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NW Fishletter #262, May 28, 2009

[2] Optimism Wanes As Judge Offers 'Guidance' Over BiOp Changes

An Oregon federal judge has released a letter that makes good his promise to offer guidance to the Obama administration in its study of the new hydro BiOp. But Judge James Redden's suggestions are not exactly what BPA customers were looking for.

"His letter is ominous and puzzling," said Scott Corwin, executive director of the Public Power Council. He said Judge Redden's remarks don't track with his earlier statements.

Back in March, Redden told litigants in the salmon battle that the government's latest plan could use some tweaking, but, overall, it "was a pretty good BiOp."

In his May 18 letter, Redden gave the region little credit for salmon recovery efforts, saying federal agencies have spent most of the decade "treading water and avoiding their obligations under the Endangered Species Act. Only recently have they begun to commit the kind of financial and political capital necessary to save these threatened and endangered species, some of which are on the brink of extinction. We simply can't afford to waste another decade."

The additional actions outlined in his latest letter "may avoid another remand," he said.

But one judge's idea of tweaking--more flow, spill, a seemingly open-ended suite of new habitat actions, and a contingency plan for breaching lower Snake dams--has gotten other customers, who were ebullient in March, reeling from shock.

At the March BiOp hearing, Redden said that estuary habitat was the BiOp's biggest problem. He also praised the collaborative effort, and defendants were optimistic an agreement would soon be reached.

But Redden tipped his hand in April, when federal defendants called for a meeting to announce more estuary actions at a cost of $5 million a year. He barely batted an eye, and told parties the plan needed plenty of more work. But he finally seemed to be satisfied with the feds' jeopardy analysis; he didn't even mention it.

Now he doesn't even give the feds much credit for their "trending towards recovery" jeopardy analysis.

In his letter, Redden reiterated his concerns over the feds' analysis, and said their conclusion that all 13 listed ESUs in the Columbia Basin were heading toward recovery was "arbitrary and capricious" for a bevy of reasons.

Redden said the feds relied "improperly" on "speculative, uncertain, and unidentified estuary and estuary habitat improvement actions" to find that these stocks are, "in fact, trending toward recovery."

"This development could fracture the region and set it back decades," said Terry Flores, executive director of Northwest RiverPartners. Flores said not only is the hydro BiOp at risk, but so is the new harvest BiOp, which manages both tribal and non-tribal harvests for the next 10 years.

The harvest opinion depends on the same jeopardy analysis as the hydro BiOp, and one irrigators' group has promised to sue over it if the judge throws out the hydro BiOp.

Flores said the agreements among BPA and tribes and states to fund nearly a billion dollars' worth of habitat restoration and new hatcheries could also be in jeopardy. Those tribal accords say that either party could walk if there is a "material" change to either hydro operations or harvests.

In his latest missive, Redden said the feds' own scientists had already concluded that the benefits from many of the proposed mitigation measures were unsupported by scientific literature.

In the March hearing, feds said the issue had more to do with a lack of data and literature, rather than any judgments that such work had no value.

Redden also said the feds "assign implausible and arbitrary numerical survival improvements to tributary habitat actions, even though no particular actions are specified after 2009, and there is no scientific data to support those predictions."

The feds have argued that their numbers are supported by "expert opinion," since little research exists in this realm, either, although there is a peer-reviewed article that suggests more smolts are produced in places where habitat restoration work is completed.

Redden also faulted the 2008 hydro BiOp for not including performance standards to measure whether habitat improvements actually result in the predicted survival improvements. The Corps of Engineers recently announced the financial stimulus bill includes more than $20 million in added spending for BiOp-related projects.

Even more, he wants the feds to add a contingency plan for the listed stocks if the habitat improvements and other actions fail to keep the stocks from avoiding jeopardy.

And he complained again about the feds not offering a "rational explanation" for why the BiOp calls for spilling less water than his temporary court order that will be in effect again in spring and summer.

The feds have argued that their analysis shows ESA-listed steelhead and chinook would benefit more from less spill and more barging later in the season.

An independent panel of scientists agreed with the feds' appraisal, which also found little to no correlation between spill and adult returns. But the panel said more barging might hurt ESA-listed sockeye, although they admitted there was no data to support that conclusion.

The judge sided with the science panel's recommendations.

In his letter, Redden reminded federal attorneys that in April, they had said the government would not amend the 2008 BiOp. But the judge said it is "clear" that the concept of adaptive management is flexible enough to implement additional actions within the existing BiOp.

So in his own prescriptive way, the judge set forth exactly what the feds must do to satisfy him. That includes more money for estuary and tributary action, along with monitoring and evaluation. Evidently, the recent MOA signed with Washington state that added another $5 million in annual estuary spending was not enough to satisfy him.

He also wants specific projects identified for improving tributaries and the estuary beyond 2009, along with periodic reports to the court and independent scientific oversight of the actions, and a commitment to additional flows in both the Snake and Columbia rivers.

By agreeing to such terms, critics say such open-ended funding and flow commitments could have profound impacts on the region's next power plan.

The judge also wants the feds to develop a contingency plan to study alternative hydro actions like flow augmentation "and/or" reservoir drawdowns, "as well as what it will take to breach the lower Snake dams if all other measures fail (i.e., independent scientific evaluation, permitting, funding, and congressional approval)."

NOAA Administrator Jane Lubchenco was in Portland early this week to hear from her own scientists and others regarding issues relating to the 2008 BiOp (see Story 3).

Environmentalists are excited that Lubchenco, who comes to her new job with a history of environmental advocacy as a professor at Oregon State University, will be able to get close to the breaching question.

However, any policy call on these possible BiOp additions will undoubtedly be made at a higher level. Lubchenco's boss is former Washington Gov. Gary Locke, who didn't support dam breaching during his terms in Olympia.

Meanwhile, back at BPA, the bureaucrats in the trenches were reported to be glum about any possible outcome. The consensus? There's no scenario that's a winner.

If NOAA sticks to its own best available science and the Obama administration backs it up, the judge seems certain to rule against it. Then, it would be on to the 9th U.S. Circuit Court of Appeals.

If that occurs, the harvest BiOp and the Upper Snake BiOp could go down as well, which could impact the Snake River adjudication process. Water interests promised some years ago that they will go after harvests if the Upper Snake BiOp is overturned.

It may be telling that Redden's latest letter went out to 42 different attorneys. -B. R.

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