[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.
[2] Salmon Managers Fight Corps Over Spill For March Hatchery Release
Mid-level policy managers have rejected a request to allow five days of spill in early March to help millions of Spring Creek hatchery fall chinook get past Bonneville Dam. They were handed the task by the Corps of Engineers, which had punted on the request by salmon managers. In the end, the salmon managers lost the fight, with the Corps citing recent data that showed more fish would probably die if spill was added.
On Mar. 3, the new corner collector at the dam was opened to pass fish, and will stay in operation until Mar. 8, or when 95 percent of the fish are past the dam.
Spilling water for the fish could have cost BPA $1 million or more. Insiders say it was a shakedown by USFWS staffers to apply financial pressure on Bonneville to force the power-marketing agency to cough up several hundred thousand dollars to help pay for moving Spring Creek hatchery operations to facilities below the dam. Once the fish are produced below the dam, spill in March would be unnecessary.
Moving the fall chinook (tule) production is part of a continuing policy discussion that would also add more hatchery-produced upriver brights above McNary Dam, an option supported by lower Columbia tribes that would benefit economically by catching more of the upriver chinook in their fishing zone. The firmer-fleshed upriver brights are worth considerably more than tules at harvest time.
In past years, spilling water for up to 10 days in early March for the 7.5-million-fish release was standard operating procedure, even though survival benefits from the costly operation were expected to be meager at best. But USFWS managers had always argued that the tules were a mainstay of ocean fisheries off Washington and British Columbia, and that the U.S. was obligated by treaty to maintain that run as best it could. The hatchery releases another 7.5 million fish later in the spring, and critics have long complained that the early release of the unfed fry results in low survivals, with or without spill, and is mostly a housekeeping chore by hatchery personnel to make room for the later releases.
However, with the addition of the corner collector, a new passage route at Bonneville Dam's Powerhouse II, fish survival has improved considerably, and dam operators have hoped that the early spill strategy could end.
The fish managers had agreed with BPA and the Corps of Engineers in February 2004 that they would forgo spill in 2005 and 2006 for the early hatchery release unless they saw significant problems with the new corner collector.
But now, the salmon managers say without spill, operators won't reach the long-established goal of getting at least 85 percent of the juvenile fish past the dam via routes other than turbines.
However, preliminary survival numbers from different passage routes shows that the spillway at Bonneville is the worst way for a fish to pass that dam. Studies from 2004 and 2005 show that spillway survival routes were 91 percent and 93 percent, respectively, while passage even through turbines was higher, 95 percent and 97 percent. Survival through the juvenile bypass system was even better, and fish using the corner collector showed no signs of mortality from passing through it.
A recent analysis by the Corps says that subyearling fall chinook may actually show improved survival via the 50 kcfs spill option, since they are smaller in size. However, if fish survival is more closely linked to time of year, the spring chinook analysis should point to a zero spill decision, the Corps' analysis says.
However, the salmon managers didn't mention anything about the passage survival numbers in their Feb. 16 operations request.
The Corps said that it doesn't make much difference whether spring chinook or fall chinook data was used, the survival difference between spill and no spill would be essentially immeasurable, on the order of a couple of percent. In fact, no spill at all may actually increase survival of the hatchery fish.
But the salmon managers pointed to acoustic studies from March 2004 that showed that fish passage efficiency for spill (54 percent) and the corner collector (45 percent) were well below the long-established goal that calls for 85 percent of the fish passing dams via routes other than turbines.
They are also called for a 14.5-foot minimum tailwater elevation to protect ESA-listed chum redds below the dam from dissolved gas generated by the spill.
The managers pointed to the low jack return in 2005 as evidence that passage through the corner collector at Bonneville may not be as benign as some think.
The old trump cards used by USFWS to justify special treatment for the early Spring Creek release, that they are mandated to produce these fall chinook to comply with obligations to mitigate for dam losses and the Pacific Salmon Treaty, do have some validity. The Spring Creek stock is one of the index stocks used by regional scientists to measure harvest impacts by various fisheries in the two countries. The hang-up is that the ESA-listed wild stock from the lower Columbia is mixed in with the hatchery tules and harvested at rates critics say are too high. About half of them are caught. But no one has any accurate data to determine how much of the catch is made of the early release from Spring Creek Hatchery.
A recent analysis of the Canadian catch using both DNA and code-wire-tag data estimates that about 44 percent of 2004's 166,000 commercial troll harvest off the west coast of Vancouver Island was made up of lower Columbia fall chinook, the vast majority hatchery fish. The rest are caught in U.S. troll and sport fisheries off the Washington coast and in the Columbia River.
NOAA scientist Dell Simmons said the DNA analysis has been reworked because its initial findings, reported at a Northwest Power and Conservation Council meeting last July, were flawed. According to Simmons, the coded-wire tag data had been misinterpreted. Simmons said the stock compositions don't change too much in the revision, but another category of chinook, "unknown mass-marked hatchery fish," had to be added to the analysis. He said the new group made up about 12 percent of the catch off Vancouver Island, and they are likely fish from southern U.S. hatcheries, probably lower Columbia tules.
Simmons said the CWT data is up-to-date, as well. At the annual meeting of the Pacific Salmon Commission two weeks ago, Canadians stated they are not storing two years' worth of fish heads in freezers as some other biologists had alleged, which they said was frustrating their efforts at timely analysis of the harvests.
On Feb. 24, at a meeting of tribes, states and federal agencies, salmon managers could not convince the Corps to add five days of spill, and refused to elevate the discussion up a notch to the federal agency executives. So the issue went back to the technical management team for a final review sans spill.
Howard Schaller, USFWS representative, said the salmon managers feel they are not getting the survival performance out of the new collector that was expected to be on a par with spill. He told participants that no spill would be necessary if action agencies coughed up funding to help reprogram hatchery operations below the dam. He said his agency has already committed more than $500,000 to the project. He said if agencies added funds, "it seems to me, that's the issue that would get us out of even having to have these discussions, period."
Fish managers were not ready to accept the Corps' data on passage survival as the new yardstick for measuring effectiveness of dam passage modifications. They said for now, they wanted to maintain the 85 percent fish passage efficiency standard, even if more fish were shown to die via the spillway than even the turbines.
Corps spokesman Rock Peters said his agency felt that no spill was the right decision. BPA representative Rick Pendergrass said his agency agreed with the Corps.
NOAA representatives stayed out of the fight, but CRITFC representative Bob Heinith expressed concern that with two turbines out near the corner collector, it might not pass as many fish as the Corps has found from earlier studies. Corps biologists said they felt the collector would still function as advertised.
WDFW's Bill Twiet said he felt frustrated, but the managers were stuck with the old fish passage efficiency standard, even though it might not be the best measure anymore. -B. R.
[3] Spending For West Coast Chinook Tops ESA Expenditures By Federal Agencies
Federal agencies spent more than $161 million on ESA-listed West Coast chinook stocks in FY 2004, out of a total $1.2 billion funded for ESA activities, according to an annual report released by the U.S. Fish and Wildlife Department. ESA expenditures accounted for another $205 million in spending by state agencies.
Endangered and threatened steelhead stocks ranked second in spending by the feds, at more than $117 million, while the $43 million spent on the Steller sea lion ranked third in spending on species. Of the 10 listed species with the highest expenditures, more than half were salmon, steelhead or bull trout stocks.
The agencies spent more than $40 million on threatened Snake River spring/summer chinook alone, along with more than $32 million on bull trout, $28 million each on Snake River Basin and middle Columbia River steelhead, and about $27 million on Snake River fall chinook.
Federal agencies spent another $24 million on Puget Sound chinook, more than $23 million on coastal Oregon and California coho salmon, and more than $20 million on upper Columbia spring chinook. They also spent more than $17 million on Snake River sockeye.
According to the report, BPA outgunned any other federal agency when it came to spending on endangered species in 2004, adding about $309 million, beating out NOAA's $197 million and USFWS' $217 million.
But that didn't include Bonneville's 2004 forgone revenues and power purchases required to meet BiOp requirements for ESA-listed fish, nor the cost of the fish and wildlife program.
BPA spokesman Mike Hansen said when those factors were included, along with the fish credit, FY 2004 fish and wildlife spending by the power-marketing agency totaled $424 million. He said the total went up to $518.4 million in FY 2005, and is projected to cost $576 million in FY 2006. -B. R.
[4] Judge Redden Dismisses Irrigators' Cross-Claims In Upper Snake BiOp Case
U.S. District Court judge James Redden has dismissed cross-claims by three irrigation districts in Oregon. The cross-claims were in response to litigation over NOAA Fisheries' BiOp on Upper Snake River water operations by the Bureau of Reclamation [American Rivers v. NOAA Fisheries and Bureau of Reclamation].
Environmental and fishing groups say the 2005 BiOp violated the ESA because NOAA Fisheries and the Bureau of Reclamation improperly segmented a single agency action. They also claimed that NOAA Fisheries used a jeopardy framework that was fatally flawed. The feds had judged that BuRec's Upper Snake operations did not harm ESA stocks downstream.
The three districts split from the main water users group, which is another intervenor in the lawsuit, and filed claims that challenged the 2005 Upper Snake BiOp, charging that the Bureau had no discretion to divert water from its intended irrigation use.
The three districts argued that each was a separate legal entity with the legal right to file a cross-claim.
Judge Redden disagreed. He said the three districts cannot break off now and intervene on the other side of the case. Besides, the judge said, the issues in the upper Snake case were "intertwined" with issues in the hydro BiOp litigation, now in its second remand. He said an early resolution of the Upper Snake case is "essential to facilitate" the remand. The cross-claim "is counter-productive to that goal."
Redden said if the Upper Snake BiOp survives the plaintiffs' motion for partial summary judgment, then the districts will have plenty of time to assert their cross-claim "in an appropriate forum."
The districts also challenged the NOAA Fisheries harvest BiOp, which authorized the harvest and killing of ESA-listed species, and argued that continuing funding of hatchery programs promotes the decline of the listed species.
But Redden ruled this cross-claim was improper because it did not arise "out of the transaction or occurrence" alleged in American Rivers' claims. He said the harvest BiOp was a separate opinion with its own administrative record. -B. R.
[5] Enviros Say Canadian Sockeye Runs In Big Trouble
A report commissioned by the Sierra Club of Canada says at least 38 British Columbia sockeye runs are endangered, with a good chance that many more are at risk as well.
"It's not just the Fraser River sockeye that are going missing all these years," said Vicky Husband, conservation chair of the environmental group, in a press release. She said most of these stocks were from the coast's "most pristine areas" and were declining for a variety of factors, such as mixed stock fishing, global warming, and because "the Department of Fisheries and Oceans hasn't been protecting them against overfishing."
According to the report, 38 sockeye stocks are known to have declined to the "endangered" level recognized by the Committee on the Status of Endangered Wildlife in Canada, a committee of experts that assesses and designates which wild species are in some danger of disappearing. These stocks are currently below 25 percent of their baseline population levels.
The report's author, Dr. David Levy, an independent fisheries consultant, said the status of even more sockeye stocks is "unknown" because of fish-agency budget cutbacks. The report included recommendations that called for building coast-wide conservation strategies, shifting harvest to terminal areas, better stock assessments, and more involvement of tribes, along with adopting a new conservation benchmark of the population level that would trigger a listing by the committee.
The report said some of the stocks declined as a result of reduced marine survival after 1982 when returns per spawner plummeted, but that has since reversed, though it will take decades of favorable conditions for the populations to reach full recovery.
Levy reported that the late return of some Fraser River stocks is likely due to a northerly shift in their distribution in the North Pacific when ocean conditions are warmer. When the fish show up two to six weeks later than usual, warm water discharge in the Fraser has sometimes been responsible for massive die-offs of returning spawners, though some fishing groups blame unreported tribal catches for low returns to spawning grounds up to 1,500 km. from the mouth of the river. -B. R.
[6] Harvest Managers Weigh West Coast Fishing Options
State, federal and tribal fisheries managers are meeting all week in Seattle to come up with options for this summer's commercial and recreational salmon fishing regimes.
Washington managers say Puget Sound and coastal seasons for chinook and coho fishing should be pretty much normal, with returns expected to be close to last year's numbers. Some increased restrictions could apply to coho fishing in the Columbia River, where lower river coho were listed as "threatened" under the ESA last year.
But a February report on stock abundance by the Pacific Fishery Management Council said that changes in Canadian harvest patterns off Vancouver Island have generated more uncertainty about impacts from different fisheries. However, managers said they don't have enough new information to change the way they do their pre-season planning.
Further south, the news was not so good. Concerned about expected low returns of Klamath River fall chinook, federal managers are recommending no commercial salmon season at all off the southern Oregon and northern California coasts.
According to a pre-season report from the Pacific Fishery Management Council, a repeat of the 2005 fishing regime (which was cut in half from 2004's) would allow about 19,000 spawners to return, but canceling the season altogether would boost spawner numbers to nearly 30,000 fish.
The report said ocean conditions off the West Coast in 2005 were "highly unusual," with upwelling occurring until mid-summer. NOAA researchers reported that such conditions hadn't been observed over the past 50 years. Large numbers of coastal seabirds also starved to death last year, while warm water currents allowed southern-oriented species like Humboldt squid to be found as far north as Vancouver Island.
Managers said their forecasting models must be viewed with "greater caution" when these unusual ocean conditions are in place.
They also said if Klamath spawner numbers dip below 35,000 in 2006, it will be the third year in a row that the FMP conservation objective will not be met. There is already discussion of paying out federal disaster funds to fishermen in return for staying tied up at the dock. It could be an expensive proposition, since the troll fleet would be giving up a lucrative share of the Sacramento River chinook run, expected to be over 600,000 fish this year.
In 2002, a good portion of the Klamath run, 30,000 fish or more, died from lethal temperatures during part of their upriver migration. That year, the Iron Gate hatchery saw its third highest return of fall chinook (24,000), but only 3,500 spawners returned to the nearby Trinity River Hatchery. Biologists think the later running chinook bound for the Trinity suffered the most damage.
Fishing interests have pointed to farmers in the Klamath Basin as the culprit in the 2002 fish kill. They say more water should have been used to help cool the river for migrating salmon. The high temperatures encouraged growth of a common parasite that killed many of the chinook.
In 2005, about 28,000 chinook returned to the two hatcheries, with about 27,000 natural spawners returning to the basin. In 2004, the hatcheries counted about 23,000 returning fish, with natural spawners in the 29,000-fish range.
Harvest managers could still implement an emergency rule to allow for some semblance of a fishing season, but that would not occur before April when the West Coast fishing seasons are formally adopted at the next council meeting.
If spawning numbers in the Klamath are below 35,000 fish again, the management plan mandates an "overfishing" review, which the pre-season report says would likely trigger a rebuilding plan. The overall return to the Klamath Basin is predicted at 110,000 fish, about half the number that returned in 2005. More than 435,000 chinook returned to the basin in 2001, and numbers were above 300,000 in other returns years from 2000-2003. The lowest return on record occurred in 1992 when 96,000 chinook returned to the basin. -B. R.
[7] Washington OK's Bonds For Water Studies
A key element in the recent legislation focusing on Washington state's management of its share of Columbia River water passed into law yesterday when the legislature OK'd the 2006 supplemental budget. The budget includes bonding authority to fund $20 million in annual spending over the next 10 years to pay for $132 million in studies and $68 million for conservation projects dealing with Columbia water.
The studies will focus on developing plans for future water storage projects to satisfy needs of people and fish. Water stored for future use could ease conflicting demands for agriculture, municipal use, power and migrating fish. Another part of the recent legislation mandates one-third of any "new" water to be used to aid fish, and calls for no negative impacts to mainstem flows during the months of July and August.
A recent report commissioned by the Department of Ecology looked at 11 potential sites for off-channel storage of 300,000 acre-feet or more. Initial estimates of costs ranged from $520 to $2,960 per acre-foot, with several potential storage reservoirs expected to cost close to $3 billion to build.
The largest site is at Goose Lake, above Chief Joseph Dam on Colville Reservation land in Okanogan County, which could hold 3,350,000 acre-feet, where a 550-foot high dam would be nearly 12,000-feet long, with two saddle dams adding up to another 17,000 feet to keep from inundating Omak Lake.
But just where will the "new" water come from to fill up any of these potential sites? "That's a good question," said John Stuhlmiller of the Washington State Farm Bureau, who acknowledged that upstream states like Montana may not be too excited about the prospect. Canada seemed a more likely source.
But Stuhlmiller, who was part of the task force that hammered out the new agreement was upbeat. "This is by far the best year we've had in a long time," he said of the legislature's dealings with the needs of the agricultural sector . "We've made real progress in water issues and bio-diesel," he said, and credited Gov. Chris Gregoire for her hands-on approach as a major factor in getting the water bill passed. -B. R.
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