[3] New BiOp Talks Shaping Up To Satisfy Judge

What's next for the hydro BiOp? That depends on who you talk to. With U.S. District Judge James Redden calling for collaboration between all parties on issues like flow augmentation, and scheduling a status conference for Sept. 30, regional participants have different ideas on what should be done next.

One thing, however, is perfectly clear. Environmental lawyers say that status quo operations are not adequate for ESA-listed fishes' needs. They like a plan that could add $300 million to annual hydro costs.

It also looks like the four-state talks with federal agencies over the next 10 years' worth of hydro operations are pretty much dead for the time being, since Washington has basically said any discussion should focus on what the judge wants.

Meanwhile, sources said that Justice Department attorneys will ask Redden to issue a final order in the BiOp case (NWF v. NMFS) at the hearing so they can begin an appeal process in the Ninth Circuit.

A recent decision in the 8th U.S. Circuit Court of Appeals may have buoyed spirits in the Justice Department. In a case where environmental groups sued the Corps of Engineers over its Missouri River operations, the court found the Corps was due deference for its expertise on all points of the suit. In a footnote to its ruling, it said, "If future circumstances arise in which Endangered Species Act compliance would force the Corps to abandon the dominant FCA purposes of flood control or downstream navigation, the Endangered Species Act [ESA] would not apply."

Judge Redden and the 9th U.S. Circuit Court of Appeals Panel that upheld his ruling on court-ordered spill have not given federal agencies deference for their expertise on river issues like the value of spill. In fact, the Niners' July ruling even remarked that the government didn't deserve deference because it had changed its methodology for determining jeopardy to listed stocks from the earlier BiOp.

NMFS spokesman Brian Gorman told NW Fishletter that it's up to the Justice Department and the Solicitor General to decide whether to appeal, not his own agency. "I've been told, that on no uncertain terms, that's the case." Gorman said. He expected that government attorneys would have more to say on the topic at the Sept. 30 hearing.

Since Redden granted the court-ordered spill on June 10, one Justice Department attorney who had worked for years on hydro BiOp litigation, has been replaced. Fred Disheroon will no longer be involved in the BiOp case, but he said he will still work on U.S. v. Oregon issues, the ongoing Columbia River harvest and hatchery polices being developed between lower Columbia Tribes, the feds and Washington and Oregon. Justice Department attorney Robert Gulley has been assigned to the BiOp litigation as lead attorney.

While the feds seem ready to charge forward and appeal the BiOp on mainly procedural grounds, reportedly ready to take it all the way to the Supreme Court if need be, they are also committed to collaborating with plaintiffs in the case over hydro operations in the short term. While the BiOp goes through another remand, Redden had told all sides to get together and discuss flow issues, which they plan to do at a meeting now scheduled for Sept. 29.

Jan Hasselman, attorney for lead plaintiff National Wildlife Federation, said his side would prefer to work out a new plan while the remand is going on. "We'll work with the states and tribes to see if we can do that," Hasselman said. But if the feds are unwilling to implement more protective measures for listed fish, the plaintiffs will go back to the judge and ask for them, as they did with summer spill, he said.

Hasselman told NW Fishletter that his group would likely support dam operations more in line with the 2004 river operations plan developed by the Columbia River Inter-Tribal Fish Commission (CRITFC) or last January's plan from the state of Oregon.

Oregon Plan, not

But the so-called "Oregon Plan," was never really a plan at all, said Mike Carrier, natural resource advisor to Oregon Gov. Ted Kulongoski. He said it was more of a collection of ideas to begin a regional discussion on future dam operations. After conversations with the Corps of Engineers about the more draconian measures like deep drawdowns of Columbia and lower Snake reservoirs, Oregon officials found some of the proposals would have seriously impaired salmon passage without expensive dam modifications, and would have had adverse impacts on irrigators and the barge industry.

"We learned a lot of interesting things about it [the plan]," Karrier said. He welcomed a chance to share Oregon's new knowledge of hydro reality with plaintiffs at a forum later this month.

The original Oregon proposals also borrowed heavily from the annual CRITFC river operations plan, which calls for 24-hour spill at most dams from early April until the end of August to aid juvenile fish passage, along with more water from Canada and Idaho. Its scope is similar to the theoretical "reference" operation described in the 2004 BiOp which has been used as a yardstick to estimate fish survival from dam operations maxed out for the benefit of listed stocks--an operation that the Bonneville Power Administration has estimated would add $280 million a year to the current cost of running the hydro system according to current BiOp mandates.

There has been some discussion over using a third party, like the independent science panel used by NMFS and the Power Council, to make judgements about the flow issues and other areas of debate that will undoubtedly be brought up during the next remand.

"We are concerned about what injunctive relief might be enjoined," said Scott Corwin, vice-president of the Pacific Northwest Generating Cooperative. He questioned the biological value of this summer's court-ordered spill, asking where in the record is there any evidence that shows benefits to the fall chinook. BPA still hasn't computed the cost of the added spill, but says it's likely in the upper range of its $57 million to $81 million estimate.

Corwin said BPA customers value some certainty about hydro operations over the next few years and hope an agreement can be reached as long-term recovery plans begin to take hold.

Other customers are more pessimistic. One, who did not wish to be identified, said he couldn't see much to be gained from further discussions with plaintiffs over flow and spill, noting that mediation efforts had already failed before the latest round of BiOp litigation. But he was also critical of the feds' preoccupation with its prospective appeal. "The feds are playing chicken with the ESA," he said. -Bill Rudolph

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