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NW Fishletter #204, October 24, 2005

[3] 'Speeching' Won't Avoid Breaching The Dams, BiOp Judge Warns

Federal District Court Judge James Redden issued his final remand order of the 2004 BiOp on Oct. 7, warning that breaching the four dams on the Lower Snake River would become a possibility if the final remand is not successful. The mention of breaching surprised some attorneys, because it wasn't included in the draft order the Judge sent out earlier in the week.

Redden said the remand "requires NOAA and the Action Agencies to be aware of the possibility of breaching the four dams on the lower Snake River, if all else fails. The cooperation of the political branches (i.e., money) may mean such an action will be unnecessary. If it must be considered, an extension might be required to study its impact and to prepare for its implementation. This should be incentive enough to all those who oppose breaching the dams to make sure this remand succeeds. 'Speeching' the dams will not avoid breaching the dams. Cooperation and assistance may."

Redden said the possibility of breaching the dams didn't mean another "vast" study is needed. But he also said he disagreed with federal attorneys who argued that it would be improper for him to issue an order that specifically identified the steps needed by the agencies to produce a valid biological opinion.

He ordered the agencies to file quarterly reports during the year that he has given them to craft a new BiOp, with the first one due in 90 days. His list of things that need fixing includes:

  • Improper segregation of the elements of the proposed action NOAA deems to be non-discretionary.

  • Correct the improper comparison, rather than aggregation, of the effects of the proposed action on the listed salmon and steelhead.

  • Correct flawed determinations as to whether the proposed action destroys or adversely modifies critical habitat.

  • Correct the 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.

  • Correct the 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 tribes in the development of the next proposal for dam operations, the clarification of policy issues and "reaching agreement or narrowing the areas of disagreement on scientific and technical information."

Redden said if NOAA Fisheries concludes that action agencies aren't making sufficient progress in developing a proposed action that avoids jeopardy to the listed stocks, they must tell the court. They must issue a "failure report" similar to the mechanism in the 2000 BiOp, which would trigger additional measures, "including the breaching of dams, that may be necessary to achieve a no-jeopardy finding.

Federal agencies got their wish last week when Redden granted their request for an evidentiary hearing on interim dam operations. In an Oct. 17 minute order, Redden spelled out the ground rules that will include two days of hearings on Dec. 12-13, with oral argument slated for Dec. 15.

He said plaintiffs, federal defendants, states, and tribes may each present testimony of two expert witnesses. Other intervenors and amici will get a witness apiece, one arguing for, and the other arguing against motions. Redden will allow cross-examination of witnesses.

Plaintiff environmental and fishing groups are expected to ask for significant changes to current hydro operations that the current BiOp, invalidated, but still in place, mandates to help ESA-listed fish transit the Snake and Columbia rivers. They are likely to call for 24-hour spill at all major dams from April through the end of August, some extra flow augmentation, along with reduced fish barging. Motions must be filed by Nov. 1. Redden also called on David Leith, Oregon's attorney in the litigation, to contact the Independent Science Advisory Board for a list of neutral experts who may be willing to serve on a panel to evaluate testimony, but the judge said it wasn't necessarily going to happen. He said he would decide whether to appoint an expert or a panel of experts by Nov. 1. -B. R.

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