[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
[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.
[3] As Chinook Run Winds Down, Politics Heat Up; Salmon Hearings Scheduled
The fall chinook run on the Columbia River is drawing to a close as sporties have filled their allocation of upriver chinook and put their gear away for the season.
But harvest managers have given commercial gillnetters more time to target returning coho, which has led to angry outbursts from disgruntled sporties and a tirade from Oregonian outdoors writer Bill Monroe, who lambasted officials for their inflexible approach. Monroe called for a reallocation of the 50-50 split between sporties and gillnetters to give sporties more fish and more time on the river.
It's bound to be a topic of discussion next week at Congressional field hearings on salmon recovery. But the gillnetters were perfectly legal since they hadn't reached the limits of their impacts to upriver brights and probably won't once their dinky coho season ends.
It's just another management headache as agencies cope with trying to preserve small numbers of ESA-listed fish bound for the Snake that are mixed in with large numbers of perfectly healthy chinook headed for the Hanford Reach.
Meanwhile, managers updated the fall run size on Sept. 25, whittling Bonneville Pool hatchery returns by a few thousand from a previous estimate. The latest return estimate (to the mouth of the river) is 572,000 fall chinook, down from their preseason prediction of 671,400 fish. Upriver brights were coming in about 20 percent less than originally estimated, pegged now at 383,000 fish.
About 396,000 fall chinook made it past Bonneville Dam by Oct. 2, with the upriver brights making up the largest part, along with mid-Columbia brights and Bonneville Pool hatchery fish.
By Sept. 25, sporties had caught about 28,000 chinook, while lower river commercials had netted around 11,000 chinook in August and another 10,000 in September, along with around 20,000 coho. The two gear groups are supposed to split the non-tribal share of about 8 percent of the upriver bright run 50-50.
The gillnetters also caught another 8,500 chinook in select area fisheries that target returning hatchery fish in the lower river.
Tribal fishers are allowed about 23 percent of the upriver bright run. So far, they have landed nearly 106,000 chinook in their fishery above Bonneville Dam, with about half the catch upriver brights. That's about 85 percent of their treaty allocation. They have also caught about 73 percent of their allotment of ESA-listed wild B steelhead heading for Idaho.
The good news is that a fair number of ESA-listed fall chinook are making it over Lower Granite Dam on the lower Snake. By Oct. 2, 9,600 hatchery and wild chinook had been counted here, about twice the 10-year average, with several thousand more fish headed up from Ice Harbor.
Several Northwest congressmen will wade into the waters next week and take testimony among regional stakeholders about all aspects of salmon recovery. Details are sketchy at present, but at least two hearings (in Vancouver and Seattle) are planned by representatives Greg Walden (R-Ore.), Brian Baird (D-Wash.) and Norm Dicks (D-Wash.).
The talks are expected to focus on current salmon recovery efforts, their economic costs and benefits. The politicians are also interested in any suggestions about "how we can improve the survival of returning adult salmon," according an e-mail from one of Baird's aides.
The hearings may provide a forum for more debate over reducing harvest rates on listed stocks, which has become a hot issue of late, with at least one potential lawsuit in the offing. An official announcement of the hearings is expected later this week. -Bill Rudolph
[4] Critical Habitat Designated For Bull Trout
The U.S. Fish and Wildlife Service announced its final rule that designates nearly 4,000 miles of Northwest streams and more than 100,000 acres of lakes and reservoirs as critical habitat for ESA-listed bull trout populations. The latest designations are in response to a court settlement with environmental groups that established a schedule for developing the critical habitat designations.
According the USFWS, bull trout were originally found in about 60 percent of the Columbia Basin, but now populate less than half of their original waters, and the final rule has significantly reduced that amount of habitat covered from an earlier proposal.
For instance, in 2002 nearly 9,000 stream miles in Idaho's share of the Columbia Basin were proposed as critical habitat, along with 205,000 acres of lakes and reservoirs. The final rule whittled that down to 293 stream miles and 27,296 acres of lakes and reservoirs.
In Washington state, the final rule cut about a thousand stream miles from the 2002 proposal. Oregon now has 911 stream miles designated, out of nearly 4,000 stream miles proposed. Montana ended up with about one-third of the stream miles designated as critical habitat as was proposed in 2002.
One big difference from the earlier proposal is that habitat has been excluded where no bull trout have been seen for the past 20 years. Also excluded from the designations is the river system that provides the backbone for the federal power projects in the Columbia Basin. The USFWS said in a Sept. 23 press release that the agency recognized the $3.3 billion spent on restoring habitat for salmon over the past 20 years has benefited bull trout as well.
The final rule also excluded all reservoirs and pools "behind dams whose primary purpose is for energy production, flood control or water supply for human consumption." The agency decided that disrupting these functions "could compromise human health and safety or result in large economic costs." -B. R.
[5] Lower Snake Dredging Lawsuit Finally Dismissed
A federal judge in Seattle has approved a settlement between environmental and fishing groups and the Corps of Engineers that paves the way for the navigation channel in the lower Snake to be dredged for the first time since the winter of 1998-1999. The EIS is scheduled for completion by late 2009.
The Corps has agreed to study the issue of sediment buildup in the lower Snake, contingent on funding, and draft a comprehensive environmental impact statement on a plan that deals with the problem.
"We think this is a win-win for everyone," said Jack Sands, channel maintenance project manager for the Corps. The Corps wants to remove 450,000 cubic yards of sediment from several different places in the channel, especially in the Clearwater River, near Lewiston, where several grain barges have run aground.
Environmental advocates say the dredging will harm juvenile salmon that hang out in the reservoir behind Lower Granite Dam. Bert Bowler of Idaho Rivers United told the Oregonian last month that Lower Granite Dam was creating a flood hazard for Lewiston and Clarkston. He wanted the Corps to acknowledge the true cost of the dams. His group has pushed for years to breach the four lower Snake dams. -B. R.
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