[1] Pretty Good BiOp, Says The Judge

After getting answers to a list of increasingly pointed questions during oral arguments, BiOp Judge James Redden seemed to give qualified approval March 6 to the federal government's latest salmon plan. But he said the feds need to add more habitat actions, particularly in the estuary.

And if all that habitat improvement doesn't add enough to salmon numbers, the judge said the new BiOp needs an escape clause to begin a process that could lead to breaching lower Snake River dams, even though such drastic action might help only four of the 13 listed salmon and steelhead stocks in the Columbia Basin.

The judge's position did not surprise federal parties. Last August, Redden had suggested there would probably be "holes" in the BiOp, but they might not be enough of a problem to throw the whole plan out.

Redden seemed swayed by plaintiff environmental groups' afternoon arguments that the BiOp was too optimistic about projected benefits from tributary and estuary habitat actions. The feds' BiOp analysis has determined that such actions would boost the listed populations enough to ensure that future dam operations would not jeopardize salmon and steelhead stocks.

But the judge said the BiOp's biggest flaw was the habitat section.

"I don't know how you get there from here," he said, though he softened his ending remarks with the comment, "It's really a pretty good BiOp."

Federal officials seemed fairly pleased as they left the courtroom Friday afternoon for a debriefing. Most seemed confident they could satisfy the judge's concerns, though it's not clear, legally, just how that will happen. They said they don't plan on opening a re-consultation on hydro actions.

Before he adjourned, Redden suggested the BiOp writers include language similar to that in the 2000 BiOp, so if the habitat improvements do not work, the region would study breaching one or more dams on the lower Snake.

"I don't know if breaching of the dams is the solution," he said, but he thought that in five or seven years, the region should take a look and see how the runs are progressing.

Plaintiffs' lead attorney Todd True argued that the feds' habitat analysis was not based on the "best, available science," and too optimistic about potential benefits.

But the feds argued back that though the data was skimpy, there were some studies that showed improved smolt numbers were usually seen in places where habitat actions had occurred (Paulsen and Fisher, 2005).

At one point, Justice Department attorney Cobey Howell pointed to one of the plaintiffs' own memos to argue his case. He said the state of Oregon's preliminary injunction memo that argued the court should order more flow and spill at dams, also called on the judge to force BPA to fund habitat projects sponsored by the state and the Nez Perce Tribe, fellow plaintiffs along with True's environmental and fishing groups.

The projects would have been funded if the state and tribe had earlier agreed to support the new BiOp and not push for dam breaching over the 10-year life of the plan.

Howell argued that Oregon and the tribe must have recognized some value to fish from the potential actions if they were included in the memo.

Clearly, plaintiffs were off their game, compared to the their two previous BiOp challenges, a time when all four lower Columbia tribes were fighting the feds, instead of having three out of four supporting them, as is the situation now.

By voicing support for the Accords process that led to the nearly billion dollars' worth of funding for future habitat and hatchery improvements, Yakama tribal attorney Tim Weaver said he was making one of the most important arguments in 40 years of legal practice.

With other tribal attorneys adding their own support for the BiOp's habitat component, plaintiff attorney True clearly had a harder time supporting his argument that NOAA Fisheries had no reason to expect "certain quantitative benefits" for listed fish populations because the agency did not have enough information.

The litigants argued little over hydro operations, since the feds had already agreed to roll over 2008 operations this year. However, attorney Howell told the judge the feds clearly felt it was a compromise, since their survival model shows more benefits to steelhead and spring chinook from curtailing spill at lower Snake dams and transporting most fish for a two-week period in May.

True didn't seem to get too far in the morning session with his semantic arguments attacking the feds' "trending towards recovery" jeopardy metric and jeopardy analysis. The Justice Department was backed up by attorneys from the state of Washington, the Colville Tribes and Northwest RiverPartners, a large coalition of river users and BPA customers. By the end of the day, the judge didn't even mention the jeopardy analysis in his final remarks.

RiverPartners' executive director Terry Flores said she was cautiously optimistic about the proceedings.

"The judge was very positive about the BiOp and the collaboration he brought about," she told NW Fishletter.

Flores wasn't too concerned about the breaching language the judge wants included, she said, because he acknowledged that breaching the dams was not reasonably certain to occur, either.

"He's clearly looking for a viable solution," she added.

But others were more pessimistic. Portland attorney James Buchal, representing the Columbia-Snake Irrigators Association, said, "It appears the judge wants to force the parties to, one, spend more on so-called salmon habitat improvement and, two, rewrite the BiOp to facilitate dam removal when the habitat improvement doesn't work."

No one seemed ready to venture a guess as to how much more spending might satisfy the judge. The BiOp calls for funding $55 million in estuary habitat improvements over the 10-year life of the BiOp, while a recovery 'module' for the Columbia estuary developed by the feds estimated that it would take $500 million over the next 25 years to get it into shape.

There was virtually no discussion in the courtroom of another one of the four H's in the BiOp--hatcheries--and how they should be operated to improve the lot of listed salmonids. A huge review of basin-wide hatchery operations and recommendations for running them to help wild fish populations will be released later this month.

Harvest issues related to BiOp stocks was another topic that stayed submerged. Because of his early involvement with the U.S. v. Oregon process, Redden said he would not discuss harvest, and if it became an issue, he would have to turn it over to another judge.

Several parties have said if the hydro BiOp were overturned, the new harvest BiOp would have to be thrown out as well, since both documents used the same "trending towards recovery" jeopardy analysis.

At the end of the day-long hearing, Redden said he and his law clerk would pour over the transcript for the rest of the month, and federal agencies may get questions from him "on this or that," before he makes his ruling.

After the hearing federal defendants sent a letter to the judge offering to meet with him to discuss ways to add more estuary habitat actions to the salmon plan. But they noted that they would not open the 2008 BiOp to reconsultation. Plaintiffs' attorney Todd True sent his own letter, requesting the judge consider other issues as well, and the state of Oregon and the Nez Perce Tribe also sent missives to the judge that said the discussion should not be restricted to habitat issues.

Judge Redden said he would meet with the parties April 2, but the public would not be allowed to attend. -Bill Rudolph

[2] Council Hears Hot Fish Predictions

Last year, federal scientists saw more baby spring chinook off the mouth of the Columbia than any other year since they've been keeping track.

NOAA Fisheries scientist John Ferguson presented the good news at the March meeting of the Northwest Power and Conservation Council in Boise.

Ferguson said ocean conditions are about as productive as they have ever seen, and his agency expects large spring chinook runs over the next three years.

Results from 2008 ocean trawl surveys have led the NMFS Science Center in Seattle to predict that about 40,000 spring chinook jacks should return to Bonneville Dam this year. That's nearly twice as many as anybody has seen in recent years, and could signal a spring run in 2010 far larger than any seen in the past decade.

With about 19,000 jacks counted at Bonneville last year, the feds estimate that the 2009 spring run could be around 340,000 fish. Harvest managers have it pegged closer to 300,000.

On March 10, Ferguson also reported that the PDO [Pacific Decadal Oscillation] is still strongly negative, with a cold ocean and few storms. He said southern copepod species are around, but the northern varieties, which are much more nutritious for young salmon, are already dominant, just like last year.

Ferguson quoted NOAA oceanographer Bill Peterson about the current conditions: "The pump is primed and ready to go."

But the future may not be so rosy, Ferguson cautioned. Ocean variability--the flip-flops between good and poor conditions for juvenile salmon--seem to be increasing, and the ocean itself is predicted to be getting warmer.

However, for the time being, most salmon runs in the Columbia Basin are climbing, and good sockeye runs are predicted for both the upper Columbia and the Snake.

IDFG biologist Paul Klein said the number of last year's sockeye jacks at Lower Granite Dam may point to even better adult returns this year than in 2008, when about 900 adults and jacks were counted there.

He was afraid to speculate about the size of this year's run because of the uncertain relationship between sockeye jacks and adults returning the following year. But he said in 2000, when 300 adults made it to the dam (the previous high), seven jacks were seen the year before.

However, 150 jacks were counted last year. Klein said the lack of data keeps biologists from developing a relationship between jack numbers and adults, but he expected this year's sockeye return to be at least as good as last year's and possibly higher.

That is good news for the most endangered run in the basin, which has only been kept from winking out because of an expensive, captive broodstock program.

NOAA scientist John Williams reported that juvenile inriver spring chinook survival through the hydro system averaged about 46 percent in 2008, with steelhead at about 48 percent. That's a few percent higher than preliminary numbers released late last year, but down from the past two years, when spring chinook survival was 60 percent or better, and steelhead averaged around 40 percent.

Williams also presented evidence that in years with low spill and high transport of juvenile fish, fewer fish in the river results in lower survival, since predators are likely to take a higher number of young salmonids when their numbers are less. He said inriver survival would have been higher if non-tagged bypassed fish had been returned to the river, instead of being barged.

With increasing spill, like that which occurred in the past few years, he said inriver survival increases, since more smolts in the river are reducing an individual's vulnerability to predation.

His ultimate conclusion is that direct or indirect effects of spill may not improve smolt-to-adult survival for the population because the cumulative effect must offset the effect of transporting fewer steelhead, since steelhead always seem to survive better to adulthood if transported.

The Corps of Engineers' Mike Langsley and Marvin Shutters presented the council with the results of the most up-to-date acoustic tag data of smolt survival between Bonneville Dam and the ocean.

They said that spring chinook smolts averaged about 79-percent survival in 2008, while fall chinook survival averaged 83 percent through the estuary, significantly better than in 2006 and 2007.

The largest losses appear to be in the bottom 35 kilometers (22 miles) of the river for springers, and the bottom 50 kilometers (31 miles) for the young falls. At this time, there is no explanation why more fish seem to die near the mouth of the river.

If the Corps' data are correct, fish mortality in the estuary is about twice that of the hydro system per distance traveled (For presentations, click here for the Council's March agenda). -B. R.

[3] Ocean Is Number One Suspect In Sacramento Fish Declines

A pre-publication report released by NOAA Fisheries last week laid the blame for the Sacramento chinook decline at the feet of Mother Nature.

The federal scientists said most clues pointed to poor marine survival in 2005 and 2006 after the fish reached salt water as the main factor in the extremely poor adult returns for the past two years.

Only 88,000 natural and hatchery fall chinook returned in 2007 and 66,000 in 2008, while annual escapement goals are in the 122,000- to 180,000-fish range.

As late as 2004, California sport and commercial fishers were hauling in more than half a million fall chinook south of Point Arena, with another 300,000 fish left over to escape to Central Valley rivers.

But conditions changed quickly. Coastal upwelling was poor the following two years, which played havoc with offshore food webs. And fish weren't the only victims--thousands of seabirds starved as well.

Unfortunately, fish managers didn't see it coming, and allowed too many chinook to be caught in 2007, even though that harvest was only about one-third of what managers had expected.

The fishery should have been closed in 2007, as it was last year, when Congress provided $170 million to commercial trollers and related businesses to make up for the extended vacation.

The report looked at more than 40 different possibilities for the sudden decline, including increasing water withdrawals from the Sacramento system for agriculture.

However, it pointed out that though water diversions in January 2005 set records, they were at near-average levels in the spring when most of the juvenile fall chinook migrated to sea. In summer and fall, the Delta diversions rose again to near-record levels.

Pumping station in the Sacramento River Delta.
--courtesy California Dept. of Water Resources

In 2006, the report said, total water exports at state and federal pumping facilities in the south delta were near average for winter and spring, but were above average in June, and near records again that summer and fall.

The report also noted that gates were closed at the Delta Cross Channel from February through May, an action that has been in place since 1995.

"The evidence pointed to ocean conditions as the proximate cause," said the report, "because conditions in freshwater were not unusual, and a measure of abundance at the entrance to the estuary showed that, up until that point, these broods were at or near normal levels of abundance. At some time and place between this point and recruitment to the fishery at age two, unusually large fractions of these broods perished."

With both broods entering the ocean when upwelling was weak, sea surface temperatures warm and prey density low, it was no surprise that fish sampled off San Francisco in 2005 were "in poor physical condition," the report said.

NOAA scientists also noted that the harvest model used to regulate fisheries had overestimated pre-season abundance of the fall chinook in 2007.

"Had the pre-season ocean abundance forecast been more accurate and fishing opportunity further constrained by management regulation, the SRFC [Sacramento River Fall Chinook] escapement could have been met in 2007," the report said.

The feds said degradation of freshwater habitat and heavy reliance on hatchery fish--which has been up to 90 percent--likely played roles in the collapse as well.

And if the trend in climate variability continues, "more extreme" variation in the abundance of both Sacramento stocks and coast-wide salmon populations will be seen.

"We can expect to see more booms and busts in this fishery in the future in response to variation in the ocean environment," the report said.

The feds recommended operating hatcheries differently in order to both increase diversity and reduce adverse impacts on wild fish--which could help spread the risk to stocks in years of poor ocean conditions. They noted that some salmon that had left earlier and later than the fall chinook showed better survival.

The feds also called for better water management and more habitat restoration. They said a more diverse population would have developed a natural buffer to climate variations.

Instead, said the report, "We are now left with a fishery that is supported largely by four hatcheries that produce mostly fall chinook salmon."

But the situation has already improved. Ocean conditions have turned around and the Sacramento runs are expected to improve next year. -B. R.

[4] Niners Nix Challenge To Feds' Hatchery Policy

The 9th U.S. Circuit Court of Appeals has upheld a NOAA Fisheries hatchery policy after a federal district court ruled nearly two years ago that it violated the ESA.

In 2007, environmental groups were successful in Western District Court of Washington, where Judge John Coughenour ruled that the federal fish agency violated the ESA when it lumped hatchery steelhead in with wild fish when considering the ESU [Evolutionarily Significant Unit] for upper Columbia steelhead. He also agreed with the groups' position that the feds were wrong to downgrade the steelhead ESU's status from endangered to threatened.

But in an appeal by the feds, the Niners' panel reversed the district court's ruling, and said the district court should grant NMFS' motion for summary judgment.

The three-judge panel said NOAA deserved deference, and that its judgments were reasonable.

"The record shows that NMFS approached the listing decision in a thoughtful, comprehensive manner that balanced the agency's concerns and goals," they said.

The ruling also likely ended a 10-year challenge from the Pacific Legal Foundation that said the agency must not distinguish between hatchery stocks and wild fish when both are included in the same ESU.

Arguing as interveners in this appeal, the PLF and fellow intervenor Building Industry Association of Washington said the feds couldn't single out the wild component for protection. It's been their position since 2001, when they won a ruling in the Alsea Valley v. NMFS decision regarding Oregon coastal coho, which said that NMFS must include both the hatchery and wild components in a listing, since both were in the same ESU.

Rather than appeal, NMFS revised its policy to accommodate the ruling by including hatchery stocks, but still placing most importance on maintaining the viability of the wild fish.

"Nothing in the text or legislative history of the ESA requires equal treatment for members of the same ESU," the appeals court said in its latest decision. The court also said NMFS has the discretionary authority to decide which hatchery stocks are helpful or harmful to the natural fish. -B. R.

[5] Mark-Selective Chinook Fishery A Possibility Off Washington Coast

The Pacific Fishery Management Council will likely recommend another year off for salmon fishers in California and Southern Oregon, but expects more fishing opportunities off Washington than last year. Included in their options out for public review, is one that calls for a mark-selective fishery for recreational fishers between Westport and the Columbia River area.

If it flies, the sporties would get more chinook to catch and have a reduced impact on the ESA-listed wild chinook from the lower Columbia region. The recreational chinook quota would be 38,000 fish with the mark-selective option, but only 10,000 to 22,500 without it.

"In a year like this, adding chinook selective fisheries in the ocean would help us meet or exceed our conservation objectives while allowing for meaningful recreational fishing opportunities in the ocean," said WDFW interim director Phil Anderson.

For nearly a decade, the mass marking of hatchery-produced coho salmon has allowed anglers to fish selectively in Washington's ocean waters. Mass marking of lower Columbia River hatchery chinook--known as "tules"--has been under way since the mid-2000s and the PFMC is considering using this management tool in ocean fisheries for chinook, Anderson said.

Sport fishers already target hatchery coho with a mark-selective fishery, and big numbers of them are expected this summer, with a northern Oregon and Washington quota that ranges from 168,000 to 189,000 fish, eight or nine times last year's quota.

Commercial chinook quotas range from 10,000 to 22,500, similar to last year, with a 32,000-36,000-coho quota, also eight or nine times higher than last year.

Managers expect the highest return to Columbia River coho hatcheries since 2001, and Oregon coastal natural coho to show a similar increase-it's the second highest forecast since 1996. -B. R.

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