[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The new draft guidance document says the science panel may also "identify potential scientific problems with the projects and suggestions for how the Accord parties may remedy them.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
[2] Enviros, Oregon Call For Even More Spill, Flow In 2009 Dam Operations
Environmental and fishing groups, along with the state of Oregon, have asked for even more spill at Columbia and Snake River dams than BiOp Judge James Redden has OK'd for the past three years, according to a motion for preliminary or possible permanent injunction filed Nov. 25 in Federal District Court in Oregon.
The groups want 24-hour spill at all dams, to be curtailed only by dissolved gas limits, and have called for emptying Montana reservoirs faster than specified in the new BiOp.
They want to draw down John Day Reservoir to Minimum Operating Pool, which would have most mainstem irrigation pumping stations sucking air during the fish migration season. Currently, the pool is operated at Minimum Irrigation Pool, about five feet above MOP.
In addition, the motion wants mainstem flow targets to be met on a weekly basis and a new agreement with Idaho Power to add 110 KAF of spring flow augmentation and 237 KAF summer flow augmentation, along with any other steps, "including purchase of additional water for flow augmentation and reservoir drawdown, as may be necessary" to meet their flow volume and water particle travel-time targets.
The motion also calls for the feds to implement all other elements of the 2008 BiOp, along with the agreements with tribes and states that traded BiOp support for hundreds of millions of dollars worth of habitat and hatchery projects.
The plaintiffs have also called for implementation of all the projects submitted by Oregon and the Nez Perce Tribes to the Northwest Power and Conservation Council, even though the two sovereigns never reached agreements with the federal agencies.
The injunction is supported by declarations submitted by retired USFWS biologist Fred Olney and ODFW Chief of Fisheries Ed Bowles, who cited documents as old as the 1995 hydro BiOp to support the case.
The groups also pointed to a recent review of spill and transportation by the Independent Scientific Advisory Board to bolster the case for more spill.
Federal scientists had already responded to the spill issue, and are still working on a review of the subject that is expected to reflect their latest findings.
However, according to the schedule developed by the court, federal attorneys won't be responding to the enviros' motion until Feb. 13, after Redden is likely to rule on the legality of the 2008 BiOp.
Some parties to the litigation have questioned the legality of the injunction schedule, since it would allow the plaintiffs to argue from extra-record materials that were not part of the administrative record used in the BiOp.
In the BiOp litigation, Judge Redden turned down a request by federal attorneys to throw out the extra-record declarations by Olney, Bowles and others that were used to support plaintiffs' arguments.
Redden also allowed to stand an amicus brief submitted by the Nez Perce Tribe alleging the new BiOp was deficient because it did not look at dam breaching as a fish-recovery option.
The feds had argued that since the plaintiffs hadn't brought up the breaching argument in their complaint, the Nez Perce brief should not be allowed. But Redden said the breaching issue had been part of the remand process since the 2000 BiOp included breaching issues in its jeopardy analyses.
Redden also noted he had previously warned defendants after tossing the last two BiOps that they should be "aware of the possibility of breaching the four dams on the lower Snake River, if all else fails."
BPA Administrator Steve Wright and action agency executives Brig. Gen. William Rapp (Corps of Engineers) and Bill McDonald (Bureau of Reclamation) expressed support for the new BiOp in a Nov. 26 joint press release.
"We have not had time to review the plaintiffs' filing, but we are very pleased with the widespread regional support we have received in recent court filings," they said. "With our tribal and state partners, we support the actions in the biological opinion and their contribution to our mutual goals of a healthy environment and a healthy economy." -B. R.
[3] Columbia River Sea Lions May Bite The Bullet
A federal judge in Oregon has ruled that some sea lions may be lethally removed to reduce salmon predation at Bonneville Dam. In a Nov. 25 decision, Oregon District Court Judge Michael Mosman agreed with federal attorneys, who argued that the potential action was necessary because the estimated 4-percent take of spring chinook by the marine mammals at the dam was "significant." The feds had argued the action was warranted because federal agencies had taken corrective action in other areas with similar levels of adverse effects on the listed fish.
Mosman said he deferred to NOAA Fisheries' "reasonable interpretation" of the terms in the Marine Mammal Protection Act that affected its decision. The feds had said productivity of the ESA-listed spring chinook would decline from sea lion predation. The judge thought that was important, too.
"Plaintiffs would likely be correct if NMFS' criteria included only whether adult salmonid mortality is sufficiently large to have a measurable effect on the numbers of adult salmonids," he wrote in his 30-page opinion.
He also deferred to the agency's data that pointed out specific individual sea lions as being major culprits, therefore its interpretation of the MMPA was "not irrational," nor "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law."
Judge Mosman also agreed with the federal agency that the actual predation rate may be much higher than the observed 4-percent rate. NMFS estimated the actual predation rate at the dam could be as high as 13 percent on spring chinook and 22 percent on steelhead.
Plaintiffs had also argued that the feds' decision was arbitrary and capricious because the agency had already concluded under different statutes [ESA, NEPA] that harvest and hydro mortality was not significant.
But the judge said NMFS was under no obligation to "explain and discuss its (or another agency's) previous decisions under one statutory scheme when making decisions under another statutory scheme." Mosman said this would unduly burden agency decision-making by imposing requirements not mandated by statute or regulation.
The judge pointed out major differences between fishing by humans and fishing by sea lions--mainly that harvest levels by humans had declined from a 55-percent average (1938-1973) to about 8 percent (1979 to present), while sea lion predation is growing, and the states have not been able to control it.
Mosman also pointed out the take calculations of dam-induced salmon mortality included smolts, which had a much higher mortality rate than adults. Besides, the hydro system has been modified to improve survivals.
"More importantly," he wrote, "the interaction of the hydropower system with salmonids involved a radically different set of concerns and balancing than the interaction of pinnipeds and salmon under the MMPA."
After getting federal approval last spring, fish managers were prepared to use lethal means to keep some California sea lions from doing any more damage to the run. However, the 9th Circuit Court issued an emergency order that called for the animals to be trapped and hauled away.
Some had already been trapped and hauled away when six of them were found dead in cages below the dam. First reports indicated they had been shot, but NOAA Fisheries found no evidence of gunshot wounds when the animals were examined. The trap and haul program was suspended at that point. -B. R.
[4] Salmon-Munching Bass Getting A Closer Look
A popular Northwest game fish, smallmouth bass, may eventually be found on 'Most Wanted' posters up and down the Columbia River as a major killer of young ESA-listed salmon. Like northern pikeminnow, they may end up with a price on their heads.
Smallmouth bass are a non-native species in the Northwest that like to dine on juvenile salmon and have become hugely prolific throughout warmer waters in the region. But there is one big problem--they are currently classified as a game fish in the state of Washington, rather than a nuisance, so they are managed and protected.
Regional fish managers met in late September in Portland to examine salmon predation by bass, channel catfish and walleye pike, and the possible role the millions of Columbia River shad may play in the interactions.
The workshop was mandated in the new hydro BiOp, under RPA (Reasonable and Prudent Alternative) 44, as a way to begin efforts to implement "piscivorous control measures to increase survival of juvenile salmonids."
It's the first step in a process that may give anglers a chance to catch bass in a bounty program like the one developed for northern pikeminnow, for which BPA spends $3.7 million annually to pay anglers to rid the rivers of nearly 200,000 salmon predators. However, at this point, biologists don't know if the bass play a bigger role than other predators munching on salmon
Managers have found it hard enough to measure the success of the pikeminnow program, though Oregon Department of Fish and Wildlife's Erick Van Dyke told workshop participants the mean size of the pikeminnow appears to have decreased over the years--a major goal of the program. The smaller pikeminnow are thought to have less impact on migrating juvenile salmon.
Washington Department of Fish and Wildlife biologist Anthony Fritts reported that a four-year study in the Yakima River found that low summer flows in the lower river increase water temperatures and attract bass spawning activity.
Researchers found that smaller smallmouth bass were most predaceous and grew large enough to eat salmon by age 2. It's thought that older bass concentrate on other prey than salmon. The bass also tended to focus on the smaller naturally produced fall chinook instead of the larger hatchery-produced yearlings.
According to a recent synopsis of the meeting, "Fritts also noted that a lot of people really like bass fishing, so there could be substantial opposition to removal."
Fritts also pointed out the high level of toxins in the lower Yakima smallmouth bass, "so we should be cautious about promoting a fishery."
The University of Idaho's David Bennett reported on studies from the 1980s about predation in the Snake River, while noting that 60 percent of species in the Snake were non-native. He said channel catfish were the "surprising predators" in the early 1980s study of Lower Granite Reservoir.
He also said there was some evidence that pikeminnow predation on chinook above Lower Granite was slightly lower per surface area than in John Day Reservoir.
Other studies from the 1990s showed that up to 7 percent of the naturally produced subyearling fall chinook were consumed by smallmouth bass in Lower Granite Reservoir in low-flow years, but predation was considerably less when flows were higher. This makes sense, because other studies found that both smallmouth bass and pikeminnow are "sight feeders," and the increased turbidity from higher flows would likely reduce their success.
Bennett said modeling suggested that sport fishing wouldn't put much of a dent in bass populations. But others who attended said concentrating fishing effort at some of the dams might be the most productive way to reduce predation by bass.
"We know we have a problem, but we need more studies," said Shane Scott, a consultant for river users, who attended the meeting.
But the difficulties for anglers to target the age-2 bass have led some to question whether such an effort could be nearly as successful as the bounty program for pikeminnow--in which an angler can make $4 for each fish turned in, and more if large numbers are caught. But Scott said there is some evidence larger bass are eating smolts at dams.
BPA reports that more than 3.2 million northern pikeminnow have been removed from the Snake and Columbia rivers through the sport reward program since 1991. Last year, 191,154 northern pikeminnow were turned in; as a result, northern pikeminnow predation on juvenile salmon in 2007 was cut by an estimated 37 percent.
BPA's John Skidmore estimated that four million to six million smolts are saved every year through the current program. He said it was too early to say whether a program is likely to be developed to reduce the bass numbers. He did say the workshop results will be sent to NOAA Fisheries, which will collaborate with regional agencies in the next step towards building a policy
In July, the Independent Scientific Advisory Board recommended that state fishery agencies declare open season on species such as smallmouth bass and channel catfish that are not native to the Columbia Basin. It's sure to give some fish managers heartburn because programs are in place to enhance the numbers of some of these predators.
The science panel said the non-native species issue should get a boost in priority equivalent to other important concerns like habitat loss, climate change and human population growth and development. -B. R.
[5] Puget Sound Action Agenda Unveiled
In the face of the worst state budget crunch in the past 30 years, the latest effort to restore the waters of Puget Sound got a rousing sendoff earlier this week when the Puget Sound Leadership Council voted to approve its Action Agenda. Led by ex-Puget Sound salmon czar Bill Ruckelshaus, the group presented a relentlessly upbeat message to clean up the Sound by 2020 at a public meeting on Dec. 1.
The message focused on protecting the best remaining habitat, and finding places like the Nisqually River Delta to improve fish habitat--where the most bang for the restoration buck could be achieved.
Another major effort will be directed at reducing stormwater runoff. A recent study found that 150,000 pounds of toxic pollutants poured into the Sound every day from non-point sources.
The plan has grown out of the earlier effort called the Shared Strategy, that provided an umbrella group for Sound-based stakeholders to develop a recovery strategy for ESA-listed Puget Sound chinook and chum stocks. The salmon recovery effort has been folded into the larger Sound-wide effort. It has been a pet project of Gov. Chris Gregoire, who made sure plenty of state money was available to get it rolling.
But Gregoire herself wasn't on the dais with other regional politicians at last Monday's celebration. She was in Philadelphia, meeting with other governors and President-elect Obama to discuss a huge stimulus package for the US economy that will be focused on rebuilding infrastructure and creating jobs. It was Gregoire's job to make sure Obama's people are aware that plenty of restoration projects to help Puget Sound are ready to go, with the proverbial ripple effect in secondary spending from job creation.
With the economic downturn, even Puget Sound Partnership executive director David Dicks has shifted gears and pushed the economic benefits of the restored Sound in a recent op-ed piece in the Seattle P.I.
But long-term funding is still a long way from certain. PSP officials had discussed developing dedicated sources of funding, but decided now wasn't the time to go for it. But the reasons for the delay weren't all economic. PSP officials acknowledged it would be a tough sell because of the "lack of broad public understanding of the needs for restoring Puget Sound," but they are still suggesting the Legislature create a Sound-wide improvement district next year.
The Dec. 1 session didn't mention the huge cost figures developed a couple of years ago, when the estimated costs for restoring the Sound by 2020 ranged from $9 billion to $27 billion.
In fact, the Action Agenda doesn't include any cost estimates beyond the next few years. The group expects current state spending on the Sound to remain the same for the next two years, about $400 million.
Another $171 million in annual spending comes from the feds. Around $43 million of that is for salmon recovery grants, ESA and watershed recovery. The federal government also spends $43 million on wastewater treatment and $242 million on mitigation activities for highway, military and Sound Transit capital projects.
Nisqually Delta
Courtesy WA Dept. of Ecology
Counties and cities in the Puget Sound region spend about $246 million for protection and restoration activities through storm drainage utilities and natural resource departments, while local governments spend another $611 million managing and treating wastewater.
The funding crunch at the state level has the PSP leadership calling for current funding to line up with priorities in the Action Agenda. "What is now proposed is an inversion of the existing process by driving state, local and federal dollars to actions and projects identified in the Action Agenda," says the final document.
The PSP leadership had originally hoped to pick up another $200 million in the upcoming budget session, in addition to the $400 million already planned for the next biennium, but now it hopes to fill much of that gap with help from the feds, including $50 million from the federal stimulus package and another $50 million from state general obligation bonds.
But the looming $5-billion deficit is likely to grow to $6 billion by the time the legislature meets in January. PSP supporters may have to become even more creative to keep restoration efforts on track when many state agencies are facing potential cuts of 10 to 20 percent.
One bit of good news is that the final plan has received a tentative nod of approval from a dogged group of 14 regional scientists and engineers who judged that previous incarnations of the Action Agenda fell far short of what it would take to get the job accomplished.
Tom Lorz, an Olympia-based engineer whose primary work focuses on low-impact development, said it seems that the final version of the plan will raise the bar for some future benchmarks, like how much impervious surfaces around the Sound will be allowed in the future. But the PSP is still developing those benchmarks (the draft document would have allowed 20 percent by 2020, up from the current 7.3 percent).
And it's still trying to determine how much forest cover should be maintained. "Though it was stated in the plan that watersheds in good condition should be preserved, I wish that they had listed at least the high-priority watersheds that needed to be protected from more disturbance," Lorz said by e-mail. "I fear that the watersheds will disappear while the plan is fleshed out." He hoped his group would be called upon to help with details.
The PSP will still have to convince Sound dwellers that it will all be worth it. But so far, the "crisis" language in its public relations effort has not seemed to strike much of a chord with the 4 million people who live in the region, even with the recent stories about orcas "starving" in the San Juans and dead zones in Hood Canal, echoed by PSP supporters in the popular media.
The reality of the region is more complicated than simple sound bites, as recent reports have spotlighted. The supposedly "starving" orcas evidently rely a lot more on chinook from BC's Fraser River for sustenance than the Puget Sound chinook, and the oxygen-depleted regimes in Hood Canal have been part of long-term climate cycles that affected marine populations long before the white man appeared, logged, farmed and built septic systems, as a fresh report from Battelle researchers has revealed. -B. R.
[6] NOAA Fisheries Releases First Pesticide BiOp
NOAA Fisheries announced Nov. 18 new recommendations governing the use of three common pesticides near salmon streams. The agency issued a BiOp that is a result of a settlement between environmental groups, EPA and NOAA Fisheries that was reached last August, when the federal fish agency agreed to complete consultations on the effects of 37 pesticides on West Coast salmon and steelhead, with the first three to be completed by the end of October.
This BiOp deals with diazonin, malathion, and chlorpyrifos--and it concluded that they are likely to jeopardize 27 populations of salmon on the West Coast that are listed for protection under the ESA. The findings are based on laboratory studies.
"Scientific research has shown that these three chemicals when found in streams can damage and even kill salmon," said Jim Balsiger, acting NOAA assistant administrator for NOAA's Fisheries Service. "The chemicals may also harm stream water quality and the small fish and insects that salmon eat. The restrictions are designed to prevent harmful effects. "
The agency expects to have 34 more compounds in pesticides regulated by March 2012.
In 2003, Seattle District Court Judge John Coughenour ruled that, for the time being, he would go along with environmentalists' recommendations that called for buffer zones along streams to keep pesticides from harming wild salmonids listed under the ESA.
His ruling said the plaintiffs had demonstrated, "with reasonable scientific certainty," that the buffers should be 20 yards wide for ground applications and 100 yards for aerial applications.
However, the new BiOp calls for buffer zones of 1,000 feet for aerial applications and 500 feet for ground application between pesticides and salmon streams, along with at least 20-foot vegetation buffers along other surface waters to absorb runoff from treated fields. Even more restrictions govern the application during windy conditions or before potential storms.
According to a statement from NOAA Fisheries, EPA will use NOAA's biological opinion "as it decides how pesticides containing the three chemicals can be used. EPA examines and registers ingredients of a pesticide to ensure there will be no unreasonable adverse effects. Once registered, a pesticide must be used in a way that is consistent with approved directions on the label."
EPA spokesman Dale Kemery told NW Fishletter that his agency is continuing to evaluate NMFS' new pesticide BiOP. "EPA remains committed to taking the necessary steps to protect threatened and endangered species from pesticide risks," Emery said, "and using rigorous scientific information and methods to develop any necessary pesticide use limitations. EPA will keep the public informed as we proceed."
Earlier, EPA had voiced some concern with the draft BiOp issued July 31. In a Sept. 15 letter to the NMFS Office of Protected Resources, EPA's Debra Edwards, director of the agency's Office of Pesticide Program, said the draft BiOp lacked "a level of transparency necessary for NMFS' rationale for its opinion that the use of any of these pesticides will jeopardize the continued existence of any of the species at issue."
Further, the EPA letter said the "draft makes no mention of the fact that agriculture chemicals are secondary stressors and therefore are considered to be a minor factor in species survival relative to other factors."
However, now that the final BiOp is out, agricultural interests are predictably unhappy. Richard Cornett, spokesman for Western Plant Health Association, which represents fertilizer and crop protection manufacturers, said while it is unclear how many crops in California are near streams that will be impacted by the extended buffer zones, "we are concerned that these are unreasonable buffer zones to consider.
"We think the NMFS opinion is flawed and that they used outdated science and outdated information to arrive at their numbers," said Cornett. "We continue to be concerned that NMFS lacks the adequate scientific basis for claiming that authorized uses of the products identified in its decision in fact pose a risk to salmon."
NOAA scientists had found the chemicals not only can be lethal to salmon at certain concentrations, but could also hinder salmon growth at lower levels of concentration by impairing their ability to smell their prey and by reducing the amount of small fish and insects for food. The chemicals have also been found to slow the swimming of salmon or make their swimming erratic, impairing their ability to avoid predators and to return to their natal streams to spawn.
The EPA had expected NMFS to reach different conclusions than those included in the final biological opinion, Kemery told the Capital Press in a Nov. 18 story. -B. R.
[7] WDFW Director Koenings Resigns
Washington Department of Fish and Wildlife director Jeff Koenings announced Dec.1 that he will resign, effective Dec. 11. He has headed the agency head for 10 years, coming from a position at the Alaska Department of Fish and Game.
"In collaboration with many other resource managers and Washington citizens, I've accomplished much of what I said I would do when I became director 10 years ago," Koenings said. "I'm proud of the progress we've made in creating a comprehensive, gravel-to-gravel system of stewardship for wild salmon, rebuilding relationships based on mutual trust with tribal resource co-managers, bringing a scientific focus to state fish and wildlife management and improving the department's business practices."
Lately, Koenings led negotiations with Canada over a 10-year agreement that will reduce interception of chinook bound for the Lower 48 by BC and Alaska commercial fishers.
The Washington Fish and Wildlife Commission appointed long-time WDFW staffer Phil Anderson, to take over as interim director. Anderson has been the department's deputy director for resource policy since July 2007. Anderson also serves as the department's representative to the Pacific Fishery Management Council (PFMC). In that role, Anderson heads up the North of Falcon process, which sets annual salmon-fishing seasons for marine waters including Puget Sound and the coast. Anderson is a resident of Westport who joined the WDFW staff in 1994. -B. R.
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