[2] Feds Stick To Upper Snake Agreement In Remand

Government attorneys told BiOp Judge James Redden earlier this week how they plan to deal with the remand of the Upper Snake BiOp. The feds said they will only analyze the effects of a proposed action to add 487 kaf from the Upper Snake to flows for ESA-listed salmonids migrating in the lower Snake and Columbia. It is the amount agreed upon by all parties to the Snake River Basin Adjudication for the next 30 years, and about 60 kaf more than called for in the BiOps that have governed lower Snake operations in recent years.

It's not going to make plaintiff environmental groups happy, who are using the litigation to try to force more water from upper Snake storage reservoirs to aid the migration of ESA-listed fish in the lower Snake. In 2003, Redden denied a supplemental motion by other environmental groups to expand the federal action area of the 2000 hydro BiOp to include the upper Snake that was in remand at that time. Later, they went after the Upper Snake BiOp that governed operations by the Bureau of Reclamation's storage projects, leading to Redden's ruling last May that threw out the BiOp because it relied on the same flawed jeopardy analysis used by the feds in their 2004 BiOp of the federal hydro system.

But Justice Department attorney Coby Howell said to produce a valid biological opinion, NOAA Fisheries must examine whether the effects of the proposed action (adding the 487 kaf) , together with any "cumulative effects," jeopardize the continued existence of the listed species when added to the environmental baseline. Reading from Redden's May ruling, Howell noted that NOAA may include the FCRPS consultation in the environmental baseline of the Bureau of Reclamation's proposed action of the upper Snake or vice versa.

"That's how we intend to coordinate," Howell told the judge, who had ruled that upper and lower Snake and Columbia actions must be analyzed together, whether it was in one BiOp or two. Environmental groups had pushed for one big BiOp, but the judge didn't rule in their favor.

Howell explained that in the FCRPS [Federal Columbia River Power System] consultation, NOAA Fisheries is going to put the upper Snake consultation into the environmental baseline, put the two together, and perform a comprehensive analysis within that consultation.

The feds are going to put the results from the FCRPS consultation in the environmental baseline for the upper Snake consultation, analyzing the proposed action defined by the SRBA and do a comprehensive analysis "aggregating those two," Howell said. He said the practical result is that the FCRPS consultation is largely the same as the Upper Snake consultation "because you're flipping environmental baselines."

"It seems a little bit odd, but it's a result of the court order--the aggregation principle--and the SRBA agreement," Howell said. "We have to have two separate biological opinions to be in compliance with that statute."

He said the upper Snake consultation could not be finished until after the FCRPS consultation is completed and suggested another 6 months to complete it after the FCRPS consultation is finished. He said it was largely a staffing concern, because the analysis was going to be nearly the same.

Earthjustice attorney Todd True said he was concerned because of a legal issue involved, since the ESA says only a completed consultation can be included in an environmental baseline. But if both BiOps are completed at the same time, it would be legal, "and provide the analysis the court is looking for."

Judge Redden said he would keep the current Upper Snake BiOp in place during the remand, and gave both sides a chance to work out the language of a satisfactory remand order, along with developing a schedule for progress over the next two weeks.

Judge Redden raised another possibility. After noting that the Nez Perce Tribe had said that the SRBA is an "action," and the 487 kaf is "in play" for both consultations, "I think that perhaps we may even go up to the route with what we referred to as the Canadian water in the FCRPS, [that it has] has got something to do with the Snake River."

Whether more water from anywhere will really aid the fish is still a bone of contention. Norm Semanko, executive director of the Idaho Water Users Association, a party to the SRBA, said his group still thinks the added flows won't provide any survival benefits for fish, since it would only boost flows about one-tenth of an mph. He said the extra 60 kaf is natural river flows in the summer.

Semanko said operations of Idaho Power dams in Hells Canyon are the big question mark in all this analysis. Since they are in the midst of a relicensing process with FERC and not part of this BiOp, it's not clear how much water will actually by delivered to the lower Snake. FERC staff, in a draft EIS, has proposed that the utility release 237 kaf in the early summer to aid the migration of juvenile fall chinook below the project, similar to volumes released the past two years and from 1989-2000. FERC staff said the value of the flow augmentation from Idaho Power's Brownlee Reservoir could then be evaluated by the utility, along with added flows from Dworshak and the Upper Snake.

In the 2005 Upper Snake BiOp, NOAA Fisheries analysts estimated that BuRec operations for storage and irrigation would reduce average spring flows in the lower Snake by 8 percent, and flows in the Columbia by 2 percent to 5 percent less than hypothetical dam operations maxed out for fish benefits. Such conditions were expected to reduce inriver survival rates by only about 1 percent, with less than a 0.1 percent difference if transported fish were factored in.

The feds expected flows in the lower Snake to actually increase about 8 percent in the summer from the upper Snake operations, boosting survival about 8 percent from the hypothetical, boosting overall system survival by about 4 percent.

But that analysis using hypothetical operations was part of the jeopardy analysis that Judge Redden found flawed, and a new analysis is underway, with a more sophisticated survival modeling effort.

While no official results have yet been announced, it was reported that the different dam operational scenarios recently modeled in the FCRPS remand showed only minor differences in survival from the kind of changes to flows and spill that action agencies have the discretion to perform, with differences not evident until one looked past the "third decimal place." With such small differences in survival in the mainstem, it's not likely that any changes from Upper Snake operations would have a truly detectable effect on survival through the hydro system.

But attorney True said the action that involves flows from the BOR projects set by the SRBA agreement "may not be the only thing that we can look at in the upper Snake to help solve this equation. There's water in the Hells Canyon reservoirs, there's water in other reservoirs that can improve Snake River flows. It may turn out that getting water from Mica in the upper Columbia doesn't actually do anything for the fish traveling down the Snake River. We need to know that at the time we're looking at coming up with these actions so that both of them can comply with the law."

True said his side was willing to sit down with the government to work something out. "I'm not sure we're seeing eye-to-eye exactly on how this is going to work." -B. R.

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