[1] More Scrutiny For New Fish Projects Likely
Staffers from the Northwest Power and Conservation Council, BPA and tribal attorneys are developing a document to guide the scientific review of salmon-recovery proposals developed in recent agreements between some states, tribes and the federal agencies responsible for the new hydro BiOp in the Columbia Basin.
A draft surfaced at the November NWPCC meeting that would tighten up the review process relative to the looser language in the agreements that had been questioned by some stakeholders, notably BPA customer groups represented by Northwest RiverPartners.
NWP was concerned that some of the nearly 200 new projects were only going to get a cursory review before implementation.
The new guidance document would make BPA and project sponsors explain their decisions to implement new habitat and hatchery projects developed through the accord process if they differ from the council's recommendation, which also must be explained if it differs from the science panel's recommendation.
The initial deal between BPA and three lower Columbia tribes suggested a general programmatic review of the projects rather than having each one reviewed by the Independent Scientific Review Panel, which has been a standard procedure since the 1996 adoption of the Gorton amendment to the NW Power Act that mandated the scientific scrutiny.
The agreement with the tribes said a variant of the original proposal may be substituted if the original doesn't pass muster, but the substitution may be exempt from further review.
The ISRP judges proposals for scientific merit, benefits to fish and wildlife, adequate monitoring of results, and consistency with the council's fish and wildlife program.
The new draft guidance document says the science panel may also "identify potential scientific problems with the projects and suggestions for how the Accord parties may remedy them. In addition, the ISRP will include Accord projects in its annual 'retrospective' review of the results of prior year fish and wildlife program expenditures."
Northwest RiverPartners objected in April after the $900-million-plus deals were announced. They called for more scrutiny of the 200 or so projects that the power-marketing agency promised to fund for three lower Columbia tribes in exchange for the tribes' promise to support the 10-year salmon plan that will govern federal hydro operations.
On Nov. 18, Greg Delwiche, VP of BPA's F&W Division, told the council's F&W committee that the new draft is a "living document," and he wanted to dispel the myth that some signatories to the accords wanted to "shine on" science review.
"Nothing could be further from the truth, if you read the accords themselves," he said.
"Our customers and through them, the citizens of the Northwest, are footing the bill for the huge salmon-recovery program and we owe it to them, from the fiduciary point of view, to insure that good science is steering this sound-science recovery effort," Delwiche said.
Delwiche called the draft a good guidance document that will frame how the initial reviews go and "we will tweak it as we learn."
About a dozen accord proposals are now in the pipeline for review, ranging from one that funds sea lion hazing to developing a sockeye run in the Deschutes River.
"Our customers were very vocal," Delwiche said, "and their support for the accords was conditional upon the assurance that we were going to not go through the motions on science review, that we were going to honor the spirit of the amendment [1996 Gorton Amendment] of the Power Act that brought science review to the forefront."
However, an amicus brief filed Nov. 18 by the Power Council in the BiOp litigation seemed to take issue with federal attorneys' own portrayal of the upcoming science review.
"The federal government discounts the effects of the science panel and the Council review simply by noting that 'BPA's funding is not subject to the Council's approval,'" wrote council attorneys, "and also implies that the only point of the review and of Bonneville's response to the review is 'to ensure the projects remain consistent with the Council's [Fish and Wildlife] Program.'"
The memo went on to say that the three tribes provided a more comprehensive description of the process in their own amicus memo, but the tribes' ultimate conclusion was that the projects were reasonably certain to occur because the decision whether or not to fund "is finally and exclusively BPA's."
BiOp Judge James Redden had thrown out the 2000 BiOp for several reasons, and one was that he felt the habitat restoration component wasn't reasonably certain to occur.
Plaintiffs in the ongoing litigation had recently argued that theme again. In one of their own memos, they said the habitat improvement measures in the new BiOp and accords shouldn't be included in the BiOp's jeopardy analysis because many of them had not yet been through the council process.
Council lawyers filed an earlier amicus memo to deal with that question, arguing that the fact of scientific review did not mean the measures were not reasonably certain to occur. They argued that BPA has made a financial commitment to implement a suite of habitat measures that will "emerge in final form shaped into scientifically sound projects through the Council's review process."
The first council memo argued that there was no reason to believe that the result of this process will be a suite of actions "less substantial" than the magnitude of actions expected in the BiOp and accords.
They added that if Redden ruled the actions were not reasonably certain to occur because of the review, the Court would be setting up an unnecessary conflict between requirements of the ESA and the Power Act, "and in so doing, might allow the federal agencies to ignore the latter. The result would be truly unfortunate for the sound implementation of public policy to benefit fish and wildlife." -Bill Rudolph
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