[8] Nez Perce Side With Feds In Lawsuit Over Upper Snake Water

The latest briefs in a lawsuit that tries to join different biological opinions which govern upper and lower Snake reservoir and dam operations were filed last week in Oregon District Court, where oral arguments are scheduled to be heard April 26 by Judge James Redden.

A filing by the Nez Perce Tribe shows that it is clearly on the side of federal defendants. The tribe is concerned that any ruling which would link upper and lower Snake BiOps could adversely affect its recent settlement in the Snake River Basin Adjudication Agreement. The agreement limits how much upper Snake water can be used to augment flows in the lower Snake.

In an earlier filing, the tribe said the agreement added a measure of certainty to the annual delivery of Idaho's 427,000 acre-feet of water for flow augmentation, along with permanent acquisition of another 60,000 acre-feet for annual fish flows.

The three other tribes in the lower Columbia region are on the other side of the fence, joining plaintiff American Rivers and other environmental groups, who say the upper Snake operations, which use about 6 million acre-feet of water, should clearly be analyzed in the context of the ESA-listed salmonids in the lower Snake.

But NOAA Fisheries says the operations do not complement one another and are not linked in any way. That's why its consultation over operation of the Bureau of Reclamation projects was separated from operation of the federal dams on the lower Snake and Columbia.

The state of Idaho weighed in as well, arguing that combining the two consultations "would take the focus off remedies directly addressing passage issue at the FCRPS projects in favor of simply masking such effects by pouring additional water down the river."

The state also said that Congress explicitly indicated that flow augmentation from the upper Snake was to be carried out as an independent agency action defined by the Snake River Water Rights Agreement, and that its intent does not conflict with ESA consultation requirements.

Idaho's filing pointed to NOAA Fisheries' analysis of the upper Snake operations, which found that by storing water in the spring at the BuRec projects, the freshet was reduced by about 8 percent, but the action reduced water temperatures and total dissolved gas levels at federal projects downstream.

The feds estimated that during the summer, upper Snake operations actually increased flows by nearly 8 percent and usually increased water temperatures at Lower Granite Dam, reduced them at Ice Harbor and had little effect at McNary Dam.

Idaho said the NOAA SIMPAS passage model estimated a .1 percent to .3 percent reduction in survival of spring chinook migrants from upper Snake operations, while summer fall chinook migrants got up to a 4-percent survival boost from increased flows.

In their own reply brief, the feds said the current remand process to produce a new hydro BiOp would suffer if upper Snake operations were "subsumed" into the FCRPS consultation, and raised the possibility that some of the work completed by the 14 remand workgroups would have to be started over.

The feds also argued that the court should reserve judgment on the merits of the 2005 upper Snake BiOp until the Ninth Circuit Court rules on the federal appeal of the 2004 hydro BiOp because the legal issues in question are "substantially similar." The Niners recently granted an expedited appeal process with oral arguments set for May 25.

The feds took issue with the language in the plaintiffs' opening brief that described their "virtually unbroken" string of victories as a reason for ruling in their favor in this case as well. But government attorneys said that was no reason for the court to adopt an unprecedented standard for defining a proposed action under the ESA, as the plaintiffs suggest.

The feds said adoption of such a standard would make a federal agency determine the biological effects of an action "apparently in a vacuum" and then trace those effects to include all the federal actions within the scope of the biological web. The feds said this may make sense to the environmentalists, but isn't what Congress had in mind when it passed the ESA. -B. R.

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