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NWF.177/Apr.2.2004
[1] Feds' New Analysis May Turn Hydro BiOp On Its Head
[2] Agencies Finally Announce Summer Spill Proposal
[3] Feds Ask For More Time To Review Fish De-Listings
[4] Panel Bucks New Direction In Proposed Hatchery Policy
[5] National Research Council Weighs In On New Water Withdrawals
[6] Therese Lamb And Terry Larson To Leave BPA’S Fish Policy Arena

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[1] FEDS' NEW ANALYSIS MAY TURN HYDRO BIOP ON ITS HEAD

The federal agency responsible for rewriting a new biological opinion on Columbia River hydro operations is proposing to take a much narrower look at dam effects on ESA-listed fish than the earlier document which is now in remand.

NOAA Fisheries assistant administrator Brian Brown dropped that policy bomb at a March 19 scoping meeting among remand parties to discuss the framework for analysis.

If federal policymakers go ahead with the proposal, it will mark a sea change in their thinking about the responsibility of the hydro system for fish declines that led the government to list many Columbia Basin stocks for protection under the Endangered Species Act. Rather than saddle the hydro system with the lion's share of blame for fish losses and the consequent responsibility for recovery, the new proposal would look at dam operations alone to see whether those actions jeopardize the listed runs. Such a shift in the analysis would effectively decouple the effects of a dam's existence from day-to-day operations, a position that's long been supported by some stakeholders.

Just last week, in a motion for partial summary judgment in their own BiOp lawsuit (Columbia Snake Irrigators v. Evans), basin irrigators focused on this issue, pointing out that dam operations have actually increased survival of the listed stocks, "making a jeopardy finding impossible as a matter of law."

The feds themselves seem to be embracing something akin to the irrigators' position, and have suggested changing the environmental baseline of the ESA analysis from the 1980-1999 period of the earlier BiOp when some fish populations crashed, to a more up-to-date time frame between 1999 and the present, a period when most listed fish populations have been on the rise, thanks mainly to improved ocean conditions that helped increase survival rates up to tenfold.

At the March 19 meeting, NOAA Fisheries' Brown cited chapter and verse from the ESA itself to make his point--that an action does not jeopardize a species if its net effect does not "appreciably reduce" its likelihood of survival and recovery.

By developing a reference survival percentage to estimate the maximum fish survival that could be wrung from dam operations (taking into account such non-discretionary actions as flood control) and comparing it to the estimated survival from proposed operations, analysts could develop what Brown termed an "initial gap analysis," to quantify the percent improvement needed to reach that reference point.

The reference hydro survival would become a component in a new environmental baseline that will include updated run status. If operations are still found to jeopardize listed stocks, fish losses from hydro operations could then be mitigated by a mix of habitat, hatchery and harvest actions, but would likely be much less draconian than the 199 different measures in the current BiOp designed to avoid jeopardy. The action agencies would only have to mitigate the effects of the proposed hydro operations to get a passing grade for ESA concerns.

The ruling by Oregon District Court Judge James Redden last May pointed to only one major legal problem in the 2000 BiOp--that offsite mitigation for fish losses caused by the hydro system weren't sufficiently certain to occur. Since then, the litigants have sparred over questions such as the scope of the action area, and are now in the midst of collaborating with federal scientists on scientific issues involved.

But Redden has yet to rule on any scientific question, nor does he have the authority to tell NOAA fisheries how to rewrite the BiOp, according to attorneys familiar with the lawsuit.

Reading Between the BiOps

However, environmental and fishing groups who are plaintiffs in this case probably didn't expect the federal government to tackle a major revision of the hydro BiOp as part of the remand, even though NOAA Fisheries' regional administrator Bob Lohn has hinted strongly since last May that a major rewrite was a good possibility, especially in light of the agency's efforts to update ESA fish status and develop a hatchery policy.

Shortly after Redden announced his decision, Lohn 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 used more and better information than was previously available.

In a brief filed in Redden's court last June, Justice Department attorneys noted that the status updates now underway might show that fish numbers are so much better than when the BiOp was written that it might justify a 'no jeopardy' opinion for hydro operations.

Last November, while addressing a group of lawyers in Seattle, Lohn said his agency had two choices. It could patch up the current BiOp with its 199 salmon recovery activities, redo the stock analysis and see what that brings, or it could restructure the document with fish recovery measures set up in another way. The big question, Lohn said, was whether the region could develop priorities for each 'H' (harvest, hydro, habitat, hatcheries)--whether performance-based or outcome-based--and integrate them within the current framework. "The opportunity is there," he said. "We'll have to see what time brings."

The performance standards theme was reiterated in December by utility lobbyist Randy Hardy, who represented about half of BPA's customers when he spoke before the Northwest Power and Conservation Council, recommending that the federal agencies rewrite the BiOp and shift to a regime of performance standards similar to the plan developed for the mid-Columbia PUDs "rather than 200 RPAs and very prescriptive individual measures that characterize the current B.O."

"It's kind of elementary and yet, we've got it back-asswards in this fish program," Hardy said. "Where we try to dictate the means and the ends, the result is you end up with one of these with everybody blaming everybody else, and when you heap that on top of the tremendous conflicts and data that exist, you don't have any accountability."

He said more flexibility through performance standards would allow better biological results and save BPA "well beyond" the $100 million a year from eliminating summer spill and operating turbines outside of peak efficiency. He said the utilities had been actively soliciting support for this scenario, both in Washington, D.C., and among Northwest governors and others. Hardy said if it was implemented, he guaranteed it would be better for both fish and finances.

But salmon managers from state and tribal agencies have already vowed to respond to the federal proposal. They are expected to weigh in soon with their arguments supporting the notion to keep the analysis framework from the current BiOp.

Regional administrator Bob Lohn characterized the new policy direction as a "tentative proposal," which is still in the initial modeling stages, but is also one "which seems to satisfy our obligations--fundamentally, what the Act [ESA] requires us to do," Lohn told NW Fishletter. "We'll see where it goes from there."

Did Lohn think that Judge Redden would support the new direction? Lohn said the judge reminded his agency that they could only look at certain things, and that other approaches like those in the earlier BiOp are wrong. -Bill Rudolph

[2] AGENCIES FINALLY ANNOUNCE SUMMER SPILL PROPOSAL

It was probably one of the worst kept secrets of the year, but federal agencies have finally officially spilled the particulars about their proposal to conduct a three-year evaluation of summer spill in the Columbia River hydro system.

The action agencies have picked an option that calls for some spill in July to help migrating fish, but none at all in August at the four federal dams where the hydro BiOp calls for the expensive strategy to help ESA-listed salmon and steelhead get past the concrete.

The agencies’ latest analysis shows that the spill reduction would only kill two to 20 ESA-listed fish from the Snake, depending on the smolt-to-adult- return rate (.5 percent to 4 percent) used in the analysis, and would save about $47 million over the cost of BiOp-mandated spill for the two-month period of an average $77 million. The negligible effects are due mainly to the fact that most of the listed fall chinook get a free ride downstream in barges all the way past Bonneville Dam.

But offset actions are likely to cost $5 million to $15 million to make up for thousands of non-listed fish that would be lost from the reduced spill option, resulting in a net benefit in the $35 million to $45 million range, BPA administrator Steve Wright explained during a March. 30 conference call with reporters.

The four Northwest governors sent a Mar. 29 letter to BPA and Corps of Engineers supporting a spill proposal that mitigates impacts to non-listed fish and that has been endorsed by NOAA Fisheries on the ESA questions. They wanted to make sure that any proposal with offsets was adequately monitored and evaluated and expressed support for expanded testing of removable spillway weirs and studying effects of transportation on fish survival. Oregon Gov. Ted Kulongoski sent his own letter to Wright Mar. 30 that re-iterated his concern that increased power production should not come at the expense of the listed and unlisted stocks.

Wright said actions to reduce pikeminnow predation on salmon and lessen daily river fluctuations in the Hanford Reach would offset about half the impact of the spill reduction. He said the agency is still looking at other actions to fill the gap, including buying out some portion of the commercial harvest, though no state has yet offered any proposal in that area.

Numbers Game Keeps Adding Up

The main sticking point for any decision could be in the offset arena. Since the feds first floated the spill reduction seriously in early February, they have refined the analysis of their proposed offsets and show less benefits than originally anticipated (50,000 adults at a cost of $2 million).

On the other hand, estimates of adverse impacts by other stakeholders, like the tribes, have gone up steadily. In a Mar. 30 press release, Columbia River Inter-Tribal Fish Commission scientists said the spill curtailment could kill as many as 140,000 fish. In Early March, CRITFC spokesman Paul Lumley told an Oregon legislative hearing that up the spill reduction could lower adult returns of non-listed stocks by 50,000 fish.

Back in January, a CRITFC analysis estimated that ending spill in August would reduce adult returns from the Hanford, Deschutes ,and Snake stocks between 600 and 10,000 fish.

Wright said the feds are asking for comments until April 7 on other ways to "fill the gap." Some of the ideas floated for comment include adding $5 million to the power council’s fish and wildlife program for the next two years to fund additional mitigation actions; augmenting summer flows from Idaho’s Dworshak reservoir, although that might make it harder to refill come spring; paying for more tribal fish cops; funding added hatchery supplementation; more research into predation by birds; buying more water rights; protecting more habitat; and adding removable spillway weirs to lower Columbia dams.

It was reported that initial input from NOAA Fisheries has questioned the offsets for the ESA-listed stocks, since the action agencies’ analysis shows 2 to 20 of the Snake fish being lost from the spill reduction, while only gaining one to eleven fish from boosting the pikeminnow bounty program. But arguments over such low numbers may be a debate in the veritable dust, since even BPA’s Wright conceded that some of the estimated impacts were within the error bands of the analysis, a point that was echoed by Shane Scott, biologist with the Public Power Council.

"Now we’re arguing over ten ESA-listed fish in a model within the standard error of these analyses," Scott told NW Fishletter. He said it seemed likely that the agencies have been successful at developing more than adequate mitigation for non-listed stocks, but the real sticking point may be over these ten fish.

NOAA Fisheries regional administrator Bob Lohn said his agency would work with BPA and the Corps of Engineers to analyze the proposal to make sure any losses of ESA-listed Snake fish would be mitigated before it endorsed the spill reduction package. He didn’t voice any qualms about the Snake fish at the briefing.

The spill reduction proposal calls for July operations that include testing BiOp spill (75 kcfs day, 120% TDG night) v. 50 kcfs spill at Bonneville Dam; 24-hr. 30 percent spill at John Day Dam: BiOp spill ( 24 hr. 40% river flow) at The Dalles and two weeks of bulk spill at Ice Harbor. In August, there would be no spill at the four dams.

BPA’s Wright said if it’s enacted, the reduced spill package would likely cut the 5 percent power rate increase slated for October by a couple of percent. A final decision is expected by April 23.

The power agency was getting some Congressional support for reducing spill as well. On March 17, seven Northwest members of the House of Representatives, all Republicans, sent a letter to the White House Council on Environmental Quality calling for an end to all summer spill. They noted that Council chair James Connaughton will play a "key role" in determining whether the region embraces a new system that focuses on "real results" to replace the older BiOp with its "overly prescriptive list of 199 federal mandates." -B. R.


[3] FEDS ASK FOR MORE TIME TO REVIEW FISH DE-LISTINGS

NOAA Fisheries asked a Spokane District Court last week for a 90-day extension to come up with delisting decisions for most salmon and steelhead stocks listed for protection under the Endangered Species Act. Under a previous settlement, the agency was to have made the decision by March 31.

Bob Lohn, NOAA Fisheries regional administrator, said in an affidavit filed by the Justice Department that the extra 90 days would give the agency enough time to come up with listing proposals for all 27 West Coast stocks under review, instead of dealing only with the eight stocks in the legal action (BIAW v. NOAA Fisheries) that led to his affidavit.

Lohn said federal agencies are still developing a coherent hatchery policy in the wake of the Hogan ruling (Alsea Valley Alliance v. Evans) recently upheld by the 9th U.S. Circuit Court of Appeals. U.S. District Judge Michael Hogan ruled in 2001 that the ESA listing of Oregon coastal coho ESU [Evolutionarily Significant Unit] was illegal because it failed to offer the same protection for hatchery stocks as the wild component of that ESU.

Lohn's affidavit came after the Building Industry Association of Washington sued to expedite decisions on eight ESUs in the Columbia Basin. "We vehemently oppose this motion," said BIAW attorney Tim Harris, who filed the de-listing petitions in Oct. 2001, shortly after the Hogan ruling.

Harris called the latest federal action "outrageous," saying that NOAA Fisheries doesn't have to complete its hatchery policy to make the de-listing decisions.

Last August, Lohn sent a letter to Harris and other petitioners apologizing for the delay, saying that he expected the listing decisions to be completed by this March.

Lohn's affidavit says a new hatchery policy would be out for public review by March 31. A joint task force from the Commerce and Interior Departments has been working to come up with the new policy, he said "Many segments of the public hold very strong and divergent views on the subject," Lohn said. "NOAA Fisheries has encountered unexpected difficulty and complexity in developing a new hatchery policy to be applied in making the new listing determinations."

Lohn told the judge there were several challenges, including: developing general standards for evaluating if a hatchery stock is part of the ESU in which it's located; considering the role of hatchery fish in assuring an ESU's survival; analyzing up-to-date information on hatchery effects, both good and bad; and obtaining information on historical and current operations on hundreds of hatchery programs, along with recent changes to various hatchery management plans and purposes.

Also, NOAA Fisheries and the U.S. Department of Fish and Wildlife, which operates some of the largest salmon and steelhead hatcheries in the Northwest, have been bogged down trying to develop a joint national hatchery listing policy. NOAA spokesman Brian Gorman characterized the talks as "somewhat cumbrous."

But it's no secret there has also been plenty of internal wrangling between NOAA Fisheries scientists, who generally have a skeptical view of the effect of hatchery stocks on wild runs, and agency policymakers charged with interpreting the Hogan decision as well as satisfying tribal obligations.

Future hatchery and harvest obligations to Columbia Basin tribes are being hashed out in the secretive U.S. v. Oregon process, where all parties have been slapped with a fresh gag order by presiding judge Garr King after some positions were leaked.

In a February report to members of his Native Fish Society, Bill Bakke (a contributing editor to NW Fishletter) reported that the tribes are calling for both increased production at some hatcheries and much-reduced marking rates on fish produced at these facilities, a policy at odds with a new federal law that calls for marking all hatchery fish that originate from federal facilities. Marking hatchery fish allows non-Indian sports and commercial fishers to keep more landed fish and helps scientists to better monitor effects of hatchery fish that reach spawning grounds.

The tribes want spring chinook marking reduced from 85 percent to 18 percent, Bakke reported, and production boosted by 13 percent. They also support reducing hatchery summer chinook marking from 85 percent to 17 percent, along with boosting steelhead production by 19 percent and reducing their marked numbers from 79 percent to 47 percent.

The tribes have been vocal supporters for using hatcheries to supplement wild runs over the long-term, but they have had a hard time convincing federal scientists the strategy will work.

In the draft hatchery policy floated after the Alsea decision, the government said it couldn't answer that important question. The draft policy also called for ensuring that both hatchery and wild components for listed ESUs are afforded the same protections under the ESA. "This does not, mean, however, that these protections will apply to hatchery populations exactly as they will to natural populations," said the document, which has quietly disappeared from the policy arena.

BIAW attorney Harris is glad that draft policy is gone. He called it a "clear end run around Alsea." He and other petitioners think the feds should simply count hatchery fish and wild fish together to determine the size of an ESU, but it remains to be seen whether that will happen. If it does, some listed stocks like the Oregon coho and Snake River fall chinook will likely soon be candidates for delisting, but it's still not clear where the agency is headed, though it's probably going to be a more compromising position than in recent years.

"There's lot of confusing language in the Hogan decision," NOAA Fisheries assistant administrator Donna Darm said back in December of 2001. "People think we have to take into account hatchery populations to determine viability [of listed ESUs]." But the judge didn't say that, Darm told an audience of NMFS scientists that winter.

There is some evidence that the NMFS hard line is cracking, mainly from pressure by D.C.-based policymakers that have come aboard since the Bush Administration came to power and a product may actually appear in a couple of weeks.

Todd Ungerecht, senior policy advisor for NOAA Fisheries, said his agency hoped they would get something completed "at the department level" by March 31, but was less optimistic that the USFWS would join in by then. Nothing has yet appeared, though NOAA regional administrator Lohn told NW Fishletter that the policy will be out very soon.

BIAW attorney Harris said the government has violated the agreement and both sides were now trading pleadings before federal Judge Robert Whalen. " I gave them [the feds] the farm back in October," Harris said this week. "Now it’s up to the judge." -B. R.


[4] PANEL BUCKS NEW DIRECTION IN PROPOSED HATCHERY POLICY

In a single-page policy review published in last week's issue of Science magazine, six well-known ecologists appointed by the government to assess hatchery and wild fish concerns have crossed swords with NOAA Fisheries over the agency's direction in developing a new ESA fish policy to comply with a federal ruling in the Alsea Valley case.

Cle Elum Hatchery
Cle Elum salmon supplementation and research facility.
(photo by Dave Fast)

The scientists said it was dangerous to include hatchery fish as part of an ESU [Evolutionarily Significant Unit] because "it opens the legal door to the possibility of maintaining a stock solely through hatcheries." They said hatcheries generally reduce fitness and inhibit future adaptation of natural populations, and that the legal definition of an ESU must be unambiguous--"Hatchery fish should not be included as part of an ESU," they said.

According to a press release accompanying the article, the panel decided to publish its findings in Science to ensure the policy implications reached a wide audience after NMFS "resisted" its findings and claimed its conclusions "went beyond science into policy." The panel, in turn, said the ESA status of wild salmon is in jeopardy because of legal and political pressures from landowners and timber interests.

"It's time NMFS protected our national legacy, in a legally-defensible manner," said panel member Robert Paine from the University of Washington. "Foot dragging and the resultant delays by NMFS policymakers are pushing these cultural icons of the Pacific Northwest toward extinction."

The policy paper said conservation hatcheries could play a role in future salmon recovery, but should only be used temporarily "to avoid the dysgenic effects of domestication."

The new fed new hatchery policy will be out "very soon," Bob Lohn, NOAA Fisheries regional administrator, told NW Fishletter. Last summer, Lohn told a Senate subcommittee that his agency "believes artificial production facilities can make an important contribution to salmon recovery in the Northwest." -B. R.


[5] NATIONAL RESEARCH COUNCIL WEIGHS IN ON NEW WATER WITHDRAWALS

A National Research Council committee has released its long-awaited report on Columbia River water issues, saying that increased withdrawals would add more risks to migrating salmon already stressed out during low water years.

Though they admitted they didn't attempt to quantify the risks because of budgetary and time constraints, the committee said any new permits granted for water withdrawals should include conditions that would allow for them to be discontinued during "critical periods."

Commissioned by the Washington State Department of Ecology, the NRC review said "cumulative" effects of water withdrawals during low-flow periods could cross important temperature and flow thresholds with "resulting deleterious effects on salmon," adding to risky trends already facing fish such as future climate warming, potential water withdrawals from other parts of the Columbia, degraded water policy, and periodically poor ocean conditions.

The panel said it couldn't clearly establish the relative importance of various environmental variables on smolt survival, but "when river flows become critically low or water temperatures excessively high, however, pronounced changes in salmon migratory behavior and lower survival rates are expected."

Irrigators' spokesman Darryll Olsen, representing the Columbia-Snake Irrigators Association, took issue with the qualitative nature of the findings.

But committee chair Ernest Smerton, an emeritus engineering professor from the University of Arizona, countered Olsen's remarks at a Mar. 31 press conference. "Any individual withdrawal is not perhaps critical," Smerton said, "but when you accumulate withdrawals during these critical times, then it is judged to be critical. The issue of whether individual withdrawals from the permits is a sizable, a major percentage of the flow is not really the issue. It's the fact that as salmon approach a critical situation in terms of their survivability, the individual withdrawals, while individually may not seem to amount to any great issue collectively, they can be very adverse."

Smerton said the panel did not measure any mortality rates to salmon from added withdrawals, which would increase the from 16.6 percent to as high as 21 percent of the Columbia's minimum flow... "and that would in our judgment, adversely affect the salmon survival."

That 21 percent includes all potential future withdrawals in the state, which could add up to another 1.6 million-acre feet, according to DOE estimates, which includes another 220,000 acre-feet to meet future demand of the Columbia River Project that already takes 2.5 million-acre feet out of the Columbia above Grand Coulee to irrigate nearly 600,000 acres of eastern Washington farmland.

Olsen said later that the 90 mainstem permits between Wells and John Day dams that have been the focus of recent litigation add up to about 300,000 acre-feet of water annually. He said that would reduce July flows in the mainstem by about 1 kcfs, which amounts to less than one-one-hundredth of the daily net flow fluctuation at McNary Dam during the middle of the drought in July 2001.

The Limits of Science

NRC staffer Jeffrey Jacobs said the fisheries experts on the panel felt that quantifying the effects was beyond the scope of the resources of the committee. In fact, Jacobs said it was probably beyond the ability of science to come up with a precise answer. Noting that undammed rivers such as Canada's Fraser have shown a trend for increasing temperatures, the committee said that suggested increases in the Columbia may not entirely be a result of dams and reservoirs, but could be also affected by air temperatures of a changing climate.

The committee suggested that a forum be convened that included the state of Washington and other basin jurisdictions to document and discuss potential water withdrawals. They said the Northwest Power and Conservation Council could serve that purpose, integrating discussions of water rights permit into its responsibilities for resource management.

Irrigators' spokesman Olsen said it was unlikely that such a forum would be supported by water users since water permits are, above all, rights granted by each individual state. He said any forum that had the potential to dilute those rights wouldn't get much support from the agricultural sector. Besides, he said the Northwest Power Act, which created the council, specifically forbade it to get into water rights issues.

The NRC panel also suggested that streamlined water management could relieve some of the strain on new water withdrawals from the Columbia, including transfers, water banks or even construction of new storage and water conveyance facilities.

Environmental groups characterized the report as a big win for fish. "We are delighted that this distinguished panel of scientists has clearly stated that the Columbia River is tapped out during the critical summer months, something we have believed to be true for some time," said Karen Allston of the Center for Environmental Law and Policy. "This report shows that pumping more water out of the Columbia during critical times of the year should not be allowed, and that we need to use Columbia River water more efficiently in order to meet the needs of communities while protecting this invaluable natural asset."

But Olsen said efficiencies in water delivery were not addressed in the report, nor expected improvements in the next 20 years, which he said "make it likely that even with more water taken out of the Columbia, there will be more water in the river than now."

"Over the next month," said DOE director Linda Hoffman, "we'll be reading and digesting the panel's advice to the state, and reaching out to get others' advice on how to proceed. This study, along with the economic analysis we received from the University of Washington in January, provides important information to use as we draft a proposal for managing Columbia River water. We remain committed to developing and implementing a scientifically based water management program that provides for multiple needs into the future." Hoffman said more concrete findings should be ready to share with the region by the end of April.

The thirteen-member committee included several representatives from the Northwest, including Richard Adams from Oregon State University, Stuart McKenzie USGS (retired) and consultants Don Chapman and Al Giorgi. -B. R.


[6] THERESE LAMB AND TERRY LARSON TO LEAVE BPA’S FISH POLICY ARENA

Therese Lamb, BPA’s vice president for the office of Environment, Fish and Wildlife has announced that she is leaving to "explore life outside the agency." Lamb has worked at BPA for nearly 13 years, serving as a fish policy advisor before taking over as acting vice president last January, and reaching full status in September.

"I've had a tremendous 12 and a half years at BPA," said Lamb. "The agency has provided me with good experiences for which I am very grateful. I have enjoyed the complexity of BPA's responsibilities, the role BPA plays in the region and the tremendous diversity of the people within BPA."

BPA administrator Steve Wright said he tried to talk her out of leaving. "She has tremendous talent that made her stand out in every position she held at BPA from the time she began a co-op student," Wright said. "She earned a reputation for being a strong leader who produced results in every position she held. I wish her the best in whatever she does next."

Greg Delwiche, vice president for Generation Supply was named interim EFW vice president.

It was also announced that Terry Larson, who was named director of BPA’s Fish and Wildlife division last September, will be moving back to her old area in the agency’s Power Business Line. -B. R.

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