[1] BiOp Plaintiffs Call For Five-Month Extension Of Remand Process
Earthjustice attorney Todd True, representing plaintiff environmental and fishing groups in the ongoing litigation over the hydro BiOp [NWF v. NMFS], filed a motion last week in U.S. District Court in Oregon to extend the remand process until March 2007. Judge James Redden had given the parties a year to produce a new BiOp after he tossed the 2004 opinion and ordered a new remand last October.
In a brief that accompanied his motion, True said plaintiffs had raised concerns at the first status report conference in January that the new BiOp had many issues "that had proved difficult and contentious" during the completion of earlier biological opinions.
True said various sovereign parties in the remand collaboration have "both said and implied" that the one-year remand will cut short discussion on many issues in order to meet the feds' schedule for completion.
The National Wildlife Federation didn't necessarily agree that the remand process was too short, True said, but it was seeking the extension "to remove this perceived obstacle" to the defendants "full consideration and response to the views of others."
True pointed out that there was disagreement among technical representatives over some issues fundamental to the new BiOp's jeopardy analysis. He said previous BiOps had failed mostly because the federal parties hadn't addressed "legitimate scientific concerns" of states, tribes and others.
Some parties may even ask for a longer extension, True said, pointing out that the feds had initially asked for two years to write the new hydro BiOp.
The current remand process is working at technical and policy levels to develop analyses that would adjust management of the other "H's"--habitat, hatcheries, and harvest--to make up for any gaps in fish survival that may be necessary if hydro operations are found to jeopardize listed stocks.
The main yardstick for recovery of the different ESUs is reaching population levels high enough so that stocks would have less than a 5 percent chance of extirpation in the next 100 years.
Corps of Engineers biologist Rock Peters, told NW Fishletter recently that many of the gap analyses will be completed by the April check-in point with Judge Redden.
True says that's not enough time to evaluate the material and "decide how best to proceed." Others in the remand process say he jumped the gun with his motion. Federal agencies said they didn't oppose an extension, but called True's motion "disruptive," and showed "disregard" for the collaborative process. They said they would try to discuss the extension issue with sovereigns and report to the court in the April 3 status report.
Oregon went on record supporting an extension, but for different reasons than the National Wildlife Foundation. They say more time will be needed to complete "an appropriately robust collaboration" and rigorous analysis of the best science.
The regional coalition of upriver tribes, BPA customers, and the states of Montana, Idaho and Washington opposed the five-month extension, arguing that plaintiffs' reasons were too vague.
But the lower Columbia Tribes argued that the extension is necessary to "assure the integrity of the analyses." They said the de-funding of the Fish Passage Center would delay their analyses and limit their ability to participate fully in the remand process. They noted that tribes and others had appealed to the Ninth Circuit Court to assure that the FPC's services continue. They also wanted more time to examine the jeopardy analyses and complained that government scientists were going to release their results before any documentation would become available for scrutiny.
Though the technical meetings over the remand are not open to the public, some of its disagreements have surfaced. State and tribal technical folks have been griping about their lack of input into the creation of a new fish passage model called COMPASS, a combination of the old NMFS SIMPAS model used in previous BiOps and the University of Washington's CRiSP model.
In a Jan. 25 letter to NMFS, representatives of ODFW, IDFW, CRITFC and USFWS weren't happy with the way the new model handled reservoir and latent mortality issues. "The treatment of latent and delayed mortality is of paramount importance and how alternative hypotheses will carry through to the decision-making process is critical."
Latent mortality, according to the NMFS technical memo that updated research results before the last BiOp came out, refers to the possibility that some fish passing through the hydro system, whether barged or not, suffer adverse effects that kill them later in the estuary or ocean.
The feds say dam improvements have boosted fish survival over the years so that it's now as high through eight dams as it was when only four mainstem Columbia dams impeded Snake River fish migration in the 1960s. However, return rates have rarely approached those of the 1960s.
NMFS said this type of mortality could come from a variety of causes, including changes in migration timing, disease or stress from crowding in barges or bypass systems, and injuries or stress from transiting bypass systems, turbines, or spill at dams. Other factors include depletion of energy reserves from prolonged migration, altered condition in the estuary or fresh water plume from dam operations, and disrupted homing mechanisms.
It doesn't seem like another five months of meetings will resolve this sticky issue, nor possibly even five years' worth. Researchers have had a difficult time trying to quantify latent effects of the hydro system, and they are critical of work by some state and tribal folks comparing smolt-to-adult returns of upriver and downriver stocks. The feds say earlier differences in productivity between upriver and downriver stocks would have to be explained by some new factor in order to argue that those differences still occur, since passage improvements at dams over the past 25 years have increased survivals substantially.
The feds have suggested that fish using bypass systems may have lower survivals because such systems inherently select for smaller fish or sick ones, which might be exacerbated by poor ocean conditions.
But they point out that there is little other evidence to either support or repute this notion. "So we are left with the rather unsatisfying conclusion that for in-river migrants, hydropower system-related latent mortality ranges somewhere from very weak to potentially strong. Further, we have little data at present to discern among this broad range of alternatives."
Changing ocean conditions is one factor that has gained importance for fish managers in the past few years, but it will be difficult to get all the remand parties to agree on how much effect it has on Columbia Basin stocks, though one recent paper suggests that it is the most important factor in their overall survival to adulthood.
In a peer-reviewed paper published last year in Fisheries Oceanography (14:6, 448-457) , NOAA Fisheries scientists Mark Scheurell and John Williams pointed out that Snake River Spring chinook smolt-to-adult returns were at "an all-time low" when the fish were listed for ESA protection in 1992. They said "many researchers feared that the negative anthropogenic influences (e.g., the '4 Hs') would never allow the stock to recover (Karieva et al, 2000). However, the SAR has improved dramatically in recent years, and our predictions for the 2001-2003 outmigrations are also quite optimistic."
The two scientists said their forecast model, based on ocean upwelling and downwelling indices off the Pacific coast, has captured nearly 70 percent of the variation in SARs for the stock. They said "these optimistic forecasts should assist managers in recovery planning as they develop policies to address an uncertain future."
Because of the cyclic nature of the North Pacific ecosystem, they cautioned that favorable ocean conditions would likely decrease in the future.
That trend toward unfavorable conditions has already occurred. In the summer of 2004, the waters off Vancouver Island reached temperatures not seen in 45 years. But the near-term pendulum may be swinging back again already as waters have cooled, a necessary precursor to spring upwellings that may re-charge both the near-ocean environment with nutrients and the BiOp remand talks. -Bill Rudolph.
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