[4] Montana, Kootenai Join Biop Fray
Montana Gov. Brian Schweitzer has announced that his state will join the ongoing litigation over the 2004 hydro BiOp (NWF vs. NMFS). Other Northwest states have been intervenors in the latest courtroom battle over future operations of the federal hydro system that began after a 2002 mediation effort failed. The Kootenai Tribe of Idaho has also intervened on the side of the federal government.
U.S. District Judge James Redden tossed out the 2004 BiOp last May, and he has scheduled a status hearing for Sept. 14 to discuss the future of the remand process. The 2004 BiOp was the product of an earlier remand, when Redden invalidated the 2000 hydro BiOp.
"Montana is always hesitant to jump head first into a lawsuit," Gov. Schweitzer said. "However, the time has come to make sure that the interests of the people of Montana are heard. Montana intends to present a moderate voice in this otherwise contentious arena."
Montana's latest move came after another futile attempt to change reservoir operations in its own state. "Our latest experience at the TMT and IT [river forums] prompted us to join in," said Bruce Measure, one of the state's two representatives to the Northwest Power and Conservation Council.
Measure was referring to recent meetings of the technical management and implementation teams that govern hydro operations, where Montana argued hard this summer to modify BiOp-mandated water releases from two large federal reservoirs. The past few BiOps have called for the extra water to improve flows in the Columbia for the benefit of ESA-listed migrating salmon and steelhead, though it has been hard for researchers to develop a flow/survival relationship for juvenile salmon.
The state's position has been backed up by an amendment in the Power Council's latest fish and wildlife program that calls for an evaluation of flattened flows from Libby and Hungry Horse to benefit resident fish populations like listed bull trout and sturgeon.
A Council-sponsored flow symposium last fall found an independent science panel endorsing the amendment. The panel said the change in flows from the added Montana water was too small to measure any survival difference in juvenile fish.
But USFWS representatives said last July that still wasn't a good enough reason to approve the change. They argued at the monthly IT meeting that every little bit of water improved flows, even the 5 to 7 kcfs that Montana provided, because the system was nowhere near reaching the summer flow targets at McNary Dam of 200 kcfs. In fact, the Corps of Engineers has pegged the average summer flows this year at only 160 kcfs. Without consensus, the Montana proposal was nixed for the second year in a row.
NOAA Fisheries said it couldn't support the Montana proposal without consensus among forum members. Besides that, they said plaintiffs in the BiOp case, environmental and fishing groups, probably wouldn't OK the changes, because the modification went outside the base operations in the biological opinion.
The Montana press release said its interests weren't just focused on reservoir operations though. The state also has concerns about the costs of dam spill for salmon migration, especially the $70 million added to this year's costs from Judge Redden's court order. The states' wheat and grain farmers rely heavily on the Columbia/Snake barge industry as a shipping alternative to the railroads for exporting their products, and that route would be jeopardized if reservoirs were drawn down below navigable levels.
The Kootenai Tribe said it wanted to intervene in the proceedings to ensure that its interests were adequately protected. Since flows out of Libby Dam in the Kootenai River will be determined by the next BiOp remand, the results will have "lasting consequences" for fish stocks managed by the tribe, including ESA white sturgeon and bull trout, could damage or uncover cultural resources, and might cause flooding of tribal lands and property.-B. R.
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