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NWF.161/Apr.30.2003
[1] Oregon Judge May Toss Out Hydro Biological Opinion
[2] Battle Over Hydro BiOp Goes Public; Ruckus Over RPA
[3] Hanford Fish Stranding; Much Ado About Very Few?
[4] Jury Still Out On What's Killing Seattle's Salmon

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[1] OREGON JUDGE MAY TOSS OUT HYDRO BIOLOGICAL OPINION

A draft opinion by a federal judge sent to parties involved in ongoing litigation over the hydro Biological Opinion suggests that he may soon rule that the federal document is invalid. Oregon District Court Judge John Redden sent out his draft opinion recently, along with a set of questions he wanted answered during oral arguments (see story 2
) scheduled for April 21.

If the BiOp is dumped, the huge subbasin planning effort spearheaded by the Northwest Power Planning Council and funded mostly by BPA also could be in jeopardy.

The BiOp lawsuit was originally filed in May 2001 by the National Wildlife Federation, along with 15 other environmental and fishing groups. The groups claim that the BiOp's "no-jeopardy" decision on the effect of federal dam operations on ESA-listed fish was arbitrary and capricious. The groups want the BiOp withdrawn and consultation re-initiated by BPA, the US Army Corps of Engineers and the federal Bureau of Reclamation. When the suit was originally filed, the plaintiffs admitted they were using the tactic to press for breaching the four federal dams on the lower Snake River.

In part, the plaintiffs argued that the Reasonable, Prudent Alternative [RPA] to proposed operations advanced in the BiOp-- which actually contains 199 separate actions--was too dependent on off-site mitigation efforts to improve ESA-listed salmon and steelhead stocks.

But Judge Redden's draft opinion says NOAA's position is untenable because the wide-ranging harvest, habitat and hatchery measures that the federal agency expects to use as a hedge against salmon extinction are outside the action area "and, therefore, apparently, need not be 'reasonably certain to occur.'"

The judge said the main problem lies in the lack of "reasonable certainty" that many of the programs will be implemented. He cited the fish agency's rationale in the BiOp itself, in which NMFS concluded that the recovery plan had a "reasonable chance" of being implemented, and if it was, there was a reasonable expectation to conserve the species involved.

"The problem with this analysis is that the regulatory standard is not 'reasonable chance' but 'reasonable certainty,'" Redden said. "The fact that NOAA includes a 'hedge' against non-performance of the off-site mitigation programs in the form of periodic check-ins is laudable but does not obviate the lack of certainty in the programs."

He cited an amicus memo filed by Washington state, which concluded that, without citing any specific authority, the mitigation measures in the BiOp that "will be completed by the NWPPC [Northwest Power Planning Council], States, the Tribes and private parties are reasonably certain to occur because of the Action Agencies' obligation to fund, implement and contribute to such action."

Judge Redden then cited the state of Oregon's position, which supported the plaintiffs' argument, concluding that the BiOp failed to satisfy standards of Section 7 of the ESA because it relied "on actions for which necessary funding is unavailable, actions for which agencies lack authority, and actions that are not reasonably certain to occur because of the lack of binding agreements."

NOAA's position relied on two false premises, Redden argued. First, there are different analyses for the "action area" hydro system programs and "range-wide" mitigation programs. Second, there is no case law, statute or regulation that supports the position that those range-wide actions "need not be reasonably certain to occur."

Redden presented a list of questions for the parties to answer, including which authority supported the proposition that "range-wide" future mitigation actions described by NOAA are not within the "action area" of the 2000 BiOp for purposes of the "reasonably certain to occur" standard. He also wanted to know if there was an alternative to this standard for off-site mitigation programs.

If NOAA doesn't rely on future non-federal off-site mitigation programs for hatcheries, harvest and habitat, Redden asked what other factors in the RPA the agency relied on to avoid a jeopardy finding.

Last, he asked all parties if the remaining issues would be moot if the court concluded that the RPA relied on "improper factors."

"We're pleased we can focus our answers where the judge has asked for more clarity," said NOAA Fisheries spokesman Brian Gorman. NOAA Fisheries released a "findings" letter last year that found implementation of the BiOp was mostly on track. Of the 124 actions that required definition, implementation, or completion by 2003, 94 were being "implemented as expected." The other 30 actions had either a modified schedule or scope. Gorman said this year's findings letter will be out "shortly."

Last January, lead NOAA counsel Sam Rauch told a group of attorneys at a Seattle legal seminar that uncertainty over the success of future BiOp fish mitigation efforts was a "big issue" in the lawsuit. He also said he doubted the lawsuit would lead to dam removal, but that the "God Squad" would likely be called into action.

The seven-member "God Squad," headed by Interior Secretary Gale Norton, has the power to override government decisions with respect to ESA enforcement. Other squad members include the secretaries of the Army and Agriculture, the chair of the Council of Economic Advisers, the NOAA administrator, and one individual from the affected state.

PNGC spokesman Scott Corwin was more optimistic. "We think we have better arguments that should bring the court around from this draft." His group has amicus status in the litigation.

Northwest Irrigation Utilities, the Public Power Council, Franklin County, Grant County and Washington state farm bureaus are intervenor defendants, along with the Inland Ports and Navigation Group, and the states of Idaho, Montana and Washington.

Plaintiffs' amici include the state of Oregon, along with the Nez Perce, Yakama, Umatilla and Warm Springs Tribes. -Bill Rudolph


[2] BATTLE OVER HYDRO BIOP GOES PUBLIC; RUCKUS OVER RPA

Environmentalist and federal attorneys squared off last week in a packed Oregon federal district court, arguing the latest round of National Wildlife Federation v. NMFS. The debate focused on language in the 2000 hydro BiOp that seemed clear to the federal government, but not to plaintiff environmental and fishing groups, who allege that many of the BiOp actions designed to recover ESA-listed fish are too vague and voluntary, thereby "arbitrary and capricious."

The environmental groups say that federal dams, especially those on the lower Snake River, shouldn't be let off the hook for jeopardizing groups of salmon and steelhead.

The BiOp calls for other entities, besides federal agencies like BPA, to make improvements outside the hydro system in the realms of hatcheries, habitat and harvest, to boost numbers of endangered fish. The government analyses have found that the total suite of actions, including modifying dams and their operations, will likely recover stocks in the long run. Environmental groups don't agree.

Judge James Redden hadn't exactly thrown in his lot with plaintiffs, but he penned a draft opinion that embraced their thinking and called for invalidating the BiOp. He cited environmentalist arguments that claimed the off-site mitigation proposals needed to go through the same consultation process via Section 7 of the ESA as other parts of the BiOp.

Redden also presented a series of questions he wanted answered during the April 21 oral arguments, including one that asked if there was an alternative to the "reasonably certain to occur" standard for off-site mitigation programs.

In court, the judge pointed out that the government admitted most of its recommended actions would require consultation with the USFWS and NMFS, even if they weren't listed separately under individual actions. "The government takes the position this is not really part of the record...or subject to the 'reasonably certain to occur' standard," Redden said in his opening remarks.

He saw no point in discussing "the science of this matter," though a remand at some point may be necessary, he said. "At this juncture, there's a hurdle for the government to get over, for all of us to get over, before we need to get to the science. At least, that's the way I've approached it, and if I'm incorrect in my opinion, why, let me know why."

Government attorneys wasted no time explaining why they thought the judge had misread the BiOp. NOAA lead counsel Sam Rauch tried to clarify the difference between the Reasonable, Prudent Alternative [RPA] to proposed hydro operations spelled out in the BiOp and the basinwide salmon recovery strategies that were outlined as well, and one of the main targets for plaintiffs' arguments.

"It is incorrect to say that this RPA [Reasonable, Prudent Alternative] relies on state, private and federal measures," said Rauch. "To the extent that the RPA relies on this, it relies on this as the implementers for a federal action that is either funding or controlling what is happening."

Rauch said the BSRS [Basinwide Salmon Recovery Strategy] admittedly takes a broader view than the RPA, which only includes federal activities.

As for actions that are part of an RPA to avoid jeopardy of a species, Rauch said NOAA must "presume" that such actions will occur, not just be "reasonably certain" that they will be carried out. "Otherwise, there is no point in doing the analysis," he said.

But Rauch said Section 4 of the ESA also allows for a range-wide recovery analysis that lets the feds implement further actions with states and tribes. He said NMFS has used a sliding scale view to determine if the mitigation measures required by the species "need be in place when the species needs them."

He said the salmon are in "relatively good shape," with two years of record returns, which allowed for some measure of improvement in the short-term, "while the long-term improvements were being planned." He said that is one standard to determine whether actions will avoid jeopardy, and not "arbitrary and capricious."

But Rauch said the more fundamental question is the difference between the recovery strategy and the jeopardy opinion. "In terms of jeopardy, you don't analyze whether or not it is possible at the dams to do everything you can possibly do to ensure that the fish will survive regardless of what anybody else does. That is not the proper test. What you test is: 'Are you appreciably diminishing the opportunity for recovery?'"

Dam Agencies Can't Do Everything

The NOAA attorney said the plaintiffs would like to say that the dam agencies "are responsible, on their own, for the recovery of the species. That is not what the statute requires. The statute requires that the dam agencies do their part to recover the species, and their part is identified in the salmon recovery strategy. But the fact that the salmon recovery strategy identifies other parts for other actors does not mean that NOAA will rely on that for jeopardy."

Earthjustice attorney Todd True said Rauch made a "critical omission" in his statement. "Mr. Rauch said that no RPA action is not federal. The regulatory definition of an RPA is that it is an action that can be taken by the federal agency that's in consultation. That's within its authority. But that's not the end of the story," said True. "That's what got left out of Mr. Rauch's statement, because the next step [is] that we evaluate that RPA through a jeopardy analysis and determine whether the measures of that RPA, together with other things that can be considered under the regulation, will avoid jeopardy."

True cited the BiOp (9-203) to argue that some actions aren't part of the RPA , but are part of the jeopardy opinion. He read from the document: "The RPA also calls for performance standards, a schedule, and a process for ensuring that the off-site mitigation activities of the Action Agencies combined with the activities expected of other Federal and non-Federal entities will achieve necessary survival improvements."

True said the key distinction "is between Mr. Rauch's statement that no RPA action is not federal, which is true by definition of the regulation, and then everything that gets swept in, in the analysis to this, to conclude that those new measures there will avoid jeopardy."

True said the assumption that NOAA gets to "presume" actions will be taken doesn't square with the way the Endangered Species Act is done. It's not an assumption the government is entitled to make, he said.

When Rauch again testified, he said the BiOp citation mentioned by True was not in the document's conclusion section. The NOAA attorney then cited that section (9-282) to make his ultimate point, that the RPA improved upon the recovery strategy by explicitly "making things federal." He said that's where the BiOp explains how the basinwide recovery strategy is applied.

Rauch quoted from the BiOp himself, where language specifically detailed NMFS requirements of "a more reliable expectation of progress" for non-Federal actions in the basinwide recovery strategy that "provide survival improvements needed to avoid jeopardy."

Rauch said the BiOp is not a recovery plan as characterized by the plaintiffs, but a document that fulfills NOAA's obligation, "not to ensure recovery," but also not to diminish the likelihood of survival and recovery of the listed species.

Three Northwest states weighed in on NOAA's side. Idaho Assistant Attorney General Clay Smith told the court the ultimate question in this case is whether the ESA is flexible enough to respond to the complexities in this situation. Washington supported this view as well.

Robert Lane, Montana special assistant attorney general, said that his state was committed to the flexible implementation of both the BiOp and recovery strategy, because the RPAs were based on the "best science" and are uniquely tailored to the tremendous complexity of the recovery process.

Oregon dissented. Thomas Lee, from Oregon's Department of Justice, said his state endorsed the basinwide recovery plan, but that many of the elements of the BiOp are flawed, including its reliance on non-federal actions. He recommended a remand with a one-year time limitation.

Portland attorney Jay Waldron, who represented navigation interests, public power suppliers, farmers and ranchers, told the judge that somehow "we have co-mingled or confused in your mind the RPA which satisfies Section 7 obligations and the basinwide salmon recovery strategy, which is, as I would describe it, an extra, a bonus, something that involves all the public and private entities in the Northwest."

He said these "extras" shouldn't be what the court focuses on to find a failing of this biological opinion. He said it was "his humble opinion, that from the beginning of this lawsuit, the plaintiffs have filed the wrong lawsuit. They are upset about the implementation, they are upset about the science, so therefore they focused you on the basinwide salmon recovery actions which are not as specific as the federal actions under the RPA."

Judge Redden called the arguments "enlightening" and said he didn't know how long it would take before he put out a final opinion, but he said he would get it out relatively soon. -B. R.


[3] HANFORD FISH STRANDING: MUCH ADO ABOUT VERY FEW?

Columbia River salmon managers have tried to get dam operators to reduce fluctuations in the Hanford Reach to reduce the number of young salmon stranded this month by abrupt changes in dam discharges from power peaking operations.

The fish managers estimated that 200,000 to 300,000 fall chinook "fry" may have died earlier this month when the river elevation lowered and trapped the fish in pools that no longer connected with the main channel. Most fish mortality occurs in these pools when they drain or if temperatures reach lethal levels before power operations again allow for the water to rise and the pools re-connect with the main channel.

In 1999, Grant began re-shaping spring flows to reduce these effects. The utility voluntarily signed an agreement with agency and tribal fish managers that spelled out a sliding scale for reducing fluctuations, depending on the level of river flow.

"I don't like to point fingers, but it does take a coordinated effort to get those flows right," said Grant PUD spokesman Gary Garnant. Upstream, daily fluctuations from operations at Grand Coulee greatly overshadow PUD operations, he said.

But BPA says power peaking at Coulee and Chief Joseph dams actually helps Grant's efforts. BPA's Scott Bettin said Grant swaps power with the federal system which slightly increases fluctuations at the upper federal projects, but reduces them significantly at Priest Rapids. Power peaking occurs twice a day, following the normal flow of human activities that call for more electricity in mornings and early evenings.

The PUD operated within the voluntary criteria for only two days between April 14-20, according to a stranding report from the Washington Department of fish and Wildlife, but only found only 95 fish entrapped (40 dead) in sampling that week. But during the second week in April, observers found over 9,200 fry entrapped with 8,880 mortalities, which led them to call for reducing fluctuations.

But even if fish managers are correct in their estimate that several hundred thousand fall chinook fry may have died last month from the effects of stranding, that number is only a miniscule percentage of the fish rearing in the reach this spring--less than .9 percent of the fish managers' population estimate, which could be way low itself.

WDFW's Paul Hoffarth has estimated that about 35 million Hanford fry have emerged from eggs this spring.

However, last fall, after more than 70,000 adult fall chinook returned to the reach, redd counts were phenomenal--one estimate puts the number at over 32,000,--it's hard to see why managers haven't estimated this year's fry population between two and three times what they have said in public forums. Grant biologist Joe Lukas said the estimated fry population could range from 67 million to 139 million. Mortality of fall chinook salmon fry is naturally very high, only 10 percent or so survive to become smolts and migrate downstream.

Fuzzy Fish Math?

During the drought year 2001, the fish managers themselves are on record estimating that 23 million fry were inhabiting the reach. Grant PUD biologists have estimated that fish dug 13,600 to 23,000 redds in the reach that previous fall, and tend to stick with the most conservative end of the range--at 13,600. If about 13,000 redds produced 23 million fry, then a simple correlation says that this year's fry population should be close to 70 million fish. If this figure is correct, the stranded mortality for early April would be down to about .5 percent.

But the fish managers' mortality estimate is based on a new method of analyzing stranding effects, an effort funded by the Alaska Department of Fish and Game, which sent an April 18 letter to BPA, the Bureau of Reclamation, the Corps of Engineers, and Grant PUD supporting the fish managers attempts to reduce stranding this year. They cited the importance of this healthy run to ocean fisheries included in the Pacific Salmon Treaty. "The recent studies of stranding in the Hanford Reach demonstrate the potential magnitude of the problem," said the letter from ADFG commissioner Kevin Duffy.

However, Grant biologist Lukas said this year's random sampling, an older method used to estimate stranding mortality, tracks with previous years. He said data shows only a slight increase in stranding this year, compared to 1999, 2000 and 2002-- up to 1.5 fish per sample from .95 fish per sample during those years. During the drought year 2001, when fish managers estimated that 1.7 million chinook fry died from stranding, the fish per sample rate was 23.5, Lukas said.

On April 17, salmon managers called for bumping up flows out of Coulee to maintain at least 135 kcfs at Priest Rapids Dam until the end of June. They said such a strategy would help both spring chinook and steelhead migrating in the mid-Columbia and fall chinook in the Hanford Reach. The technical management team OK'd the request a week later, but only until May 7, when the situation will be revisited.

Another request by the managers through the TMT forum called for limiting fluctuations at Priest Rapids dam below levels agreed to by Grant PUD. But some forum participants pointed out that the group has no authority to tell Grant how to operate its dams.

Since February, the public utility has convened a series of meetings to discuss operations during the chinook rearing period, and has consulted with NOAA Fisheries, BPA and others on this year's operations. Grant has planned another meeting May 1 to address chinook rearing and other Hanford flow issues. -B. R.


[4] JURY STILL OUT ON WHAT'S KILLING SEATTLE'S SALMON

Scientists are still trying to figure out why so many coho salmon died last fall in one of Seattle's urban creeks.

An April 22 workshop co-sponsored by NOAA and Seattle Public Utilities brought together about 100 people to find out why, but all the audience heard was more mysteries. Over 90 percent of the 161 coho that made it to Longfellow Creek died before spawning last year, many just a few hours after entering the Duwamish tributary.

Fish counters reported that during one 10-day period, after an extremely dry October, every coho died that made it through the 3,000-foot-long pipe that runs from the Duwamish River, under several streets and a steel mill to emerge in a freshly restored section of the West Seattle creek.

The stream begins about three miles south, up the small drainage along Delridge Way, where its headwaters are channeled through two pipes that run 40 feet beneath a K-Mart parking lot.

A pipe runs through it.

"Dying fish appear to be in good physical condition (ocean bright, good condition index)," said a fact sheet passed out at the workshop. Scientists said the fish deaths didn't seem to be related to infection, disease, or parasite load. Limited water quality screening also failed to produce any smoking gun.

"No chemical has been detected at concentrations that are high enough to kill fish," said the fact sheet. Nor do conventional water quality parameters like temperature and dissolved oxygen appear to have any causal relation to the fish deaths.

Other symptoms noted by researchers included gaping and convulsions, which are generally signs of neurological abnormalities.

Nat Scholz of NOAA's Seattle-based Ecotoxicology and Environmental Fish Health Program said preliminary evidence shows that fish were exposed to polycyclic aromatic hydrocarbons, "but we don't know the precise cause of death."

It could be related to something called "fish flush phenomenon," said Katherine Lynch, a biologist with Seattle Public Utilities. Coho salmon like to head for creeks after the first heavy rains of fall, Lynch explained. But an extremely dry October could have allowed toxins to build up on roadways that were flushed into Longfellow Creek all at once, she suggested. Lynch said that pattern had not been observed the previous two years.

About 20 coho redds were counted in Longfellow Creek this winter, less than half the number counted the previous year. But only 10 coho fry and two smolts were trapped in the spring of 2002, not exactly a big bang for Seattle's buck.

Scholz suggested the high mortalities may relate to the hatchery origin of most of the fish. But the scientists say they don't know whether the coho mortality is a new phenomenon, or has occurred for years. They are also puzzled by the fact that only coho seem to be affected.

The city has spent over $4 million to restore about 1,200 feet of the stream that flows between a steel mill and the West Seattle golf course, a joint effort involving several city agencies and the community that first saw salmon come back in 1995, after an absence of more than 50 years.

By 2010, Seattle expects to begin spending another $4 million to remove several barriers to fish passage in the area of the golf course, which would add a four-fold addition to fish habitat. Above the golf course, $3.8 million has already been spent to improve another 3,500 feet of the creek, which included planting more than eight acres with native vegetation.

Most of the coho in Seattle's creeks are hatchery strays, Lynch said. "You probably wouldn't have fish in these streams unless we had strays," she said. -B. R.

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