[2] Judge Sends Mixed Message Over New BiOp

BiOp judge James Redden sent a mixed message to attorneys in a letter that contained a list of questions he wants answered at the March 6 hearing, when oral arguments will be heard on the legality of the government's newest 10-year salmon recovery plan.

In his Feb. 18 missive, Redden said he had "no desire" to go through another remand and another round of consultation. He tossed out the last two salmon plans since 2000, and has spent years presiding over the federal government's efforts at creating a defensible product.

But he has had enough, he says.

"The revolving door of consultation and litigation does little to help endangered salmon and steelhead," he wrote.

He acknowledged the hard work on the latest plan put in by sovereign states, tribes and agencies, and said "we have come a long way from the 2004 BiOp."

However, he still has questions about the legality of the feds' "trending towards recovery" jeopardy standard--a departure from past BiOps.

He also wants to discuss other things, such as the reduction in spill from his court-ordered hydro operations since 2005, and the optimistic benefits to ESA-listed fish the BiOp analysis assumes will be gained from proposed habitat restoration measures in the estuary and tributaries.

Tributary improvement is a preliminary focus of the recent billion-dollar Accords process that traded recovery action funding to some states and tribes for BiOp support.

Redden did send out a positive vibe, advising attorneys to be prepared to discuss ways to "bolster" the biological opinion, if necessary.

He also said he wants to talk more about spill and that he would ask federal agencies to implement the science panel's recent recommendation to continue the court-ordered spill program for spring 2009.

The feds had already agreed to implement the program this year, backpedaling from their proposed BiOp action that would have ended spill for two weeks in May to barge more fish from the lower Snake dam.

Their own analysis had found that ESA-listed steelhead would benefit from the action, but they changed course after the science panel suggested that barging may have adverse effects on listed sockeye, though the panel admitted it had no evidence.

River users involved in the lawsuit said the letter was pretty much what they had expected.

"We're not surprised by the judge's letter," said Terry Flores, executive director of Northwest RiverPartners. "It's the same mix of kudos and criticisms we have seen in the past."

Flores was fairly optimistic about the hearing. She was sure the feds could successfully defend their new jeopardy standard because it used the "best available science," and satisfied his other concerns. She also noted that Redden indicated he was inclined to deny plaintiffs' claims related to the Clean Water Act and killer whale issues.

Redden does think the BiOp is short-changing actions to improve the habitat in the Columbia estuary since it has only committed federal agencies to spend $50 million over the next 10 years in that area, while the feds have estimated spending $500 million over the next 25 years.

But Flores admitted her group was puzzled by the judge's reference to a 2003 report by the region's independent science panel, which Redden said had concluded that "increased quantities and better coordination of flow augmentation is beneficial to steelhead and sockeye."

In 2003 the panel did release a report, but it said the region must develop a "new paradigm" for the flow/survival relationship because it didn't seem that fish survival was boosted by incremental increases in flow. The panel looked at a proposal by the state of Montana to slightly reduce mainstem flows in the summer to flatten outflows from the state's largest reservoirs to help resident fish populations.

The state had argued the change in flows from its proposal couldn't even be measured hundreds of miles downstream at McNary Dam, nor could any benefit to juvenile fish survival be measured, either. The panel agreed the Montana plan was defensible, and it has been included in the new BiOp.

In his letter, Redden asked if plaintiff groups (environmental and fishing organizations, the state of Oregon, and the Nez Perce Tribe) would support the BiOp if the feds added some measures in the plaintiffs' proposed preliminary injunction. He also wanted to know if the feds were willing to amend the BiOp to include some of those measures as part of a settlement agreement.

The groups want more spill than the current court order calls for. They are asking for 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, their proposed motion wants mainstem flow targets to be met on a weekly basis. Since the BiOp already admits the flow targets can't be met even seasonally in all years, trying to comply with that obligation would lead to draining reservoirs so much in some years, they would be impossible to fill the next.

BPA had earlier estimated flow and spill measures asked for by plaintiffs in previous litigation would cost an extra $347 million a year to implement.

Since those measures were less than plaintiffs were now asking, the bill would be even higher if the injunction measures were rolled over into the new BiOp.

However, that's what plaintiffs are aiming for, say some individuals who are involved in the litigation--to make dam operations so expensive that taking our the lower Snake projects would be a less expensive option.

But they also say that recent filings by defendants may have convinced the judge that plaintiffs' estimated benefits to ESA-listed fish from their own proposals are overblown, and that they will settle for nothing short of breaching the dams.

Redden also wondered whether it made sense to seek a firm commitment for Upper Snake flow augmentation before seeking authority to breach lower Snake dams, as supported by the Nez Perce Tribe.

"On the other hand," he said, "given the Snake River Irrigators' and the state of Idaho's strident objection to dam breaching, can those parties commit to providing the SRBA-authorized [Snake River Board of Adjudication] 427 kaf of flow augmentation to help avoid the possibility of dam breaching?"

Last fall, 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.

At that time, Redden 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." -B. R.

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