[2] Judge Mulls While Enviros And Water Users Trade Shots

Federal Judge James Redden got an earful during oral arguments last week in a lawsuit by environmental groups [American Rivers v. NMFS] trying to force NOAA Fisheries to combine ESA consultation on Upper Snake storage dam operations with the current remand of the BiOp governing operations farther downstream in the mainstem Snake and Columbia.

In an April 26 order that spelled out the hearing schedule, Redden said he was leaning toward agreeing with enviros that the consultations were improperly segmented, and that his primary concern was whether the federal defendants' failed to meet ESA obligations to provide a comprehensive jeopardy analysis.

But by the time it was over, he seemed to appreciate the complexity of the issues, and said he would rule within two weeks.

The environmental groups continue to argue that more water from the upper river could be used to help listed salmonids migrate through the lower Snake.

But in their 2005 upper Snake BiOp, the feds said that the operation of Bureau of Reclamation storage projects didn't jeopardize ESA-listed fish downstream, and that the 427,000 acre-feet of water that Idaho ponies up every year is enough to help the listed fish. They had estimated that current operation of upper Snake irrigation projects reduced survival of juvenile spring chinook by only 0.3 percent, while summer operations actually increased survival of fall chinook by 4 percent.

Another 60,000 acre-feet has recently been added to augment flows even more, a result of the historic settlement between stakeholders in the Snake River Water Rights Agreement.

But the judge wondered if flows for salmon were given the lowest priority in the upper Snake agreement. He noted that a single consultation that included both the upper and lower Snake would look into where more water might come from, and not just from Idaho.

Norm Semanko, executive director of the Idaho Water Users Association, said the question at the hearing was whether to merge the BiOps, but soon after the proceedings started, environmental lawyers were telling the judge that more water was needed for the fish.

"I found that appalling," said Semanko. He said environmental groups are continuing to try to blackmail water users to support breaching dams on the lower Snake.

In a press release issued the day of the hearing, Michael Garrity, American Rivers' associate director of Columbia Basin programs, said the lawsuit was about "shining light on the facts regarding the effectiveness and economic consequences of pursuing salmon recovery with and without the four costly, outdated lower Snake River dams in place."

Garrity said by removing the four lower Snake dams, Idaho farmers could keep their water and the fish would recover. "Those who insist that these four dams remain in place are increasing the likelihood that more Idaho water will be needed to help salmon get downstream."

But Semanko said his group recognizes the value of the dams for both navigation and power production. "I told the judge that calling for more water puts the Agreement [Snake River Water Rights Agreement] at risk."

That was a sentiment echoed by attorney David Cummings, who represented the Nez Perce Tribe. He said the settlement not only provided more flows for fish but also gave the tribe more land, a fish hatchery and $68 million for habitat restoration. By keeping the consultations separate, Cummings said options in the federal remand would still not be limited.

The lawsuit has unified water users in Idaho, who fear that the judge may trash state water rights and eventually order more water now used to irrigate agriculture for downstream needs of fish. In that case, they would walk away from the Snake settlement.

Semanko said the settlement agreement has been passed by Congress and calls for a single BiOp on the upper Snake. It also calls for state of Idaho to use more water for fish needs than ever before. But he said if the water users were told by a federal judge to cough up more, then they would lead an appeal to the 9th U.S. Circuit Court of Appeals, where even the water settlement could be jeopardized.

He hoped the judge recognized the huge problems that would appear if the BiOps were joined because there are about 60 different actions on the upper Snake that affect flows. Another concern is how to get Idaho Power to change its operations to pass on more flows than the settlement now calls for.

Semanko disagreed with Judge Redden's notion that the fish may be the lowest priority in the settlement. "The Nez Perce were fierce advocates for the fish," he said.

The possibility that the Snake settlement could go down in flames has many Idaho parties stunned. The last ten years of wrangling over Idaho water was characterized as "a very painful decade," by Judi Danielson, Idaho member of the Northwest Power and Conservation Council. "Everybody involved had moved significantly from their original positions."

But Earthjustice attorney Todd True said joining up the BiOps would have no effect on the agreement. He said parties would stay if they were truly committed, but the feds need to know where to look for more water in the state.

Federal attorney Coby Howell argued that if the jeopardy analysis was wrong, the upper Snake BiOp should be remanded, instead of expanding the scope of the federal actions.

Attorney Mark Stermitz, representing Washington, Montana and the Kootenai Salish Tribe, said combining the two BiOps wouldn't just make more work for the parties now involved in the remand, but would create a new situation that doesn't match up all the parties, and would create a "whole new puzzle."

Semanko is hopeful that Judge Redden is developing a better appreciation for the complexity of the situation. "What is important is what he didn't do yesterday." After all, said Semanko, even the judge has noted in an earlier ruling that the old flow/survival paradigm had been skewered by the independent science panel that looks into scientific issues related to salmon recovery.

Semanko said if more water from the upper Snake is added to the summer migration, analyses by the University of Washington shows that it's usually too hot to do any good, and will kill fish instead of improving their survival. -B. R.

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