[2] Enviro Groups Promise More Litigation Over Future Dam Operations

Judging from comments filed in federal District Court in Oregon before last week's status conference, the collaborative effort to produce a new hydro BiOp may be on its last legs. The parties seemed more cordial in court, but also more collaborative than they really may be, according to some participants, who suggested that the long-term agreements between Action Agencies and the individual state of Oregon and some tribes are far from being settled.

For Oregon, the main sticking point still seems to be its insistence on a future drawdown of John Day Pool to aid fish passage, despite years of studies by federal agencies that have found its negative aspects far outweigh any benefits to fish.

Its was reported the state is also pushing hard for a huge fish monitoring effort, that would call for PIT-tagging hundreds of thousands of more salmonids.

As for lower Columbia tribal entities, the dealbreaker for them may be their insistence that any long-term settlement with BPA over the BiOp (read lots of habitat improvement projects) must be maintained even if the next BiOp is thrown out by the court. It was reported that BPA has told them it will not agree to such terms.

Last week, in comments to the Northwest Power and Conservation Council, BPA administrator Steve Wright said that the settlements would go out for public comments before they were completed. That's a far cry from last year, when BPA cut a series of deals with some tribes to gain support for 2007 hydro operations, which included funding projects that had not passed muster through the standard BPA/Council F&W process.

Meanwhile, lower Columbia tribes took some serious potshots at the draft hydro BiOp in their written comments to Judge James Redden.

They criticized NOAA Fisheries' jeopardy analysis of ESA-listed stocks because it disregarded the technical recovery team's gap analysis that estimated the abundance and productivity gains needed for recovery.

The tribes also said the document failed to include mention of a new harvest agreement among U.S. v. Oregon parties they say will offer listed Idaho steelhead more protection when run sizes are low.

Nor were the federal agencies aggressive enough about the use of conservation hatcheries to advance recovery and meet the legal obligations of the tribes.

They were also concerned that some significant actions contemplated in previous plans were omitted, such as the operation of the John Day reservoir to minimum operating pool, and studying the breaching of lower Snake dams.

The tribes are in settlement talks with action agencies over BiOp issues, but it doesn't seem like they are nearly ready to support the RPA [Reasonable, Prudent Alternative] created by NOAA Fisheries.

They said many of the habitat improvement actions offered by the tribes were not included in the draft BiOp.

Lower-river tribes and environmental and fishing groups also said the draft BiOp includes less spill from both court-ordered levels and their 2007 agreement.

In fact, Earthjustice attorney Todd True said in his comments that his clients are prepared to file a motion for injunctive relief to boost spill levels back up.

The feds have cited their own research to support the action in the draft BiOp that calls for ending spring spill by May 15 and barging all fish from Snake River dams to boost steelhead returns. They also called for ending summer spill early if few fall chinook are in evidence.

But True argued that the draft BiOp really offers the fish less protection than the 2004 BiOp or even the 2000 BiOp, and scrimps on flows as well. He also took aim at the feds' jeopardy analysis, saying it has shifted from the remand process previously agreed upon by parties in the litigation--and now relies on a memo that may not be legally or scientifically accurate.

In its comments, the state of Oregon paid lip service to ongoing collaboration. However, it said the draft BiOp is not guided by science, but "manipulates" it to justify policy objectives that subordinate the needs of listed fish.

Washington, Montana, and other members of the "regional coalition," the BPA customer group, and the Kootenai and Colville Tribes, suggested comment time be extended from Dec. 15 until Dec. 30, which would move the final BiOp's scheduled release from Jan. 31 to sometime in March. They said the process shouldn't be rushed by an '"unrealistic time frame" and should be allowed to incorporate everyone's views.

The Spokane tribe, which has left the regional coalition, had its own concerns about the feds' analysis and effects of future operations on Lake Roosevelt and questioned whether the court "should lend credence to the continuation of the collaborative process."

After the comments had been received by the court, Judge Redden sent a letter to all parties that questioned whether the federal agencies were really serious about considering significant changes to dam operations, and that the new BiOp appeared to rely on actions neither reasonably certain to occur, "nor certain to benefit listed species within a reasonable time."

But after the Dec. 12 hearing, some participants said Judge Redden seemed more inclined to listen to the feds' arguments in favor of their draft BiOp than his letter had intimated. -B. R.

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