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NWF.189/Dec.07.2004
[1] Revised Hydro BiOp Released; More Litigation Expected
[2] American Fisheries Society Approves Tribes' Call For BiOp Review
[3] Citing New Info, Feds Propose Huge Cuts In Critical Fish Habitat
[4] New Lawsuit To Target Proposed ESA Hatchery, Relisting Policy
[5] Joan Dukes Named Power Council Member From Oregon
[6] Grant PUD Sets Winter Flows For Vernita Bar Spawners
[7] Settlement Reached In Lewis River Hydro-Licensing

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[1] REVISED HYDRO BIOP RELEASED; MORE LITIGATION EXPECTED

The revised and possibly final hydro BiOp went public Nov. 30 when NOAA Fisheries Regional Administrator Bob Lohn explained to regional stakeholders that negative effects of federal hydro system operations on ESA-listed fish would be offset by the additional actions proposed in the revised opinion.

It appeared on schedule--the result of a remand process begun last year when Oregon District Court Judge James Redden ruled the 2000 BiOp illegal because of uncertainties in its call for offsite mitigation. However, lawyers on both sides of the original lawsuit [National Wildlife Federation v. NMFS] were putting the finishing touches on a schedule for litigating the revised opinion before Lohn had explained the thinking behind his agency's determination. Environmental and fishing groups are expected to file an amended complaint by Dec. 30.

Before the announcement, federal agencies and their critics had revved up publicity for the event. Two weeks ago, the Corps of Engineers led reporters on a tour of a 1.7 million-pound steel bypass weir that will be bolted to the back of Ice Harbor Dam later this spring to improve juvenile passage survival.

Meanwhile, a coalition of fishing and environmental groups, Save Our Wild Salmon, has been soliciting support from scientists throughout the country in the form of a letter to President Bush criticizing government agencies for not comparing fish survival in the hydro system to survival in a river without any dams. By Nov. 30, they had 250 signatures on a letter that said federal efforts were unlikely to recover the listed stocks, but failed to mention that only four stocks out of 16 listed ESUs in the Northwest were affected at all by the four lower Snake dams long targeted for removal by the coalition.

Limited Scope for New Analysis

Lohn used the BiOp announcement to counter critics who found fault with the agency's new framework analysis. The revised BiOp compares the proposed action to a theoretical "reference" hydro operation maxed out for fish, and leaves out adverse effects on fish from the dam's existence. Lohn said his agency believes the new approach "is consistent with existence, law and standards used in federal biological opinions across the country."

Lohn said the analysis didn't look at dam removal because it was beyond the scope of "any opinion, including the last one," which spelled out steps the agency might take to prepare for the possibility of removing them. However, he added that authorization for dam breaching was still up to Congress.

"The agencies were able to get to no-jeopardy with the dams in place," Lohn said, noting that the last BiOp was thrown out because it didn't meet the requisite certainty of containing only proposed actions on which his agency had completed consultations. But even if dam removal had been listed as an alternative to the proposed actions, Lohn said his agency still had no authority to consult on the matter.

"Dam removal would not have met Judge Redden's test for factors to be considered in writing a biological opinion," Lohn said. He said the agency had worked hard to distinguish between the effects on fish due to the dam operations and the effects due to the existence of dams. "The action proposed here was not building dams, but rather operating dams that already existed, so there was a limited range of activity."

Then the agency consulted with action agencies to develop mitigation to close the gap in fish survival between the proposed and reference operations. "By the end of the 10-year period covered by this," Lohn said, "for each of the ESUs, the gap should either be reduced to a point that's not appreciable at all, or, in a number of instances, improved beyond a 'no net loss' to a genuine increase in the number of fish surviving over the reference case."

The opinion includes five new white papers from the NOAA Science Center in Seattle and updated data through 2003, and has benefited from a collaborative effort with state and tribal co-managers to help formulate the gap analysis, Lohn said.

The 30-day public comment period was very unusual for a biological opinion, he said, but it was important enough to do so. The agency received 28,000 e-mailed messages, 7,200 form letters, nearly 11,000 postcards, and petitions containing more than 2,300 signatures.

He said the models used in the BiOp were substantially revised and its text had "substantially changed" because of the comments, but that outcomes didn't change much.

"Basically," he said, this shows that "there is a relatively small difference between the system run optimally for fish and how the action agencies are proposing to operate it." He said that's because many of the effects on fish occur from the existence of the dams, not their operation. Secondly, dams operations are "vastly different" from what they were 10 years ago.

Lohn said surface bypass structures are being planned for all major dams by 2010. He called it a major improvement in both fish survival and operational efficiency, since more fish can be spilled over dams with less water.

Though improved ocean conditions have done much to improve fish runs in recent years, Lohn pointed out that improved juvenile survival in the hydro system has helped Columbia Basin runs take advantage of those improved conditions.

Same Operations, Renewed Commitment to Recovery

A letter included with the opinion reiterates the obligations of federal agencies to overall salmon recovery and their commitment to producing recovery plans for listed stocks in 2005. It also stresses that the new BiOp approach isn't an attempt to shift the financial burden of the $600-million annual recovery effort to other regional parties, Lohn said.

The document itself contains the same recipe for operations as the previous BiOp, but fish barging will commence a few weeks later in the spring to reflect results of NOAA Fisheries' survival research conducted since 2000. Otherwise, spill and flow augmentation efforts will remain the same, said Karen Durham-Aguilera, the Corps of Engineers' Northwest division director of programs.

By 2014, she said, the agency was committed to have new surface bypass technology at all federal dams. One is already in place at Lower Granite, and another will be installed by next spring at Ice Harbor.

Bonneville Power Administration customers gave a generally positive response to the BiOp, but were privately discouraged at the total rollover of older BiOp actions into the new one.

"This BiOp gives some hope for better adaptive management, " said Scott Corwin, vice president of the Pacific Northwest Generating Cooperative. "But, in the near-term, it contains the entire, inefficient summer spill regime and increased spring spill in low water years. From a ratepayer standpoint, the burden remains onerous."

The state of Montana, which had fought hard this year to stabilize summer outflows from its two big reservoirs, was not happy, either. "Given the recent information from November's flow symposium, we are concerned that NOAA Fisheries continues to maintain in their BiOp a strong flow/survival relationship in the Columbia River," said John Hines, one of the state's representatives to the Northwest Power and Conservation Council."

Hines was referring to a two-day gathering of regional scientists and an independent panel that took place in early November ( see NW Fishletter 188). The panel had serious questions about NOAA's flow/survival presentation for fall chinook and is expected to weigh in with a review of the proceedings by Dec. 13.

Sources said that an earlier version of the BiOp had included a reduced summer flow and spill regime, similar to the operation developed earlier this year by the action agencies and OK'd by NOAA Fisheries. The change was quashed by Judge Redden after environmental groups sought a temporary restraining order against its implementation.

BPA Administrator Steve Wright said the new BiOp contains "clauses" that would allow agencies to propose summer spill reduction or other changes "if, in fact, we were able to come up with a set of biological offsets that would produce a similar or greater biological benefit."

Wright said as the BiOp was moving from the draft stage to its final version, "the science has been moving on this with respect to fall chinook," but not to the place where the region yet understands it.

Recent research has found some Snake River fall chinook hold over and migrate as yearlings, which has confounded survival estimates. In fact, the new BiOp admits in an appendix that current survival estimates may be "conservative."

Wright said the agencies aren't prepared to develop a specific proposal for summer operations until they get "a better handle" on the survival estimates. He said it's a 10-year opinion, "so we'll continue doing what we've done in the past, but we're leaving the door open to have further discussions about alternative measures as the science evolves."

Though the revised BiOp maintains past hydro operations, environmental groups and some tribes were predictably upset with BiOp analyses that differentiated between the dams' existence and their operations.

A Nov. 30 press release from Save Our Wild Salmon still pushed for breaching lower Snake dams, saying "special interests" have exaggerated the cost of removing them, and a revitalized rail system could easily make up for the loss of the barge industry.

Olney Patt Jr., executive director of the Columbia River Inter-Tribal Fish Commission called the new BiOp "a step backward" that failed the charge of long-standing recovery goals.

But Rob Walton, NOAA Fisheries' assistant administrator for salmon recovery, disagreed. "We have an ambitious schedule," Walton said, "and we're very excited about it." He said Washington Gov. Gary Locke will present NOAA Fisheries with a draft recovery plan for the Lower Columbia (Washington side only) on Dec. 15. The state is expected to turn in other plans for the upper- and mid-Columbia by next June.

"This is exactly the kind of bottom-up effort we're looking for," Walton said, who noted that his agency may add a few things to the draft plans, but doesn't expect to change them much. He said the agency should have six plans completed within the next 12 months. -Bill Rudolph


[2] AMERICAN FISHERIES SOCIETY APPROVES TRIBES' CALL FOR BIOP REVIEW

Before the new BiOp even hit the streets Nov. 30, Northwest tribes called for a peer review of the controversial document. And the American Fisheries Society has agreed to a request by the 54 Affiliated Tribes of the Northwest to review it by Jan. 31.

The Tribes said they believed that AFS scientists could help "interpret, in an objective and disciplined manner, whether the science supports the new findings."

A draft BiOp released in September concluded that dam operations don't jeopardize ESA-listed salmon and steelhead stocks in the Columbia Basin, a conclusion re-iterated last week in the final version.

The tribes included a list of questions "to guide this review," and also provided a list of potential reviewers that was not released publicly. Tana Klum, tribal coordinator with the Columbia River Fish and Wildlife Authority, said she didn't have clearance from the Tribes or the AFS to release the list. "AFS selects their own reviewers," she said in an e-mail, "some of which remain 'blind' to obtain maximum objectivity."

Lynn Starnes, president of the western division of the AFS, outlined the process in his Nov. 9 letter to the Tribes. He gave their questions to the AFS Environmental Concerns Committee, which will form a review committee from a combined list that includes names from the tribes' own list.

"When that review is completed, the report will then go through a review by our Executive Committee and our Policy Committee," Starnes said. "If we concur that a credible, independent review has been conducted, then the review will be released to you and others within the American Fisheries Society."

Starnes recognized potential pitfalls in the process. "Key will be choosing the scientists who can review the available data yet remain separate from the prevailing politics," he wrote to the Tribes.

The request has some Northwest scientists, who already believe the AFS plays too much of an advocacy role, shaking their heads. Several say they quit the organization 10 years ago for precisely this reason.

"They went off the deep end in the 1990s," said a biologist, who has since left the AFS. In 2000, the Oregon AFS chapter voted 103-0 to adopt a resolution affirming the necessity for breaching the four lower Snake River dams to restore wild salmon populations.

But the AFS review may prove especially difficult because some of the questions asked by the tribes seem to mix scientific and legal issues, such as their queries about the framework of the feds' analysis. "Is acceptance of the federal power system as part of the natural environment supported by the science? Does sufficient technical capacity exist to differentiate between operation and existence of the FCRPS [Federal Columbia River Power System] in a manner that fully documents all impacts to fish (lethal and non-lethal, including passage, water quality, predation, harassment, etc.)?"

NOAA policymakers like regional administrator Bob Lohn say improved survival data allows the analysts to focus on dam operations in the new BiOp and measure the difference between proposed operations and a hypothetical operation that's maxed-out for fish survival.

The new analysis is part of the BiOp remand ordered by Oregon District Court Judge James Redden, who ruled last year that offsite mitigation promised to make up for fish losses in the federal hydro system wasn't really certain to occur.

But Redden wasn't prepared for a whole new BiOp with a completely new framework for analysis unveiled in draft form last September. He called the revision a potential "train wreck." Since then, plaintiffs in the original BiOp lawsuit have promised to sue again if the judge doesn't throw it out, and both sides have been discussing a schedule for new litigation once the latest BiOp became official. -B. R.


[3] CITING NEW INFO, FEDS PROPOSE HUGE CUTS IN CRITICAL FISH HABITAT

The federal government announced last week that it proposes to cut critical habitat designations for ESA-listed salmon and steelhead stocks in the Northwest by 80 percent, whittling down previous protection to 27,000 miles of Northwest streams.

In a Nov. 30 briefing, NOAA Fisheries regional administrator Bob Lohn said updated information has helped his agency's scientists determine the locations ESA-listed fish use. In contrast, just a few years ago the agency had designated all habitat "critical" to the conservation of a particular ESU [Evolutionarily Significant Unit], whether fish were known to use it or not. The previous designations included all potential habitat for the listed stocks.

But the main impetus for the change came after the agency lost a lawsuit filed by developers and others that challenged the critical habitat designations of 13 West Coast ESUs because the government never factored in the required economic analysis.

The entire Snohomish watershed would still be designated
'critical habitat' under the new proposal.

Lohn said his agency has estimated the cost of the previous designations at more than $238 million annually to the Northwest economy. The 689-page draft economic analysis that accompanied the new proposal even recommends excluding some critical habitat because economic activity in those areas is judged to outweigh biological benefits.

The proposal is expected to make a significant dent in the original designations, which were withdrawn by the feds after the lawsuit. If enacted, there would still be about 25 million acres in Idaho, Oregon and Washington tied up with the ESA designation.

"There have been no critical habitat designations since the old rules were tossed out in 2002," said Tim Harris, an attorney with the Building Industry Association of Washington. "Yesterday's announcement now creates a new layer of bureaucracy and adds hundreds of thousands of acres in new critical habitat." Harris said there is no justification for keeping most of the runs listed under the ESA since federal agencies concede that most salmon populations are well above their 10-year averages.

The BIAW was a party in the lawsuit that forced the agency to withdraw its critical habitat designations. During the litigation, an infamous 2000 memo surfaced that was written by then-acting regional administrator Donna Darm wherein she described her agency's policy on critical habitat--"we just designate it all."

In Puget Sound, for instance, where chinook and Hood Canal chum are listed for protection, the document recommends excluding 12 areas of low conservation value and four of medium value where they have determined economic losses outweigh biological benefits. The areas in question represent about 389 stream miles, or 18 percent of the stream miles in the chinook ESU, and include the Baker River, Sammamish river watersheds (including Lake Sammamish) and several watersheds on the Kitsap Peninsula.

The Lake Washington area was not designated for exclusion because of its high conservation value as a "connectivity corridor." The analysis pegged the economic cost of designating the lake as critical habitat at more than $15 million a year. But excluding the other areas would reduce the annual economic cost of the critical habitat designations for the Puget Sound chinook ESU from about $95 million to $77 million a year.

For the upper Columbia chinook ESU, several areas were proposed for exclusion for economic reasons, including tributaries of the lower Methow River, along with tributaries of Lake Entiat, Icicle Creek and the lower Wenatchee River, which is expected to reduce the economic impact of the designations by nearly $3 million from an original estimate of $16 million.

Lohn told reporters last week that he didn't see any significant reductions in ESA consultation requirements from the new proposal, which is now subject to a 60-day public comment period. He also noted that the proposed designations may be reduced by another 10 percent before they are finalized next June. -B. R.


[4] NEW LAWSUIT TO TARGET PROPOSED ESA HATCHERY, RELISTING POLICY

The Pacific Legal Foundation, a property rights advocacy group, said it intends to sue NOAA Fisheries over its proposed hatchery policy dealing with ESA-listed salmon and steelhead.

Representing several West Coast building associations, farm groups and irrigators, PLF attorney Russ Brooks said Nov. 16 that the new policy is in direct contradiction to a 2001 court decision [Alsea Valley Alliance v. Evans] that forced the federal government to revise its policy. The Oregon District Court opinion found the fisheries agency had erred by offering ESA protection to only the wild component of Oregon coastal coho and not genetically similar, but hatchery-bred coho.

"We're going down the same old road again," Brooks told NW Fishletter, noting that the court has clearly said all members of a species must be treated equally. Brooks said if the proposed policy changes before it is finalized, he may have to file a new "intend to sue" letter to go after the policy.

In June, the federal government announced a proposed policy that would relist for ESA protection most of the same West Coast salmon and steelhead populations already protected, but would add genetically similar hatchery components to the listed ESUs [Evolutionarily Significant Units]. But the revised policy would allow ESA-listed hatchery fish marked by a missing adipose fin to be exempt from ESA "take" regulations, focusing protection on the naturally spawning component of the runs.

Attorney Brooks, who represented plaintiffs in the Alsea Valley suit, says the proposed policy misinterprets the Hogan decision, which found that hatchery coho genetically indistinguishable from their wild brethren deserved the same protection under the ESA.

By counting only the wild component of each run for protection, the fish agency plans on relisting all currently protected stocks on the West Coast. PLF says that's simply an "end run" around the Alsea decision.

The PLF "intend to sue" letter says that NOAA Fisheries has misinterpreted the ESA's purpose as defined by Congress, which called for conserving ecosystems of listed species and providing a program for conserving the species. Citing a 1991 federal memo, Brooks argues that the federal fish agency has redefined the ESA's purpose based on a main tenet of conservation biology-- to conserve the genetic diversity of species and their ecosystems--a phrase not in the ESA.

The PLF also says the government's concept of the ESU compartmentalizes populations into smaller groups than the ESA allows, and does not agree with Congress' intent when it defined a "distinct population segment" [DPS] in the ESA as a population segment that "interbreeds when mature."

Moreover, Brooks says, the feds' ESU concept contradicts itself. In cases like the listed chinook in Puget Sound, where nearly two dozen populations are listed, most do not interbreed, but are genetically similar. In this case, he says, "any one population within the ESU is not distinct from one another," and shouldn't be listed in the first place since none satisfy the "distinct and interbreeding" criteria established by Congress. Brooks says the listings are illegal because the feds have arbitrarily created population units that do not qualify as DPSs.

"NMFS must recognize that hatcheries can have an important role in contributing to salmon recovery," says Brooks in the PLF letter. "Instead, NMFS continues to capitulate to environmental lobbyists who assert that hatchery fish threaten the ecology of wild fish and equate hatcheries with zoos."

When the government rolled out its proposed policy at the end of May, undersecretary of commerce for oceans and atmosphere Conrad Lautenbacher said the new federal policy would "reinforce the agency's commitment to protect naturally spawning salmon and their ecosystems." But he also said the agency recognized the potential contributions of well-run hatcheries to rebuilding depressed natural stocks, along with the important role they played in fulfilling trust and treaty responsibilities.

On Nov. 15, the feds released their environmental assessment of a proposed change to ESA rules that would exempt hatchery fish with clipped fins and resident steelhead from "take" provisions of the law.

For now, the feds propose maintaining protection for the 26 West Coast stocks, moving upper Columbia steelhead and Sacramento winter-run chinook from the "endangered" to "threatened" status, and bumping up Central California coastal coho to "endangered."

The Oregon coastal coho stock that was the focus of the original lawsuit is still delisted, though it remains protected under Oregon's ESA law. It will remain so until the relistings take effect in June 2005, though rumors have circulated that the stock may be ripe for delisting by then. A NOAA Fisheries review of the coho situation should be completed soon.

As the feds' environmental assessment shows, the coho stock has rebounded strongly in the past few years; 163,000 natural spawners in 2001, 264,000 in 2002 and 188,000 in 2003, numbers that "far exceed the abundance observed for the past several decades." But the assessment also points out that the long-term trends of the ESU's productivity are still negative due to poor performance of brood years from 1994 to 1996.

But the prospect of seeing other ESUs delisted anytime soon is pretty dim. NOAA scientist John Stein, speaking at the Nov. 9-10 flow symposium in Portland, said every listed stock in the Columbia Basin had "room to improve" when judged by the agency's viable salmon population yardstick--abundance, productivity, spatial structure, and diversity. -B. R.


[5] JOAN DUKES NAMED NEW POWER COUNCIL MEMBER FROM OREGON

Oregon Gov. Ted Kulongoski has named fellow Democrat and long-time state senator Joan Dukes as one of the state's two representatives to the Northwest Power and Conservation Council.

Dukes lives near Astoria and has served in the state senate for 18 years, working on education, transportation fisheries and fishery issues. She recently directed a Western states' task force to bring legislators together to discuss fisheries issues.

If confirmed by the state senate, Dukes will begin her Council term in January, replacing Gene Derfler, whose public flaps with Kulongoski's staff over fish and spill issues had often put him at odds with Oregon's other member, attorney Melinda Eden of Milton-Freewater. Derfler had told NW Fishletter recently that he had received word that he would not be reappointed. -B. R.


[6] GRANT PUD SETS WINTER FLOWS FOR VERNITA BAR SPAWNERS

Grant PUD announced this week that it has completed the annual survey of fall chinook redds in the Vernita Bar area of the Columbia River's Hanford Reach and will set minimum flows at 65 kcfs throughout the winter to protect them from being de-watered. Based on dam counts, the PUD estimates that 80,000 to 90,000 fall chinook spawned in the reach this year, putting 2004's return in one of the top five years since 1964.

About 172,000 fall chinook were tallied past McNary Dam this year, only 9,000 fish less than last year's blockbuster run. About 20,000 went up the Snake and another 48,000 fall chinook continued past Vernita Bar and passed Priest Rapids Dam to spawn further upriver. Some spawners dug redds in the tailrace of Wanapum Dam.

Flows in the reach have been regulated since 1988 after an agreement was completed between fish agencies, tribes and utilities. The accord has recently been expanded to reduce flow fluctuations after the young fish emerge from gravel beds in the spring. -B. R.


[7] SETTLEMENT REACHED IN LEWIS RIVER HYDRO-LICENSING

PacifiCorp, Cowlitz County PUD and a host of intervenors have reached a settlement in the licensing of four hydroelectric facilities on the Lewis River in Southwestern Washington. The settlement will reopen up to 174 miles of potential salmon habitat by transporting fish around three dams that currently block fish migration on the river.

PacifiCorp owns three dams on the river--Merwin, Yale and Swift No. 1--that together generate 510 MW. Cowlitz PUD operates the fourth, the 70-MW Swift No. 2.

The agreement calls for PacifiCorp to provide $290 million in capital investments, and Cowlitz to fund $19 million in capital investment over a 50-year period.

The 50-year plan includes a "state-of-the-science" fish passage system that would transport adult fish around all three dams, while surface collectors guide juvenile fish for transport downstream. Hatchery fish will initially be used to kick-start the reintroduction program. Over time, as naturally produced fish increase in numbers, the hatchery supplementation would be tapered off. Similar systems will be used to open up Yale and Merwin reservoirs in years 13 and 17 of the agreement.

If reintroduction does not proceed at Merwin and Yale, a $30 million "in-lieu fund" would be used for a variety of other aquatic projects. -Steve Ernst

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