[2] BiOp Parties Have Different Ideas Over Future Remand
In the wild wacky world of salmon recovery, a new conundrum has presented itself. The federal government may actually complete recovery plans for ESA-listed salmon stocks before they figure out how to run the hydro system for the next 10 years.
The feds said final recovery plans will be done by the end of 2006, but they'd need a year beyond that to finish another hydro BiOp. But U.S. District Court Judge James Redden ordered another re-write last Friday, and will give them only a year to get it done. The judge also issued a final order of his May decision that tossed out the 2004 BiOp, which gives the feds the green light to appeal his decision. However, the judge ruled that the old BiOp will remain in effect during the remand.
In court documents filed before the Oct. 2 hearing, federal agencies told Redden last week that proceeding with another remand at this time would be "inappropriate" while his decision is under appeal because of the fundamental disagreement over the interpretation of the Endangered Species Act. Their response came after Redden asked all parties in the BiOp litigation to give him thoughts on how to proceed.
The feds argued that "considerable resources" will be wasted if NMFS and other federal agencies write a hydro BiOp that's ultimately changed by an appeal.
However, the feds also said if the judge ordered a remand, they are prepared to write a new BiOp, and will file quarterly reports on its progress. But they want at least two years to write a new one.
"The court should not shackle NMFS with an arbitrary deadline," federal attorneys said, "that puts that goal at risk by constraining NMFS and the Action Agencies from having an opportunity to obtain and evaluate all of the information necessary to achieve that goal and to allow for public involvement."
The feds said it would take two years to fill in any "gaps" with additional mitigation measures, collaborate with affected states and tribes and add recovery planning and "outside" scientific input into the next BiOp.
Furthermore, they said it will take time for action agencies to evaluate new non-hydro mitigation actions and determine how these actions would fit into recovery plans under development, along with evaluating non-federal measures counted as cumulative effects.
The feds pointed out that some changes could have significant regional impacts. Reservoirs may be harder to fill if more water is used for migrating fish. There could be increased flood risk in the Portland/Vancouver area or interruptions to commercial barge navigation.
They called for four public roundtables for all stakeholders to air their views on hydro operations and other measures in the habitat, harvest, and hatchery areas.
If the government finds that the new proposed action will likely jeopardize existence of the listed stocks, then more time will be needed to develop additional actions that would improve fish numbers.
If the same life-cycle approach used in the 2000 BiOp were used to evaluate effects of proposed actions, it would involve a considerable effort because of the greater complexity of information gathered since then, according to comments by regional NMFS administrator Bob Lohn in a declaration attached to the proposal. Lohn also pointed out that a new effort is underway to revise the passage survival model used in the latest BiOp that includes input from state and tribal scientists.
The feds also asked the judge to keep the 2004 BiOp in place during the new remand to give them protection from new litigation. With the 2004 BiOp still in place, they say the judge doesn't have to change dam operations. But they point out that plaintiff environmental and fishing groups have already told the court of their intention to file another injunction regarding dam operations during the remand.
The groups were successful earlier this year with an injunction that boosted spill throughout the summer for fall chinook. It has cost around $80 million to implement and has provided questionable biological benefits. One thing for sure is that by the time the spill started, most of the run had already passed lower Snake dams.
Feds asked for an evidentiary hearing on any future injunctions, which wasn't the case earlier this year when both sides argued via declarations with no opportunity for cross-examination. They suggested any future injunctions dealing with future hydro operations be filed with the court by Oct. 31.
In their filing, environmental groups said they were not seeking the 2004 BiOp be vacated, but they wanted the feds to produce a new one within a year, arguing that the new remand "is neither more complex nor more time consuming" than the previous one, which took a year.
They also pointed out that the feds have been operating the dams without a valid BiOp since May 2003, when the 2000 BiOp was found invalid; they say there is no justification for a lengthier remand than one year.
The environmental groups said if they can't reach agreement with feds on how to run the hydro system during the remand, they will file for injunctive relief by Nov. 1. Sources said that they will ask for 24-hour spill at all federal dams from April through August, and enough water to meet flow targets on a weekly basis. The current BiOp calls for meeting flow targets on a seasonal basis, but even in average-water years, such targets have rarely been met, or even possible to meet given other constraints on the system.
The four Northwest states weighed in with their own filing that called on Redden to grant a motion for partial summary judgment so the feds can get on with their appeal. They also supported a two-year remand process for development of a new BiOp that includes "robust" collaboration between states, tribes and federal agencies.
The state of Montana, along with new defendant-intervenor, the Kootenai Tribe of Idaho, asked the court to hold evidentiary hearings to determine interim operations. They suggested the appointment of a particular judge, U.S. District Court Judge Donald Ashmanskas, to hold trial proceedings and recommend findings of fact regarding interim operations, along with requiring the judge to use a court-appointed expert or group of experts to help him review the evidence and produce a report.
The state and Tribe's proposal says the appointment of a master is warranted under "exceptional circumstances," and the legal test is met due to the lengthy and historic dispute over dam operations.
They said the implementation of their proposal would "ensure that operational decisions are based on the needs of the entire ecosystem." The two Montana entities were drawn into the BiOp litigation after repeated attempts to change reservoir operations from BiOp mandates at two federal projects in that state, in hopes to improving conditions for resident fish were rebuffed by other agencies and tribes in the region. Last Friday, Judge Redden turned down the request for a "master."
Lower Columbia tribes also called for collaboration among the parties in the litigation and suggested a process similar to the ongoing U.S. v. Oregon case, which uses a technical advisory committee made up of a scientist from each sovereign party. They also said that the remand process should include a backup plan, pointing out that the 2000 BiOp called for hydro mitigation actions that included breaching Snake River dams (Actually, the 2000 BiOp only called for NMFS to possibly seek Congressional authorization to breach the dams if key actions failed to improve listed fish runs).
And they agreed with plaintiffs that if the court handles any future requests for changes in dam operations the same way it did with this summer's spill injunction--without an evidentiary hearing--it's fine with them. In a footnote, they cited a recent memo from the Fish Passage Center that says the added spill "appears to have provided significant biological benefits."
On Sept. 29, all parties met in Portland to discuss some issues related to flows. According to the agenda, the meeting focused on how much water may be wrung out of the Columbia Basin for salmon survival, without discussion of the biological value to fish. Included were reviews of alternate flow scenarios, including the plan offered by the Columbia River Inter-Tribal Fish Commission, and the Montana/Upriver Tribes proposal for the operation of Libby and Hungry Horse reservoirs. -B. R.
The following links were mentioned in this story:
Hydro Operations, Federal Caucus, Sept. 29, 2005
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