[1] Feds Come Out Swinging In Support Of New BiOp
The best available lawyers from environmental groups argued with the best available lawyers from the Department of Justice last week over just what the feds call the "best available science" in the next hydro BiOp, now scheduled to be finalized March 18.
The gloves came off early during the Dec.12 status conference in the federal court of Judge James Redden. He said it was clear that the feds weren't going to breach dams, and he put everyone on notice that he was considering other drastic actions if the next BiOp doesn't fly--things like drawing down John Day Pool to improve the travel time of ESA-listed juvenile salmon and steelhead.
The JD drawdown has long been controversial. The Corps of Engineers studied it in 1995 and concluded the survival benefits were negligible compared to the costs involved. The drawdown issue has been the centerpiece of a series of proposals pushed by the state of Oregon to improve survival. However, other parties to the remand have heartily criticized the state's analysis.
But DOJ attorney Robert Gulley pointedly said plaintiffs' claims that the new BiOp doesn't even offer the fish as much protection as the previous version is wrong. Plaintiffs say the new plan's call for less spill will short-change fish.
Gulley said the draft BiOp's call for ending spring spill May 15 at lower Snake dams to collect more fish for barging is based purely on the research results from NOAA Fisheries. They say ESA-listed B-run steelhead (Idaho-bound) would benefit from it.
The B-run fish have "significant problems," Gulley acknowledged, and need some help. But he also said the proposed change raised a red flag from some parties to the remand. He said the feds will be asking the Independent Scientific Advisory Board to review the issue--and also ask them to field comments about it from anyone.
Gulley took head-on comments the state of Oregon filed last week with the court alleging the draft BiOp is not guided by science, but, rather, "manipulates" it to justify policy objectives that subordinate the needs of listed fish. He countered, claiming the state failed to explain how the Independent Scientific Advisory Board (ISAB) has analyzed two issues--the questions of latent mortality and the COMPASS model used to estimate survivals from different hydro operations--and came up with results much different from the state's position.
It shows that Oregon is wrong when the state said NOAA Fisheries is not using the "best available science," he said.
Oregon said the BiOp essentially disregards the "key measures" identified by the state, but Gulley said the state has "failed to tell the court that the ISAB has already reviewed the issues undergirding many of the key measures identified by Oregon. As part of the collaborative process, the PWG [policy working group] sent out two issues to the ISAB and asked for their input. Oregon, like everyone else had an opportunity to participate in that process."
By continuing to support its own measures, Gulley said, the state "simply fails to heed the ISAB's strong recommendations."
Gulley also said the government couldn't agree to a court-appointed expert panel (which federal law allows for cross-examination) because the BiOp must be reviewed strictly "on the record." He noted the three independent reviews that have already taken place and will be part of the record.
But the judge may go for it, anyway.
"We've had over the years, an awful lot of political science," Judge Redden interjected, "and we may want to have some rebuttal for that." He said if it's illegal to appoint such a panel, he won't do it, but if it isn't, he "probably will."
Earthjustice attorney Todd True argued that the federal jeopardy analysis is flawed because it doesn't use results generated by the Interior Columbia technical recovery team, which estimated the survival gaps that needed to be filled to recover each ESU.
Gulley said the feds had expanded their jeopardy analysis from the TRT results to include six additional ways of examining the trends of the stocks and what was needed to keep them on the road to recovery.
True also argued that the court's concern over whether the habitat mitigation is reasonably certain to occur is justified, because the actions from 2010 to 2017 haven't even been named yet.
He also took issue with Gulley's assurances that BPA would be funding the $45 million in annual habitat money through its next rate case, and that other financial instruments--cost recovery clauses--would insure that future fish obligations were met.
On river operations, True criticized the inclusion of the "Montana operation," because it reduced flows through the hydro system. The Montana operation calls for flattening flows from that state's reservoirs to balance needs for upriver stocks, including ESA-listed bull trout.
His comments were later challenged by attorney Mark Stermitz, representing Montana, Washington, the Colvilles Tribes, and the BPA customer group.
Stermitz pointed out that the ISAB had peer-reviewed the Montana operation and concluded that it had negligible impacts on downstream fish.
Stermitz laid into state of Oregon attorney David Leith after a presentation listing his state's beefs over the draft BiOp, calling them "nothing short of appalling."
He said Oregon's list presented in court had never been shown to the policy workgroup dealing with the BiOp, that the state had refused to submit its call for John Day MOP drawdown to the ISAB for review, "and then, instead of working with the PWG on it, has been in back-channel negotiations with the federal government. It's like Dad didn't give them what they want, so they're going to Mom," he said.
Gulley accused Oregon of undermining the whole PWG process and said he hoped the John Day MOP issue would die of its own weight because it was a bad idea.
"For the state of Oregon to stand up here and talk about the 'best available science' when it's a matter of public record by a district court in this state that they will cherry-pick scientific evidence to suit their own purposes speaks to the lack of credibility they have with some of us other parties when it comes to best available science," Stermitz said, pointing to the state's approach over ESA-listed coastal coho as evidence.
Environmental attorney True also knocked the removable spillway weirs now being installed at many dams. He said they were very expensive and the evidence is not clear they provide a significant benefit over spill--but because they take less water to produce the equivalent survival of spill--"so they are really a power mitigation measure." He said the region could get to the same point as the long and expensive RSW schedule "just by opening the spillbays tomorrow."
True listed a litany of hydro system measures that could make up for not breaching lower Snake dams--more flow augmentation from the upper Snake and Columbia; drawing down reservoirs on the lower Snake or at John Day; additional spill (daytime at John Day); and measures that would truly spread the risk for barging and inriver migrants, along with a call to stop load following operations at the dams.
The federal agencies could seek the authority to breach the lower Snake dams, he said, but lacking that, it would likely be necessary to implement all the items he mentioned, "and some more in order to avoid jeopardy," True said.
If the government continues with its current approach, it will jeopardize the listed species, he said. However, to do that legally, it would have to obtain an ESA exemption from the God Squad.
However, he felt the feds would not be granted an exemption since it requires "the absence of any cost-effective mitigation measure that would conserve the species--and here we have an abundance of mitigation measures, they are just not being implemented."
True also knocked the methods used by the federal agencies to estimate benefits from habitat and hatchery improvement, the use of the COMPASS model, and their analysis of the future effects on fish from global warming.
He supported the option of using a new science panel to answer questions about the BiOp.
Let's Make a Deal
After True said his clients plan to file a motion before the end of the year to effect changes in spring and summer spill to 2008 river operations, Gulley offered him a deal--to continue the 2006 and 2007 court-ordered operations in 2008 if the plaintiffs back off. Gulley said his department didn't really have the resources to waste on an injunction while still working on finalizing the BiOp.
True declined the offer.
"I think it's a pretty good deal," Judge Redden quipped.
Gulley also knocked True's citation of a peer-reviewed article (Budy and Schaller, 2007) that the environmental attorney said showed the limitations of habitat improvement in recovering fish. "It is a paper that's looking at reaching recovery, which is different from satisfying the jeopardy standard," Gulley said. "They didn't use all the different mitigation approaches that were used in the RPA. They used a data set that hadn't taken into account a lot of the changes that have been made in the hydro system."
The DOJ attorney said True's characterization of the RSWs [Removable Spillway Weirs] as related to power production rather than fish "is not fair and not right." He said they provide important benefits in spill and preventing entrainment (total dissolved gas), and play an important role in fish passage and "represent a valuable contribution towards improving dam survival."
Gulley also argued that the conservative approach used in the BiOp towards global warming issues will hold up under scrutiny.
Other questions came up in comments from the Nez Perce Tribe over whether a new harvest agreement between U.S. v. Oregon parties over the harvest of B-run steelhead should be included in the BiOp's baseline. The new agreement, which isn't yet available for public review, supposedly calls for higher-than-current harvest rates (17 percent now) when abundance is high, but for less harvest than now allowed when the stock is in the tank.
Washington state attorney Michael Grossman said the new harvest proposal is now becoming "the tail that wags the dog," since some parties say the hydro BiOp must be completed before the harvest BiOp is finished. He called for more transparency and wanted an analysis of the actual impacts of the proposed changes.
But Yakama tribal attorney Tim Weaver expressed shock that Grossman wasn't aware of the new harvest agreement, since his state is a party to it. WDFW's Bill Tweit told NW Fishletter that the draft harvest agreement is nearly finished and the states of Oregon and Washington are beginning their biological assessment, which will then be handed over to NOAA Fisheries, who will write a biological opinion on it.
Tweit said US v. Oregon parties have been talking about the possibility of extending the interim agreement now in effect, to keep the effort tracking with the hydro BiOp, which is now scheduled to be released Mar. 18. The interim harvest agreement is scheduled to end before that. Tweit said there were elements in the hydro BiOp that affected the harvest BiOp, "It's an All-H plan,. after all," including issues like nailing down the funding certainty for "conservation" hatcheries that will contribute to recovering listed stocks. Tweit also acknowledged there were still questions about the accuracy of B-run steelhead harvest numbers, which some parties say may be under-estimated.
Other tribes gave the BiOp collaboration good marks, especially the Colvilles and Warm Springs representatives. But attorney Howard Funke, representing the Spokane Tribe, complained that the upper Columbia listed chinook and steelhead were getting short shrift in the draft BiOp compared to the Snake stocks. He said the process was out of whack because the upper Columbia fish were more endangered, but the region used "our water" to help bail out the other stocks.
By the end of the session, Judge Redden said the collaboration has worked very well, but "some more talk" was needed. He reminded everyone what he had said in his letter the previous week, that there will be serious consequences if the BiOp fails to pass muster and that a permanent injunction "would be very harsh. And I don't know just how harsh," he muttered, "I don't even think the scientists would like it."
Redden said he didn't think the God Squad would say there was nothing more the region could do--"because there's always something else." He called on all parties to come up with a BiOp they can all live with. -Bill Rudolph
The following links were mentioned in this story:
Draft Columbia & Snake River Biological Opinions, Oct. 31, 2007
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