[1] Feds File Strong Defense In Latest BiOp Case

Federal agencies have filed a vigorous defense of their latest salmon plan, with backing from three lower Columbia Indian tribes that switched sides earlier this year.

The tribal document, unveiled Oct. 24 along with other intervenor and agency filings in federal court in Oregon, explained why the tribes have supported this BiOp and not the previous three.

Up until now, they said, federal actions "were not adequate to promote the protection and restoration of Treaty protected fisheries." But now, the comprehensive plan has satisfied their main concern because it aims at restoring salmon and steelhead populations to all their traditional fishing areas with a "gravel-to-gravel" All-H plan that gives voice to the tribes and their scientists.

They say the new plan respects the tribes' co-management role in the fish restoration effort and uses the "best science" now, an attitude they say replaces "the maddening excuse for delay--a quest for 'perfect science' or 'consensual science.'"

The tribes' memo pointed to the recent MOA accord with federal agencies as a major factor in their support of the new BiOp, an agreement that calls for solid funding of new habitat projects. One of the main reasons that federal district Judge James Redden threw out the 2000 BiOp was because most of the habitat spending wasn't "reasonably certain to occur."

The new MOA with the Yakama, Warm Springs and Umatilla tribes commits to spending $52 million a year over the next 10 years for implementation of tribal habitat projects, with another $52 million (over 10 years) for land acquisitions and fish passage improvements. Another $80 million or more has been earmarked for construction and expansion of tribal hatcheries, with an added $14 million to pay for their future operations.

The tribes countered assertions by plaintiff environmental and fishing groups that some of this funding could be blocked in the future. They noted that BPA is committed to funding these projects, or a variant thereof, even if they don't pass scientific muster through the Northwest Power and Conservation Council's process.

The three tribes say the new accord also commits the feds to work with tribes "adaptively," on issues that range from the BiOp's spill/transport operations for fish, the study of effects of a John Day drawdown, and possible breaching of lower Snake dams if a 2015 review finds drastic action to improve listed ESUs is still needed.

The Nez Perce Tribe did not support the MOA accord, in part because federal agencies failed to evaluate breaching in its latest salmon plan, according to its own memo filed in September.

The tribe also took a shot at the feds' jeopardy analysis in the new BiOp, which it said concluded that such action wasn't necessary to avoid jeopardizing the four ESA-listed ESUs in Idaho.

But the feds responded with a few shots of their own in an Oct. 24 memo arguing that the plaintiffs' challenge to the 2008 BiOp should be summarily dismissed.

Justice Department attorneys argued that the state of Oregon and the Nez Perce Tribe's positions in the current litigation were "surprising."

"While running through a litany of grievances against the analysis in the FCRPS BiOp, Oregon neglects to inform the court that it actually supports the same analysis, albeit in Judge King's courtroom for the harvest BiOp in United States v. Oregon. Oregon provides no explanation as to how it affirmatively can support the management agreement United States v. Oregon, and yet disparage the same exact analysis in a different courtroom. It seems Oregon is satisfied with NOAA's analysis when it comes to fishing, but not when it comes to hydropower."

But the feds didn't stop there.

"The Nez Perce Tribe is equally forgetful. It also fully supports the 2008 Harvest BiOp and the harvest management agreement in United States v. Oregon. In addition, it also fully supports the operational regime for the Upper Snake for ESA purposes. It seems the Nez Perce Tribe supports the SCA's [Supplemental Comprehensive Analysis] in two of three forums, but just not here."

The federal memo went on to say these "glaring inconsistencies and Oregon and the Nez Perce's inexplicable silence on this issue stand in stark contrast to the strident tone they take criticizing this BiOp."

The feds also included several hard-hitting declarations by scientists who found significant errors in extra-record declarations submitted by plaintiffs, including ODFW fish division head Ed Bowles.

The BiOp got a further endorsement from the Colville Tribes, which said in their filing they decided to support the plan after funding and the certainty of their own agreement with action agencies was completed, and for its special focus on Upper Columbia chinook and restoring Okanogan spring chinook and steelhead.

They also boosted the feds' "trending towards recovery" jeopardy analysis. They said they saw no other practical interpretation of the jeopardy standard "that both ensures short-term survival and provides an adequate potential for recovery." And since this pragmatic standard was being applied to consultations involving Upper Columbia listed stocks throughout the basin, including lower river harvest, the Colvilles believed that ultimate recovery of the stocks could be achieved.

Plaintiff attorneys had disparaged the feds' analysis in their September memo.

"If the 2008 BiOp were a movie, its title would be 'Honey, I Shrunk the Jeopardy Standard,'" they said in their conclusion.

Washington, Oregon and Montana joined in spirited support of the federal effort as well, noting especially that the feds' expert analysis deserves due deference, as recently upheld in cases like the 9th U.S. Circuit Court of Appeals' decision earlier this year in Lands Council v. McNair.

The Inland Ports and Navigation Group's memo focused on plaintiffs' new argument that the incidental take statement issued for dam operations by the new BiOp is invalid because none of the states issued water quality certifications for this statement under section 401 of the Clean Water Act.

However, Inland Ports argued that a take statement is not a permit, and no case to date has argued so. It said the plaintiffs' argument was contrary to CWA, EPA guidance documents, the Northwest Power Act and principles of federalism.

Plaintiffs are scheduled to reply by Nov. 14 and the feds to respond by Dec. 8.

Plaintiffs had planned to file a motion for injunctive relief by Nov. 10, with the federal reply due Dec. 8, but that schedule seemed to be up in the air. They are expected to ask for more flow and spill than the new BiOp calls for.

The feds' current plan calls for curtailing spill in May to barge more steelhead, but that strategy is under discussion since the independent science panel recently recommended that operations should keep spreading the risk between barged and inriver migrating fish to reduce potential harm to sockeye and lamprey. -Bill Rudolph

[2] If Hydro BiOp Flops, So Does New Harvest Plan, Irrigators Say

A feisty group of Northwest irrigators has raised some serious questions about the latest salmon plan that is about to be tested in court. They say future agreed-upon harvest rates will ensure that the recovery of Snake River fall chinook will never be reached.

Due to their limited intervenor status in the ongoing litigation over the BiOp, the harvest issue is something that Federal District Court Judge James Redden wouldn't even allow them to bring up. He has restricted the irrigators' group to arguing about the John Day Pool drawdown issue, another strategy strongly supported by Oregon.

However, in an Oct. 23 letter to Oregon Gov. Ted Kulongoski, NOAA Fisheries and BPA, the Columbia-Snake Irrigators Association said that arguments used by plaintiff environmental and fishing groups, the state of Oregon, and some tribes to challenge the latest hydro BiOp could be used just as well against the new harvest BiOp, a plan the plaintiffs all support.

"Our press release points out the duplicity in Oregon's position, relative to the two BiOps," said the irrigator group's principal consultant, Darryll Olsen.

The irrigators said both documents "depend on the same body of technical information--including the Supplemental Comprehensive Analysis (SCA)--for their empirical foundation."

Taking issue with Oregon's arguments, especially recent declarations filed by the state in the newest litigation over the BiOp, the irrigators cited the work of Canadian researcher David Welch. The irrigators said his latest studies show that juvenile fish survive passage through the hydro system at comparable rates to river systems without dams, like the Fraser, in British Columbia.

Welch has also found no difference in ocean survival (to northern Vancouver Island) between barged fish and those that migrated inriver, which could deal a blow to the plaintiffs' arguments about latent mortality (others say Welch's initial findings are very premature).

Furthermore, they cited NOAA Fisheries' own analyses, which has found juvenile fish survival through the hydro system has "little influence on SAR [smolt-to-adult returns]."

"In summation," say the irrigators, "the hydro system survivals are now relatively high, and comparable to non-hydro based river systems. Further marginal system changes will not yield measurable results."

They said Oregon's arguments that find fault with the feds' "trending towards recovery" jeopardy analysis in the hydro BiOp means that the analysis used in the 2008 harvest BiOp is faulty as well.

The state also argued that even if the jeopardy metrics are lawful, the feds were still guilty of using "unreasonably optimistic" time periods to justify their trends.

The irrigators say the same time periods were used in the harvest BiOp. And since the harvest BiOp is partly based on benefits expected from juvenile survival improvement strategies outlined in the hydro BiOp, such benefits cannot be used in the effects analysis of the harvest analysis if the hydro BiOp is defective.

"For these reasons," say the irrigators, "if Judge Redden were to accept Oregon's arguments and find the hydro BiOp, or a portion thereof, 'legally deficient,' his decision would force the conclusion that the harvest BiOp must be set aside as well."

The irrigators commissioned their own scientific report of new harvest regimes that call for inriver increases and planned decreases in ocean fisheries. Longtime regional consultants John Pizzimenti, Charlie Paulson and Tim Fisher worked on it. The latter two have also contributed analysis on various aspects of the feds' latest hydro BiOp.

The irrigators' report says that present harvest rates for Snake fall chinook won't allow for future sustained recovery of the ESU, while a "no-harvest" scenario would ensure sustained recovery by about 2015.

However, even when reduced future Canadian harvest rates were factored in, the report said, sustained recovery rates for the fall chinook won't be reached until about 2050.

"Without further changes to harvest regimes, SRFC [Snake River fall chinook] recovery levels will be highly dependent on positive ocean conditions--the other dominating factor affecting fish survival," the report said.

The irrigators say the region cannot have it both ways--high harvest rates or sustainable ESA recovery standards. They said Oregon's position on the hydro BiOp would necessitate an overhaul of the harvest BiOp, "in order to reach the sustainable recovery standards the state insists cannot currently be achieved."

Olsen told NW Fishletter that he doesn't expect Oregon to respond, but that he does hope the harvest report will get some of the tribes and agencies to sit down and talk about whether they want realistic harvest levels and ultimate recovery or a situation that is never resolved, regardless how many hundreds of millions of dollars are plowed into recovery efforts.

He didn't leave out the possibility that the irrigators might sue over the harvest BiOp themselves. But such a tactic would put them in a position of supporting the hydro BiOp in that litigation, while opposing the harvest BiOp. If they were successful in challenging harvest levels, wouldn't that topple the hydro BiOp as well?

The irrigators' report suggests that harvest levels on fall chinook (inriver and ocean combined) should be brought down to 25 percent from the 43 percent NMFS has suggested to reach recovery within 20 years.

But they also note that "even if a moratorium were to be employed and populations built up to some larger base than today's, it is not possible to return to the harvest levels of today without simply turning those curves [population response to harvest] upside down, at least with all other things being the same as today."

Their bottom line--"We need to reduce harvest dramatically, at least until we can implement habitat expansion and improved harvest methods emerge."

Action agencies were reportedly suffering some anxiety at the timing of the irrigators' statements, worried that it might have an adverse effect on the recent agreements between them and some tribes that traded hundreds of millions of dollars in salmon recovery projects for support of the new hydro BiOp.

Debate over the harvest rates of ESA-listed fish has been a hot topic of discussion for years. Back in August 2001, NMFS' own panel of nationally-known independent experts called the Recovery Science Review Panel questioned what they called the biologically unjustified harvest levels on some ESUs, including Snake River fall chinook. They also called for reexamination of policy constraints caused by Indian treaty fishing rights.

Their ruminations were soon condemned by Washington state tribal leaders and WDFW. NMFS regional administrator Bob Lohn apologized to them in a Feb. 2002 letter that said the panel had strayed into areas of policy.

Lohn said his agency hadn't provided the panel with enough information to "leave the meeting with a clear understanding of the biological basis for setting allowable harvest levels that do not impede recovery of listed salmonids."

Tribal officials were outraged that the panel had recommended looking at whether the ESA trumped tribal treaty rights. NMFS said it would work with the science panel to "help make the science-policy boundary as clear as possible." -B. R.

[3] Study Finds Similar Fish Survival In Fraser, Columbia Rivers

A fish survival study published two weeks ago that found young chinook fared no better in a river without dams has rocked the popular media and led some fish advocates to question the validity of such work.

Tracking fish from a tributary of Canada's Fraser River with acoustic tags and detection arrays at the mouth of the river, researchers found hatchery spring chinook actually incurred higher mortality rates per kilometer than spring chinook traveling more than 900 kilometers down the Snake and Columbia rivers.

In 2006, the U.S. fish were counted at a tracking array 40 km north of the Columbia, where about 30 percent had made it, according to the study.

The Canadian chinook, which traveled 340 km to the mouth of the Fraser, showed survivals estimated from 4 to 67 percent.

"When considered separately by river section," said the study, "survival of Snake River smolts through the eight dams comprising the impounded section of the river down to Bonneville Dam was higher (chinook) or statistically indistinguishable (steelhead) from the survival for the entire Fraser River. For both species, survival in the free-flowing lower section of the Columbia River was higher than the entire-river estimate for the Fraser River."

Of course, researchers and policymakers involved in Columbia Basin fish recovery efforts have been aware of these results for years; it's just the first time they have been published in a peer-reviewed journal. The study appeared in PloS-Biology, an open-access publication from the Library of Science.

Canadian researcher David Welch, principal author of the study, had made several presentations before the Northwest Power and Conservation Council about his research, partly funded by BPA that included building a series of receiver arrays to track smolts on the Continental Shelf up to southeast Alaska.

In December 2005, Welch presented the Power Council with initial findings from his 2004-2005 Fraser data that indicated chinook survivals in the undammed B.C. river were similar to the highly impounded Columbia/Snake system.

In late 2006, he made a special plea before the Council after some basin fish and wildlife managers and the state of Oregon had pushed to cut his funding in half. At that time, Welch discussed some of his other findings, including evidence that Snake spring chinook smolts seemed to show higher survivals than fish from the Yakima River.

In July 2007, Welch presented the initial results of his latest Fraser/Columbia comparisons at a workshop convened by the NMFS Science Center in Seattle. At the same time, California researchers announced preliminary results of their own work on Sacramento River fall chinook, where freshwater survival was in the 2-percent range.

NMFS is considering an ambitious project that would compare survivals in the three river systems, despite the significant hydrological and biological differences between them. In that context, Welch's latest study may garner a closer look from regional salmon managers, who have never liked his findings, since some raise serious doubts about the latent-mortality hypothesis long embraced by some regional agencies and tribes.

Already, some critics have raised rather bizarre questions about fish survival in the Fraser. USFWS scientist Howard Schaller said it was hard to compare the two systems because of the large forest die-off in the Fraser watershed caused by bark beetles.

Fish Passage Center Director Michele deHart told The Seattle Times that the study was an advertisement for Welch's POST array tracking system. She also brought up the beetles as a possible source of degraded water quality in another story about the study posted at nature.com.

However, Mike LaPointe, chief biologist with the Vancouver, B.C.-based Pacific Salmon Commission, told NW Fishletter that he was not aware of any juvenile fish problems in the Fraser that could be traced to the beetles.

In fact, LaPointe noted that sockeye migration from one of the Fraser's largest lakes doubled in 2007 from previous highs in the 1990s to 78 million smolts, and with improved ocean conditions, biologists are expecting exceedingly good returns next year.

He also said that the Fraser estuary doesn't seem to exhibit the high levels of predation on smolts by birds and pikeminnow like the Columbia River below Bonneville.

The Welch study, though suggesting survival levels in the two rivers were now similar, pointed out that "it remains unclear whether the similar rates of survival we measured result from past efforts to improve hydropower operations and reduce predators in the Columbia, or from unidentified problems in the Fraser River."

The study said it "seems likely" that poor survival to adulthood for stocks in both rivers was due to the common effect of ocean conditions.

In a response to an Oct. 29 editorial in The Oregonian that suggested dam passage had improved, Witt Anderson, director of programs for the Corps of Engineers' Northwestern Division, concurred.

"We agree that significant investments are being made to improve fish survival in the Columbia River Basin," he said.

"The range of measures in the newest plan for fish in the Columbia River Basin reflects fundamental changes in how the hydropower dams are operated. These measures, which run to 2018, build on remarkable progress in not only how the dams are operated to make them more fish friendly, but in the physical structure of the dams themselves. This is a huge change since the first court rulings in 1994," Anderson said

For years, NMFS scientists have noted in their annual reports on juvenile survival that passage through the hydro system with eight dams in place has equaled earlier survivals when only four dams stood between Idaho fish and the ocean. -B. R.

[4] No More March Spill At Bonneville For Early Hatchery Release

Some fall chinook fish production will move from Spring Creek Hatchery above Bonneville Dam to the Bonneville Hatchery, just below the dam, according to an agreement signed Oct. 23 by action agencies and the U.S. Fish and Wildlife Service.

The strategy was a high-priority item in the MOA that federal agencies and three lower Columbia tribes signed in May.

The move means there will be no more March releases of Spring Creek smolts and several days of spill at Bonneville to help the fish past the dam, which used to cost around $2 million in lost power revenues.

After they are reared, nearly two million additional fall chinook will be moved from Spring Creek to the Little White Salmon hatchery further upstream, where they will be released in April, after the hydro BiOp's spring spill regime has begun.

To make room for the increased fall chinook production at Bonneville Hatchery, 2.5 million upriver bright fall chinook will be moved to Little White Salmon for acclimation and release.

"The restoration of salmon depends on federal, tribal, and state governments working together on cooperative efforts like the Spring Creek Hatchery reprogramming," said N. Kathryn Brigham, chairwoman of the Columbia River Inter-Tribal Fish Commission.

"By addressing all the parties' concerns, we have a solution that has the same number of fish being produced in the Basin, increases efficiency of production at Spring Creek, and increases the number of high-value upriver brights released above Bonneville Dam--something the tribes have been seeking for decades," she said.

The total cost increase of the reprogramming will be $244,000 per year after one-time start-up costs of $192,000.

About $139,000 of the annual cost will be paid by the Corps from its John Day Dam mitigation program. (About 80 percent of this amount is paid by BPA ratepayers through a direct-funding arrangement with the Corps.) USFWS will fund $105,000 of the annual costs for the three-year agreement.

"Trying to maximize survival for Spring Creek releases has been a continuing goal for fishery managers because the Spring Creek stock is one of the largest single stock contributors to the duration and success of ocean and Lower Columbia River chinook fisheries," said Washington Department of Fish and Wildlife official Guy Norman. -B. R.

[5] Analysis: What Kind Of Bang For A Billion Salmon Bucks?

BPA has placed a billion-dollar bet that the new BiOp will pass judicial muster and lead to 10 years of stress-free salmon recovery, uncontested hydro operations and no more debate on dam breaching.

That's how much it will cost ratepayers to bring several tribes and a few states on board the 2008 BiOp boat. And that doesn't include any guarantee that the strategy will work.

In return for supporting the federal plan, the tribes will each get millions in recovery dollars to pay for improvements to unlisted salmon stocks, lamprey, and overall tributary improvements that most say will benefit all stocks.

In fact, the feds claim that 70 percent of that billion dollars will help listed stocks, though it may be hard to prove, since the deal isn't project-specific past 2010. But that doesn't necessarily mean lots more fish. By tweaking the tribes' own accounting, the region will be lucky to see 20,000 more fish from habitat improvements paid for by you and me.

That's where new hatcheries come in. The deal with tribes calls for spending $80 million to $90 million in new supplementation efforts (using hatchery fish to boost wild runs) to expand harvest opportunities. And though it is up to NMFS to judge whether any of these new projects would adversely affect the recovery of ESA-listed stocks, it's unlikely they will drop the hammer on any of the new projects.

Back in May, the Native Fish Society's Bill Bakke expressed doubts about the value of the deal's hatchery improvements. He is even more pessimistic today.

Bakke called the latest review of Columbia Basin hatchery operations "a professional whitewash," and the whole salmon recovery program "bogus." And he is more worried than ever that the expanded supplementation effort could put ESA-listed stocks in even more jeopardy.

And he's not the only one who is worried.

The independent scientists who review salmon recovery issues have never been sold on the value of supplementation and still consider it an iffy proposition at best.

But the three lower Columbia tribes disagree. In their latest court filing supporting the new BiOp, their deal with BPA and the expanded use of hatchery fish to supplement wild chinook runs, the tribes say that the spring runs in the Yakima, Teanaway, Tucannon, Walla Walla, Umatilla and Grande Ronde rivers have all improved. So have fall chinook runs in the Snake and coho runs in the Yakima and mid-Columbia, adding to wild steelhead runs in the Umatilla, they claim.

Time will tell who's right.

The feds say the deal cements the "reasonably certain to occur" funding for habitat restoration that BiOp Judge James Redden found wanting way back when he threw out the 2000 BiOp and began the remand process that has led to the latest salmon plan.

So what's not to like?

Well for one thing, the deal with the tribes secures another 10 years of funding for the Fish Passage Center, the very group that supplies most of the technical mumbo-jumbo used by environmental groups to confuse the judge in the never-ending litigation.

If I were a little more jaded, I might see that as enhanced job security as NewsData's fish reporter and fodder for another 10 years of NW Fishletters.

The good judge will be taking a tour of salmon projects on the John Day River Nov. 13 to see for himself what the region has been up to.

Another facet of the deal with the tribes is that it will likely survive even if the judge tosses out the latest BiOp. That's a scenario no one wants to entertain, since the hydro BiOp's demise could easily topple the new harvest agreement and Upper Columbia operations as well. That's an issue Columbia-Snake irrigators recently pointed out, and it also occupied a prominent place in the latest memo filed by federal attorneys.

The judge has signaled that he was more interested in securing project funding, rather than really caring what exactly was being funded.

However, BPA customers want something for the 4-percent rate hike that will pay for all this, and they have been pushing to ensure that projects outlined in the state and tribal agreements are scrutinized for scientific merit, just like other proposals in BPA's fish and wildlife program.

But that may not happen. As the tribes point out in their court filings, BPA has agreed to fund their projects whether or not they pass muster with the science panel and get a stamp of approval from the Northwest Power and Conservation Council.

Terry Flores, executive director of Northwest RiverPartners, said the tribes have a responsibility to make sure they spend the money wisely, especially if the science review gets sidetracked.

"It's a huge investment. But we are united with them in the desire to get more fish back," she said.

At this point, the Power Council is still struggling with the issue of independent scientific review for these new projects.

Just last week, BPA personnel and council staffers met with Warm Springs tribal attorney John Ogan to develop a guidance document for review of projects that come before the council outside of the standard process. A draft may be discussed at the November Council meeting in Coeur d'Alene, Idaho.

RiverPartners has already called for scientific review of each project, a position not originally shared by BPA. When the tribal MOA was announced last spring, BPA suggested a programmatic review would be more appropriate.

The agreement with the tribes says a variant of the original proposal may be substituted for the original if it doesn't pass muster, but the substitution is exempt from further review.

The individual merit of these projects is of less concern to some other long-time salmon/policy wonks, who say the expense is probably worth the paradigm shift it created in relations between the action agencies and the tribes, who have ended up with about one-third of the outrageous $300 million a year for 10 years that fish and wildlife managers had argued for just a few years ago. They said $3 billion was needed to satisfy all their funding needs.

At this point, the tribes who signed aboard for the BiOp's windfall funding bonanza seem to be pretty satisfied. But according to one regional F&W manager, they may just have a hard time figuring out how to spend all that money. --B. R.

Subscriptions and Feedback
Subscribe to the Fishletter notification e-mail list.
Send e-mail comments to the editor.

THE ARCHIVE :: Previous NW Fishletter issues and supporting documents.

NW Fishletter is produced by Energy NewsData.
Publisher: Cyrus Noë, Editor: Bill Rudolph
Phone: (206) 285-4848 Fax: (206) 281-8035