Oregon Judge Dumps BiOp Over "Uncertainties"
 Judge Calls For More Briefs In BiOp Decision; 1-Year Remand Likely
 American Rivers Goes After FERC Over Hells Canyon Dams
 Second Phase Of Puget Sound Hatchery Review Completed
 Enviros Say They Will Sue State Over Hatchery Effluent
 Washington State Doles Out $22 Million More In Salmon Recovery Dollars
 Fish Managers Call For Less Power Peaking At Upper Columbia Dams
 Patt Named New CRITFC Director
 OREGON JUDGE DUMPS BIOP OVER "UNCERTAINTIES"
A federal judge in Oregon has followed through with his inclination to throw out the 2000 Columbia Basin hydro Biological Opinion because it relies on actions that would take place outside the Federal Columbia River Power System. The measures, which the BiOp required as a way to mitigate ESA-listed fish losses in the basin, "are not reasonably certain to occur," US District Court Judge James Redden said in his May 7 ruling.
Environmental and fishing groups sued federal agencies in May 2001, alleging in part that the BiOp relied on too many unspecified future actions to improve fish habitat, hatcheries, and harvest as part of a "Reasonable, Prudent Alternative [RPA]" to proposed dam operations.
Along with some modifications to dams and their operations, the BiOp called for many improvements to Columbia Basin hatcheries and habitat. The total mitigation package spelled out in the telephone-book-sized BiOp led federal authorities to decide that the dams and their operations did not jeopardize the existence of the 12 different stocks of Columbia and Snake River salmon and steelhead. Some have been listed for protection under the Endangered Species Act since 1991.
Judge Redden didn't buy the government's argument, voiced April 21 in oral testimony in National Wildlife Federation v. NMFS, that the BiOp's rigorous evaluation process increased NOAA's ability to rely on non-federal actions to improve salmon and steelhead populations. His ruling was presaged in a draft opinion issued before oral arguments, along with a series of questions.
Redden said the adoption of a monitoring system may be a laudable effort, but it "does not supplant the requirement that NOAA rely only on those federal mitigation actions that have undergone Section 7 consultation [under the ESA] and non-federal mitigation actions that are reasonably certain to occur when it renders a no-jeopardy opinion."
The judge ruled that the BiOp was "arbitrary and capricious" because it was "improper" for NOAA to rely on both federal range-wide actions--encompassing the Columbia Basin as well as the dams--and off-site mitigation actions--such as those aimed at hatchery and habitat--that hadn't undergone Section 7 consultation under the ESA; and non-federal range-wide, off-site mitigation actions that were not reasonably certain to occur.
Redden called for a May 16 hearing to discuss remand (see story 2), which would allow NOAA to consult with interested parties to ensure that only off-site federal actions that have undergone consultation and non-federal actions reasonably certain to occur would be considered in the determination of whether the listed stocks would be jeopardized by operation of the hydro system.
Redden did not rule on the scientific issues associated with the lawsuit. Last month, he specifically separated them from the immediate question of whether these recovery actions were reasonably certain to occur. But his decision gave dam breaching proponents new hope.
Earthjustice and other groups have never been shy about their motives in the case. They want the four dams on the lower Snake River breached, and said so when they originally filed the suit two years ago.
Earthjustice attorney Todd True said the court saw through the plan's "empty promises, and they are not enough to comply with the law." True said Redden's ruling gives the region an opportunity to take effective action.
Mark Van Patten, president of the National Wildlife Federation, characterized the decision as a rejection of the federal plan "because it lacks scientific credibility."
Others were more blunt about Redden's ruling. "Unless BPA provides actions to restore salmon...and fund them, Snake River dam breaching is back on the table," said Don Sampson, executive director of the Columbia River Inter-Tribal Fish Commission.
NOAA Fisheries spokesman Brian Gorman told NW Fishletter that his agency has not decided whether to appeal Redden's decision, or repair the damage. "The judge ruled that off-site mitigation is flawed. The silver lining is that, flawed or not, the BiOp seems to be working," Gorman said. "We do have better returns from habitat improvements, and the three agencies that run the dams, with a couple of exceptions, are right on track with implementation."
If the ruling is remanded, NOAA Fisheries likely will have a year to satisfy the court's concerns, Gorman said. He said his agency hopes the judge will leave the current BiOp in place during any new consultations.
Gorman said Redden's decision was fairly focused on whether NOAA Fisheries can assure greater certainty for these off-site actions, and that it had nothing to do with breaching dams.
Before issuing the latest BiOp, the feds said it might be possible to save the fish without breaching the dams. In the summer of 2000, when the BiOp's first draft went public, George Frampton, then chair of the White House Commission on Environmental Quality, said breaching the dams was not necessarily "essential" to recovering the four Snake River stocks "and probably wouldn't be sufficient."
Frampton pointed out that critical uncertainties, like understanding total survival of fish barged around the Snake dams, needed more study before the issue could be resolved (A critical NOAA Fisheries study designed to investigate the uncertainties of barging fish was put on hold this year, a victim of budget uncertainties and slow response from state agency and tribal fish managers).
Meanwhile, power industry folks are trying to perceive the silver lining Gorman sees in Redden's decision. Public Power Council attorney Denise Peterson said the upcoming hearing gave NOAA "an opportunity to make a commitment for cost-effective salmon recovery measures."
Others, like attorney James Buchal, who represented intervenor group Columbia River Alliance, which supported NMFS in a years-long challenge by environmentalists to the 1995 BiOp, saw a more nefarious scenario in the BiOp decision. He pointed out that the BiOp was a product of the Clinton administration. "Based on years of experience with this process, I am highly confident that the biological opinion was designed to self-destruct upon judicial examination," Buchal said. "The United States Court of Appeals for the 9th Circuit has long held that a jeopardy finding cannot be avoided by reference to mitigation programs, unless such mitigation programs are reasonably certain to occur."
A Seattle attorney familiar with BiOp litigation agreed. The government attorneys did the best they could, "given the hand they were dealt."
The day after the BiOp decision was announced, a traveling panel of 9th Circuit judges heard oral testimony in Portland that challenged NMFS on another ESA front: whether hatchery fish should be counted as part of a currently listed wild stock. If the Niners uphold a lower court decision, many Northwest salmon and steelhead stocks could be de-listed soon. The federal fish agency didn't appeal the earlier decision (Alsea Valley Alliance v. NMFS). The agency is re-vamping its hatchery policy, but is not expected to make any changes that reduce the number of listed stocks. -Bill Rudolph
 JUDGE CALLS FOR MORE BRIEFS IN BIOP DECISION; 1-YEAR REMAND LIKELY
Oregon US District Judge James Redden heard advice from both environmental and government attorneys May 16 on how to proceed with his decision earlier this month that the Biological Opinion for Columbia Basin hydro operations was illegal because it relied on too many fish recovery actions that were uncertain to occur.
Earthjustice attorney Todd True argued that the BiOp should be declared invalid. Earthjustice has already filed a 60-day notice to sue the federal government for operating dams under an "illegal" BiOp. He argued that the Administrative Procedures Act called for the BiOp's termination.
Federal attorney Fred Disheroon said that invalidating the BiOp would create chaos in both hydro operations and financially strapped agencies that would be charged with writing a new one. He said the case law was clear--"the court must look at the magnitude of disruption."
Judge Redden called for Earthjustice and the government to file briefs within a month to argue these points. He had discussed whether earlier efforts at mediation could be revived to settle the suit, but neither side seemed much interested. Disheroon told the judge that the plaintiffs had walked away from the table during that effort. It's one of few public remarks made by any party to the mediation, which remains secret to this day.
The judge seemed inclined to settle the action soon. "I have a recurring nightmare that we're still talking up here about the fish problem and somebody catches the last one," Redden said. He said he was inclined to give NOAA Fisheries a year to satisfy his May 7 ruling with status updates every 90 days.
So for now, the BiOp still hovers over the region. If it is thrown out while NOAA revises it, environmental groups could sue to add more fish recovery elements. As long as it stays in place, NOAA is immune from such lawsuits. "We don't think they're [defendants] doing enough to protect the fish," said True.
Tim Weaver, representing the Yakama Nation, said his clients felt that the feds' argument was more about protecting BPA's concerns than the fish. "We've never seen the zero-aluminum-ingot option, but we've seen the zero-fishing option," Weaver told the court.
Though breaching the four dams on the lower Snake wasn't mentioned at the May 16 hearing by True, lead plaintiff National Wildlife Federation was not shy about bringing it up after the judge's May 7 ruling. "We and others have long maintained that based on the best scientific evidence, restoring the river will require removing the four lower Snake River dams," said NWF's executive director Mark Van Patten. "We also maintain that if the dams are removed, investments will be needed to replace the hydroelectric energy and barge transportation the dams created."
The notice to sue letter filed May 9 by Earthjustice alleges that 5 to 15 percent of migrating juvenile salmon and killed in passing each mainstem dam and associated reservoir. They also say the dams are responsible for killing migrating adults "in large numbers."
The Earthjustice letter says, that after the judge's ruling "the hydro system must be operated to avoid jeopardy without reliance on future uncertain federal, state, and private actions to offset hydrosystem-caused harm. It is apparent from the 2000 BiOp itself that such means have not yet been identified. Once the hoped-for beneficial off-site actions are taken out of the analysis, it is also apparent that current operation of the FCRPS [Federal Columbia River Power System] is jeopardizing listed species and adversely modifying critical habitat, in violation of the ESA."
But regional NOAA Fisheries administrator Bob Lohn said he was encouraged by the judge's remarks. He said his agency must choose whether to respond to the technical issues of the ruling and more carefully "document" the certainty of fish recovery actions outside the hydro system, or undertake a more intense analysis that uses more and better information than was previously available.
Lohn said he couldn't claim all the credit for improved fish numbers, which have benefited from a huge improvement in ocean conditions over the past few years. Many smolt-to-adult return rates have improved ten-fold since the BiOp was released in 2000.
At that time, language in the document said NOAA acknowledged "a state of perilous decline" of many salmon and steelhead stocks, a point echoed by Judge Redden in his opinion. Snake River escapements of wild spring Chinook dipped below a thousand fish in both 1995 (764 chinook) and 1999 (597 chinook), but have bounced back significantly since then. In 2000, the spring escapement was 3,332 fish, in 2001 it reached 17,195 fish, and 2002 saw more than 34,000 wild spring chinook return to the Snake.
In some circles, these big fish numbers mean that the BiOp's scientific foundation is too negative, since the extinction risk for the listed stocks was calculated when they were at rock bottom levels. "The sooner they throw out the BiOp, the better," said one Northwest scientist extensively involved in salmon recovery.
1999 Portland billboard
But in their initial filings, Earthjustice and others claimed that the federal analysis painted too optimistic a picture of fish populations. The groups cited a study by Trout Unlimited that said the Snake spring chinook could be extinct by 2016. The analysis, called "The Doomsday Clock," had been panned publicly by several scientists.
In general, Lohn said the fish are doing much better, and the current BiOp is working, noting that the court has never said it wasn't working. He pointed out that only two of the 199 BiOp actions are truly behind schedule.
However, this year's "findings" letter by the federal fisheries agency, released May 14, says that schedule slippage in the areas of subbasin planning and action effectiveness monitoring "will likely impact the Action Agencies' ability to demonstrate 'that proposed actions can increase life stage survivals,' and that they are 'being implemented at a scale sufficient to avoid jeopardy' -as called for as part of the 2005 and 2008 check-ins."
The letter also says that unless an alternative means of assessment can be developed quickly, at this year's check-in, NOAA Fisheries will need to evaluate whether the BiOp's reliance on offsite mitigation may be more uncertain beyond the 2005 check-in "and any significance for avoiding jeopardy.
Lohn told NW Fishletter that the two areas are behind schedule for different reasons. The sub-basin planning effort, overseen by the Power Planning Council, has been slow to materialize, but is now underway. Just two weeks ago, the council voted to fund fledging planning efforts in several more subbasins.
The complicated monitoring and evaluation effort was included in the 2003 Bush administration budget, Lohn said, but the $12 million appropriation was axed by Congress. He said $15 million has been proposed for the coming year. -B. R.
 AMERICAN RIVERS GOES AFTER FERC OVER HELLS CANYON DAMS
Two conservation groups have sued the Federal Energy Regulatory Commission for failing to consult with NMFS over operations of the Hells Canyon complex and its effects on ESA-listed salmon and steelhead populations.
American Rivers and Idaho Rivers United petitioned FERC in 1997 to force Idaho Power into consultation with NMFS over ESA issues, but the federal agency has not yet formally responded--"even though the agency has previously issued orders responding to similar petitions in as little as three months," says the environmental groups' latest petition filed May 1 in the DC Court of Appeals.
The groups first tried the Ninth Circuit after FERC rejected their 1997 request for rehearing. FERC said it had issued the rejection because it had never issued a Commission order. The Niners supported FERC and dismissed the groups' appeal.
So now, the groups are trying the same argument in another federal court--this time in Washington DC.
Idaho Power maintains that its informal consultations with NMFS over operations of the Hells Canyon Complex are good enough, but the environmental groups say improving project operations there must be part of any plan to recover the fish. -B. R.
 SECOND PHASE OF PUGET SOUND HATCHERY REVIEW COMPLETED
A panel of independent scientists has announced completion of the second phase of their review Puget Sound and coastal fish hatcheries--a review spawned by concern over interaction between hatchery fish and ESA-listed salmon that is part of a broad recovery program for wild fish slowly taking shape around the fact that 75 percent of the fish landed in Puget Sound are raised in hatcheries.
The project was created by Congress three years ago, getting strong support from Rep. Norm Dicks (D-WA), Senators Patty Murray (D-WA) and Slade Gorton (R-WA) and Gov. Gary Locke (D).
So far, the hatchery reform program has cost about $16 million. This year's state budget has another $7 million earmarked for the reform effort, a fact pointed out by Locke at a May 5 conference.
"I commend the hard work of the scientists here today, and the federal, state and tribal leaders who have assisted in the program's coordination," Locke said. "Their research will allow us to better understand how hatcheries can help us recover salmon and outline next steps."
The latest assessment focused on artificial propagation facilities in the Skagit and Nooksack watersheds and central Puget Sound. In many cases, the panel has called for reducing hatchery fish to lessen impacts of straying into streams where they would compete with wild stocks. In central Puget Sound, 31 programs were reviewed with 149 reforms recommended to improve wild stocks.
In early May, the Oregon Fish and Wildlife Commission adopted a new policy of its own to guide its hatchery system while conserving wild stocks. The new policy will keep conservation hatchery programs separated from those designed to produce fish for harvest. -B. R.
 ENVIROS SAY THEY WILL SUE STATE OVER HATCHERY EFFLUENT
The state of Oregon holds its industries to a higher standard for water quality protection than its fish hatcheries. Over 5 million pounds of fish food passed through state hatcheries into public waters last year. Environmental groups has said the will sue the state over the alleged violations.
In 2001, the Oregon Department of Environmental Quality warned the Oregon Department of Fish and Wildlife that its hatcheries were in 'non-compliance', saying that the water pollution problem is 'systemic' in the hatchery system," said Mark Riskadahl, executive director for the Northwest Environmental Defense Center in Portland. But the problem persists and some facilities like the Nestucca River's Cedar Creek Hatchery are at the top of the dirty hatchery list.
"We expect people to follow the permit requirement," said Bob Baumgartner, administrator for the Oregon Water Quality Program, He said that some hatcheries were not following rules for formalin and other chemicals; for fish food residue and fecal material from fish, and turbidity standards.
This year, DEQ issued new requirements for temperature abatement and the documentation of nutrient loading in public waters. The agency is seeking the development of best management practices and a reporting process on chemical use. Baumgartner said that ODFW took this problem very seriously.
The 60-day intent to sue letter submitted by five environmental groups, Trout Unlimited, Oregon Natural Resources Council, Pacific Rivers Council, Native Fish Society, and Oregon Trout, lists nineteen hatcheries that are not in compliance with the Clean Water Act. All but five facilities are located in the Columbia Basin. -Bill Bakke
 WASHINGTON STATE DOLES OUT $22 MILLION MORE IN SALMON RECOVERY DOLLARS
Washington Gov. Gary Locke announced May 8 that his state's salmon recovery board had approved nearly $22 million for 70 habitat restoration and improvement projects. With almost $11 million in matching funds added, the total comes to nearly $33 million this year, down from $58 million announced last year in state and local matching funding.
"In these difficult budgetary times, it is terribly important that we are spending the SRFB [Salmon Recovery Spending Board] money wisely and getting a return for the money that's being invested," said Bill Ruckelshaus, chair of the board.
Over 200 hundred proposals adding up to almost $60 million were submitted to the board for funding this year
King County watersheds, home to ESA-listed chinook salmon, received $2.6 million in grants, with nearly half designated to purchase forests and wetlands near Issaquah Creek and to restore a floodplain on the Cedar River.
Over $1.8 million was earmarked for five projects in the Skagit watershed. East of the Cascades, the upper Columbia region, where spring chinook, steelhead, and bull trout are listed under the ESA, the salmon board approved three projects that added up to $2.9 million. Four projects were funded in the Yakima watershed for $623,000. -B. R.
 FISH MANAGERS CALL FOR LESS POWER PEAKING AT UPPER COLUMBIA DAMS
Columbia Basin fish managers are asking Grant PUD and BPA officials to make additional changes in hydro operations to smooth spring-time flow fluctuations at Hanford Reach. Two of those new recommendations--discussed at a May 1 meeting--are especially troubling for power managers. One calls for feds at Chief Joseph and Grand Coulee dams to increase or stabilize weekly mean discharges during the fall chinooks' emergence and rearing periods. The fish managers also want dam operators to maintain the daily mean discharges within five percent on either side of the weekly average, including on weekends.
"It would be extremely burdensome and expensive to operate the hydro system that way," said BPA analyst Roger Schiewe. BPA would then be trying to sell power during times of light loads, when power prices are low, and buying power during heavy load periods, when prices are relatively high.
The fish managers want less fluctuation in flows than under the operations spelled out in a voluntary 1999 agreement involving the fish managers, Grant PUD and others. They would like to see the changes incorporated into the utility's re-license for its Priest Rapids project, which will spell out operations for the next 30 years or so.
In the view of biologists and BPA, these proposed changes are not necessary, Schiewe said, because current operations help maintain a "very successful run of fall chinook."
Using a new technique, WDFW personnel estimated that several hundred thousand newly hatched fall chinook died in April after they were stranded in pools when river levels dropped from power peaking activities, especially during weekend periods.
But the estimated number of dead fish amounted to only one percent or less of the total fall chinook fry in the reach. Grant PUD biologist Joe Lukas said the new methodology hasn't been peer-reviewed or accepted by other parties. He said a random sampling technique showed fry mortality slightly elevated this year, but not out of line compared to previous years.
At the May 1 meeting, the fish managers rejected Grant's offer to mitigate stranding losses by producing more fish from their Priest Rapids hatchery. -B. R.
 PATT NAMED NEW CRITFC DIRECTOR
Olney Patt Jr., 51, has been named executive director of the Columbia River Inter-Tribal Fish Commission. Patt previously served five years as tribal chairman of the Confederated Tribes of the Warm Springs Reservation of Oregon. He replaces Don Sampson who has returned to the Confederated Tribes of the Umatilla Indian Reservation as its executive director.
"It's not likely that the biological or legal landscape will change anytime soon," Patt said. "One issue that encompasses a lot of challenges we have is re-negotiation of the Columbia River fish Management Plan, including harvest, of course, but also production and rebuilding commitments, and to get there we have to overcome some new challenges such as the Endangered Species Act."
Patt previously served as CRITFC chair in 2001 and has been a commissioner since 1995. He has been senior policy advisor to his tribe's natural resources department since 1999. -B. R.
LINKS/DOCUMENTS FROM NW FISHLETTER 162:: Below are listed links and documents referred to in the text of NW Fishletter issue 162.
- National Wildlife Federation v. NMFS, May 7, 2003
- 2003 Findings Letter, NOAA Fisheries
- NW Fishletter 124
- Hatchery Reform Recommendations, Hatchery Scientific Review Group, March 2003
THE ARCHIVE :: Previous NW Fishletter issues and supporting documents.
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