[1] Enviros, Oregon Go After New Hydro BiOp
Longstanding BiOp plaintiffs fired the first shot across the bow of the new hydro BiOp last week, by filing a "supplemental" complaint in federal court.
But the coalition of conservation and fishing groups, Indian tribes and the state of Oregon that stood together during the last seven years of litigation aimed at removing the four lower Snake dams (NWF v. NMFS) is considerably smaller now.
Three lower Columbia River tribes have promised to support the new BiOp in return for millions of dollars worth of salmon restoration projects. And the Nez Perce may not join in this time round, either. By press time, tribal attorney David Cummings had not responded to repeated calls.
However, that hasn't stopped environmental attorneys from characterizing the latest several-thousand-page BiOp from NOAA Fisheries as only a slightly different version of the old 2000 BiOp they had successfully challenged in court.
They also attacked it on a couple of new fronts, knocking the new BiOp for failing to deal with effects of climate change on ESA-listed fish and short-changing an analysis of possible hydro impacts on recently listed resident killer whales in Puget Sound.
"Notwithstanding the extraordinary length of these documents and a relentless effort to convey a sense of complexity in their analysis," says their June 16 filing, "the core judgment about whether the 2008 RPA [Reasonable Prudent Alternatives] for FCRPS operations avoids jeopardy or destruction or adverse modification of critical habitat for ESA-listed salmon and steelhead, is remarkably thin, subjective, biased by a persistent optimism, and ultimately at odds with the best available scientific information as well as the law and this Court's guidance for how to comply with it."
They also chided the feds for not sticking to the conceptual framework for jeopardy analysis originally outlined in the collaborative process with tribes and states to come up with the new BiOp, a process that environmental plaintiffs were not a part of.
But they used language from earlier criticism by the tribes that took issue with the feds in their latest deliberations for not evaluating "a major overhaul" of the hydrosystem, even though three of those four tribes have come out supporting the new BiOp.
Some of these issues were already aired last December in a status hearing conducted by federal Judge James Redden in his Portland courtroom, when Department of Justice attorney Robert Gulley defended the draft BiOp, and said the feds' jeopardy analysis was expanded from the technical recovery team's "survival gap" analysis to add six other updated metrics to back its case for most stocks "trending towards recovery."
The best scenario developed by the Interior Columbia TRT found that Snake River spring chinook would still need an overall 29-percent boost in numbers to achieve a level that the technicians said would reduce extinction risk over the next 100 years to less than five percent.
The new BiOp analysis took a cue from the 2000 BiOp's extinction risk analysis, but used a shorter-term view of 24 years from the 100-year time frame.
There were always plenty of critics of the TRT results, but the BiOp writers included the extinction analysis to please the judge. Critics said the TRT's use of the basic assumptions behind population viability analysis, which was originally developed to analyze endangered birds and mammals, didn't take into account the huge natural variation in salmon populations.
Also, the risk-averse assumptions that the TRT built into their model weren't based on science, but were more related to what the team felt should be included, they said.
The TRT's definition of extinction--a population of less than 50 individuals--didn't jibe with reality when stocks in some Idaho creeks have actually gone to zero, then rebounded into the hundreds the following year, the critics said.
The state of Oregon, another major party to the latest complaint, told the judge at the status hearing that the feds had manipulated the science--a charge that environmental attorneys repeated in their latest filing.
The complaint also alleges that the new BiOp does not use the "best, available science" because it actually reduces beneficial hydro operations for fish by ending spill at lower Snake collector dams in the late spring to allow for a maximized barging strategy feds say is designed to improve steelhead survival.
This strategy is supported by the feds' salmon passage model called COMPASS, which has received several positive reviews by the Independent Scientific Advisory Board. The ISAB is currently looking at that barging strategy and is expected to come up with its review in a few weeks.
The science panel has also weighed in, more than a year ago, on the question of dam-induced latent fish mortality, saying it was a waste of time for regional scientists to try and quantify effects on juvenile migrants.
That judgment was a major blow to Oregon's push for more spill and a drawdown of John Day Pool because any benefits to fish were based on a convoluted analysis of latent mortality by some state and USFWS staffers that the science panel had dissed.
At last December's hearing, Judge Redden said he might put together his own expert panel to sort out the salmon science. He already has a list of ex-ISAB members to choose from--most of them have already taken part in some of these reviews.
The complaint also noted that the new BiOp has taken a conflicted view on hatcheries, since it calls for their use in the short-term to boost some populations, but is still waiting for completion of a basin-wide hatchery review to sort out which programs are hurting listed fish populations and should be changed.
The plaintiffs also found wanting the BiOp's treatment of habitat restoration. A major reason Redden cited for throwing out the 2000 BiOp was that its actions to improve habitat weren't "reasonably certain to occur."
Now, the enviros' major complaint is that the benefits from most future habitat actions are unspecified. That is, while more funding is planned for near-term actions, nothing specific is mentioned for implementation after 2010, even though the BiOp is expected to govern hydro operations until 2018.
Though the complaint's main theme is that the feds aren't using the best science, it never mentions the ISAB findings on the COMPASS model, latent mortality, or the board's support for changes in flows to boost Montana's resident fish.
However, it does bring up a 2007 ISAB report on climate change, and says the BiOp does little to address future impacts from a warming climate.
Last December, the feds said the draft BiOp's conservative approach towards global warming issues would hold up under scrutiny. Actually, the final version was expanded to include a section on climate change to take such criticism into account.
The feds also added a section that examined potential hydrosystem effects on ESA-listed killer whales from Puget Sound, which have been sighted off the mouth of the Columbia and as far south as California in late winter.
The enviros' complaint takes issue with the feds' argument that any losses from the orcas' original prey base have been made up by hatchery fish from the Columbia Basin. The complaint points out that Washington's 2004 status report on the whales said that the hatchery fish weren't equivalent to wild fish, but were "often smaller and contained less fat than wild salmon," and that hatchery runs returned over a shorter time period.
The NWF complaint goes even further, and says NOAA neglected to consider "net effects" to the orcas' likelihood of survival and recovery from BiOp actions since the feds' analysis had "cemented" current hydro mortality in the whales' prey base.
Because the feds ignored the best available scientific and commercial data available, the NWF complaint says, this led the feds to the erroneous conclusion that the resident whale population would not be adversely impacted.
With little political traction in the Northwest for breaching the dams, the new litigation coincided with a national campaign by the Save Our Wild Salmon coalition that culminated in towing a 25-foot-long fiberglass salmon from the West Coast to Washington, D.C. It was a kind of children's crusade to support breaching lower Snake dams, and a call for Congress to legislate solutions to the West Coast salmon crisis.
The enviro campaign lumped together the recent poor salmon returns to California's Sacramento River and Columbia Basin fish issues.
"After so many failed plans, we obviously cannot rely on the Bush administration to help restore salmon in the Pacific Northwest," said Debbie Sease, Conservation Director for Sierra Club, in a June 17 press release.
"Today we are urging our leaders in Congress to step up with legislation that will authorize removal of four outdated dams on the Snake River and provide real long-term solutions to the salmon declines that have left people and the environment bearing the brunt of the government's failures," she said.
The campaign kept up the drumbeat about ocean warming, even though waters off the West Coast have cooled off since 2006, and are in a highly productive mode, thanks to the current La Niña and a resurgent Pacific decadal-oscillation cycle.
"The new plan doesn't suggest even a single new action to address long-term impacts from climate change," said John Kostyack, executive director of Wildlife Conservation and Global Warming for the National Wildlife Federation.
"Science tells us that the warming waters on the West Coast are making salmon populations even more vulnerable to other threats they're facing in the Columbia River Basin, such as the four outdated lower Snake River dams. It's unacceptable that the administration is ignoring the best science we have," he said.
Idaho water users were quick to respond to the latest complaint. "We are painfully aware that their misguided actions means litigation that will once again put Idaho's water and its sovereignty squarely in the cross-hairs of environmentalists," said Norm Semanko, executive director of the Boise-based Idaho Water users Association.
"That is a threat we do not take lightly. It has been crystal clear for years now that these fringe environmentalists' only interest is in breaching the four lower Snake River dams. So what saddens us the most is that virtually everyone else in the Pacific Northwest region has agreed to roll up their sleeves and work together cooperatively on the salmon recovery issue. But the increasingly isolated environmental fringe has again chosen litigation, a strategy that does nothing to help the salmon recovery efforts," he said.
The new BiOp picked up more support from Northwest River Partners, the large coalition made up of industrial and public water users, utilities and other BPA customer groups.
"This plan addresses all of the issues Judge Jim Redden has raised in the courtroom.," said NRP executive director Terry Flores. "It includes an unprecedented, rigorous science analyses, has strong support in the region and major funding commitments."
"The litigants appear to be the only ones not looking out for the fish with their single-minded focus on dam removal," Flores said. "In the midst of the world seeking remedies for climate change, they persist in demanding removal of the lower Snake River dams, a renewable source of clean electric power."
The lower Snake dam issues sparked an interesting exchange in Washington, D.C., last month when Congressman Jim McDermott (D-Wash.) paid a surprise visit to the House Committee on Natural Resources Subcommittee on Fisheries, Wildlife and Oceans hearing, "A Perfect Storm: How Faulty Science, River Mismanagement, and Ocean Conditions are Impacting West Coast Salmon Fisheries."
The venue gave politicians like McDermott a chance to fire at their favorite targets, whether it was dams, irrigators, federal agencies or fishermen.
McDermott used his time to stump for the latest version of his four-year-old bill that calls for the National Academy of Sciences to study salmon recovery actions and their anticipated benefits, including breaching lower Snake dams. His original bill included a provision for Congressional authorization to remove the dams; the current bill does not.
But in a dialog with Portland-based consultant Jim Litchfield, who was on a panel representing Northwest River Partners, McDermott said he was not aware of the huge Corps of Engineers' study on the lower Snake dams, developed throughout the late 1990s for the 2000 BiOp with an EIS finally completed in 2002.
The Corps ultimately concluded that the ESA-listed Snake salmon and steelhead stocks could recover without the hugely expensive costs involved in breaching and making up for the lost power production, and the loss of the inland barge system.
After McDermott asked why the NAS and GAO should not do a study, Litchfield pointed out that "millions of dollars have been spent studying dam removal on the Snake River."
McDermott then asked if they were "independent dollars?"
"The project was managed by the US Army Corps of Engineers," said Litchfield. "It involved a great deal of public participation and input from outside parties. There were detailed designs done and developed by engineers of how the projects would be removed. There were economic studies conducted of what the value might be of a free-flowing river in terms of recreation and boating and rafting. So there was a lot of effort put into this."
"This was 15 years ago, you are saying," said McDermott.
Litchfield said no, that it was completed in the late 1990s.
"I have not seen that study because the only one I know is 15 years old," said McDermott. "I would like to see the one that you say was done recently."
After the hearing, some participants seemed incredulous that McDermott, whose dam study bill once had dozens of co-sponsors in the House, was not aware of the Corps' huge feasibility study of lower Snake operations.
Later, his office said the Congressman was actually aware of the Corps' study and that he meant to say the data in it was 15 years old.
But it isn't. It was only a few years old by the time the final EIS was completed in 2002.
McDermott's bill, on the other hand, still relies on old analyses like the PATH process and a long-since discredited report called the "Doomsday Clock" that pegged the extinction of some Snake River stocks by 2017.
Only one other Northwest politician, Oregon's Rep. Earl Blumenauer (D), has signed on as one of the bill's 32 cosponsors. In November 2005, McDermott had up to 76 cosponsors for his proposed breaching studies legislation, and last June, 103 House members signed a letter to NOAA head Conrad Lautenbacher, urging his agency look at all options for salmon recovery, including dam breaching. Twenty-five California politicians signed the letter, but only three from the Northwest--McDermott, Diane Hooley (D-Ore.), and Adam Smith (D-Wash.) No Northwest governor supports breaching, nor do current presidential candidates Barack Obama and John McCain [Bill Rudolph].
The following links were mentioned in this story:
Columbia Salmon Supplemental Complaint
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