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NWF.184/Sep.07.2004
[1] New BiOp Delayed To Re-Vamp Fall Chinook Fish Analysis
[2] Niners Reject Spill Appeal, Feds Ask For Dismissal
[3] Fall Chinook Run Begins To Soar
[4] Appeal Likely For Hatchery Lawsuit Snuffed By D.C. Judge
[5] Weak El Nino May Be On The Way

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[1] NEW BIOP DELAYED TO RE-VAMP FALL CHINOOK FISH ANALYSIS

Federal judge James Redden last week OK'd a request by the federal government for an extra week to turn in its homework in the hydro BiOp remand process which had stipulated a draft document by Aug, 31. The reprieve means that federal agencies are nearly at the finish line in a process that began more than a year ago, after Redden ruled the 2000 BiOp illegal. Then the feds spent months deciding whether to tweak the old BiOp with its 199 different actions, or go for a whole new approach. In the end, they opted for the new direction, a process that has had its share of glitches.

At a hastily-called Aug. 31 press conference, NOAA Fisheries regional administrator Bob Lohn said the draft was only undergoing final legal and technical review and offered general comments about why the agency will give proposed hydro operations a no- jeopardy ruling as far as ESA-listed stocks are concerned. He didn't mention anything about a last-minute in-house flap over some of the analyses that several sources have said is responsible for the delay.

The new BiOp, while using many of the leftover river operations from the 2000 Biop, will contain a new jeopardy analysis that accepts the dams' existence as part of the baseline and focuses on determining the differences in fish survival between current operations and a "reference" operation that would run the system with few constraints to maximize survival. However, sources have told NW Fishletter that draft analyses found some real puzzles, namely, why did fast-rising populations like the fall chinook in the lower Snake seemed to need most of the survival improvement?

Gaps in the Gap Analysis

An early August analysis showed a gap of about 15 percent between current juvenile survival and what NOAA Fisheries considers necessary for the Snake fall chinook to avoid jeopardy. Upper Columbia spring chinook seemed to be in the same situation, while the main stocks that have driven past BiOps, spring/summer Snake River chinook and steelhead, were reported to need a boost of only a few percent to avoid jeopardy (It has also been reported that later analyses have found even wider gaps with most ESUs).

Others say NOAA Fisheries scientists in Seattle found fault with the Portland hydro branch, the group charged with writing the new BiOp, over the use of data in its analyses of the Snake River fall chinook. In a May 6 technical memo that is still undergoing final review, the Seattle scientists had already pointed out the paucity of information on the stock. Citing widely varying survivals among years and many factors affecting survival of the young fall chinook to the first dam on the lower Snake, the draft memo said "we cannot partition what portion of the mortality occurred within the hydropower system..."

The discrepancies in the analyses finally caused NOAA Fisheries brass to trash the effort two weeks ago and have it re-done. A more qualitative response is now expected to surface in the new BiOp.

NOAA's Lohn didn't mention the re-analysis at the press conference, but he did note that agency has developed a "standard operation" for the hydro system to measure performance. He called it "a demanding one" as well, and a step forward from the current opinion, with enough flexibility to use other means than hydro operations to help achieve survival goals for ESA-listed fish, like keeping major fish protection efforts from the previous BiOp such as predator control and habitat improvements, steadily fueled by $140 million in annual funding by BPA for the basin's fish and wildlife program.

By August, a boosted bounty had increased pikeminnow catches by 60 percent.

Lohn acknowledged that the recovery effort has been helped mightily by the great improvement in basin fish runs over the last few years, with many of them doubling since 2000. "The efforts we are taking, coupled certainly with favorable ocean conditions, are producing very substantial returns and there is good reason for hope," Lohn said.

The new modifications at dams to improve survival, Lohn said, coupled with flexible ways to boost fish survival, have led his agency to conclude that the proposed hydro operations will not jeopardize the ESA listed stocks in the basin.

Lohn pointed out that the new BiOp will only be part of the federal salmon recovery program. He rattled off a long list of direct salmon spending efforts by the federal agencies on the West Coast--"A very impressive commitment," he said, that adds up to nearly $400 million a year.

A Call For More Efficient Spill

According to Lohn, the "new" part of this BiOp is the 10-year commitment to boost fish survival "through efficient spill at all eight federal dams," using removable spillway weirs like the prototype tested at Lower Granite Dam or similar improvements. He called it a huge step forward for fish.

"It's also a huge step forward for the regional economy, " Lohn said, "because it allows fish to pass with much less spill," with ultimate cost-saving benefits to ratepayers."

Lohn said the new BiOp will also do a better job at identifying remedial actions for the listed stocks to satisfy the court's concern, and will spell out in greater detail the specific hydropower, habitat and hatchery actions that need to be taken, with clear performance standards. Judge Redden had tossed the old BiOp because it failed to ensure that many of the actions were reasonably certain to occur.

Lohn said the result of all these efforts has led his agency to conclude that the proposed operations will not jeopardize ESA-listed stocks, and that is a significant achievement for both salmon and Northwest citizens.

But environmental and fishing groups took issue with Lohn's rosy assessment before he produced any details. They are planning a Sept 8 rally in Portland to protest the new plan which they characterized as a continuation of "nothing but failures." According to their announcement for the rally, "...the more smolts that make it downriver to the ocean, the more big fish we have on ice at the end of the day."

A few hours before the press conference began, the conservation group American Rivers e-mailed a statement from their regional director Rob Masonis to Northwest reporters, which included a list of questions he suggested the press should ask federal authorities.

"With this 'no jeopardy' finding, NOAA Fisheries will no longer be required to set forth a suite of actions to ensure that jeopardy to the species is avoided," Masonis said in the e-mail. "Rather, by including man-made dams in the "natural" environmental baseline, NOAA avoided having to even examine the full effects of the dams."

The change in the baseline was an issue that had already been raised in Redden's court by Earthjustice attorney Todd True, who characterized the new BiOp's focus on operations as moving the goalposts in the middle of the game.

But Lohn, in answer to another question, noted that the jeopardy standard is technically the same as the previous BiOp's, but that the earlier document, partly because of limited information on fish survival available at the time, was unable to separate the affects of operations from the existence of the dams.

"Previous opinions simply said, 'We want to require enough to make sure that these fish don't go extinct.' The difference in this opinion is we're much more specific," said Lohn. "We want to make sure that these operations, the choices that the federal agencies are making in operating the dams and releasing water and spilling or not spilling, we want to make sure that that activity will not jeopardize fish. And what we've determined in this opinion, together with the changes proposed by the federal agencies, is that it will not jeopardize fish."

Feds Say New BiOp "More Faithful" to ESA

Lohn said the jeopardy standards in both BiOps are the same, but the new point of analysis, the dams' operations, was adopted because it was more faithful to the ESA, and had partly come about because Judge Redden asked federal agencies to be much more specific as to their findings.

Lohn characterized the new BiOp as a useful step toward salmon recovery planning, but local watershed planning initiatives such as the subbasin effort in the Columbia Basin "remain the foundation of our recovery planning." He said the new BiOp would be used to measure expectations for inriver survival, but that was just part of the recovery picture, pointing to other areas where improvements can be made. "Now what else do we need to do in tributaries, how do we need to manage harvest, etc."

The subbasin plans that will be the backbone of salmon recovery efforts in the Columbia Basin have recently completed a first scientific review by an independent panel that previewed its report several weeks ago at the August meeting of the Northwest Power and Conservation Council in Montana. Only about 25 percent of the plans passed muster on the first try and are going through a public comment period at present before revision. Council staffer John Ogan said the reviews were mainly positive and will give the region a good start at identifying the factors in each region which limit fish productivity. But Ogan said it's still not clear how NOAA Fisheries will adopt the new plans for use in the next BiOp

BPA customers, speaking through the Coalition for Smart Salmon Recovery, said the investments in improving salmon survival were clearly paying off. "We are encouraged that so many fish are recovering, and expect NOAA's new plan to be better than the previous one," said coalition spokeswoman Shauna McReynolds.

Some participants seemed truly shocked when Lohn mentioned that any language to trigger a dam removal option like that found in the old BiOp, will not be contained in the new one. "What we're seeing in terms of the rebound of the various stocks of fish gives me hope we can achieve a 'fishable' recovery for most of these stocks," Lohn said. -Bill Rudolph


[2] NINERS REJECT SPILL APPEAL, FEDS ASK FOR DISMISSAL

The 9th U.S. Circuit Court of Appeals on Aug. 13 rejected a last-minute motion by federal attorneys to stay an order nixing the summer spill program, who gave up their appeal altogether by the end of the month.

The decision has polarized all sides of the fish arena more than ever and comes at a time when regional entities had hoped to hammer out a five-year budget for the Bonneville Power Administration's fish and wildlife program. Privately, some BPA customers say they will fight any spending increases for the state and tribal fish agencies that fought the spill proposal. PNGC Power vice president Scott Corwin called for next year's F&W budget to bump $5 million in lower priority proposals aside to pay for this year's offsets.

After the Niners Aug. 13 ruling, Justice Department spokesman Blaine Reithmeier told NW Fishletter that the appellate division was working on an appeal brief for the court with an Aug. 31 deadline, but there was an obvious change of heart after that, since they filed a motion Aug. 30 to dismiss their appeal. "Retreating with tail between legs, it seems," said one attorney familiar with the case.

"The appeal effort appeared to be futile," said BPA spokesman Ed Mosey, who would not say whether the region should expect to see the reduced spill program in the new draft hydro BiOp that will be released sometime this week. There has been some speculation that the feds may have turned tail because the new BiOp will contain elements of a reduced summer spill program.

But environmental attorneys were crowing about the win. "By upholding Judge Redden's decision, the Ninth Circuit is affirming what we've known all along--gambling the future of wild salmon to save a few cents a month on our electric bills is not a tradeoff people in the Northwest want to make," said Todd True, the Earthjustice attorney who led the fight to kill the proposal. True characterized the effort by federal agencies as being "penny-wise and pound-foolish."

In remarks made after Redden nixed the spill proposal on July 28, True mis-characterized the proposal as one of reduced water releases, rather than reduced spill. "The Corps' request to the Ninth Circuit to overturn Judge Redden's decision would allow the agency to withhold water needed to flush juvenile salmon out to sea," he said after the feds' announced they would appeal.

The proposal actually called for more flows in the lower Snake, which did occur. BPA paid $4 million for the flows.

The misconception was reinforced after the 9th Circuit's decision in the latest press release from environmental and fishing groups, which characterized the ruling as requiring the Corps of Engineers "to continue releasing water at dams . . . for the benefit of migrating salmon."

"Reducing water releases would have been another link in the Bush administration's chain of attempts to eliminate protections of our endangered Northwest salmon," said Kathleen Casey, field director of the Sierra Club.

The theme was echoed in comments from some commercial and sports fishing groups who fought the spill plan. "If these past events are any indication, the new plan may kill more salmon than it protects, and in the process, put our jobs, our recreation and our livelihoods in further jeopardy," according to a flyer announcing a rally Sept. 8 to protest the upcoming BiOp. -B. R.


[3] FALL CHINOOK RUN BEGINS TO SOAR

The Columbia River's fall chinook run has soared the past two weeks, rising from a 500-fish day at Bonneville Dam on Aug. 11 to an early peak on Aug. 29 when daily numbers skyrocketed to more than 27,000 fish. On Sept. 3, University of Washington researchers estimated about 36 percent of the run had passed the dam, and almost doubled their pre-season prediction of the upriver run to 406,000 fish.

The traditional peak day usually occurs around the first week of September, but the fish may be running a bit late. Sept. 6 saw a 26,000-fish day at Bonneville with a 210,000 seasonal count for upriver chinook. In 2003, records were smashed when fish counters went numb tallying two 45,000-fish-plus days on Sept. 11-12, which helped set a new 610,000-fish fall run record at the dam.

However the slow start caused Columbia Basin fish managers to chop off some fishing time for lower Columbia gillnetters after the non-Indian fleet caught more upriver brights (URB) than expected in their early fishing. The fishermen landed about 5,300 chinook by Aug. 11, with URB impact estimated at 41 percent.

Harvest managers had expected the fleet to catch more than twice as many fish by then, with only 12 percent of them upriver brights. The upriver brights tend to run later than lower Columbia runs like the Bonneville Pool "tule" stock that originates from Spring Creek hatchery on the Washington shore. This year's forecast by managers calls for 406,000 brights and 229,000 tules to enter the river.

However, since small numbers of ESA-listed Snake River fall chinook are mixed in with the larger run, the harvest is heavily constrained, even though this year's overall return is expected to be the third highest since 1988. Still, about 50 percent of the falls, both listed and non-listed, are harvested by the time the listed fish reach the confluence of the Snake and Columbia rivers, with the catch split nearly even between ocean and inriver fisheries.

Inriver harvest has picked up since the fish have appeared in larger numbers, and tribal harvesters began set netting last week, aiming for a quota of 143,400 chinook, with about 57,000 expected to be Hanford Reach URBs With upriver brights estimated to make up nearly half of the run, non-Indian impacts to the upriver brights from inriver fishing is still limited to about 8 percent. Tribal fishermen above Bonneville Dam will be allowed about 24 percent of this year's URB run, with most headed for the productive Hanford Reach.

About 6,100 wild Snake fall chinook are expected to reach the mouth of the Columbia, which is less than one percent of the of the 634,000 fall chinook estimated to enter the river. Harvest managers assume about 32 percent of those listed fish will be caught by non-Indian and tribal harvesters, similar to their allowable harvest rates on URBs.

With another 150,000 low-value tules estimated to be part of the mix, which would make that component the third largest on record, the late-summer harvest may be a repeat of last summer, when tribal fishermen were frustrated by nets full of tules, which kept them from harvesting more of the higher-value upriver brights. In 2003, their season ended before they had reached their URB quota because they had maxed out their limit for listed wild steelhead.

Beyond the Columbia, other fisheries still have large impacts on the upriver bright stock, according to recent data released by the Pacific Salmon Commission that looked at the 2002 season. Southeast Alaska counted on the URBs for about 20 percent of 2002's 425,000-chinook fishery in that region, about the same percentage that B.C. sports and commercial fishermen depended on.

In 2002, all Columbia River fisheries accounted for about 314,000 chinook (net-162,900; ceremonial and subsistence- 59,100; sport- 88,700).

Washington and Oregon trollers and sports fishermen caught far less in the northern part of the West Coast (from Humbug Mountain to the Canadian border), about 181,000 chinook, with URBs making up about 4 percent of their fishery. But they relied on the tules from Spring Creek hatchery for nearly 44 percent of their catch in 2002.

Canadian commercials and sporties who fished off Vancouver Island also caught a lot of hatchery chinook from the Spring Creek facility. According to the salmon commission, Spring Creek chinook made up about 22 percent of their 2002 fishery. -B. R.


[4] APPEAL FOR OLD HATCHERY LAWSUIT SNUFFED BY D.C. JUDGE

A lawsuit filed in 1999 by developers, farmers and builders taking issue with NOAA Fisheries policy governing ESUs [Evolutionarily Significant Units] and challenging the ESA listing of four Northwest salmon stocks has been thrown out of court.

Washington, D.C. District Court Judge James Robertson, the third judge involved in the litigation, threw out the challenge to the federal agency's ESU policy because it was "untimely." According to the judge, it was filed eight years after the 1991 policy was adopted, which means two years after the statute of limitations ran out on suits against the federal government over the issue.

Olympia, Wash.-based attorney Jim Johnson said his clients have decided to appeal, disagreeing with the ruling on every major point.

Judge Robertson also granted the government's motion to stay the plaintiffs' challenge to the four listings [Common Sense Salmon Recovery v. NMFS] until June 15, 2005, when the feds have promised to finalize listings under a new hatchery policy. The judge said plaintiffs had not asserted they would suffer immediate harm if the listings were allowed to stand while the new hatchery policy and listing determinations were made.

But attorney Johnson said no party in the litigation had even requested such a stay.

Robertson dismissed another plaintiff claim that took issue with the federal agency's approval of fishing on the listed stocks, ruling that precedent bars federal jurisdiction over suits for broad, programmatic relief filed under the Administrative Procedures Act. He also ruled that to the extent they filed their claim under the ESA, plaintiffs failed to comply with the 60-day notice-to-sue requirement of the ESA that mentioned their challenge of the agency's decision to allow fishing on the listed stocks.

When the suit was originally filed in April 1999, attorney Johnson said the action would take on the NMFS definition of "species." He claimed that NMFS' concept of evolutionarily significant units was "unlawful," and that it excluded "identical hatchery salmon which are a majority of those fish." The plaintiffs contended that if hatchery fish were counted, the stocks would not qualify for listing. They said that there was no biological basis for distinguishing between natural and hatchery produced stocks, contending that both have been reproducing since 1899 when hatchery production began.

The plaintiffs announced their lawsuit shortly after Puget Sound wild chinook were listed for protection under the ESA, claiming that "Puget Sound populations have continuously interbred with populations from neighboring ESUs and so fail to meet the criteria of a distinct population segment under the ESA."

They also accused NMFS of failing to adjust ocean fisheries to protect the stocks, despite a Congressional mandate to amend plans by December 1998. Plaintiffs also claimed that the federal agency violated the ESA by authorizing "directed take" by ocean, tribal, recreational and commercial fisheries.

Since then, NMFS was ordered by a federal court to produce an EIS that deals with salmon harvest effects on listed Columbia Basin stocks. The agency issued a draft environmental impact statement on Puget Sound stocks last April and in a programmatic EIS on the harvest of West Coast ESA stocks in November 2003. -B. R.


[5] WEAK EL NINO MAY BE ON THE WAY

NOAA climatologists say an El Nino is building in the equatorial Pacific and will soon impact the coast of south America. Last year, scientists saw evidence for one, but it fizzled by January.

But by using a new forecast system that became operational only a few weeks ago, they are increasingly confident in their forecast, said Conrad C. Lautenbacher, undersecretary of Commerce for oceans and atmosphere. However, the change in conditions is not expected to pack much of a punch.

"Presently, NOAA does not anticipate significant impacts from this potential El Nino in the U.S.," Lautenbacher said in an Aug. 24 press release.

The new "coupled" model used by federal scientists represents the interaction between the oceans and atmosphere. The agency declares the onset of El Nino conditions if the three-month average sea surface temperatures rise .5 degrees C in the east-central equatorial Pacific. To be called a full El Nino, the condition must last for at least five consecutive three-month seasons.

The climate impacts group from the University of Washington expects a relatively warm winter for the Northwest this year, with the likelihood of some added warming from the El Nino event. They also expect lower survival of Oregon coho stocks this year because of warming waters off the mouth of the Columbia since last year.

"Have you checked the ocean off Oregon lately?" asked U.W. researcher Nate Mantua, "It's boiling and the El Nino isn't even here yet." His group expects average to below-average streamflows this coming year.

Mantua, who is a lead researcher into the phenomenon dubbed the Pacific Decadal Oscillation, or PDO, which in the past has produced alternating climate regimes of warm, dry (bad for salmon) or cold, wet (good for salmon) 20- to 30-year periods, was humble about the current ocean conditions.

"I have no good answer for what's happening," Mantua said, noting that the PDO "has done a lousy job of explaining things the past five years." -B. R.

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