[1] Biop Judge Gives Feds One Year To Produce New Hydro BiOp

Federal District Judge James Redden said NOAA Fisheries had wasted the past two years writing its latest hydro BiOp, but he will give them another year to produce a new one. He tossed out the 2004 BiOp last May, but said last week it will stay in place until the new one is completed.

In a Sept. 30 status conference, Redden said he may give the agency more time "if progress shows." Government attorneys had asked for at least two more years to craft a new BiOp because of the new, complicated knowledge gained about fish survival and Columbia River hydro operations since the last one was written.

The judge said he would hold the agency to a schedule with regular progress reports and that his remand order would be quite detailed. If the remand is not followed, there could be consequences, he said, possibly even dismissing the BiOp currently in place, which could lead to fines and other more severe problems.

He said he would hold the agency to a "specific analytical framework" to determine whether proposed hydro operations would jeopardize ESA-listed stocks. The feds changed their framework in the last BiOp and found that operations did not jeopardize fish--it became one of the main reasons Redden threw out the 2004 BiOp.

Redden gave a thumbs-down to a joint Montana/Kootenai proposal that called for appointing another judge as a "master" to oversee interim operations. "You already got a judge," he told participants. But he called for NOAA Fisheries, states and tribes to get together to pick a scientific expert to decide facts about fish survival, flows and spills in the system.

All sides plan to get together to decide how to accomplish that. It's possible the independent panel of scientists that counsels NOAA Fisheries and the Power Council will be used to suggest several names, with Redden making the final pick.

If that doesn't work, the judge said he would go back to the "old way," with litigants arguing pros and cons of specific actions via affidavits.

Redden also said he shared concern with tribes about the continued existence of the Fish Passage Center, and hoped defendants would urge politicians to save it from the federal budget axe.

The judge said he agreed with Idaho Senator Larry Craig (who inserted language in a spending bill to kill the Center's BPA funding) that the public needs to know how much it costs to save the salmon. But he said that should include a look at all subsidized operations in the basin including power generation, irrigation, recreation, and navigation.

Earthjustice attorney Todd True said plaintiffs could get their flow and spill requests together in the next 10 days, noting that the summer spill program "seems to be effective." He said that the faster the fish get down the river, the better their survival.

But federal attorneys pushed for an evidentiary hearing on the request, a position also supported by BPA customers. Redden said he would take comments through most of the week and issue a final order on Oct. 7 on how to proceed. He also issued a final order on the 2004 BiOp that paves the way for a federal appeal to the 9th U.S. Circuit Court of Appeals. Redden said his concern about the appeal was "zip."

On Oct. 3, Redden issued a draft remand order that called for NOAA Fisheries to fix the faults in the BiOp that he had found last May, including the "improper segregation of the elements of the proposed action NOAA deems to be nondiscretionary; (2) correct its improper comparison, rather than aggregation, of the effects of the proposed action on the listed salmon and steelhead; (3) correct its flawed determinations as to whether the proposed action destroys or adversely modifies critical habitat; (4) correct its failure to consider the effects of the proposed action on both recovery and survival of the listed species in determining whether the proposed action is likely to jeopardize the continued existence of listed salmon and steelhead; and (5) correct its past reliance on mitigation measures that are not reasonably certain to occur and/or have not undergone section 7 consultation."

The judge called on NOAA Fisheries and the action agencies to collaborate with the states and Treaty Tribes in the development of the next proposal for dam operations, and the clarification of policy issues and "reaching agreement or narrowing the areas of disagreement on scientific and technical information."

Beginning Jan. 6, Redden said the government must file status reports every 90 days. "NOAA's first status report shall include specific and complete information from which the court, the parties, and amici are able to determine (1) the legal framework NOAA intends to use in its jeopardy analysis, (2) the nature and scope of any proposed agency action, and (3) NOAA's plan for collaboration with the sovereign entities."

Some longtime participants held out little hope that all sides would agree on an independent expert to guide discussions of interim operations. "It's going to get a lot nastier before it gets nicer," said one.

On Sept. 29, environmental and conservation groups called on the judge to require federal agencies to "improve" another biological opinion, one that focused on Bureau of Reclamation irrigation projects on the upper Snake. The agencies had found once again in March that operation of the upper Snake projects did not jeopardize downriver stocks. Earthjustice and other groups had originally sued the government in early 2004 to get some of that water for migrating salmon. -Bill Rudolph

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