[1] Supreme Court Says ESA Is No Trump Card

The U.S. Supreme Court reversed a Ninth Circuit Court decision last week that could have important ramifications for salmon litigation in the Northwest. In a 5-4 ruling, the high court ruled in the case of National Association of Homebuilders v. Defenders of Wildlife that the Endangered Species Act does not trump other federal laws like the Clean Water Act.

The June 25 ruling focused on particular issues dealing with the ESA, the CWA and state water permitting in Arizona, and effectively reigned in an expansive interpretation of the ESA by the Ninth Circuit Court.

The majority opinion, written by Judge Samuel Alito, said that section 7(a)(2) of the ESA, which governs consultations over no-jeopardy analyses, covers only discretionary agency actions, "it does not attach to actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain triggering events have occurred."

A dissenting opinion by four other Supreme Court judges said the Court was "simply mistaken" in its reading that the ESA's section 7's no-jeopardy duty covered "only" discretionary actions. They said the Court itself added the word "only" to the text, and that it was not the agency's wording at all.

The decision was supported by both public and private power interests, and could mean that the federal government may continue the appeal process of the 2004 FCRPS BiOp in the Ninth Circuit Court. They have until July 23 to decide whether to pursue the litigation.

The Niners recently upheld a decision by Oregon District Court Judge James Redden that declared the 2004 FCRPS BiOp illegal, partly on grounds that the jeopardy analysis used by NOAA Fisheries was flawed, since it examined only actions under which the agency said it had discretion. The feds' analysis put the dams' existence in an environmental baseline because they said the projects were commissioned by Congress and they had no authority to breach them. The feds had said the agency did not have to consider the impacts on ESA-listed fish runs from the dams' existence, only their operation.

An analysis of the Supremes' decision by law firm Stoel Rives, said that the Solicitor's Office "will likely" be considering further appeal of the 2004 BiOp.

Federal sources have told NW Fishletter that those decisions have not been made, but conversations are currently taking place over the effects of the decision on both the appeal of the 2004 BiOp and the new one that is scheduled to be out in draft form by Oct. 31.

Environmental groups took the decision hard. "This is an ominous sign for the nation's threatened and endangered species and all those who care about their fates," said Carter Roberts, president of the World Wildlife Fund in a June 25 press release. Carter said the 5-4 decision effectively overturned TVA v. Hill, which put survival of ESA-listed species as one of the country's top priorities.

But Roger Schlickeisen, Defenders of Wildlife president, said the decision "should apply only to a very narrow category of actions by federal agencies--actions compelled by the terms of another federal law--and should not be read as a broad abrogation of the authority of the Endangered Species Act."

The high profile case drew amicus briefs supporting the expansive Ninth Circuit ruling from some of the largest environmental groups in the country, including 500,000-member Environmental Defense, the Sierra Club, the National Audubon Society, the Natural Resources Defense Council, and the World Wildlife Fund.

But lawyers from Van Ness Feldman, which represented numerous Northwest hydro interests (Northwest Hydroelectric Association, the City of Tacoma, all three Mid-Columbia PUDs, and PacifiCorp) as well as several national hydro groups, said in their own analysis, that "the Supreme Court's decision is significant because it rejects the Ninth Circuit's expansive interpretation of the ESA and provides a definitive determination of the universe of federal agency actions that trigger § 7(a)(2) obligations. Moreover, the Court recognized that the ESA does not add additional requirements to an agency's nondiscretionary, statutory mandates."

An amicus brief written by Van Ness Feldman lawyers Sam Kalen, Michael Swiger and Matthew Love, expressed concern that if the Niners' decision was upheld, it "might be construed as requiring FERC to initiate Section 7 consultations on numerous hydroelectric projects when FERC's enabling statute and applicable regulation provide no discretion to impose the sought-after limitations."

Their brief cited the comments of Ninth Circuit Court judge Alex Kozinski, who penned a dissenting opinion after the majority denied an en banc hearing. Kozinski wrote that "if the ESA were as powerful as the majority contends, it would modify not only EPA's obligation under the ESA, but every categorical mandate applicable to every federal agency."

Other groups that supported the Niners' ruling included the American Fisheries Society, Association of Northwest Steelheaders, California Sportfishing Protection Alliance, California Trout, Federation of Fly Fishers, Institute for Fisheries Resources, Native Fish Society, Northwest Sportfishing Industry Alliance, Pacific Coast Federation of Fishermen's Associations, Trout Unlimited and Washington Fly Fishing Club.

In 2005, Oregon District Court Judge James Redden threw out the 2004 hydro BiOp for the Columbia River power system, agreeing with environmental groups that it contained a jeopardy analysis that separates the fish mortality from the dams' existence and mortality from hydro operations over which the action agencies [BuRec, BPA, Corps] had discretionary control. Earthjustice attorney Todd True called the new methodology a "shortcut" and a "quick off-ramp" for the jeopardy analysis.

The issue of discretionary authority was one of three questions posed by Judge Redden before testimony began during oral arguments during litigation over the 2004 BiOp. He wanted all parties' views on whether ESA concerns can be parsed out that way, as the government contended, or whether non-discretionary actions should be included in the analysis to determine whether the total action jeopardizes listed fish runs.

An analysis posted online by the law firm of Davis Wright Tremaine also said the ruling may get NMFS to argue for reexamination of its argument, but opponents could "seize upon the distinction drawn by Justice Alito between the situation in TVA and in National Home Builders. That is, Congressional authorization of the Lower Snake dams may not be so specific as to constitute a mandate in conflict with ESA. Opponents may also seize upon Justice Stevens effort to find a middle ground if the FCRPS legislation is not as specific as CWA § 402(b)."

Insiders say the decision probably won't affect the new hydro BiOp much, given the time spent on it and how authors of the proposed action have bent over backwards to accommodate Judge Redden's expansive notion of ESA authority, but it could play an important role in future BiOps. -Bill Rudolph

[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.

[3] Oregon Water Bill Dries Up In State Senate

An Oregon proposal to end the state's 15-year moratorium on withdrawing new water from the Columbia River died in the state Senate after Gov. Ted Kulongoski promised to veto the bill if it reached his desk because it threatened salmon.

The original proposal, called the Oregon Oasis Bill, was pushed hard by some eastern Oregon folks, including Steve Eldrige, director of the Umatilla Electric Coop, who said it would provide a big boost to the local economy. The original bill called for pumping 495,000 acre-feet out of the Columbia River for irrigating new crops and helping other growers reduce impacts on the region's declining aquifer by replacing water drawn from wells, as well as adding another 5,000 acre-feet for municipal uses.

The bill languished in a Senate subcommittee, but a companion bill introduced in the House passed last week after an unusual parliamentary move bypassed committee inaction. To satisfy the Senate, bill sponsors were prepared to reduce the withdrawals to 200,000 acre-feet and use it all to replace water from deep wells, but a June 22 letter to Senate president Peter Courtney from Governor Kulongoski said adoption of the bill would be a "gross violation" of the commitment between the four Northwest states to ensure no net reduction of Columbia River flows. Kulongoski said he would veto it "without hesitation."

As one backer of the proposed legislation put it, "The governor stepped on our air hose." But it wasn't something that Oasis Project supporters didn't really expect. And after the bill died, they were still wondering just what kind of commitment Kulongoski was talking about.

According to testimony from Portland attorney John DiLorenzo, special counsel to the Umatilla Electric Coop and general counsel to the Oregon Oasis Project, the Governor's office told him that it could not support the bill because that would conflict with a 1992 agreement with other states that called for "no net loss of flows."

DiLorenzo said an email from Mike Carrier, Kulongoski's natural resource policy advisor, informed him that any agreement, "no matter how minor," would trigger expensive litigation among the states. Later, DiLorenzo was given two documents that represented the agreement.

The first was a December 1993 letter signed by all four Northwest governors suggesting that the states should defer to the NW Power Planning Council to propose a cogent policy for fish recovery that included federal agencies.

The second document was a January 1994 letter from Oregon's two Council members asking that the state's Water Resources Commission adopt rules temporarily restricting withdrawals from the Columbia. But members, Ted Hallock and Angus Duncan, also said in the letter they weren't "proposing that the state maintain an indefinite moratorium on the issuance of new water rights in the Columbia-Snake system."

"As best as we can tell," DiLorenzo said, "there is no memorialized 'deal' among the states, and if there is an oral understanding, it is a bad deal for Oregon given the fact that Washington taps approximately 32 percent of the total withdrawals, Idaho approximately 52 percent and Oregon withdraws only 11 percent."

At an April 13 hearing, a parade of witnesses testified for and against the bill. University of Washington fisheries professor Jim Anderson said there was little to no evidence for a flow/survival relationship for salmon and steelhead, and that such a notion was another example of "policy being 10 years behind the science."

Anderson said that water temperature was the main factor driving the fish. He said that the 500,000 acre-feet requested in the bill represented a tiny fraction of the annual flows used by Northwest irrigators, and would increase the total percentage from 6.93 percent to 7.18 percent, with an immeasurable impact on fish stocks.

But others, including tribal representatives and state fisheries officials, said every bit of current flows was needed to keep Columbia Basin stocks healthy.

Umatilla tribal chairman Antone Minthorn said if the bill was passed, it would destroy decades of collaboration with local farmers that has improved flows and brought fish back to the Umatilla River. He denied the Umatilla Tribes were involved in a secret process to obtain a new water right, as some others had charged, but did say that his people were working with the Department of Interior to secure a federal "senior" water right.

Bob Hamilton from the Bureau of Reclamation's Boise office said that the process over the Umatilla Project has changed considerably from a few years ago, when a so-called "phase III" called for assessing a bucket-for bucket exchange in an agreement with the tribe and the Westland Water District. The assessment looked at a proposal to pump water from the Columbia for upstream irrigators, who would give up their Umatilla River water for more instream fish flows. Hamilton said an old estimate of costs for pumps and piping was in the $200-million range for the proposal, a very expensive proposition since the Westland District was so far from the Columbia and highest in elevation, compared to other nearby water districts involved in earlier phases of the project.

Now, the process has morphed along two tracks, Hamilton said. The first has been creation of a water rights assessment team to decide if all parties can get to a solution regarding a new water right for the Umatilla Tribes. The tribes are interested in building a new business park and finding more water to irrigate a golf course, in addition to using more water for irrigation and instream flows for fish. Hamilton said much of that discussion is behind closed doors because of tribal proprietary information.

The second track calls for an "appraisal" study of the basin's water needs and uses. If conclusions from this report warrant more work, then a feasibility study will begin. The appraisal work should take about two years, Hamilton said.

Politicians at the April hearing asked witnesses if Oregon secured the new withdrawal why wouldn't Washington or Idaho retaliate and grab more water for themselves. DiLorenzo answered by saying that residents in those states should recognize how much Columbia water they are already consuming and one would hope that they would exercise self restraint. DiLorenzo also said the plan could be amended to allow for the Umatillas to secure a right for enough water for their commercial use.

Umatilla Electric Coop head Eldrige said proponents thought they had satisfied concerns over impacts to fish, and included water conservation efforts to make up for any new water taken out, but it the end, he said it didn't matter, and that's what the Governor's office told them.

Eldrige thought the Oasis proposal had enough votes in the Senate to pass this year, and they'll be back to try again. "If we don't continue the struggle, it will be another 20 years before any water is taken out of the Columbia."

Washington state has been working to develop new water rights as well, and new sources of water for those rights. Citing a future need of several million acre-feet for agricultural, business, and municipal uses and more flows for fish, the state has been looking at the feasibility of developing several storage reservoirs in eastern Washington along the mainstem Columbia to reduce impacts on aquifers in some areas, and fill new water needs. The state's new policy calls for using two-thirds of the newly stored water for out-of-stream needs and one-third to be reserved for stream flows and fish.

It also calls for re-use of conserved water and managed through voluntary regional agreements to be "water-budget-neutral" during summer months.

But storage reservoirs would cost billions of dollars to construct and some question whether future needs are as large as the state has estimated. A May 2007 report released by the Washington Department of Ecology estimated that 1.4 million acre-feet would be needed to complete the Columbia Basin Project alone, a pie-in-the-sky dream, according to water consultant Darryll Olsen. The state also estimated up to 800,000 acre-feet more water would be needed for the Yakima Basin and 754,000 acre-feet added for fish flows. -B. R.

[4] Oregon Water Quality Commission OKs 2-Year TDG Waiver At Mainstem Dams

The commissioners who oversee Oregon's Department of Water Quality have approved a proposal from the Corps of Engineers, USFWS and NOAA Fisheries that grants a two-year waiver of the 110-percent total dissolved gas standard for the operation of mainstem dams on the lower Columbia River.

The waiver got the thumbs-up on June 21 and will allow the Corps to spill water for juvenile fish passage that has up to 120-percent TDG measured in dam tailraces and 115 percent in dam forebays for the 2008 and 2009 seasons.

Lower Columbia tribes, ODFW, WDFW, and many conservation and fishing groups had called for changes to the proposed waiver that would allow for more spill by increasing the 115-percent cap in dam forebays to 120 percent. They also pushed for elimination of the current monitors altogether and re-locating them in places where they said TDG readings would be more accurate.

The commissioners passed the waiver with several changes, according to a Department of Environmental Quality spokesperson. They reduced the five-year time frame in the proposal to two years, and called for an adaptive management process, beginning immediately, to evaluate the use of forebay monitors and speed up gas abatement activities. A staff report had recommended that the adaptive management component start no later than January 2011.

The DEQ staff report also did not agree with the call to boost forebay limits to 120 percent. It supported the Corps' method for computing gas levels as the average of the highest 12 hours in one day, rather than the tribes and state agencies' recommendation for averaging gas levels over the highest 12 consecutive hours.

The waiver will run from April to August, with a provision in March for a 10-day spill at Bonneville Dam for migrating hatchery fish from Spring Creek Hatchery.

Both Washington and Oregon issued a "total maximum daily load" ruling in 2002 for the lower Columbia that allows spills until 2020, when modifications like removable spillway weirs and operational changes to reduce total dissolved gas must be in place. -B. R.

[5] Summer Season Opens: Fewer Columbia Chinook, Sockeye Expected

The spring chinook season officially turned into summer on June 15, as far as Columbia Basin harvest managers are concerned, and they say about 46,000 summer chinook are expected to return to the river this year. Most are headed upstream of Priest Rapids Dam.

If the prediction comes true, that would be about 60 percent of last year's return, but still nearly three times the numbers that returned in the mid-1990s, and would allow for a harvest of more than 16,000 fish, to be split evenly between treaty tribe and non-treaty fisheries (which includes sport and tribal fisheries above McNary Dam).

By June 28, the chinook run was tracking a little less than expected.

The Colville and Wanapum Tribes are not parties to the treaty that governs lower Columbia fisheries. But all have agreed to manage the summer fishery to allow 60 percent of the non-treaty harvest to go to recreational and tribal fisheries in the upper Columbia, with 40 percent going to the Colvilles and 20 percent to the Wanapum fisheries.

The interim management goal for summer chinook is 29,000 hatchery and natural-origin fish (counted at river mouth), and 65,000 sockeye (counted at Priest Rapids).

Fisheries are constrained by two ESA-listed stocks during the summer chinook season, Snake River sockeye and wild summer steelhead. The non-treaty impact on the listed sockeye is limited to one percent, with a 5-percent limit allowed for treaty fisheries. The non-treaty impact limit on the wild summer steelhead is 2 percent.

Managers estimate that about 298,000 summer steelhead will be counted at Bonneville Dam this year, similar to last year's 319,000 fish count.

However, only 27,000 sockeye are expected to return to the river this year. Last year, 37,000 were counted at Bonneville Dam. About 20,000 sockeye were counted at Bonneville Dam by July 1. Managers say that half the run is generally past the dam by June 23, so the low expectations will likely preclude any non-treaty sockeye fishery from taking place this year. About 12,000 were counted by then.

But non-treaty sport fisheries for summer chinook in the lower Columbia were scheduled for the last two weeks in June, and from Bonneville Dam to Priest Rapids Dam from June 16 to July 31, then open from Priest Rapids to Chief Joseph Dam between July 1 and Oct. 15.

However, the Bonneville to Priest Rapids area was closed July 2, due to a combination of high catch rates in the lower river and less fish than expected.

Non-treaty commercials have three fishing periods scheduled so far, with large-mesh gillnets. Last year, they were allowed more than a dozen 10- to 12-hour openings through the end of July where they were allowed to catch chinook, coho, sturgeon and shad, but had to release all sockeye, steelhead, and green sturgeon. They netted about 4,800 summer chinook last year. -B. R.

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