[1] Feds Downplay Fundamental Disagreements In Remand Report
In their latest status update, federal agencies say they are on track to develop a BiOp for the Columbia hydro system that uses the "best available science" to fill any gaps between current fish survival and recovery goals with improvements in the other H's-habitat, hatcheries, and harvest.
But they may have even more significant gaps to overcome, namely, the lack of scientific expertise from the bench, and the absence of any real collaborative spirit with state and tribal fish agencies.
"There is no way that states and tribes are going to agree on the science," said one participant in the remand process, who did not want to be named.
In their April 3 update, the feds reminded the judge that if disagreements over science can't be resolved, they get to make the final call.
Twelve technical groups are churning through the analyses, with meetings "on nearly a daily basis." The meetings are privy only to sovereign parties, with other parties to the case allowed in on "observer" status only. However, that doesn't mean the collaboration is really working. According to several other sources involved in the process, another legal quagmire appears in the not-too-distant future.
The April 3 update said that if tough issues aren't resolved at the technical level, they will be elevated to a policy group, per the court's directive for clarification, where agreement is reached or differences over scientific and technical information "narrowed."
Federal District Court judge James Redden may be just as hard to convince that the feds are using the best science as states and tribes, even though he has a science advisor in the case.
The judge certainly wasn't wowed by the federal proposal that agencies floated last winter to change this spring's hydro operations. They wanted to spill a lot of water at lower Snake dams through April 20, then cut it back and maximize the fish transportation strategy.
The Corps of Engineers had based the proposal on recent NMFS research that showed barged fish did better overall (returning as adults) than inriver migrants after April 20. NMFS said it would add thousands of fish to returning numbers of chinook and steelhead above the base BiOp operation, boosting wild spring chinook runs by 15 percent, hatchery chinook by 10 percent, and wild steelhead by 22 percent.
But Redden sided with the plaintiffs' experts, who said the study was "flawed" because it didn't compare survival differences between barged fish and "undetected" fish that passed lower Snake dams via spillway or turbines.
The feds examined the differences in survival between two groups of fish that had been bypassed at Lower Granite Dam because it was the only way for them to know how many were actually in the inriver portion. If they had used "undetected" fish in their analysis, the number would have been an estimate based on assumptions about spill volumes and fish passage guidance at the dam.
Plaintiffs also argued that the smolt-to-adult returns were higher for inriver wild migrants in three of the four years analyzed by NMFS, citing results of a workshop sponsored by the Fish Passage Center in 2004.
But the feds have argued that the annual average SARs developed by the Fish Passage Center can't capture the within year differences in survival.
The issue was brought up at the 2004 workshop, but some participants argued that SARS would be less reliable during intervals when few fish were tagged. According to workshop results posted on the FPC Web site, state and tribal SARs were figured differently, and came out about 30 percent lower than the feds' analyses.
The ISAB has recently come down on the side of the feds. In a March 18 review of the latest FPC survival study, they took issue with the FPC's use of annual SARs, when the smolt-to-adult returns vary as much within years as between them.
The argument over inriver passage versus barging is likely to resurface in Redden's court, because the status update says the Corps' barging proposal will be one of several potential actions that will soon be analyzed, along with operations in the ancient 2000 BiOp and 2004 BiOps, both thrown out by Judge Redden.
Several other scenarios will be considered, including one that models the Montana proposal (lower its reservoirs at a steady rate) coupled with the 2006 court-ordered spill operations. The technical group will also look at how effective it would be to operate federal storage reservoirs at upper rule curves, starting in January.
A third analysis will look at effects of prioritizing storage water for spring migrants over flows for incubating chum below Bonneville and Hanford Reach chinook in the driest 20 percent of all water-years.
Other actions may be reviewed along with the Corps' barging alternative proposed last year. These include a review of the 2006 court-ordered spill levels, and effects on fish if spill is curtailed when 95 percent of the fall chinook run has passed the hydro system, as well as effects from passage improvements and predation by birds and other fish.
The operational analyses should be completed over the next few months. The remodeled salmon passage model is almost ready to roll, according to NMFS scientist Rich Zabel, and it has received a preliminary thumbs-up from the ISAB, in spite of significant griping from states and tribes, who say the COMPASS model is too complex.
COMPASS is a combination of the SIMPAS salmon passage model used by NMFS in earlier BiOps, with the much more complex UW/BPA CRiSP model developed over the years by Seattle-based Columbia Basin Research.
The ISAB said SIMPAS was too simple, and CRISP was too complex, but the COMPASS provides "a reasonable level of complexity, with sufficient detail to capture what is happening, without being overly demanding of knowledge that does not exist."
COMPASS has developed into a full-blown life-cycle model. It will include a factor for delayed mortality and survival beyond the hydro system to estimate adult returns from different operational scenarios.
The results will be used to inform the "gap analysis," which will develop potential actions in other H's (harvest, habitat, and hatcheries) to fill in gaps between the current status of listed populations and their desired status. These actions, or recovery goals, include those by other federal agencies not involved with the hydro system that NMFS has concluded consultation with. According to the update, these actions will be included in the environmental baseline, while non-federal actions reasonably certain to occur will be included in the "cumulative effects" category.
It was reported that any potential changes in the harvest and hatchery areas are not expected to have much effect on closing any gaps.
But the heavy lifting has just begun. According to the update, serious disagreements remain over the relative magnitude of human-induced mortality to the listed stocks, and the amount of delayed mortality to assign to inriver migrants, direct harvest, tributary habitat effects, and hatcheries.
The update also brought the judge up to speed on the latest news regarding the fate of the Fish Passage Center. In a declaration by BPA vice president Greg Delwiche, the power agency spokesman said the FPC contract had been extended a month, as litigation begins both in the 9th U.S. Circuit of Appeals and U.S. District Court by groups opposed to the FPC defunding, and by some FPC staffers themselves.
Delwiche said a recent memo written by FPC director Michele DeHart made claims that "were largely mistaken." DeHart had claimed that some work elements in the old FPC contract had been eliminated in the new contracts awarded by BPA to other entities that are continuing the data warehousing and analysis functions through 2006.
Plaintiffs' attorney Todd True responded April 11, saying the feds' second update "appears to imply greater accomplishment than actually has been achieved." True said few issues have been resolved, and that it was too soon to tell whether the collaboration process will produce a legal and scientifically sound BiOp.
True also tacked on a request to change spill operations at John Day Dam endorsed by the salmon managers April 4 that had been discussed at the technical management level with other entities without reaching any decision. Dam operators had to shut down several turbines at John Day after a transformer failure and the fish managers want the spill changed from the current zero daytime/ 60-percent nighttime scenario endorsed by Judge Redden to 30-percent spill for 24 hours a day, arguing that it will improve fish survival because they anticipated a large eddy to form that would hinder juvenile passage from the dam's tailrace. It was reported that BPA flew salmon managers over the site, and no eddy was observed. -Bill Rudolph
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