[2] BiOp Judge Calls For New Panel To Sort Out Salmon Science

At a June 20 status update, U.S. District Court Judge James Redden told all parties in the collaboration for the next hydro BiOp that a science panel would be needed to sort things out.

The judge was short on specifics. However, he made the comments after hearing several hours' worth of testimony in which plaintiffs and federal defendants defended the points they made in comments submitted earlier in the month about the draft proposed action released in May by action agencies .

The draft will be turned into a biological assessment, and then handed over to NOAA Fisheries, the agency responsible for writing a new hydro BiOp, its third attempt in the last seven years to satisfy Judge Redden.

The judge surprised many in the room with his off-the-cuff remarks about the review.

"I think we are going to use a scientific panel under the rules of the federal court that will give us some answers because we are going to go into the science this time," Redden said, "and maybe even to ask the scientific panel if this [new BiOp] won't work, 'what do you think would work?'

"It could be a while, but we might come out, if the BiOp is not adequate, come out with something we can take and work with, because it just doesn't make any sense to toss another BiOp out and go through this circle again."

Redden said he was granting more time to finish the BiOp because he expects an acceptable BiOp, "or one pretty close to it that we can make changes if we need."

Redden said if the next BiOp doesn't pass muster "the consequences will be very serious."

The parties agreed that the draft BiOp should be rolled out by Oct. 31. It was originally scheduled to be completed by September 2006, but Redden has extended the deadline several times as progress was evident through quarterly status conferences over the past 20 months. Last December, he extended the deadline through this July.

"This is a very, very, very important document you are working on. I don't want to rush you, but I want it to be right because the other BiOp from the Snake River [Upper Snake BiOp] is crawling right behind you," Redden said.

Some observers questioned whether such a deadline could be met if a group of independent scientists had to be impaneled to weigh the merits of the new BiOp actions.

During the hearing, Earthjustice attorney Todd True took issue with Justice Department attorney Robert Gulley's characterization of the new document in progress as "2000 with money."

Gulley was referring to a comment by Judge Redden in the last status hearing that indicated he was inclined to support a new BiOp if it was like the 2000 BiOp with assurances that habitat improvement funding would be guaranteed.

Redden had tossed out the 2000 BiOp mainly because those actions "weren't reasonably certain to occur."

In the draft proposed action released earlier this month, BPA has pledged over $400 million in new funding over the next 10 years to improve Columbia Basin habitat, part of the All-H strategy in the new proposal.

But True downplayed the habitat card, noting two new peer-reviewed studies suggest that listed fish cannot reach recovery levels "just by fixing habitat."

He castigated the feds' proposal for reducing flows to barge more fish later in the spring, though Gulley countered by saying that the proposed change is backed by research that shows adult returns are improved by the strategy, especially for steelhead, so it is not a retreat from a "spread the risk" policy.

But attorney True said, "What's missing is substantial change to the system," though for the first time in court he acknowledged that the old flow-augmentation paradigm was no longer valid as judged by a panel of independent scientists in 2003 (ISAB, 2003). The old paradigm was that juvenile fish survival improved by any amount of added water.

But True said his clients still supported flow augmentation when flows were low, "when adding flows does help survival."

But neither side mentioned an important point at that juncture in the proceedings--when flows are really low, most fish from the Snake, 90 percent or more, are riding through the hydro system in barges, anyway.

But that didn't stop True from stumping for more "aggressive" spill at dams and supporting Oregon's recommendations to change the configuration of upstream reservoirs and draw down the huge reservoir behind John Day Dam to minimum operating pool to increase the migration speed of smolts through the hydro system.

The environmental lawyer also spent time bashing the proposed jeopardy analysis that will look at population levels to determine if they are "trending towards recovery," as described in a memo by regional NOAA fisheries head Bob Lohn. True argued that that such an analysis didn't fit the legal standard in the ESA statute.

Michael Grossman, from the Washington state AG's office, fought back, representing his state, Montana, the Colville and Kootenai Tribes, and a BPA customer group. He argued that in prior briefings before the court, it was brought out that the agency's ESA consultation manual and the 9th U.S. Circuit Court of Appeals both say the standard is, "that the effect of implementing an action does not impair the ability to recover fish."

But True stuck to his "aggressive" non-breach theme, and told the judge that he reserved the right to file a motion for injunctive relief for 2008 hydro operations, no matter what the next BiOp comes up with, expected now to be finalized by the end of next January. -B. R.

The following links were mentioned in this story:

ISAB Review of Flow Augmentation: Update and Clarification

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