In recent years, the Department of Fish and Wildlife (Department) has taken steps to strengthen its science capacity in response to the enactment of AB 2402 by the Legislature and Governor in 2012. Among other things, AB 2402 required the Department and the Fish and Game Commission (Commission) to develop a strategic plan and authorized the Department to establish a Science Institute to inform the work of the Department and the Commission. To strengthen its science capacity, the Department developed a Scientific Integrity Policy in 2017. That Policy states “work that has a substantial scientific or management impact or large expenditure of funds or is especially controversial in nature should be subject to formal independent peer review.” 


In light of this Policy, it would have been reasonable to expect that the Department would seek independent scientific review of its incidental take permit (ITP) issued under the California Endangered Species Act (CESA) for ongoing State Water Project operations. It is beyond dispute that the permit qualifies as “work” that involves the “large expenditure of funds” and is “controversial in nature.” In addition, the Department’s federal counterparts, the National Marine Fisheries Service and U.S. Fish and Wildlife Service, have sought independent scientific review of their draft biological opinions covering Central Valley Project and State Water Project operations over the last 15 years. Further, the Delta Stewardship Council’s Delta Science Plan includes an appendix addressing independent scientific review that explains that the Delta Science Program “promotes and provides independent scientific review of processes, programs, plans, and products.”

That all said, the Department remains behind the times when it comes to independent scientific review. The failure to conduct any such review whatsoever of the ITP for ongoing State Water Project operations drives home this fact.  But it is symbolic of a more widespread challenge facing the Department: it underutilizes independent scientific review and, when it does undertake such review, it does not conform to the best practices identified in the scientific literature – see Murphy and Weiland (2019) Independent Scientific Review under the Endangered Species Action. For example, while the Department is required to seek “independent peer review” of its status reviews of species that are being considered for listing under section 2074.6 of CESA, such reviews often are not conducted consistent with prevailing practices.

When seeking reviews of its own draft status-review reports, the Department apparently selects the reviewers, rather than deferring to a neutral party to do so. The Department also prescribes the review task statement and record for review in such circumstances, rather than deferring to a neutral party. This is particularly problematic if the Department personnel involved in authoring and reviewing a status review are also involved in the above-mentioned processes.  In addition, in many cases the Department has failed to respond adequately to critical input provided by reviewers. One glaring example of this lack of response is the Department’s failure to acknowledge and respond to highly significant issues raised by Dr. Erica Fleischman with respect to the state’s status review for then listing candidate tricolored blackbird. In the future, the Department should embrace the best practices for independent scientific review advocated by the Delta Science Program in Appendix H to the Delta Science Plan (2019) and described in the scientific literature on the subject (for example, see Carroll et al. 2017 along with Murphy and Weiland 2019).

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