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NWF.140/Mar.29.2002
[1] Judge Rules For Feds In Methow Valley Water Case
[2] House Bills Call For Peer Review In ESA Processes
[3] NMFS Hosts Watershed Workshop In Seattle
[4] Judge Yule Rules: Irrigators Back To Square One
[5] FERC Grants Tacoma Speedy License For Cowlitz Hydro Project
[6] Experimental Fishery Nets Early Spring Profits
[7] Budget Woes Hit Washington State Salmon Recovery Office

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[1] JUDGE RULES FOR FEDS IN METHOW VALLEY WATER CASE

A federal judge in Spokane has ruled for the government in a bitter feud (See NW Fishletter 135) over water issues in the Methow Valley after local residents sued over alleged infringements of their state rights to irrigation water.

On March 14, Judge Robert A. Whaley denied plaintiffs' motion for summary judgment in the Eastern District Court of Washington. A ditch company, several individuals and Okanogan County had taken the Forest Service and NMFS to court, arguing that by reducing instream flows in ditches across federal land that flowed into private irrigation projects, the USFS was indirectly claiming a water right. NMFS required the reduced flows to help endangered fish in the watershed.

The judge took a narrower view. "This is not a controversy about water rights, but over rights-of-way through lands of the United States, which is a different matter," Whaley said. By "conditioning" a special-use permit, the agency doesn't reserve water from other users who don't use Forest Service land to access water, he said.

Okanogan County commissioners haven't yet decided whether to appeal the decision, but were conferring with their attorneys and other groups who participated in the lawsuit, including several other Washington counties.

County commissioner Dave Shulz sounded like he was ready to continue the fight. "Okanogan County has been at the forefront when it comes to watershed planning and improving fish passage," he said. "We remain committed to improving conditions for endangered fish, but not at the expense of constitutionally protected water rights."

The ruling also found that none of the plaintiffs had standing in the part of the case that claimed a violation of the ESA. Judge Whaley also shot down plaintiffs' arguments that federal agencies had used the wrong "environmental baseline" to establish their biological opinion. The feds set flow levels based on flows they estimated had occurred before settlers moved to the Methow Valley; plaintiffs argued that the baseline should account for current water withdrawals.

Whaley also approved the NMFS policy of equating the "jeopardy" standard with "properly functioning conditions " or recovery. He said the record in this case supported a finding that "actions that would ensure the species survival might be the same (or at least are an important factor to consider) as those needed to achieve recovery."

The judge didn't buy plaintiffs' argument that the NMFS "Habitat Approach" was illegal because the agency did not allow for public comment, an element of the rulemaking process. He said the federal approach was not a rule because NMFS does not always use it.

The ruling left some local residents shaking their heads. Dick Ewing, who heads the watershed planning group for the valley, said the judge didn't rule on the main issue--whether the ESA gives the government the right to dictatorial powers. He said that in some areas, local water users can use state grants to drill wells to make up for losses incurred by the NMFS flow policies, but in places like the Methow tributary of the Chewuch River, "there is no ground water to replace the ditch water that's been cut to aid flows for fish."

Plaintiffs considered flows to be arbitrarily set by federal fish officials, according to depositions in the case from some residents, members of the Early Winters Ditch Co. They said NMFS personnel told them if they didn't accept a minimum flow of 35 kcfs for Early Winters Creek, the agency would bump it up to 50 kcfs, which meant less irrigation water than otherwise.

Attorney Galen Schuler, representing Okanogan County, said his client was "very disappointed" at the outcome. "We're looking at our options. What we thought were very serious and important issues really weren't reached in the opinion that we received. -Bill Rudolph


[2] HOUSE BILLS CALL FOR PEER REVIEW IN ESA PROCESSES

The House Resources Committee held a hearing in DC last week on two bills designed to bring more scientific peer review to the process of designating endangered species and developing recovery plans. The proceedings included professors, a sprinkling of consultants and an ordained minister, who gave the ESA a religious spin. Witnesses included University of Washington researcher Jim Anderson, who developed a BPA-sponsored salmon passage model for the Columbia River and has stayed involved as a consultant to BPA and water users.

Committee chair James Hansen (R-UT) said the consequences of "poor ESA science" have been devastating to economies in the West. "As a result," said Hansen, "we're seeing a groundswell of support for reforms--particularly reforms that mandate the use of good science."

Hansen pointed out the recent NMFS announcement to scrap its critical habitat designations for 19 fish populations on the West Coast. "Most of it appears to have been based on guesswork," Hansen said. "That's unconscionable.

"We want to put a stop to that kind of sloppy federal management," he continued. "These bills will mandate that all agencies in the Interior use research, proven data, and peer-reviewed science when they designate habitat for struggling species. We owe it both to the public and the species we're trying to protect."

HR 2829, sponsored by Rep. Greg Walden (R-OR), would require the Interior Secretary to give "greater weight to scientific or commercial data that is empirical or has been field-tested or peer-reviewed, and for other purposes." Rep. Richard Pombo (R-CA) has sponsored HB 3705, which calls for independent review of ESA petitions and jeopardy opinions.

Walden's bill does not call for peer review of opinions that result in non-jeopardy rulings, a fact mentioned by witness Michael Bean, chairman of the wildlife program for the group Environmental Defense. Walden noted the discrepancies in his bill.

NMFS and USFWS officials didn't seem too keen on the proposed changes, but promised more open processes. They also promised to have a new Klamath Basin BiOp, put together "by some of the best fish biologists in the world," ready by April 12. NMFS' Rebecca Lent expressed concerns that the bills' mandates would conflict with current statutory deadlines.

The usual ESA horror stories were in evidence as well. One California consultant testified that a San Bernardino hospital spent $3.5 million to move an addition that was already under construction 250 feet to accommodate the habitat needs of eight endangered "flower-loving flies."

A religious note was added with the testimony of Peter Illyn, executive director of a group called Restoring Eden in La Center, Washington. He used the occasion to do a bit of preaching. "Somehow in the wisdom of God, which I don't pretend to understand," said Illyn, "he made the flower-loving fly and he made the suckerfish, and he made the spotted owl, and that God made all of God's creation according to God's purpose and it's not my place to destroy what God called good." Illyn said there is no Christian justification to destroy the fruitfulness of the Earth and blaspheme the wisdom of God expressed in biodiversity.

Northwest scientist Jim Anderson followed, saying that the recent reversals of listings for Oregon coho, the NMFS about-face on critical habitat and the National Academy review of the Klamath Basin BiOp all happened "because the agencies felt they were protected by the Endangered Species Act from standing up to their science with peer review.

"Now the agencies realize, of course, that peer review is important," Anderson said. "Recently there was a review of the Habitat Conservation Plans; 25 percent of them did have review boards. This is actually quite a low number. Studies that evaluated them concluded quantitatively that those 25 percent were the best of the habitat conservation plans. The ones which had no peer review were the worst."

Anderson said such review should be "scalable," depending on the size of the reviewers' task, with some situations requiring that groups meet more than once. When things get more complicated, as with endangered salmon, he said a standing panel may be necessary. Anderson told the committee that one such panel is already in place, charged with overseeing technical recovery teams dealing with West Coast salmon.

But Princeton ecology professor Andrew Dobson said he had concerns about the bills. He said the proposed changes to the ESA would limit scientists' ability to use some of the "most important mathematical tools as well as data" in examining endangered species.

He said the bills distort and misunderstand the nature of the peer review process. His last concern was that time delays created by excessive use of peer review would increase the risk of extinction but also frustrate landowners and lawmakers.

Dobson said the ESA was fundamentally sound, because it was one of the few pieces of legislation that requires "many important decisions to be based solely on science." But he said the proposed bills don't seem to have any understanding of how science works, because of confusion over data and the process of producing it, "which has to be peer-reviewed."

He said there seems to be an underlying assumption that a National Academy of Sciences committee could be assembled at any time to sit in judgment of any vaguely contentious case. "It's the equivalent of going to the police," Dobson said, "and saying we're going to take away your speed detector and we're going to let you guess the speed of vehicles, and if you're wrong, the person you said was speeding has to go to the Supreme Court to debate over the speeding ticket--that's the equivalent of calling in the National Academy. The main problem with the Endangered Species Act is that it's massively under-funded."

He called the proposed bills "sheep in sheep's' clothing," and said they would make the ESA more woolly and slow-witted. "What's really needed is a bill that reflects one of the ESA's major successes--the reintroduction of wolves into Yellowstone," Dobson said. "Such a bill would have the teeth of cutting-edge science and the focus ability to allow landowners to benefit from the presence of endangered species on their land, just as the elk of the park and the surrounding colony have benefited from the re-introduction of wolves."

Rep. Pombo took issue with Dobson, saying he didn't think the scientist had a clue about how the ESA works in the real world and what the impact is. He described the situation with fairy shrimp in California's Central Valley and the population model that was used to help declare the species endangered. Later, the species was found throughout the state. "If a peer review process had been in place, and real data," Pombo said, "they would never have listed that particular species."

The Yellowstone wolf issue came up with the third panel of the day, when Randy Simmons, head of the political science department at Utah State University, said the effort to reintroduce the carnivores was a noble one, but not very scientific. Scientists set an interim goal of building 10 wolf packs, each with a pair breeding successfully over three years. When these conditions were reached, then the species would be downgraded from endangered to threatened.

Simmons said he had to file a FOIA request to get information regarding the "science" and the experts that USFWS claimed it had consulted to come up with those numbers. He said the agency replied that it had not undertaken any studies dealing with minimum viable populations, nor had any records of any materials referencing any recovery numbers. In other words, said Simmons, their decision was arbitrary.

Other testimony from California scientist David Vogel supported expanded peer review because the ESA process in places like the Klamath Basin, where irrigation water was cut off last summer to help endangered suckerfish, has become "closed" over the past 10 years. He said highly relevant scientific information was either overlooked or ignored.

"The agencies gave greater weight to theoretical information to support an assumption for high lake levels and high reservoir releases without acknowledging empirical data that did not support their premise," Vogel said. It's a situation where an inexperienced individual has a speculative idea that evolves into an assumption that, over time, turns into a fact, he added. "Ultimately, the presumed fact becomes a mandate under the Endangered Species Act. In my experience, once this occurs, it is next to impossible to change"

After the hearing, it was reported that federal officials were open to the notion of adding peer review as rules in their ESA consultations. -B. R.


[3] NMFS HOSTS WATERSHED WORKSHOP IN SEATTLE

Federal scientists hosted a day-long workshop in Seattle last week to showcase their latest research directed at helping salmon recovery efforts. About 150 folks attended the March 19 gathering, many of them affiliated with state and tribal fish agencies. A handful of consultants were also on hand, who later told NW Fishletter that the research outline at the workshop seemed more appropriate for an academic setting, but bore little relation to the short-term needs of salmon recovery. They had said the same thing after last year's kickoff workshop in Seattle as well, questioning the overall direction of the research effort.

But NMFS scientist Phil Roni said the 20 people gathered by NMFS to staff its watershed research program since 1998 is a response to the "massive research needs" of the overall salmon recovery effort. A research plan that Roni said was in the works last year is now in draft form. Roni also described a recent paper that he co-authored with five other scientists that tries to prioritize restoration efforts--with initial efforts on protecting high quality habitat and intact processes.

The group recommends that after an assessment, watershed restoration efforts should first focus on reconnecting isolated high quality habitat now inaccessible by culverts or other artificial barriers. Efforts should then be directed toward restoring natural processes by road de-commissioning, excluding livestock, and restoring riparian areas. "Instream habitat enhancement (e.g., additions of wood, boulders, or nutrients)," the authors said, "should be employed after restoring natural processes or where short-term improvements in habitat are needed (e.g., habitat for endangered species)."
Estuaries are a big piece in the salmon recovery puzzle.
(Photo courtesy WDFW)

Scientists reported on modeling efforts in several areas; some reported on efforts to model floodplain dynamics; others have mapped fallen logs in headwaters streams to estimate the amount of sediment trapped by the large debris.

Ashley Steel reported on work to predict steelhead density in the Willamette Basin. According to the abstract, "these models will be used to identify locations within the basin that might support unusually high numbers of fish and to predict potential abundance in areas that are currently inaccessible to steelhead."

Others reported on research into density dependence to aid in developing a model that could help order the importance of different habitats used by salmon, but scientists said that their modeling efforts so far seemed to "mask" what they consider to be the case--that estuaries like the Skagit in northern Puget Sound are limiting factors to increasing productivity because they have shrunk so much from diking and agricultural development. -B. R.


[4] JUDGE YULE RULES: IRRIGATORS BACK TO SQUARE ONE

Benton County Judge Dennis Yule did not grant eastern Washington irrigators their motion for summary judgment in their lawsuit against the Washington Department of Ecology. In a ruling issued last week, the judge said the case is complex enough to warrant a trial.

The Columbia-Snake Irrigators Association had gone back to court after settlements talks with the DOE failed to produce more water for some applicants who had been waiting for years to have their permits processed. While the DOE did issue 12 new permits for using Columbia River water, they prohibited water withdrawals in July and August in order to meet flow targets that the agency admitted are hard to achieve even in average water years.

That didn't placate the irrigators, who said the state could not enforce the NMFS flow targets for the mainstem Columbia, part of the BiOp that outlines river operation for ESA fish, because the DOE had not gone through rulemaking. Judge Yule did uphold his injunction (filed by irrigators) that the state agency can't use the flow targets when considering new permits, and it is still in effect.

Consultant Darryll Olsen, speaking for the irrigators group, said their board has elected to proceed with the litigation. "Incompetent public policy is not acceptable," he said.

Judge Yule told the irrigators that he might issue relief after a full trial, but it was premature at this time. The state had argued that a full trial was necessary and also claimed its failure to act on some of the permits in 10 years is not arbitrary and capricious. The judge should not rule until the agency had time to issue its own rule, the state said.

Irrigators were upset that Yule had not really investigated their claims about the flow targets--namely, that the NMFS targets were basically unachievable and had little effect on listed fish. The plaintiffs cited an analysis using the CRiSP model from the UW's Columbia Basin Research group that said the amount of water requested in the permit application filed by the Quad Cities [Tri-Cities plus West Richland], which accounted for about half of the potential withdrawals, could theoretically kill about eight salmonids annually. In other words, "an unmeasurable impact," said irrigators' attorney James Buchal. -B. R.


[5] FERC GRANTS TACOMA SPEEDY LICENSE FOR COWLITZ HYDRO PROJECT

In a victory for Tacoma Power, FERC on March 13 issued a new 35-year license to continue operating the 462-MW Cowlitz River Project, ending less than two years of proceedings. The license takes effect April 12.

The Federal Energy Regulatory Commission's alternative relicensing process made the quick and painless turnaround possible, as did a crucial agreement Tacoma reached with federal and state agencies, the Yakama Indian Nation and other stakeholders prior to filing its relicense application, said Steve Klein, superintendent of Tacoma Power.

"In the old process, the utility would develop the proposal and then send it back to FERC," Klein said. "It would get sent out and everyone would attack it. We'd get all this feedback and FERC would say, 'Fix it.'"

Negotiating and hashing out the details of the relicense plan with government agencies, tribes and environmental groups before relicensing saved time, litigation and aggravation, he said.

The agreement was signed by Washington state's Department of Fish and Wildlife, Department of Ecology, Parks and Recreation Commission and Interagency Committee for Outdoor Recreation; the US Department of the Interior, US Fish and Wildlife Service, National Marine Fisheries Service and US Forest Service; the Yakama Indian Nation; Lewis County; Trout Unlimited; and American Rivers.

The Cowlitz license is one of 24 hydro licenses FERC has issued using the alternative relicensing process established in 1997. Hydro licenses generally are issued sooner to applicants who use the alternative process than to those who use the traditional process, said Celeste Miller, a spokeswoman for the agency.

The alternative method "gets people talking about the issues earlier in the process," she said.

FERC plans to release a study that compares the average time it takes to issue a license using the alternative process with the time it takes using the traditional approach.

Conditions of the new license include fish passage improvements at Tacoma's two Cowlitz River dams, upgrades to salmon and steelhead habitat along the river, fish hatchery renovations and increased water flows.

Rob Masonis, a negotiator in the Cowlitz agreement for the environmental organization American Rivers, praised the license, the alternative process and Tacoma's performance. "We thought it was a deal that made sense for the environment as well as the power company," Masonis said. "It wasn't everything we'd hoped for, but we thought the environmental protections Tacoma was willing to fund were a substantial improvement over current conditions."

Tacoma remains at loggerheads with American Rivers over the relicensing of the utility's Cushman Project on the Skokomish River. That license, issued by FERC in 1998, is still locked in litigation in Federal District Court in Washington, DC.

Not all participants in the Cowlitz negotiations signed on. The Cowlitz Indian Tribe, Friends of the Cowlitz, CPR-Fish and Lower Columbia Fish Recovery Board, among other groups, rejected the agreement, calling its proposed measures inadequate to ensure the recovery of listed salmon stocks.

Tacoma has updated its approach to hatchery design and the preliminary results are promising, Klein said. Unlike the old days, "the goal today is not to build the world's largest salmon hatchery," he said. Instead, Tacoma is pursuing a series of pilot tests to determine the best way to ensure returns for hatchery fish as well as wild stocks.

The Cowlitz Project includes the Mayfield Dam and Mayfield Lake, the Mossyrock Dam and Riffe Lake, the Cowlitz Salmon Hatchery and associated Barrier Dam, and the Cowlitz Trout Hatchery.

Implementing the license conditions will cost about $60 million over the 35-year period of the license, according to Tacoma Power estimates.

Tacoma initially requested a 40-year license; the Cowlitz project's original license, issued in 1951, was for 50 years. FERC decided on the 35-year term so that it would expire at the same time as the license for Lewis County's Cowlitz Falls Project, Klein said. Although the shorter license period presents an economic challenge, Klein and his colleagues at Tacoma Power are still smiling. "We're still reveling in the success of the process," Klein said. -Cassandra Sweet


[6] EXPERIMENTAL FISHERY NETS EARLY SPRING PROFITS

The experimental tangle net fishery in the lower Columbia has pumped nearly $1 million into the pockets of the two hundred or so hearty fishermen taking part in the spring chinook fishery. After plenty of initial grumbling and complaints about the short soak times and need for special boxes to revive wild fish, the fleet picked up the pace and the chinook run accommodated them, building momentum with each new fishing period.

The nets are designed to catch fish by snagging them rather than trapping fish by the gills so that wild salmon can be extricated and released. Only hatchery fish that are identified with a clipped fin can be kept by the fishermen. With initial prices hitting 5 dollars a pound, and fish averaging about 15 pounds, it didn't take many to add up to a real payday.

By March 26, over 11,000 chinook had been caught, with about half of them estimated to be Willamette River fish. Another 11,000 chinook have been released, with nearly 10,000 of them expected to be headed past Bonneville Dam, according to figures released by harvest managers earlier this week. They recommended one more 14-hour fishing period before calling the season good, in which they expected harvesters to keep up to another 2,500 springers.

The staggered season began the last week in February and continued through March 27. Since fishermen were only allowed to keep nets in the water for 45 minutes at a time, harvest managers estimated that 640 "drifts" took place. Steelhead showed up in the catches more than expected--nearly 19,000 were released by March 25 with more than one-third of them marked as hatchery fish. Immediate mortality of steelhead from the tangle nets was less than 2 percent, managers estimated. BPA footed a $600,000 bill to pay for observers and a monitoring effort that will look at longer term survival of fish released from the experimental gear.

The season was extended after initial chinook catches were much lower than expected. Managers had originally thought gillnetters would harvest about 19,000 spring chinook, but it looks like the fleet will come in four or five thousand fish shy of that number. Still, harvest managers say the catch of Willamette hatchery spring chinook is "well below" the 9,700 fish catch allocation, which is still less than a 1 percent impact on wild Willamette fish, they said in their latest joint staff report. -B. R.


[7] BUDGET WOES HIT WASHINGTON STATE SALMON RECOVERY OFFICE

Faced with a $1.6 billion shortfall in the state budget, Washington lawmakers slashed several programs that had approached sacred-cow status, including Governor Locke's own salmon recovery office, which has coordinated efforts to recover fish. The office was created in 1998 and slated to close in a few years.

Its $600,000 annual budget was cut to $200,000, said the office's communications director, Sandi Peck. That leaves only enough funding for one full-time employee. Currently, about a dozen people work there--four from other state agencies, whose salaries are paid out of those agency budgets. Two others represent the state in efforts to coordinate east- and west-side recovery efforts, some of which are just getting off the ground.

Peck said the state is in serious financial difficulties. "We weren't targeted in particular; it's just to save money." Peck did say that some legislators feel other agencies can take over recovery efforts at this point. She said there has been some discussion of asking the state's Salmon Recovery Funding Board for assistance.

Peck said the cuts don't reflect a reduced commitment to recovery efforts, but simply acknowledge the fiscal bind the state must overcome. She pointed out that all agencies are faced with cuts, including WDFW, where several hatcheries are slated to close this year. -B. R.

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