[1] BiOp Judge Tells Feds To Add More Water To Salmon Recovery Recipe
BiOp Judge James Redden told federal agencies last month that they will probably have to come up with more irrigation water from Idaho for ESA-listed salmon in the Snake River than they have proposed so far. The message was clear in his 12-page remand order dealing with the 2005 Upper Snake BiOp, where NOAA Fisheries judged that water storage operations at Bureau of Reclamation projects did not jeopardize ESA-listed stocks downstream.
The issue of water, and how much of it needs to be added to Snake River flows to benefit fish, has been a topic of hot debate for years, but some water from the Bureau projects has been part of the feds' recipe for saving salmon for a long time.
Currently, 487 KAF from Upper Snake reservoirs is poured for downstream fish needs--the amount the feds recently told the judge they would analyze in their remand. It just happens to be the exact volume of water specified for fish as spelled out in the agreement between Idaho, the Nez Perce Tribe and water users over Snake River water, years in the making.
Last year, after the water litigation heated up [American Rivers v. NOAA Fisheries], most parties to the Snake River Agreement said that calling for more water from the Upper Snake for fish needs would kill the deal. That theme was echoed last month by Idaho Sen. Larry Craig in a statement released by the state's congressional delegation saying that Redden's ruling could lead to dewatering millions of acres of irrigated land.
"We have said it before and we will say it again; let there be no mistake," Craig said. "We will protect Idaho's water and the Snake River Basin Agreement at all costs. Yesterday's decision has more to do with establishing a personal judicial legacy than saving a species. This court continues to ignore the big picture and all the factors that are in play. We're not makin' biscuits here, so just adding water isn't the answer."
Plaintiffs in the Upper Snake BiOp litigation said in a recent filing that the federal agencies shouldn't restrict themselves to that one option, and should analyze scenarios that include more water from the Upper Snake reservoirs and other sources.
In one brief, the feds said the judge can't tell them what to study. But Redden took issue with that notion, noting that his ruling against NOAA's judgment on the Upper Snake operations wasn't the first time the federal fish agency had failed to produce a valid BiOp for Snake River fish.
"In fact, NOAA, BOR, the Corps, and BPA have repeatedly and collectively failed to demonstrate a willingness to do what is necessary to 'halt and reverse the trend toward species extinction [in both the Columbia and Snake River Basins] whatever the cost,'" the judge opined in his Sept. 26 order.
Redden said that he wouldn't ignore the feds' history of noncompliance with the ESA simply because they had split their analysis into two BiOps--one governing the Upper Snake and the other one, the lower Snake and Columbia. He said they were segmented to satisfy terms of the Snake River Agreement--"designed to guarantee water to specific users in the Upper Snake River despite evidence that ESA-listed Snake River salmon and steelhead populations were declining due, in part to already insufficient water flows from the Upper Snake River."
By storing 2 million acre-feet of water, Redden said, the BuRec projects help kill salmon by reducing the quality of salmon habitat, boosting water temperatures, impacting water quality and "interrupting" juvenile migration in the river below the projects--and that is why flow augmentation from the Upper Snake has been included in all previous FCRPS BiOps.
The judge put the entire state of Idaho on notice that more water was needed. He pointed out that NOAA, from its own 2004 administrative record, had estimated that a million acre-feet would be needed to mitigate depletions caused by the Bureau's Upper Snake operations.
Hot Water, Hot Topic
At a salmon recovery conference in Boise last November, the Upper Snake water issue was a hot topic. The University of Washington's Jim Anderson explained that flows and survival, especially for spring chinook, may correlate at some low level, like those found during the drought year 2001, but there is scant evidence for any within-year benefits from flow augmentation.
Citing an analysis by his group, Columbia Basin Research, that was completed for Idaho water users, Anderson stated that fish survival correlated with water temperatures, not flows. As rivers heat up, so does predator activity, he said, and fish survival goes down. He said he had published a peer-reviewed article on the issue.
At the same conference, Ken Pedde, retired deputy regional director of the Bureau of Reclamation, presented a table showing that the water required by the plan offered by enviros last year could conflict with storage needs. The flow prescriptions would take another two million to three million acre-feet in the Columbia, and 0.4 million to 0.6 million-acre-feet in the lower Snake to increase water-particle travel time by 10 percent, the amount that environmental groups had requested for improving conditions for fish in the summer of 2005.
To accomplish that in the Columbia, Pedde said, the extra water would have to go into storage, where "space may or may not be available." But it would involve putting water in a space normally reserved for flood control, which would increase the risk of flooding. Such storage could also have potential effects on power generation, and for reducing flows to aid listed chum salmon below Bonneville and fall chinook at Vernita Bar in the Hanford Reach.
The Judge's hard line on flows puzzled some participants in the ongoing legal battles, since Redden ruled against the 2005 request by environmental and fishing groups for more flow augmentation than called for in the FCRPS BiOp. He said the environmentalists failed to make their case for more flows, citing a 2003 study by the Independent Scientific Advisory Board that found the "prevailing rationale for flow augmentation is inadequate" and new information did not agree with the "prevailing flow-augmentation paradigm" that says inriver fish survival is "proportionally enhanced by any amount of added water."
Now Redden says he "may well" direct the feds to consider "certain steps" during the remand if he feels it's necessary to ensure the next Upper Snake BiOp complies with the ESA's substantive requirements.
"Given the precarious condition of the Snake River salmon and steelhead runs, the consequences of another failed biological opinion will be serious indeed," Redden wrote in his latest opinion, implying that with no Upper Snake BiOp in place, any taking of ESA fish by Bureau operations would be illegal, and subject to criminal charges. On the other hand, with no BiOp in place, one regional attorney pointed out, the environmentalists could ask for anything they wanted.
Redden also reiterated that he would not order the feds to write separate BiOps, but if the feds aren't doing the kind of comprehensive analysis required by the ESA, he wouldn't hesitate to modify the remand order.
The judge ordered that the 2005 Upper Snake BiOp stay in place during the remand, and he gave the feds four months beyond the February 2007 deadline for completion of the FCRPS remand to finish the Upper Snake remand, with a possible extension if progress is evident. Like the FCRPS remand, he wants quarterly status reports beginning on Oct. 3, when the next FCRPS review is due.
At last year's water conference, water users' attorney Scott Campbell, said if environmental groups filed a supplemental complaint, there would be a new fight "to the death," and he promised a cross claim against NOAA Fisheries that would address the taking of endangered fish in the harvest sector. Campbell filed that claim, but it was thrown out by Judge Redden.
It will probably not be the last attempt to rein in the harvest of the ESA-listed Snake River fall chinook, with ocean and inriver harvest rates adding up to 40 percent or better. There have been rumblings that even the state itself may initiate a lawsuit over harvest issues. As one attorney said, "Redden isn't the only judge in town."
Last fall, the Nez Perce Tribe also promised litigation if they felt the Snake River Agreement was in danger. Right now, the tribe is waiting for Congress to vote on appropriations bills that would begin channeling millions their way. It's unlikely the tribe wants the SRA to fall apart since the proposed 2007 budget calls for this year's funding of the Nez Perce settlement in three different agency budgets. The BIA would give $20,041,000 for the Nez Perce/Snake River settlement, the BLM would grant $200,000 for mitigation of Bureau land transfers, and the USFWS would provide $4,917,000 for the Idaho Salmon and Clearwater River Basins Habitat Account.
Environmental groups were ecstatic over Redden's latest order.
"The court is saying all the cards are on the table, including Idaho water, and the government better get it right this time and do what the law requires," said Michael Garrity of American Rivers. "There is a clear path to salmon recovery that doesn't require redirecting water from Idaho farmland, and it is removing four high-cost, low-value dams on the lower Snake River." He said Redden's order, along with the fact that the dams can be "affordably replaced," should spur regional leaders and the feds to take a fresh look at restoring a free-flowing Snake.
At last fall's conference in Boise, environmental spokesman Tom Stuart, a board member of the Boise-based conservation group Idaho Rivers United, said the groups weren't out to get more water as their previous lawsuit tried to do, nor did it try to overturn the Snake River agreement. He said the new lawsuit simply wanted the Upper Snake and lower Snake BiOps to become one, "with a comprehensive baseline analysis from the headwaters to the ocean."
Water users' attorney Campbell responded by telling Stuart that either he didn't understand the lawsuit, or one of the group's attorneys had misrepresented it. "Because, if you are saying your suggested supplemental complaint does not directly attack the Nez Perce settlement, you haven't read the Nez Perce settlement or you haven't read the lawsuit, because in fact, it does exactly that."
James Buchal, representing the Snake River Irrigators Association, submitted a letter to the 9th U.S. Circuit Court of Appeals panel deciding the government's appeal of the FCRPS BiOp.
The letter says Redden's latest opinion in the American Rivers case confirms the judge's bias towards increased river flows, which are contrary to the "best available scientific information" provided by the irrigators, as does his bolstering a ruling by citing a case [IDFG v. NMFS, 1994] that turned out to have been vacated by the court. Buchal said it was apparent that the judge "continues to attempt to steer River operations in a fashion incompatible with the judicial role." -Bill Rudolph
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