA included Action 46 calling for a doublecrested cormorant (DCCO) management plan to address DCCO predation on Endangered 

Species Act (ESA) listed juvenile salmon ids. Based on the analyses in the FE IS, reviews by 

other federal and state agencies, tribes, input of the public, and review by my staff, I find the 

management plan described in Alternative C-1 to be technically feasible, environmentally 

justified, in accordance with applicable environmental statutes, and in the public interest. 

MANAGEMENT PLAN PURPOSE AND NEED: RPA Action 46 calls for a reduction in DCCO 

predation of juvenile salmon ids over 172 river miles of the Columbia River Estuary by reducing 

the East Sand Island colony, which accounts for 98 percent of the DCCO breeding population in 

the Columbia River Estuary. A specific management objective of no more than 5,380-5,939 

breeding pairs on East Sand Island was identified in the 2014 Supplemental FCRPS Biological 

Opinion. In the FE IS, the Corps adopted this objective and the analysis provided by NOAA 

Fisheries to support the purpose and need for the action. 

DEVELOPMENT OF THE MANAGEMENT PLAN: In response to the 2008 FCRPS Biological 

Opinion which required development of a DCCO management plan, the Corps formed a DCCO 

interagency working group. The working group developed conceptual alternatives based on 

various percent reductions of the colony size and prepared a status assessment for the western 

population of DCCO. The Corps invited the agencies and tribes represented in the interagency 

workgroup to cooperate on the development of the EIS. The U.S. Fish and Wildlife Service 

(USFWS), U.S. Department of Agriculture's Animal and Plant Health Inspection ServiceWildlife Services (USDA-WS), Oregon Department of Fish and Wildlife (ODFW), and 

1 The 2008 FCRPS Biological Opinion was supplemented in 2010 and 2014. 

Printed on$ Recycled Paper 

USACE AR 000045

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 2 of 25
Washington Department of Fish and Wildlife (WDFW) accepted and served as cooperating 

agencies in preparing the FEIS. 

The final plan developed by the Corps and the cooperating agencies, in coordination with other 

experts, such as NOAA Fisheries, utilizes lethal and non-lethal methods and a two-phased 

approach to reduce predation related losses of juvenile salmonids. During Phase I of the plan, 

the DCCO colony on East Sand Island will be reduced to approximately 5,600 breeding pairs 

over a period of 4 years by primarily lethal methods (i.e., culling and egg oiling). In Phase II, 

primarily non-lethal methods, including terrain modification, or similar habitat modification and 

hazing, will be used to ensure the colony size management objective is not exceeded. A 

monitoring and adaptive management framework will be employed to minimize impacts to the 

western population of DCCOs and other wildlife species and resources potentially affected by 

the action. 

PUBLIC INVOLVEMENT: 

All comments received on the Draft Environmental Impact Statement (DEIS) were assessed and 

considered, both individually and collectively, for revisions to the FE IS. In response to 

substantive comments, revisions to the model used in the NOAA Fisheries analysis supporting 

RPA Action 46 and the DCCO population model were made. To explain how the range of 

alternatives was developed, additional rationale was provided. To address comments about the 

scope and scale of past management feasibility studies, complete information on Corps-funded 

DCCO research and results to date was provided in an appendix. In response to comments 

regarding impacts to the entire western population of DCCO, and with input from the 

cooperating agencies, the FE IS included a modification to the primary strategy in Alternative C 

presented in Alternative C-1. Alternative C-1 reduces the total number of culled individuals and, 

in conjunction with culling, utilizes egg oiling, as a means of decreasing future productivity and 

population growth. 

ALTERNATIVES CONSIDERED IN REACHING THE DECISION: Several alternatives were 

suggested during scoping and in public comments received on the DE IS. All comments were 

considered and some comments prompted further refinement of the alternatives. After further 

consideration, those alternatives that would not meet the purpose and need to address RPA 

Action 46 were eliminated from detailed study. 

Alternatives Considered but Eliminated: 

Many of the comments received during scoping and the public comment period suggested the 

Corps consider alternatives to DCCO management such as changes to dam operations, habitat 

restoration, harvest reduction, and hatchery reform. These suggestions were eliminated from 

detailed study because they did not meet the purpose and need to address RPA Action 46, 

which specifically identified DCCO management objectives for reducing predation of juvenile 

salmonids by DCCO. The Corps also considered social attraction as a method to redistribute 

the East Sand Island DCCO colony but dismissed this from detailed study because small-scale 

DCCO social attraction studies funded by the Corps provided no evidence to suggest that this 

method would be successful at the scale proposed for management in accordance with RPA 

2 

USACE AR 000046

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 3 of 25
Action 46. Barging juvenile salmon ids, delaying or staggering the release of hatchery fish, 

changing flow management by increasing river flows to inundate the island, or decreasing river 

flows to allow more marine forage fish to be available as prey for DCCOs, were all considered 

but dismissed because they would not meet the purpose and need. 

Implementing a DCCO hunting season and introducing native predators were eliminated from 

detailed study due to concerns related to complying with the Migratory Bird Treaty Act (MBTA), 

and a preference for implementing alternative methods with less risk of impacting other species 

that utilize East Sand Island. Variations on the alternatives to reduce the DCCO colony were 

considered such as egg oiling only, non-lethal management only, lethal management only, and 

a greater or lesser degree of lethal take. These suggestions were all eliminated from detailed 

study because these variations would either conflict with the MBTA or would not be feasible or 

effective at the scale proposed for management. 

Alternatives Carried Forward for Detailed Study: 

In addition to the No Action Alternative (Alternative A), the Corps evaluated four action 

alternatives in the FE IS. All of the action alternatives would require a depredation permit under 

the Migratory Bird Treaty Act. A detailed description and discussion of the feasibility of the 

alternatives to meet the purpose and need is presented in Chapter 2 of the FE IS. The following 

is a summary of the alternatives: 

Alternative A 

Under this alternative, no action would be taken to reduce predation-related losses of juvenile 

salmonids by managing the DCCO colony on East Sand Island. Implementation of RPA Action 

46 and fulfillment of the purpose and need of the FE IS would not be met and would require reinitiation of consultation with NOAA Fisheries. Additionally, DCCO monitoring and management 

feasibility studies conducted by the Corps on East Sand Island would cease. 

Alternative B 

This alternative would implement a primarily non-lethal management strategy (i.e., temporary 

habitat modification and hazing) with limited egg take (500 eggs) to disperse approximately 

7,300 breeding pairs from East Sand Island. Boat- and land-based hazing supported with limited 

egg take on Corps' dredge material islands (250 eggs) would be used to discourage dispersed 

DCCOs from nesting and foraging throughout the Columbia River Estuary. Aerial and boatbased surveys in the Columbia River Estuary and Plateau and coastal Oregon and Washington 

would occur in order to monitor DCCO dispersal. Large-scale terrain modification or similar 

habitat modification on the west end of East Sand Island supplemented with the non-lethal 

methods would be used to ensure the colony does not exceed 5,939 breeding pairs in Phase II. 

Hazing efforts throughout the Columbia River Estuary would continue as needed in Phase II. 

Management would be considered successful once the DCCO management objective for colony 

size is achieved. The Corps would continue to monitor the DCCO colony and haze as 

necessary to maintain the management objective. To ensure hazing can continue after nesting 

has begun up to 750 eggs per year (i.e., 500 on East Sand Island and 250 elsewhere in the 

3 

USACE AR 000047

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 4 of 25
Columbia River Estuary) would be requested in an annual MBTA depredation permit application 

submitted to the USFWS. 

Alternative C 

This alternative would implement a primarily lethal management strategy (i.e., culling on-island 

and over-water within the typical foraging range of DCCOs on East Sand Island (approximately 

25 km)) during Phase I. The Corps would implement Phase I under an adaptive approach to 

achieve the management objective for colony size in 4 years and minimize dispersal. Under 

Alternative C, 24 percent of the DCCO colony would be culled each year, resulting in a total 

take of 18,185 DCCOs (6,202, 4,887, 3,881, and 3,214 DCCOs in years 1 to 4, respectively). 

The Corps would submit an annual depredation permit application to the USFWS for the 

proposed individual take levels and associated nest loss from take of those individuals. Each 

year in Phase I, the Corps would monitor all specified locations of the Pacific Flyway Council 

Monitoring Strategy, in locations and at times when there are not already established monitoring 

efforts and secure funding sources in place, supplement data processing of aerial photography, 

and assist in preparing an annual summary report of the Pacific Flyway Council and other 

collected monitoring data. Through adaptive management, threshold take levels could change 

based upon observed abundance as compared to the predicted abundance for the East Sand 

Island colony and the western population. DCCO response to lethal take and knowledge gained 

during implementation would also inform adaptive management. Any adjustment to take levels 

would be coordinated with the Adaptive Management Team (AMT) composed of the 

cooperating agencies, NOAA Fisheries, and tribal entities. The same methods described in 

Phase I of Alternative B would be used to prevent expansion of the DCCOs to other areas on 

East Sand Island and to deter DCCO nesting on Corps' dredge material islands in the Columbia 

River Estuary. Phase II would be the same as Alternative Bon East Sand Island. Because the 

abundance of DCCOs would be reduced, hazing and non-lethal management efforts are 

predicted to be less than those described in Alternative B. 

Alternative C-1 

Similar to Alternative C, this alternative would implement a primarily lethal management strategy 

to reduce the colony, but a lower percentage (i.e., 13.5 percent) of the colony would be culled 

each year and egg oiling would be used as a targeted means of nest destruction. This 

alternative would result in a total take of 10,912 individual DCCOs (3,489, 3,114, 2,408, and 

1,902 DCCOs in years 1 to 4, respectively). In addition to culling individuals, approximately 46 

percent of the available nests in years 1-3 would be oiled (15,184 nests oiled in total; 5,879, 

5,247, and 4,058 in years 1-3). In addition to direct oiling of eggs, there is a potential for nests 

to be lost when individual DCCOs are culled. In accounting for this, there is a potential for loss 

of 72.5 percent of nests in years 1-3 and 13.5 percent in year 4 (26,096 nests lost in total from 

egg oiling and associated nest loss from culling). The Corps would submit an annual 

depredation permit application to the USFWS and follow the same process as Alternative C for 

adaptive management and monitoring the western population. The same non-lethal methods 

supported with direct egg take described in Phase I of Alternative B would be used to prevent 

expansion of DCCOs to other areas on East Sand Island. Similar hazing and egg collection 

4 

USACE AR 000048

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 5 of 25
efforts would be implemented to deter nesting on Corps' dredge material islands in the 

Columbia River Estuary. Phase II would be the same as Alternative B. 

Alternative D 

This alternative would implement the same strategy as Alternative C-1 in Phase I. In Phase II 

the remaining (approximately 5,600 breeding pairs) DCCOs would be hazed off East Sand 

Island (with limited egg take} to exclude all nesting by DCCOs from nesting on East Sand Island 

in addition to the terrain/habitat modification. Since a large number of DCCOs would be 

dispersed from East Sand Island in Phase II, monitoring efforts and hazing efforts in the 

Columbia River Estuary would be similar to those described in Phase I of Alternative B. 

FACTORS CONSIDERED IN SELECTING ALTERNATIVE C-1: Three primary factors were 

considered in the evaluation of alternatives and the decision to select Alternative C-1. First, the 

plan had to be feasible in achieving the purpose and need given the large geographic scope of 

the Columbia River Estuary (i.e., 172 km) and timelines identified in the FCRPS Biological 

Opinion RPA (i.e., colony size reduction to be achieved by 2018). Second, the plan had to 

minimize, where possible, adverse impacts to the western population of DCCOs and other 

nesting waterbirds on East Sand Island. Third, the plan had to consider how other species and 

resources, as well as states, local agencies, and the public, might be affected by dispersal of a 

large number of DCCOs. 

In considering feasibility and the potential effects of dispersal, information from other DCCO 

management programs and Corps' funded management feasibility studies conducted during 

2008-2013, provided relevant information about DCCO commitment to East Sand Island and 

the Columbia River Estuary, likely dispersal locations, and the feasibility of various techniques 

when applied at the scale proposed for management. In considering impacts to the western 

population of DCCOs, a population model was developed to evaluate the effects of lethal 

removal and predict future population levels and trends. For the purposes of the FE IS, the 

USFWS defined a sustainable population as one that is able to maintain a long-term trend with 

numbers above a level that would not result in a major decline or cause a species to be 

threatened or endangered. Based on input from the USFWS, information presented in the 

FE IS, past population trend data and the current number of active colonies, the western 

population was considered to be sustainable around 41,660 breeding individuals. 

ENVIRONMENTALLY PREFERABLE ALTERNATIVE: Based on the comparison of 

environmental effects evaluated in the FEIS, Alternative C-1 is considered environmentally 

preferable because it best balances the competing needs of the biological resources considered 

in the FE IS and represents the widest range of benefits to ESA-Iisted juvenile salmon ids while 

reducing risk to the sustainability of the western population of DCCOs in the long-term. While 

Alternative C-1 reduces the abundance of DCCO through culling and egg-oiling, implementation 

will occur within a well-monitored and adaptive management framework with proposed take 

levels being reviewed annually by USFWS and contingent on a MBTA permit. In Phase II, East 

Sand Island would maintain the historic, cultural and natural aspects of the island to support the 

biodiversity of wildlife on the island. Leaving the underlying foundation of the island in place by 

5 

USACE AR 000049

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 6 of 25
modifying the terrain would fulfill the Corps' need to maintain the Columbia River Federal 

Navigation Channel because East Sand Island and nearby pile dikes and jetties function as a 

system to ensure the channel's stability. 

MEASURES TO AVOID AND MINIMIZE ENVIRONMENTAL HARM: All practical means to 

avoid or minimize adverse environmental effects have been incorporated into the selected 

management plan and are described in the FE IS. Dispersal will be minimized by monitoring the 

response of DCCOs on and off East Sand Island. Management actions could cease temporarily 

if DCCO dispersal is greater than 70 percent of predicted abundance following a culling or egg 

oiling event. Direct adverse impacts (i.e., "take" as defined by the MBTA} to other bird species 

during culling will be minimized by establishing a shooting protocol, training personnel, 

increasing the number of individuals in the field adequately trained in species identification, 

removing personnel unable to adequately perform duties, ceasing a particular lethal technique, 

or avoiding mixed species areas. Disturbance to species by personnel on the island will be 

minimized by building a network of privacy fences that partition the western portion of East Sand 

Island into different sub-areas, traveling in established routes and avoiding high concentrations 

of species when possible. To minimize impacts to human safety, East Sand Island will be 

closed to the public during implementation, and personnel will adhere to all safety standards of 

firearm operation and training as described in the USDA-WS Policy Manual and Directive 2.615. 

To minimize impacts to DCCOs nesting on East Sand Island during implementation, actions will 

be timed to minimize loss of eggs in active nests (outside of what is planned) by: 1) 

implementing actions frequently enough so nest destruction and hazing occur before egg laying; 

2) reducing or ceasing hazing and habitat modification techniques within a sufficient distance of 

an active nest (i.e., once an egg is laid); 3) removing nesting materials or destroying nests only 

if the nest does not have egg(s) in it; and 4) reducing or ceasing hazing if higher than normal 

levels of subsequent predation might be expected. Nests with chicks will be avoided to the 

extent possible and actions would occur outside the breeding season to the extent possible to 

reduce effects to nesting birds and chicks. The Corps, USFWS and USDA-WS will convene to 

evaluate the feasibility of continuing certain actions during the breeding season once chicks are 

observed and to determine the best timing for future actions. 

Monitoring and Adaptive Management: 

To minimize impacts to the western population of DCCO, the Corps will follow the protocol 

outlined in the Pacific Flyway Council Monitoring Strategy. Each year under Phase I, the Corps 

will monitor all specified locations of the monitoring strategy, where and when there are not 

already established monitoring efforts and secure funding sources, supplement data processing 

of aerial photography, and assist in preparing an annual summary report to the Pacific Flyway 

Council and other collected monitoring data. The objective of this monitoring strategy is to 

detect a 5 percent annual change in the number of breeding pairs in the western population of 

DCCOs. Monitoring will be used to evaluate and adjust future management activities that will 

allow time for annual evaluation, adaptive management changes, and increase the ability for the 

western population to respond from a potential catastrophic event. 

6 

USACE AR 000050

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 7 of 25
Adjusting the amount of take will be determined based on observed abundance of DCCOs on 

East Sand Island and the western population, as well as behavioral responses of, and effects to, 

DCCOs and other wildlife species from management. For adjusting take levels, the observed 

abundance on East Sand Island will be determined by the peak number of DCCO breeding 

pairs counted on the island after culling has taken place in a given year. If culling occurs after 

peak abundance surveys, the number culled will be accounted for in estimating the peak colony 

count. The observed abundance of the western population will be the estimate of the breeding 

population determined by the results of implementing the Pacific Flyway Council Monitoring 

Strategy. 

Adjustments to take levels will be based upon the thresholds and descriptions in the FE IS and 

include a two-step evaluation process with regard to whether observed abundance is less than, 

greater than, or within one standard deviation of what was predicted in the population models 

for both the western population of DCCOs and the colony on East Sand Island. Take could 

increase if, for both the East Sand Island colony and the western population, the observed 

abundance is greater than one standard deviation of the predicted abundance. Increased take 

could also be considered in years 3-4 above what is proposed if authorized take the previous 

year was not fulfilled and if the observed abundance East Sand Island is within one standard 

deviation above predicted abundance while the observed abundance for the western population 

is within one standard deviation above predicted abundance for that year. Conversely, take 

could decrease or cease if observed abundance of the western population is lower than one 

standard deviation below predicted abundance. 

The Corps will convene the AMT to meet to review information acquired during implementation, 

assess the effectiveness of techniques and guide future management actions. Adjustments in 

techniques will be coordinated through the AMT and specified in depredation permit 

applications. The Corps will be the decision making body for the AMT but will consider input 

and recommendations from the team. 

COMMENTS RECEIVED ON THE FE IS: A Notice of Availability was published in the Federal 

Register on February 13, 2015. The notice was amended February 20, 2015 to correctly identify 

the EIS as a Final EIS. The comment period for the FE IS ended March 16, 2015. There were 

many comments received on the FEIS, a majority of which were duplications of comments 

received on the DE IS that were considered and incorporated in the FE IS or were otherwise 

responded to in Appendix J of the FEIS. The Corps considered all comments received on the 

FE IS in making this decision, and responded to those comments that raised substantive issues 

and warranted additional discussion. Responses to these comments are provided in the 

enclosed Comment Response Document (Appendix A). The comments addressed a variety of 

issues related to impacts on other bird species that occupy East Sand Island or its environs 

(brown pelicans, pelagic and Brandt's cormorants, and Caspian terns) and on non-target 

DCCOs through dispersal of East Sand Island DCCOs; impacts on the stability and 

sustainability of the larger western population of DCCOs; cumulative effects of the combined 

Caspian Tern and DCCO management activities; and the thoroughness of monitoring 

conducted in previous years and during management. The Corps also received comments on 

the validity of the range of alternatives analyzed in the FE IS and the eligibility of the action for 

an MBTA depredation permit because of concerns regarding the take of non-target bird species 

7 

USACE AR 000051

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 8 of 25
and the potential to threaten the sustainability of the western population of DCCOs. As further 

discussed in the Comment Response Document, the analysis discussed in the FE IS previously 

addressed many of these issues. In sum, after reviewing each comment received on the FEIS, 

the Corps maintains its decision to implement the management plan as described in Alternative 

C-1 in the FEIS. 

UPDATED INFORMATION ON THE EAST SAND ISLAND DCCO COLONY AND WESTERN 

POPULATION ESTIMATE: The Corps funds annual monitoring of the East Sand Island DCCO 

colony. After the FE IS was released, 2014 abundance estimates for the East Sand Island 

DCCO colony and the western population of DCCOs were finalized. The 2014 estimate for the 

East Sand Island DCCO colony was 13,626 (95 percent confidence intervals= 13,334-13,918) 

breeding pairs. This is an approximate 8 percent decrease from the colony size in 2013. The 

Corps, in DCCO population model of Appendix E-2 in the FEIS, described that the annual 

percent change in colony size averaged approximately 11 percent during 2004-2013, with a 

maximum percent change of 21 percent between 2012 and 2013. The 2014 estimate is well 

within the natural, annual fluctuation in colony size described in the FE IS. The 1 0-year average 

including the 2014 estimate would be approximately 115 breeding pairs greater than the 1 0-year 

average reported in the DCCO population model (2004-2013 average = 12,917 breeding 

pairs). This slight difference in breeding pairs would have no discernible effect on modeling 

results or FE IS effects analysis and conclusions for impacts to DCCOs under Alternative C-1. 

The Pacific Flyway Monitoring Strategy for the western population of DCCOs was implemented 

for the first time in 2014 and results were provided to the Pacific Flyway Council on March 10, 

2015. Preliminary results at the time of the FEIS release were described in Appendix F-2 and, in 

Appendix E-2 page 9, it was described that, "western population data collected in 2014 (before 

management begins) by the Corps, USFWS and States within the Pacific Flyway, may be 

considered as part of the adaptive management approach by the Corps and USFWS prior to 

initiating actions at East Sand Island in 2015." The 2014 estimate for the western population of 

DCCOs was 38,018 (95 percent confidence intervals= 37,398-38,637) breeding pairs. This 

population estimate is slightly higher than the estimate of the western population analyzed in the 

FE IS (i.e., ca. 2009 estimate of 31,200 breeding pairs). Thus, the effects to the western 

population from selecting Alternative C-1 in the context of a slightly higher western population 

estimate were previously described in the FE IS and effects could be potentially less than 

described if the 2014 western population estimate represents a true increase in abundance. 

COMPLIANCE WITH APPLICABLE ENVIRONMENTAL LAWS: Per CEQ regulations at 40 

C.F.R. § 1502.25, to the fullest extent possible, the Corps prepared the FEIS with analyses and 

surveys pursuant to other environmental laws and executive orders. On July 19, 2012, the 

Corps published a Notice of Intent in the Federal Register to prepare an EIS for DCCO 

management. This notice identified the conceptual alternatives developed by the working group 

and stated that non-lethal and lethal methods were being considered. On October 25, 2012, the 

Corps issued a public notice announcing the seeping comment period and three public 

meetings. Three public meetings were held in Olympia, Washington, Portland, Oregon, and 

Astoria, Oregon during November, 2012. The Corps and cooperating agencies reviewed the 

seeping comments and developed alternatives and analysis for the DE IS. A Notice of 

8 

USACE AR 000052

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 9 of 25
Availability for the DE IS was published in the Federal Register on June 20, 2014. Two public 

meetings and four webinars were held during summer of 2014. The comment period closed 

August 20, 2014. 

The FE IS listed all permits and approvals to be obtained in implementing the proposal. Due to 

the differences in timing and environmental effects between the actions proposed in Phase I 

and II, each phase was evaluated for compliance. The terrain modification of Phase II will likely 

involve excavation of sand and placement of fill material into waters of the U.S. and/or State, 

however, the final quantities of removal and fill have not yet been determined and final disposal 

locations have not been selected to complete compliance with all applicable environmental 

laws. For this Phase II action, the Corps has initiated the studies and analysis for reviews under 

these laws to the fullest extent possible and will complete these reviews when impacts can be 

sufficiently quantified. For the FE IS, quantities were estimated and likely disposal locations 

were identified and the potential effects to the affected environment were described. 

Migratory Bird Treaty Act: The USFWS was a cooperating agency to the FE IS. Development of 

the management plan and measures to minimize impacts to migratory birds to the extent 

practicable was coordinated with USFWS. The Corps will coordinate with the USFWS on 

information needs and apply for MBTA permits to implement the action. 

Bald and Golden Eagle Protection Act: Bald eagles do not nest on East Sand Island but have 

been observed foraging on eggs, chicks, and adult birds on the island. Repeated human 

disturbance on the island could cause bald eagles to flush and potentially limit some foraging 

opportunity, but bald eagles are opportunistic and generalist predators and actions associated 

with the management plan would not appreciably limit or change overall prey availability. 

Therefore, these impacts would not substantially interfere with normal feeding behavior and 

would not result in "take" as defined by the Bald and Golden Eagle Protection Act. 

Endangered Species Act: Consultation with NOAA Fisheries for ESA-Iisted species under its 

jurisdiction for Phase I was completed in the 2014 FCRPS Supplemental Biological Opinion. 

The Corps has coordinated with NOAA Fisheries on the terrain modification and a Biological 

Assessment (BA) will be prepared and Section 7 consultation completed prior to implementing 

Phase II actions. Informal consultation with the USFWS for ESA-Iisted species under its 

jurisdiction for both phases of the action was initiated February 12, 2015. The Corps has 

determined the proposed action may affect, but would not likely adversely affect streaked 

horned larks, bull trout, Columbian white-tailed deer or their designated critical habitat. The 

USFWS concurred with this finding in a letter to the Corps dated March 5, 2015. 

Magnuson-Stevens Fishery Conservation and Management Act: Consultation with NOAA 

Fisheries on the effects to essential fish habitat for Phase I actions was included in the 

consultation with NOAA Fisheries in the 2014 FCRPS Supplemental Biological Opinion. Phase 

II consultation on the effects to essential fish habitat will be conducted concurrently with ESA 

Section 7 consultation. 

9 

USACE AR 000053

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 10 of 25
Clean Water Act: The Corps followed all applicable substantive legal requirements per 33 

C.F.R. § 336.1(a). This included issuance of a public notice dated June 12, 2014, which notified 

the public of an opportunity to request a public hearing (a hearing was requested, but denied 

because the public meetings associated with the NEPA process provided opportunity for 

comment), and consideration of the Section 404(b) (1) guidelines in an evaluation of the 

proposed fill from the terrain modification in Phase II. As the engineering plans are completed 

and disposal locations are selected, the Section 404(b) (1) evaluation may be supplemented. 

This would be completed prior to project construction per Corps' Engineering Regulation 1105-

2-100 C.6 (e). A permit from the Oregon Department of State Lands may be required for the 

terrain modification proposed for Phase II, for wetlands or waters of the State that could be filled 

when disposing of excavated sand. No permit would be required if these areas are avoided. 

National Historic Preservation Act: The Corps determined that implementation of the proposed 

DCCO management plan is an undertaking with the potential to cause effects on historic 

properties. A cultural resources report was prepared which identified the area of potential effect 

and historic properties on East Sand Island that are potentially eligible to the National Register. 

The Corps initiated consultation with the Oregon State Historic Preservation Office (SHPO) in a 

letter dated February 6, 2015. The Corps has determined the proposed undertaking in Phase I 

(which has minor ground disturbance) will have no effect to historic properties and is seeking 

concurrence from SHPO. Due to extensive ground disturbance associated with terrain 

modification in Phase II, several historic properties could be affected. The Corps will be 

submitting engineering plans when they are finalized and complete consultation for Phase II 

prior to implementing any work that could affect historic properties. 

Coastal Zone Management Act: East Sand Island is federal land and is excluded from the state 

coastal zone under Section 304(a) of the Act. In Phase I, there will be no effects off East Sand 

Island that would affect any coastal use or resource. However, there may be certain activities 

such as the placement of excavated material below high tide line associated with the terrain 

modification that will likely occur in state waters that are within the coastal zone. A consistency 

determination will be submitted to Oregon Department of Land Conservation and Development 

for Phase II when off federal land effects are known, such as quantities offill and locations for 

disposal sites. 

Executive Order 13175 Tribal Consultation: The Corps submitted letters requesting 

participation in government to government consultation to eighteen federally recognized tribes. 

The Colville Confederated Tribes and the Confederated Tribes of the Umatilla Indian 

Reservation entered into government to government consultation with the Corps and 

collaborated with the Corps and cooperating agencies during the NEPA process and reviews of 

the FEIS. 

Tribal Treaty and Trust Responsibilities 

Treaties between the U.S. and some Columbia Basin Tribes document agreements reached 

between the U.S. government and these Tribes. The U.S. government has a trust responsibility 

to protect certain tribal rights under these treaties, and in carrying out its fiduciary duty, it is the 

10 

USACE AR 000054

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 11 of 25
Corps' responsibility to ensure that the treaty rights are given full effect. Presidential executive 

orders reserved lands for other Columbia River Basin Tribes, and the U.S. government has 

extended rights to hunt and fish to these Executive Order Tribes as well. In formulating and 

implementing activities that have tribal implications, the Corps will continue to consult with 

Columbia Basin Treaty and Executive Order tribes. 

Executive Order 13112 Invasive Species: A mix of native and non-native plant species is found 

on East Sand Island. Several tidal and non-tidal wetlands and forested areas are present. A 

revegetation and invasive species plan will be developed prior to implementation of Phase II 

terrain modification and best practices will be employed during Phase I to minimize the potential 

to spread non-indigenous plant species on the island from field personnel and equipment used. 

Executive Order 13186 Responsibilities of Federal Agencies to Protect Migratory Birds: The 

Department of Defense (DoD) signed a Memorandum of Understanding (MOU) with the 

USFWS, July 31, 2006, to comply with the Executive Order 13186. The MOU states the DoD 

shall, among other things, "encourage incorporation of comprehensive migratory bird 

management objectives in the preparation of DoD planning documents ( ... including NEPA 

analyses)." During the NEPA process for the management plan, the Corps coordinated with 

the USFWS and incorporated measures to minimize impacts to migratory birds into the 

management plan to the extent practicable. 

Executive Order 12898 Environmental Justice: No subsistence, low-income or minority 

communities would be disproportionately affected by implementation of the plan as none 

currently access or utilize East Sand Island. 

Northwest Electric Power Planning and Conservation Act 

Under the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power 

Act), the Corps is to exercise its responsibilities for operating the FCRPS in a manner that 

provides equitable treatment for fish and wildlife with other purposes for which the Corps 

facilities are operated and managed, and to take into consideration in its decision making the 

Northwest Power and Conservation Council's (Council) Fish and Wildlife Program to the fullest 

extent practicable. 

The Corps considered the Council's 2014 Columbia River Basin Fish and Wildlife Program in 

the preparation of the FEIS and plans to move forward with implementation of RPA Action 46 as 

addressed in the 2014 FCRPS Supplemental Biological Opinion and in the Corps 2014 

Supplemental Record of Consultation and Statement of Decision (ROCASOD). 

SUMMARY 

In the FEIS, the Corps has considered the purpose and need for a management plan, 

developed the proposed plan to meet the purpose and need, analyzed a reasonable range of 

alternatives that adequately address the purpose and need, identified the extent to which the 

impacts of the action could be practicably mitigated, and incorporated all practicable measures 

11 

USACE AR 000055

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 12 of 25
into the management plan to minimize environmental harm. The Corps has also considered 

public and agency comments received during the FE IS review period. In balancing the predicted 

effects of the various alternatives presented in the FE IS and the public interest, the 

management plan described in Alternative C-1 is the selected plan. Alternative C-1 reflects 

implementation of all reasonable, practicable means to avoid, minimize, or compensate for 

environmental harm from the action. All applicable laws, regulations, and the objectives of 

salmon and steelhead recovery plans, waterbird conservation plans and the Pacific Flyway 

Council management documents and policies were considered in evaluating these alternatives. 

In summary, I find that the selected plan represents the course of action that, on the balance, 

best serves the public interest. This Record of Decision is the Corps' final action under the 

NEPA process. 

-th 

Issued on March _j_J_, 2015. 

12 

USACE AR 000056

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 13 of 25
Appendix A: Comment Response Document

1 

Commenter Issue Comment Response 

COMMENTS ON EIS ANALYSIS

Pacific EcoLogic Effects to 

California 

brown 

pelicans—

insufficient 

The FEIS recognizes that the preferred alternative will 

result in disturbance to California brown pelicans, but 

it does not consider factors such as, 1) impacts of 

chronic disturbance and stress on pelican body 

condition, 2) the pelican’s ability to efficiently exploit 

the preferred foraging areas if disturbance limits 

access to the central roost, and 3) potential 

population level effects of roost site disruption given 

the current status of the subspecies, including 

cumulative impacts and environmental conditions 

throughout the range.

The FEIS describes the use of East Sand Island and response of California 

brown pelicans to past Double-crested Cormorant (DCCO) dissuasion and 

collection activities, which have been times of considerable human 

disturbance (see FEIS Section 4.2.3). Despite these active management 

actions, involving considerable human presence, California brown pelicans 

persisted and grew in number as the season progressed. California brown 

pelicans adjusted their spatial distribution and largely restricted their 

roosting to the east end of the island rather than abandoning the island 

altogether. While the California brown pelican roost may be periodically 

disturbed, no evidence to date would suggest that DCCO management 

activities would cause such stress as to alter body condition, alter the 

pelican's abilities to use the estuary for foraging or cause them to abandon 

East Sand Island. Furthermore, the actions on East Sand Island will be 

intermittent and therefore will not likely affect California brown pelicans 

more than described in the FEIS, even if management would continue into or 

past pelican peak abundance. 

Pacific EcoLogic Effects to 

California 

brown 

pelicans—

timing of 

activities 

The FEIS suggests that California brown pelicans will 

be buffered from impacts of the cormorant culling 

since those actions will take place largely before peak 

pelican numbers are expected to arrive. However, the 

timing of the proposed cormorant shooting will occur 

during a more sensitive time, when pelicans are a) 

potentially most stressed from early migration, b) 

have less access to alternate roost habitat in Grays 

Harbor and Willapa Bay due to Bald Eagle activities 

(Jaques and O’Casey 2006), and c) may be attempting 

to breed as they did in 2013 and 2014.

As discussed in the FEIS, the actions on East Sand Island are not expected to 

unduly stress California brown pelicans that roost there (see prior response). 

The few nesting attempts in the past have occurred despite human activity 

and disturbance on the island. The California brown pelican nesting area 

used in June 2014 (on the east side of the island) will be available during the 

management period. Culling will occur on the western portion of the island; 

no nesting attempts have occurred in that area to date. Disturbance due to 

management on the west side of the island may flush birds and they will 

likely relocate and roost on undisturbed portions of the island. The expected 

frequency and locations of management activities are not expected to have 

greater effects to California brown pelicans than analyzed in the FEIS. 

USACE AR 000057

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 14 of 25
Appendix A: Comment Response Document

2 

Commenter Issue Comment Response 

Pacific EcoLogic Effects to 

California 

brown 

pelicans— 

new 

information 

on 

productivity

Following several years of very poor breeding success 

in the Southern California Bight post-delisting (Harvey 

2013), there was nearly complete breeding failure in 

the Gulf of California Mexico in 2014, where the 

majority of the subspecies nests (Anderson and Gress 

2015). This ‘bust’ was unprecedented in over 40 years 

of monitoring. The population has apparently 

declined since 2009 (Anderson et al. in prep.). Age 

ratio data collected in the migratory range during 

2014–2015 reflects the lack of recruitment in recent 

years (Jaques and Anderson, unpubl.).

As stated in the FEIS (see Section 4.2.3), effects to California brown pelicans 

from the DCCO management actions on East Sand Island are expected to be 

minimal particularly with regard to productivity, as East Sand Island is a 

roosting site and few pelicans have been recorded nesting (6 to 11 pairs built 

nests in 2014, no eggs were observed, all were abandoned). Any actions on 

East Sand Island would have little connectivity to the lack of productivity in 

the traditional breeding range in other geographical locations of the 

California brown pelicans over the past few years. 

Pacific EcoLogic Effects to 

California 

brown 

pelicans— 

population 

information 

and 

predictions

El Nino Southern Oscillation (ENSO) conditions are 

predicted to impact the California Current System 

(CCS) through spring 2015, which indicates that 

another year of breeding failures may occur to the 

south due to lack of prey availability. Unusually high 

numbers of California brown pelicans at East Sand 

Island in spring correspond to breeding failures in the 

south (Jaques et al, unpubl.), so early season reliance 

on East Sand Island by large numbers of pelicans 

during the proposed cormorant cull is forecast for 

2015. Increased constriction of the Caspian Tern 

colony and associated hazing activities by the Corps 

will further impact the area that California brown 

pelicans can use to rest and maintain plumage.

The FEIS described the area used by California brown pelicans during 

dissuasion research (see Chapter 4, page 42; Figure 4-17). Results from 

monitoring in 2014 indicate that California brown pelicans continue to use 

the southeastern area near the Caspian tern colony to rest, maintain 

plumage and potentially nest, and this area will continue to be available. 

Increased constriction of the Caspian tern colony will not impact the area 

used by California brown pelicans, increased hazing activities and placement 

of dissuasion materials associated with Caspian tern management are not 

planned beyond what was implemented in 2014. Therefore effects greater 

than those observed in 2014 and described in the FEIS are not likely. 

Audubon 

Society of 

Stability of the 

DCCO western 

The data in the FEIS does not support the Corps’

assertion that the number of DCCO colonies have 

In the FEIS, all known DCCO breeding colonies within the affected 

environment were described and listed in Appendix F-1 and additional 

USACE AR 000058

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 15 of 25
Appendix A: Comment Response Document

3 

Commenter Issue Comment Response 

Portland, 

National 

Audubon 

Society 

population 

outside East 

Sand Island

increased since 1990. The Corps cites Carter et al. 

(1995) as the baseline to assert that there were 99 

active colonies in 1995 in BC, Washington, Oregon, 

and California. It then cites Pacific Flyway Council 

(PFC) (2013) to assert that there were 160 active 

cormorant colonies between 2008 and 2012. Based 

on these studies, the Corps suggests that there are 

approximately 60 more DCCO colonies currently than 

there were in the early 1990s. The different 

methodologies and geographic scope of Carter et al. 

and PFC makes a side by side comparison 

meaningless and is fatal to one of the Corps’ most 

critical assumptions: that the number of cormorant 

colonies has increased over time.

colony information was provided in Chapter 3.2.2. In Chapter 3, page 19 and 

in Appendix F-1 of the FEIS, it was described that colony data came from two 

primary sources (Pacific Flyway Council (2013) and Adkins and Roby (2010)) 

and those sources were not directly comparable due to the issues described 

in the comment. The analyses and inference in the FEIS were predominantly 

based upon these data sources, which were subsequent to the Carter et al. 

(1995) assessment. 

The particular sentence highlighted from the FEIS in reference to Carter et al. 

(1995) does contain an error in that only coastal colonies were included in 

the FEIS estimate for the Carter et al. (1995) estimate, whereas the PFC 

(2013) estimate includes both coastal and interior colonies. However, this 

does not change the general conclusion of the statement. For B.C., WA, OR, 

and CA, Carter et al. (1995) documented 99 active coastal colonies (Table 1 

and Appendix 1) and 20 interior colonies (i.e., those designated EA 

(established active) and NA (newly active)). Thus, Carter et al. (1995) 

documented 119 active colonies. However, Carter et al. (1995) defined 

active colonies two ways based on status: (1) "established-active"—known 

before 1980–1985 with nesting on the last year census, and (2) "newlyactive"—known only since 1980–1985 with nesting on the last year census. 

Carter et al. (1995) defined a colony "active" if it contained at least 1 

breeding individual. PFC (2013) defined an active colony as those with ≥ 5 

nests (i.e., ≥10 breeding individuals). Summarizing Appendix 1 and 

Appendix 2 of Carter et al. (1995) using the colonies and counts listed, there 

were 8 active coastal and 1 active interior colony that had < 10 breeding 

individuals (i.e., 9 in total). Thus, Carter et al. (1995) reported 110 (i.e., 119 - 

9) active colonies, not 99 as stated in the FEIS, that were directly comparable 

to the 160 active colonies reported in PFC (2013). This suggests there are 

approximately 50 more colonies, not 60, as stated in the FEIS, but does not 

USACE AR 000059

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 16 of 25
Appendix A: Comment Response Document

4 

Commenter Issue Comment Response 

change the general conclusion made. Carter et al. (1995) reported both 

coastal and interior colonies in their assessment and included the same 

geographic areas as the later assessments. As Carter et al. (1995) is the best 

available data for that time period, it does allow for a meaningful 

comparison with current estimates. Additionally, neither PFC (2013) nor 

Adkins and Roby (2010) collected DCCO colony data in standardized, 

statistically valid sampling design. Those assessments were a compilation of 

data from a variety of sources and individuals, as was the same methodology 

used by Carter et al. (1995). 

Audubon 

Society of 

Portland

Stability of the 

DCCO western 

population 

outside East 

Sand Island

The FEIS predicates its preferred alternative on the 

assertion that DCCO populations outside of the 

Columbia River Estuary are “relatively static over the 

past two decades.” The assertion that populations 

are relatively static over the past two decades is not 

supported by the analysis provided. In summary, of 

the eight major regions described outside of the 

Columbia River Estuary, only one region, Coastal 

Oregon, is potentially seeing very modest increases 

and that area is proposed by the state fish and 

wildlife agency for significant lethal control activity at 

some of the most active estuaries. Two regions, 

Coastal British Columbia and Northern Coastal 

California are experiencing significant declines. Four 

regions, Interior Oregon, Washington, California, and 

Coastal Washington lack adequate data to establish a 

trend. One region, Interior British Columbia, has only 

a single colony. There is simply no basis on which to 

conclude that western populations of DCCO within 

Statements and conclusions in the FEIS were made using best available data 

for the applicable time period. Regarding the number of active colonies, see 

prior comment. Additionally, Figure 4-8 of the FEIS highlights the fact that, 

based upon best available count data between the two time periods in 

question, DCCO abundance outside of the Columbia River Estuary has 

remained relatively similar. These pieces of information, when considering 

the western population as a whole, support the conclusion in the FEIS that 

DCCO abundance outside of the Columbia River Estuary is relatively similar 

to ca. 1990 population levels. Furthermore, all trend data (i.e., BBS and 

colony count data), when considering the western population as a whole, 

show significant, positive increase over the past decades. 

USACE AR 000060

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 17 of 25
Appendix A: Comment Response Document

5 

Commenter Issue Comment Response 

the defined affected, but outside the Columbia River 

Estuary, are static.

Audubon 

Society of 

Portland

Effects to nontarget DCCO 

from 

Alternative C1 

This strategy is particularly irresponsible because if 

this action triggers a mass flushing response, the 

Corps will have no mechanism to address the 

situation—in other words, by the time the Corps is 

aware that it has triggered a mass flushing response, 

it may have already caused take far in excess of what 

is allowed under its permits. None of the mechanisms 

described in the FEIS fully account for this possibility. 

Proposed lethal control could result in substantial 

non-target take of DCCO due to flushing of birds from 

the colony above and beyond the numbers being 

targeted.

Detailed Adaptive Management thresholds, best management practices and 

impact avoidance measures, and extensive monitoring, and formation and 

evaluation of future management actions through an Adaptive Management 

Team (AMT) are described extensively throughout the FEIS (see Chapter 2, 

Chapter 4, and Chapter 5) to reduce the potential for the scenario and effect 

described. The FEIS and population model accounts for the potential of take 

as described in the comments by assuming that for each individual taken, 

their associated nest would be lost. A full range of effects from flushing and 

disturbance are discussed in the FEIS including emigration and colony 

abandonment (see Chapter 4, page 12). Management activities could result 

in indirect "take" (i.e., loss of eggs or chicks) and this is described in the FEIS, 

Chapter 2, page 3. The FEIS discusses all of the measures that will be used to 

minimize this potential for take. 

Audubon 

Society of 

Portland

Effects to the 

sustainability 

of the western 

population

By its own definition, the Corps is intentionally 

creating unstable DCCO populations in the Western 

United States. An unstable population is one which is 

vulnerable to a major decline. By the time the Corps 

detects a 5% change in the number of breeding pairs, 

it may be too late to reverse the instability that the 

Corps has already created. In other words, the Corps 

appears to be proposing to intentionally create 

instability by reducing populations below what it has 

defined as stable and then reassure stakeholders by 

proposing to monitor for instability in the population

The FEIS Executive Summary states on page 10:

A sustainable population was defined for this Final Environmental 

Impact Statement as a population that is able to maintain a longterm trend with numbers above a level that would not result in a 

major decline or cause a species to be threatened or endangered. 

Based on the past population trend and the current number of 

active colonies, it appears the western population is sustainable 

around 41,660 breeding individuals (ca. 1990 abundance). 

Long term population trend post-management is the determining factor for 

sustainability and whether a population will potentially become threatened. 

The population post-management is predicted to increase and potential 

adaptive management adjustments are described for what would occur if 

USACE AR 000061

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 18 of 25
Appendix A: Comment Response Document

6 

Commenter Issue Comment Response 

the western population is not responding as expected (see Chapter 5 page 

14, Tables 5-3 and 5-4). The western population will be evaluated from an 

annual survey and by comparing predicted population levels to the derived 

population estimate from the survey. The ca. 1990 population level is a 

known data point in time. This population has increased from numbers 

much lower than described for ca. 1990. Much lower population levels may 

be sustainable. As stated in the FEIS (Chapter 4, page 24), the western 

population would likely rebound to some extent if abundance levels were to 

temporarily drop below the ca. 1990 level given that: 1) mortality factors 

known to limit DCCO populations prior to the 1970s have been reduced or 

eliminated, 2) since the ca. 1990 time period the western population has 

exhibited growth on the whole, and 3) the sum of the breeding colony 

counts of the western population (excluding East Sand Island) ca. 2009 is 

similar to that observed in ca. 1990. Risk to the long-term sustainability of 

the western population is further reduced given that take on East Sand 

Island would occur within a well monitored and adaptive management 

framework (see Chapter 2, Section 2.1 and Appendix E-2), monitoring of the 

western population will occur annually and this information will be used to 

evaluate and adjust future management activities, and an annual 

depredation permit application would need to be prepared, reviewed, and 

issued prior to take. The Pacific Flyway Councils' Monitoring Strategy 

identifies the precision of the survey as being able to detect a 5% annual 

change. No "instability" or “stability” threshold was established. The ability 

to detect a trend from the monitoring strategy is different than the adaptive 

management strategy in the FEIS that compares the western population 

DCCO model population predictions to the annual population estimate 

derived from the annual monitoring of the western population, with triggers 

for management adjustment if the western population is responding one 

standard deviation from what is predicted. Management actions will be 

USACE AR 000062

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 19 of 25
Appendix A: Comment Response Document

7 

Commenter Issue Comment Response 

adjusted if the population is not responding as predicted.

Audubon 

Society of 

Portland

Effects to 

DCCO 

The FEIS states, “These effects (flushing, predation, 

nest abandonment, nest failure) would be greater the 

longer management actions extend beyond the 

initiation of nesting” (FEIS at 4-29). If the preferred 

alternative is adopted, we believe that it would be 

contrary to the terms of the FEIS for the Corps to 

attempt to implement the FEIS in the spring of 2015.

See comment above about measures described in the FEIS to minimize 

potential effects before, during, and throughout the breeding season. 

Additionally, in Chapter 2, pages 17 and 34, and Chapter 5, page 10 of the 

FEIS, it was described that the Corps, along with the federal cooperating 

agencies, would evaluate the feasibility of continuing certain actions during 

the nesting season once chicks are observed. Implementation of actions in 

2015 would be consistent with the measures described in the FEIS for 

conducting management actions before, during, or throughout the breeding 

season depending upon when actions occur. 

USACE AR 000063

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 20 of 25
Appendix A: Comment Response Document

8 

Commenter Issue Comment Response 

Audubon 

Society of 

Portland

Cumulative 

effects from 

combined 

Caspian tern 

(or CATE) and 

DCCO 

management

The FEIS fails to consider the cumulative impacts that 

could result from significant management activities 

involving both DCCO and Caspian terns on East Sand 

Island and the surrounding area during the 

spring/summer of 2015. If the preferred alternative is 

adopted this will result in significant additional 

human activity and habitat management on East 

Sand Island during the spring of 2015 above that 

which is anticipated in the DCCO FEIS. It also could 

result in significant additional hazing activity on East 

Sand Island or other Columbia River Estuary Islands if 

Caspian terns relocate to any of these locations. The 

FEIS fails to adequately address the cumulative 

impacts that may result from implementing both the 

EA and the EIS during the same exact time period. 

These actions could have direct additional impacts on 

Caspian terns and DCCO as well as other non-target 

species that are not anticipated in either NEPA 

document.

The Corps described the Caspian Tern Management Plan and potential 

reduction of Caspian tern habitat from 1.5 to 1 acre as a reasonably 

foreseeable future action in Chapter 4, Section 4.4.2 in the FEIS. After the 

release of the FEIS, the Corps posted a public notice announcing the 

proposed action to reduce Caspian tern habitat planned for spring 2015 in an 

Environmental Assessment (EA). Under baseline conditions (i.e., the "no 

action" in the Caspian Tern EA) Caspian terns are dissuaded from nesting on 

East Sand Island outside the designated colony area (currently 1.5 acres). It 

is likely that dissuasion material (i.e., ropes, flagging and stakes in a grid 

pattern) would again be placed on the DCCO colony similar to what occurred 

in 2014 under the scenario or either alternative being implemented. As 

noted in the comment, there is a potential for increased human hazing and 

presence on East Sand Island from implementing both the Caspian tern and 

DCCO management programs, scheduled for spring 2015. This increase in 

human activity and disturbance on the island has the potential to cause a 

range of effects to wildlife species on East Sand Island from flushing, loss of 

eggs, nest or colony abandonment. These effects were described in the FEIS 

(see Chapter 4).

Audubon 

Society of 

Portland

Monitoring First, we question why the Corps has not been 

monitoring at this level over the past several years in 

order to get a credible current baseline of DCCO 

populations levels and trends. Second, with culling 

set to begin during the 2015 nesting season which is 

now about to begin, we question whether the Corps 

could get funding, resources and contracts in place in 

time to do these surveys during the first year of 

implementation. 

The Corps funded the 2009 DCCO status assessment (Adkins et al.) and has 

monitored the East Sand Island colony to determine peak colony size and 

productivity since 1998. This monitoring contributed to the first survey of 

DCCOs under the Pacific Flyway Council (PFC) Monitoring Strategy in 2014. 

Additionally, the Corps, as described in the FEIS, is committing additional 

funding resources for future DCCO monitoring efforts of the western 

population of DCCOs. The Corps, unrelated to its decision regarding the 

DCCO management plan, has secured funding to assist the USFWS in 

implementing the PFC monitoring strategy in 2015 in support of RPA action 

67 that requires the DCCO population in the Columbia River Estuary and the

USACE AR 000064

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 21 of 25
Appendix A: Comment Response Document

9 

Commenter Issue Comment Response 

population’s impact on out-migrating juvenile salmonids be monitored. 

With the first complete survey of the PFC monitoring strategy finished in 

2014, data compiled and analyzed, and the USFWS leading many of these 

coordination efforts in collaboration with the states and PFC, the necessary 

lead time for monitoring in 2015 would be less than the prior year, as the 

Corps will be funding efforts through the USFWS so that monitoring efforts 

and process continue as seamlessly as possible. 

Oregon 

Department 

of Fish and 

Wildlife 

(ODFW) 

Effects of 

dispersal

ODFW's Avian Predation Program will terminate after 

6/30/15. ODFW believes the Corps management will 

likely be a major driver for DCCO distributional 

changes in the near future and that any dispersal due 

to our action will result in increased impacts to 

juvenile salmonids in Oregon, and Alternative C-1 

results in markedly greater dispersal than C. 

The Corps considered ODFW's Avian Predation Program and financial 

support of volunteer led boat-based hazing efforts in coastal estuaries as a 

reasonably foreseeable future action. Should these volunteer led efforts 

cease in light of the 6/30/2015 termination of this program, there could be 

increased foraging opportunities in coastal estuaries (e.g., Tillamook Bay) for 

DCCOs. However, these volunteer led efforts obtain additional private 

funding (Adrean 2013). It is likely that some boat-based hazing would 

continue to deter localized foraging by DCCOs, although an analysis of hazing 

effectiveness has not yet been conducted (Adrean 2013). The Corps also 

considered data from ODFW's take of DCCOs for scientific collection for diet 

studies—the Corps considered this scientific collection as a reasonably 

foreseeable future action that would likely continue. The Corps included 

ODFW’s take for scientific collection in the overall take analysis for the 

western population (see Chapter 4, page 22). If these actions discontinue, 

individual DCCOs would not be taken under scientific collection. However, 

the number taken each year was less than 50 individuals (Adrean 2013) and 

would have no measureable effect on the analysis in the FEIS regarding 

effects to DCCO. As described in the FEIS (Chapter 3 pages 1-5) data 

presented in the FEIS regarding potential dispersal locations indicate DCCOs 

are less likely to disperse to Oregon and more likely to disperse to the 

Columbia River Estuary and Washington. Adaptive management measures to 

minimize dispersal on East Sand Island would further minimize the potential 

USACE AR 000065

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 22 of 25
Appendix A: Comment Response Document

10

Commenter Issue Comment Response 

for dispersal to Oregon (see Chapter 5 pages 7–8), thus based on the above;

the loss of ODFW's Avian Predation Program would not change the 

conclusions regarding Alternative C-1 presented in the FEIS.

Audubon 

Society of 

Portland, 

National 

Audubon 

Society 

Mitigation The Corps rejects the idea of mitigation for the loss of 

cormorants at East Sand Island in part because it 

assumes that cormorants in the western North 

America population are not limited by habitat 

(Appendix J – page 48), yet it is assumed that only 

50% of the displaced cormorants will find sufficient 

habitat elsewhere (from population model). To the 

degree that DCCO abandon East Sand Island, there is 

a significant risk that they will not be able to find 

nesting habitat where they will be allowed to persist. 

This could result in population declines far in excess 

of what is anticipated in the FEIS as long-term 

productivity declines. 

The Corps' basis for not developing mitigation (i.e., the creation or 

restoration of DCCO nesting habitat to replace loss of East Sand Island 

nesting habitat) was primarily focused on the lack of feasibility that creation 

or restoration would be successful. As described in the FEIS, social attraction 

methods for DCCOs lack feasibility as a management strategy (FEIS Chapter 

2, page 44) and there is little to no social acceptability of DCCOs in coastal 

Washington and Oregon states where this mitigation would be most 

effective. The state wildlife departments of Washington and Oregon (both 

cooperating agencies to the FEIS) stated their concerns about potential 

conflicts and/or depredation of fish of conservation concern to those states 

(see Chapter 3 page 56). 

The assumption that 50% of the displaced DCCOs would find sufficient 

nesting habitat was made in selecting values for the DCCO population model 

and were specific to current and future habitat losses and the need to 

address those effects: the known loss of suitable habitat at the Mullet Island, 

Salton Sea, and the planned reduction of habitat on East Sand Island in 

Phase II. 

Audubon 

Society of 

Portland

NEPA The Corps’ position on range of alternatives may have 

validity if the agency had complied with its NEPA 

obligations in considering and choosing a strategy for 

FCRPS operations. However, the Corps did not 

comply with its clear obligation to assess its 2014 and 

future FCRPS operations under NEPA. The Corps has 

produced no NEPA analysis of FCRPS operations that 

This comment raises a legal matter currently in litigation in the U.S. District 

for the District of Oregon, Civ. No. 3:01-CV-00640-SI, which is the 

appropriate forum to address this matter.

USACE AR 000066

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 23 of 25
Appendix A: Comment Response Document

11

Commenter Issue Comment Response 

evaluates alternative hydrosystem operations in light 

of the enormous changes in both regulations and 

scientific knowledge over the last 20 years. These 

tremendous legal and scientific changes clearly 

render obsolete past Corps NEPA documents relevant 

to FCRPS operations.

Audubon 

Society of 

Portland

MBTA—

sustainable 

population 

levels in 

context of 

"threaten"

Because the requested authorization “potentially 

threatens” a wildlife population where the 

population would become unsustainable and its 

rebound uncertain, the Corps is not eligible for a 

depredation permit for the take of cormorants. 

Neither the MBTA nor its implementing regulations 

define the term “threaten.” See 50 C.F.R. § 10.12. 

Instead of determining whether the authorization 

would threaten the cormorant population, the Corps 

responds that, because the purpose and need for the 

action is not to reduce the regional cormorant 

population, “[t]he environmental analysis for this 

proposed action is estimating potential conflicts to 

the regional DCCO population.” The response makes 

no mention of the potential to threaten the regional 

cormorant population. However, the FEIS does 

predict that the western population of cormorants 

would fall below a level that is sustainable for four 

years after the implementation of Phase I of the 

Management Plan. FEIS 4-31. The Corps’ proposed 

action, by the agency’s own analysis, threatens the 

stability of the western population of cormorants.

See comment above regarding effects to the sustainability of the western 

population. We do not see a potential for threatening the western 

population. Sustainability has been defined in the FEIS and relates to longterm population trajectories after management actions. After Phase I of 

Alternative C-1 the western population is expected to increase based on 

modeled predictions. Potential threats to the species would be indicated by 

a continued decline post management actions. This is not expected. To 

further reduce risk, the Corps, in conjunction with partners in the Pacific 

Flyway Council, will annually monitor the western population and adaptively 

manage its approach if the western population falls 1 standard deviation 

below predicted modeled levels (see Chapter 5 page 14)

USACE AR 000067

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 24 of 25
Appendix A: Comment Response Document

12

Commenter Issue Comment Response 

Audubon 

Society of 

Portland

MBTA—take

of non-target 

species 

Because non-target bird mortality is not quantified 

and non-target birds are not responsible for damage 

or safety concerns, the Corps’ proposal to somehow 

include non-target bird species in the agency’s 

application for a depredation permit is inconsistent 

with the USFWS depredation permit application 

process.

See FEIS Appendix J, page 25, G-24. A depredation permit is required before 

a person may take migratory birds for “depredation control purposes.” 50 

C.F.R. § 21.41. While DCCOs are the focus of the proposed depredation take 

activities, based on prior research activities, take of pelagic and Brandt’s 

cormorants is anticipated and quantified as part of the proposed program 

for “depredation control purposes”. The take of Brandt's and pelagic 

cormorants associated with the take of the overall management plan is 

consistent with the "depredation control purpose." 

Audubon 

Society of 

Portland

MBTA—take 

of non-target 

species 

Considering the language of the MBTA’s 

implementing regulations, the USFWS’s depredation 

permit application, a statement by USFWS officials, 

and an understanding between the USFWS and a 

governmental agency, the Corps’ proposed take of 

non-target migratory birds does not fall within the 

purview of a depredation permit. Contrary to the 

Corps’ plan of action, a permit will not cover take of 

pelagic and Brandt’s cormorants prior to 

commencement of the proposed action. To avoid 

violation of the MBTA, the Corps must either ensure 

that zero pelagic and Brandt’s cormorants are taken 

without a permit from FWS, or it must wait until 

USFWS completes development of an incidental take 

mechanism.

See related response above. A depredation permit would authorize take of 

pelagic and Brandt's cormorants if (1) the quantity of take is known and the 

specific birds being taken are responsible for the interests being injured (i.e., 

DCCOs), (2) the take is part of an overall management plan. The depredation 

permit application will be used to identify pelagic and Brandt's cormorants 

as subject to take as part of the overall management plan for the DCCOs

responsible for interests being injured, but will identify that alone they are 

not the primary cause of the injury. 

USACE AR 000068

Case 3:15-cv-00665-SI Document 50-1 Filed 05/06/15 Page 25 of 25