[1] New BiOp Based On Best Science And Better Collaboration, Say Feds
Touting a new sense of collaboration with Northwest states and Indian tribes, NOAA Fisheries released May 5 its final version of a 10-year plan to save both salmon and federal dams in the Columbia Basin.
At the same time, the agency released a 30-year plan to guide operations of Upper Snake River irrigation dams and another 10-year plan that will regulate both tribal and non-tribal fish harvest in the Columbia and Snake Rivers.
The overarching conclusions from Monday's 4,000-plus page document dump said that most ESA-listed stocks are growing and can recover if the region follows the new hydro BiOp's 73 separate prescriptions for operating mainstem dams, barging fish, improving habitat and reprogramming hatcheries--and still catch more fish when lots show up.
The feds found that that proposed operations of the FCRPS and the Bureau of Reclamation's upper Snake storage dams would not jeopardize listed salmon and steelhead stocks in the Columbia Basin.
Nor would a future harvest regime that calls for more than a 50-percent harvest bump for tribal and non-tribal fishers when ESA-listed wild Snake fall chinook numbers reach 8,000 (nearly three times current numbers). But if the fall run crashes, the harvest BiOp would cut future harvest from current 31-percent levels down to about 21 percent.
Their conclusions about hydro operations have already been questioned by some environmental and fishing groups who are still stumping for removal of lower Snake dams. The governor of Oregon has said his state may go to court for more fish spill and a reservoir drawdown that federal agencies say does not outweigh overall detriments.
Since environmentalists have won two previous challenges to federal salmon plans since 2000, federal agencies have done their best to please the federal judge in charge of the current remand process. The latest plan goes back to the 2000 BiOp with its all-inclusive All-H approach, it uses an updated analysis of short-term extinction risk, and estimates dam passage benefits with a passage model that has been reviewed positively by an independent science panel.
Another important feature is the ironclad promise that actions to improve habitat are "reasonably certain to occur," one of the principal reasons why Oregon District Court judge James Redden threw the plan out in May 2003. BPA has said it will fund most of the habitat improvements in formal agreements with several Columbia Basin tribes. In return, the tribes have agreed to support the BiOps.
And the feds say the final product has been further strengthened after comments on the draft BiOp were received last fall. It now includes sections that deal with climate change and potential effects on Puget Sound killer whales.
But NOAA Fisheries regional administrator Bob Lohn said the one key difference between these BiOps and previous ones isn't found in them at all. "It's the changed relationship that has occurred in this region and I think it will make a profound difference in salmon recovery over this next decade," he said at a May 5 press conference.
Lohn is referring to the increased support for the new hydro BiOp--three of the four Northwest states, and five of the seven tribes involved in previous BiOp litigation now support it--the culmination of an extensive, two-year collaboration among sovereigns (including more than 300 meetings) ordered by judge Redden.
Lohn said these parties have reached a common understanding that is reflected in the recent Memorandums of Agreement with tribes and positions taken by the three states. But he didn't say that these accords have not come cheap. BPA is expected to spend more than $900 million over the next 10 years to support the combination of current BiOp mandates and pay for the 200 or so new habitat projects and hatchery improvements in the MOAs.
BPA administrator Steve Wright was on hand to discuss costs. He said BPA expects to spend an extra $75 million a year in new BiOp costs compared to the 2004 BiOp. That includes paying for more spill in some cases, and less in others. The final calls for more summer spill than the draft, but less than the previous BiOp, more habitat improvements, more actions to reduce predation, and more funding for research, monitoring and evaluation.
With $500 million more in dam modifications, and the MOA costs included, Wright said that added up to about a four-percent hike in wholesale power rates.
Corps of Engineers' spokesman Witt Anderson said the $500 million would pay for more spillway weirs and help reach passage survival goals--96 percent for spring chinook at each dam and 93 percent for summer migrants. Also, more will be spent to build walls in dam tailraces to improve smolt egress, and another $20 million will be budgeted to increase ESA-listed Snake River sockeye production. Efforts to reduce predation by birds in the estuary and sea lions at Bonneville Dam will also be increased. (Recent radiotelemetry tracking data of salmon collected by federal scientists has pointed to an 8.5 percent impact on the spring chinook run by sea lions).
Bureau of Reclamation regional director, Bill McDonald, said the new upper Snake BiOp will govern operation of his agency's 12 irrigation projects in eastern Oregon and southern Idaho for the next 30 years--to stay in synch with the Snake River adjudication--the water rights settlement in Idaho that promises 487 KAF a year for downstream fish flows.
McDonald said the timing of water releases may change from July and August to a late-April-May-June time frame, "to better meet the needs of listed fish." NMFS' latest modeling effort estimates that Snake spring chinook returns would decline by only about 1.5 percent without any USBR water.
Environmental groups, who have sued over both upper Snake and lower Snake operations, were quick to respond to the feds' latest plan, and tried to tie the recent collapse of the fall chinook run on the Sacramento River with Northwest fish issues.
"The 2008 total shutdown of our salmon fishery, though necessary, is devastating to the entire West Coast fishing fleet," Monterey Fish Market founder Paul Johnson said in a May 5 Earthjustice press release. "By pushing salmon to extinction, we are losing much more than a fish--we are losing a healthy food source, a culture, and a way of life. What we really need is our congressional leaders to demand and implement a solid salmon recovery plan for all our rivers."
But it was hard to get the enviro hype to jibe with the immediate reality--nearly 10,000 spring chinook that were counted at Bonneville Dam the day before the new salmon plan was released---after a successful inriver spring fishery that netted 22,000 chinook for recreational fishers and 6,000 more for commercial gillnetters.
In 1995, the entire spring run added up to only 10,398 chinook.
By the end of the week, environmental groups were still studying their options. Obviously, without tribal support, there is a chance they may not proceed with further BiOp litigation. It's plain the region has a bad case of BiOp fatigue
But the Fish Passage Center, whose technical analyses have been a mainstay for BiOp plaintiffs over the past eight years, had already posted a series of responses to some of the issues the new BiOp takes head on. That includes a rebuttal of a NMFS presentation that explains why the new BiOp is embracing a seasonal approach to barging spring chinook and steelhead.
The federal scientists had made a presentation of their proposal before the ISAB [Independent Scientific Advisory Board] on May 2. The ISAB has already given a nod of approval to the passage model the federal scientists have been using to weigh the relative merits of different hydro actions and barging scenarios.
The ISAB is expected to release a report on the subject in a couple of months, according to Ritchie Graves, NOAA Fisheries hydro division staffer, who explained the major differences between the draft Biop and the final document at a May 8 meeting of mid-level basin policymakers, the Implementation Team.
Graves said the BiOp writers decided to begin a maxed-out barging strategy on the lower Snake on May 7, when they plan to end all spill and collect as many fish as possible for transporting downriver past the hydro system. Their survival model says that moving up the no-spill window a week would capture more steelhead than the draft BiOp's call for beginning it on May 15 and running through June 4.
NMFS researchers say, and state and tribal scientists have finally agreed--that steelhead always do better when barged. On the other hand, overall spring chinook returns seem to fare better when the early migrants travel inriver and the later ones are barged.
This strategy is at odds with the current court-ordered spill strategy, rolled over from 2007 to this year as well, which never maxes barging. According to NMFS scientists, their data, to date, says that the current operation will reduce both steelhead and spring chinook returns compared to the BiOp strategy planned for 2009.
Graves said the new BiOp's barging plan would transport about 76 percent of the steelhead and 60 percent of the spring chinook.
Graves said the spill added over the past couple of years (ordered by the court after environmental and fishing groups convinced the judge that it was a better alternative), hasn't been analyzed because adult fish have not yet returned from those outmigrations. If future returns show more benefits from that high spill strategy, he said NMFS would change its recommendation, because the agency is committed to an adaptive management policy.
Judging from recent comments by Earthjustice attorney Todd True, his clients are not impressed with the ISAB's support for NMFS' passage model, and the way NMFS estimates latent fish mortality, or proposed changes to Montana reservoir operations that are designed to improve resident fish conditions in that state, while slightly reducing late summer flows in the mainstem Columbia.
"The laws that govern operation of the dams and reservoirs on the Columbia give the federal agencies broad authority to restore salmon and provide hydroelectric power. Indeed, the laws require the agencies to balance and meet both of these goals," said True, after the BiOp was released. "Both goals can be achieved too, but only if the government embraces the best available science and follows the law, steps it has failed to take so far."
Judge Redden told all parties at last winter's BiOp status conference that he was thinking of using an independent panel to sort out the salmon science, if he had to. A list of names had already been given to him. They were all previous members of the ISAB.
But unless environmental groups actually challenge the latest BiOp, Judge Redden's job is done. -Bill Rudolph
[2] BPA Customers Raise Big Questions Over New F&W Agreements
BPA customer groups are calling for their own memorandum of agreement with Bonneville and other action agencies that spells out how the agreements reached earlier this month with Columbia Basin tribes and states are supposed to fit into the region's current fish and wildlife program.
The proposed MOAs will trade hundreds of millions of dollars' worth of new habitat and hatchery projects for tribal and state support of the next hydro BiOp. However, the added expenses are expected to boost the annual cost of the direct fish and wildlife program by more than 60 percent. With new BiOp costs figured in, the total comes to about $250 million a year.
Add the expense of hydro operations for fish--another $600 million annually, on average--and BPA is on the hook to shell out close to $900 million a year for fish and wildlife costs for the next 10 years. That's on top of the $9 billion it has already spent on salmon-recovery efforts in the Columbia Basin.
In comments sent to the power-marketing agency, Terry Flores, Northwest River Partners' executive director, said the MOAs leave too many important issues "unresolved."
Since the customer groups were not privy to the negotiations that created the MOAs, they are requesting "that BPA negotiate an MOA with RiverPartners to identify how our key interest will be preserved and identifying opportunities to participate in future decision-making."
The Public Power Council, Pacific Northwest Generating Cooperative and Northwest Requirements Utilities supported the request.
"We are feeling somewhat disenfranchised," said NRP's Flores, who noted that the MOAs' costs will likely boost wholesale-power rates about 4 percent during the 10-year life of the agreements. That's at the high end of the range BPA had estimated a couple of weeks ago when the proposed agreements were announced.
Since the customers were completely shut out of the talks with tribes and the action agencies, their feelings are hurt. Privately, some said they don't expect much of a response, because the MOAs were finished off in such haste (to beat the new BiOp's slated release) that there really aren't many answers yet to questions of costs and benefits.
Flores' group wants to make sure that the fish-recovery efforts stay on top of the latest research, and is calling for an annual science symposium to incorporate the newest fish findings into implementation of the MOAs, to help "ensure accountability and transparency for interests involved in the region, especially those who are paying the costs."
RiverPartners also asked for more details of how the Northwest Power and Conservation Council and the independent science review panel that reviews proposals for BPA's F&W program fit into the picture.
The tribal MOAs don't call for independent review of each proposal, but are asking the ISRP to take a broader look at the new agreements, to make sure they mesh with sub-basin plans.
Flores said it isn't clear whether the projects outlined in the MOAs fully satisfy regional obligations, or if more will be needed as the council moves through its process to amend the F&W program.
The council's F&W committee is meeting April 30 in Spokane to discuss how to get a handle on the project review process. The MOAs have produced about another 200 or so projects, in addition to the 73 actions (with many sub-components) that are part of the new BiOp.
The customer groups raised another important issue--Are the MOAs really worthwhile?
That was asked because BPA is still obligated to pay for the tribes' support even if BiOp Judge James Redden orders additional expensive operations or other fish obligations.
The MOAs do include some vague language about how all parties may dissolve the agreement if "material" changes occur to either hydro operations or future harvests, but the customers want more clarification on this topic.
An April 23 analysis (based on "best, professional judgment") by the three tribes estimated productivity benefits from the hatchery actions. For Yakima River steelhead, they pegged an improvement (in 25 years) in egg-to-smolt productivity of 17 percent from all the habitat actions in the MOA. For Tucannon River chinook, the increase in productivity was estimated at 5 percent. For Upper Columbia spring chinook (Entiat River)--26 percent.
Expected fish numbers were not included in the analysis, but most affected stocks contain modest numbers at present. It seems likely that the 10-year benefit from the MOA would only add up to 5,000 to 10,000 more adult fish at best. Any significant increase in fish numbers would probably come from the hatchery actions included in the MOA.
The Yakama, Warm Springs and Umatilla tribes have also agreed to quit advocating for breaching lower Snake River dams during the 10-year MOAs. Only poor fish returns might allow for them to consider breaching after 2017.
The tribe most affected by the potential breaching--the Nez Perce in Idaho--has not yet signed on, which reserves its right to keep up the call for removing the dams.
But sources familiar with the situation say that Nez Perce tribal officials were supportive of signing the MOA, although they were conflicted by advice from their counsel, who has pushed for another round of litigation. By May 5, when the new BiOp was released, the tribe had not approved the MOA.
Other comments to BPA pointed out potential legal problems with the change of heart by the three tribes. Oregon Gov. Ted Kulongoski said he was "especially concerned that the agreements may require the tribes to amend or recant scientific evidence and testimony previously offered in administrative proceedings, legal briefings and hearings under NWF v. NMFS. To the extent that any such retractions are without scientific basis or contradict scientific evidence supported by Oregon, I will support appointment of an independent science panel to review said retractions in the light of the best available science."
Gov. Kulongoski, the only Northwest governor who does not support the MOAs, indicated in his comments that Oregon will challenge the new BiOp in court unless it includes a revised analysis and actions that satisfy Oregon's concerns (That didn't happen).
Oregon wants more spill at dams and a drawdown of John Day reservoir that it claims will improve juvenile fish survival. Evidently, the three-tribe MOA language about John Day isn't good enough for him, nor is the promise to keep summer spill at dams longer than the draft BiOp spells out.
The MOA calls for action agencies to meet with the tribes "in the near-term to discuss relevant existing hydraulic and biological information to better understand the biological benefits and/or detriments associated with John Day reservoir operations." It also notes that an action to draw down the reservoir to minimum operating pool "is a contingency and so may be decided as a product of the 2015 comprehensive review."
The drawdown language in the MOA did take some hits from other parties.
The Inland Ports and Navigation Group supported the MOAs for adding more certainty to funding BiOp-related actions and was pleased that the discussion over John Day operations would include potential benefits and detriments--which could curtail the $3 billion in annual barge traffic unless significant dredging of the navigation channel and lock entrances took place.
Environmental groups, including American Rivers and the NW Energy Coalition, generally supported the tribal projects, but took issue with several proposals in the agreements with Idaho and Montana. They voiced strong objections to boosting spending by $20 million to expand hatchery programs for ESA-listed Redfish Lake sockeye, until dam operations are changed and they are "reconfigured"--an Orwellian term for breaching.
The environmental groups also complained about the flow changes in the mainstem Columbia that will be brought about by operating Montana reservoirs to improve resident fish populations.
The groups also said the agreements with the states will prevent state scientists from offering independent review of salmon-recovery issues without going through their governors' offices.
The Montana MOA took a surprise hit from the Kootenai/Salish tribes, who are usually major players in F&W policy talks between the state and BPA. They said the agreement between BPA and the state is shoddy, misleading and incoherent, and violates a previous MOA between BPA, the state of Montana and the tribes. The tribes criticized the agreement, saying it was "driven overwhelmingly by ESA concerns," and wasn't adequate to address resident fish impacts over the next 10 years.
Wild fish advocates Native Fish Society and Wild Fish Conservancy didn't like the large proposed investment in artificial production. They said such large-scale projects aren't consistent with the NPCC's F&W program and ESA recovery efforts.
Without "substantive review" by the ISRP, they were afraid NOAA Fisheries would rubber-stamp these new projects for approval.
"This language commits the Tribes and BPA only to soliciting the ISRP for their views," says the WFC, "and then going ahead with their plans as previously proposed as the language retains complete latitude for the Tribes and BPA to proceed with new hatchery projects as they so desire." -B. R.
[3] Super-Hot Sport Fishery Shuts Down Early
Columbia Basin harvest managers shut down the hot sport fishery below Bonneville Dam April 21 to keep from exceeding impacts to ESA-listed chinook. With catch rates higher than any time before 2000, recreational fisheries were expected to harvest more than 22,000 hatchery spring chinook by then.
Between April 1 and 13, the sporties landed nearly 8,500 chinook, which was well ahead of managers' expectations. They had hoped to keep the fishery open through the end of the month.
Meanwhile, commercial gillnetters were expected to harvest about 5,400 hatchery chinook by then, while releasing more than 1,800 wild ones.
The hot fishing still didn't translate into much of a tally at Bonneville Dam. By April 16, the spring chinook numbers added up to 8,594 fish, only about one-quarter of the 10-year average.
For a run that's expected to end up in the top three since 1938, when the dam was built, it has been a pretty slow start. Managers have estimated that 269,000 upriver springers will enter the river this year, but they didn't expect fish to move upstream until both flows and temperatures picked up. In recent years, about 14 percent of the run has passed the dam by the middle of April.
River temperatures in March were one degree Fahrenheit cooler than normal, and in April have averaged only 47 degrees, about 3 degrees below average by mid-month.
Flows were in the 150-kcfs range, about 75 percent of the 10-year average. Water clarity was also higher than normal.
In other harvest news, Pacific Salmon Commission member Larry Rutter told NW Fishletter that talks between the United States and Canadian counterparts have so far borne no fruit in regard to developing a mark-selective chinook fishery in B.C.'s Vancouver Island commercial troll and sports fisheries.
Rutter, who works for NOAA Fisheries, said both sides met in February and March, and have more sessions scheduled for the first week in May.
A hot-button topic for both countries is increasing interceptions of Puget Sound and lower Columbia fall chinook by B.C. commercial trollers, who now generally fish earlier in the year to keep from hammering their own weak chinook stocks.
But Alaska fishermen are getting more scrutiny as well for their impact on Lower-48 stocks, including Oregon coastal chinook.
Rutter said the PSC's chinook technical committee found its estimate of overall chinook abundance was lower than thought last year when they pegged allocations.
That means Alaskans caught about 60,000 more chinook than they should have, given post-season abundance indexes. That's about 20 percent of their allowable catch of treaty chinook.
He said northern B.C. trollers also caught about 35,000 chinook more than real abundance would have suggested, and Vancouver Island fishers caught about 20,000 more than the post-season analysis would have allowed.
Rutter said the harvest model tends to underestimate abundance when stocks are building, and overestimate abundance when it is declining. That's because some stock estimates from state fish managers are based on averages, which have a built-in time lag for reflecting trends in abundance.
Gary Morishima, a member of the PSC chinook technical committee, said ODFW was revising the structure of its chinook estimates to better reflect changing abundances, so, in turn, the harvest model can do a better job of reflecting the current state of the fish populations. -B. R.
[4] Feds Declare West Coast Salmon Fisheries Official Failure
NOAA Fisheries officials briefed the press last Thursday to explain why they have accepted recommendations from the Pacific Fishery Council to shut down most West Coast salmon fishing this year and declare a "fishery failure."
Only a small hatchery coho fishery will take place off northern Oregon, and modest chinook and coho fishing will be allowed off the Washington coast.
According to Northwest regional administrator Bob Lohn, this means the fall chinook run in the Sacramento River is expected to be 90 percent less than the average numbers over the past five years. In economic terms, that would mean a direct loss of $22 million to fishermen, and a $60-million loss in personal revenues, when processing and recreational fishing factors are added.
The declaration of a "fishery failure" by Commerce Secretary Carlos Gutierrez paves the way for all three West Coast governors to head for Congress and lobby for disaster aid. The governors have already said the fishery's collapse would mean an overall $290-million hit to the economies in their states.
"The unprecedented collapse of the salmon population will hit fishermen, their families, and fishing communities hard, and that is why we have moved quickly to declare a fishery disaster," said Gutierrez. "Our scientists are working to better understand the effects that ocean changes have on salmon populations. We are also working closely with fishing communities to improve salmon habitat in river systems to support sustainable fishing." -B. R.
[5] Mysterious Sea Lion Deaths Haunt Salmon Run
The late spring chinook run in the Columbia River is finally beginning to run after all.
By the middle of last week, more than 3,000 fish were passing Bonneville dam each day. On April 30, more than 6,000 springers cleared the dam. On May 3, the number jumped to 10,000. And along with the salmon, more sea lions than ever have shown up to feast on the run.
Some have been trapped and hauled away, but that has stopped after six of them were found dead last Sunday in cages below the dam. First reports indicated they had been shot, but NOAA Fisheries announced May 7 that no evidence of gunshot wounds had been found when the animals were examined.
According to a statement released by the federal agency, "An x-ray examination conducted yesterday identified metal fragments in soft tissue around the neck area of two of the animals. In addition, a metal slug was found in the blubber of one animal. However, neither the fragments nor the slug appear to have caused death, and may have been associated with old wounds.
"The agency said it would continue its investigation to determine how the animals died and how the doors to the traps on which they were found could have been closed. Anyone with information that may assist in this investigation is asked to call the NOAA Enforcement Hotline at 1-800-853-1964."
Only one of the six had been identified as a salmon predator, another two were Stellar sea lions, a species listed for protection under the ESA, and who favor sturgeon over salmon. There is some speculation that the animals died from dehydration.
After getting federal approval, fish managers were prepared to use lethal means to keep some California sea lions from doing any more damage to the run. But a district court decision that allowed states to lethally remove some of the pesky salmon predators was blocked when the 9th Circuit Court issued an emergency order that called for the animals to be trapped and hauled away.
A three-judge Niners' panel sided with the Humane Society, who argued that the expected take of listed spring chinook would not do irreparable harm to the salmon run. Federal biologists say sea lions ate more than 4 percent of last year's spring run--about 3,000 salmon.
However, the court said the sea lions could still be trapped and moved to aquariums, while the federal district court in Oregon decides the fate of the sea lions. Oral arguments are scheduled for May 8.
Unfortunately, one sea lion had already died last week after being moved to the Point Defiance Zoo in Tacoma, beginning an outcry from the Humane Society calling for trapping to end, as well. On May 5, Washington and Oregon wildlife managers suspended the trapping effort until further notice.
On April 24, seven sea lions were trapped, including two Stellars, which were released. Several had previously been branded and were trucked to the Tacoma zoo, where they were being held for transfer to Sea World Orlando. The others were driven downriver to Astoria and released.
One of the captured sea lions, branded as C319, has been seen at the dam every spring since 2002, and has even gained another 85 pounds since weighing in last year at 1,151 lbs.
The sea lion that died at the zoo while under anesthesia for a physical exam weighed in at 1,451 pounds. Biologists speculate that its weight problem had something to do with its death. It had been captured April 28.
According to the Corps of Engineers' April 30 report on pinniped predation, 63 California sea lions had appeared at the dam by April 16, nine more than the previous one-day record from last year. More than 30 of the 60 animals already listed for potential lethal take have been back this year--with an additional five animals added to the list of incorrigibles, those who are not fazed by hazing efforts, which have been considerable.
The report says USDA personnel have used 4,000 cracker shells from shotguns, 1,500 shells from pistols and 800 bean bags in their effort to deter predation on the spring chinook run. Other devices to keep sea lions out of fishways have also been deployed and noise abatement techniques began way back in January.
The Corps admits the fusillade has been only partly successful, and that some mammals are not leaving the buffet area, even after multiple cracker shells or rubber bullets.
Corps biologists estimate that predation by sea lions is similar to last year--so far, about 2,400 salmon, 270 steelhead, and more than 600 sturgeon have been observed to have been taken. They say Stellar sea lions are back in the area as well, and have been seen stealing salmon from California sea lions.
By April 30, only about 40,000 chinook had been counted at Bonneville Dam. But daily numbers were still rising, which encouraged biologists who have predicted a spring run of nearly 270,000 fish. Sport and recreational fishermen had caught about 28,000 hatchery spring chinook below the dam before their fishing was curtailed.
On April 29, Columbia Basin managers met to gage the run size. They felt the upriver spring run is likely to come in short of expectations, more like 200,000 or so, but they didn't believe the run was 50-percent complete by the end of the month, which they noted makes run size projections difficult. By May 6, the Bonneville count was about 68,000 springers.
They also noted that river conditions are not very favorable for fish migration, but the high catch-per-unit-effort in the lower-river fisheries has shown abundant numbers. They made no official statement on any change from their preseason estimate. -B. R.
[6] Niners Deny Idaho Appeal Of 2004 Hydro BiOp
The 9th U.S. Circuit Court of Appeals has denied an appeal by the state of Idaho that challenged the U.S. District Court decision that threw out the 2004 hydro BiOp.
In its April 25 ruling, a three-judge appeals panel reiterated many of the same points used last year when it turned down an appeal by the federal government over the same BiOp.
The 2004 BiOp was a drastic change from the previous one, which relied on habitat improvements to help boost ESA-listed salmon runs and give dam operations a no-jeopardy ruling.
The 2004 BiOp put the dams' existence in its baseline analysis and hypothesized a "reference" operation that maxed-out dam operations for fish survival compared to proposed operations.
But the results found little difference in fish survivals, so NOAA Fisheries gave the hydro system a no-jeopardy seal of approval. However, that was quickly taken away by District Judge James Redden, who found the analysis "flawed," after environmental and fishing groups challenged the BiOp.
The Niners said the 2004 BiOp "amounted to little more than an analytical sleight of hand, manipulating the variables to achieve a "no jeopardy" finding."
The Idaho appeal tried to gain support from a U.S. Supreme Court decision that came out after the Niner's ruling against NOAA Fisheries, one that concluded the ESA didn't trump other statutes.
But the panel didn't accept that argument, saying its earlier conclusion in the feds' appeal--that the jeopardy analysis was flawed--wasn't changed by the Supreme Court decision [Nat'l Assoc. of Homebuilders v. Defenders of Wildlife].
In that case, the high court found that the ESA section-7 consultation applied "to all actions in which there is discretionary Federal involvement or control."
The Niners' panel said the Supreme Court found that Section 7 of the ESA "does not attach to actions ... that an agency is required by statute to undertake once certain specified triggering events have occurred."
The panel said the Supremes found the regulation a reasonable resolution to a problem if an agency was unable to "simultaneously obey" both Section 7 and another federal statute that required it to take a conflicting action.
The Niners said they did not face this problem in this appeal, "because in the present case, Congress has imposed broad mandates, rather than directing the agency to take specific actions, and the agencies are perfectly capable of simultaneously obeying Section 7 and the mandates."
The issue of discretionary authority was one of three questions posed by Redden before oral arguments began in litigation over the 2004 BiOp. He wanted all parties' views on whether ESA concerns could 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.
The July 18, 2007 petition from Idaho says the 2004 BiOp reconciled obligations of the Corps of Engineers and the Bureau of Reclamation over operation of the federal dam system in the Columbia and Snake basins--and went even further when it compared fish survival from proposed dam operations to a "reference" operation that included "non-discretionary" obligations to operate the dams for other purposes as well.
However, by adding these obligations to the reference operation, Idaho said the analysis overestimated the beneficial effects that could actually be achieved for fish, and hence, overestimated the gaps between current fish survivals and those that could be theoretically achieved.
The state argued that the Supreme Court's ruling wasn't limited to the Clean Water Act, the federal statute involved in that particular case, but also salient to "many additional otherwise categorical statutory commands."
Idaho claimed that NMFS properly included the impacts from non-discretionary actions regarding dam operations in the environmental baseline of their analysis, rather than as effects of the action.
Idaho's petition went so far as to say that the Corps and Bureau had a mandatory duty to operate the dams for various purposes, which could not be prevented by any ESA requirements, because operating the hydro system "is itself non-discretionary."
The state argued that "it is hardly clear" that ESA consultation was even necessary under Homebuilders' analysis. In any case, said the state, the NMFS reference operation and gap analysis fell well within the Supreme Court's interpretation of Section 7(a)(2) of the ESA.
The Niners' decision means that litigation over the 2004 BiOp will likely draw to a close, as a new BiOp was released May 5 and the state of Idaho has already promised to support it. -B. R.
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