[2] Judge Gives Administration Another Month To Study BiOp
Last week, BiOp judge James Redden gave federal officials another month to work on their final position in regard to the latest plan for operating dams and saving salmon, but it looks less likely that any kind of settlement with plaintiffs in the ongoing litigation will be reached.
The feds, scheduled to report to the judge Aug. 14, said they needed more time to talk to all plaintiffs and explain their process and position before reporting to the court.
On Aug. 10, Judge Redden OK'd the feds' latest request. The next day, plaintiffs filed their own request for a status conference with the judge and other parties to air their concerns about the process.
Despite repeated requests, they said, they had not had any "meaningful engagement" with agencies and the administration to determine whether further talks were warranted.
So far, the plaintiffs have presented their positions to administration officials in two hour-long listening sessions. Defendant-intervenors got equal time. Federal officials have also heard from agency scientists, and independent ones, as well.
After reviewing some documents and emails garnered through the FOIA process, plaintiffs said it was clear the administration was moving forward to accept the "Bush" salmon plan, and that deficiencies in the 2008 BiOp, identified by both plaintiffs and the judge, "apparently have been largely ignored or down-played."
But the judge denied their request on Aug. 12 without any explanation, which surprised some long-time policy wonks and short-circuited a noisy press release from environmental groups. The release touted a letter sent to Commerce secretary Gary Locks by more than 100 "scientists" that asked him to reconsider the current salmon plan.
Plaintiff environmental and fishing groups, Oregon, and intervenor the Nez Perce Tribe are clearly worried about the direction the administration is headed.
"We are willing to talk about the next steps and would love to find some common ground with this administration, but we're skeptical about their path," said Nicole Cordan, legal and policy director of the Save Our Wild Salmon coalition, in a press release. "Unfortunately, nothing that we've heard or seen to date indicates that we're likely to see anything more than the same general Bush administration salmon plan 30 days from now. Adopting the standards and analysis in the Bush plan while adding a few additional bows to the box, doesn't change the contents of the box--it's still an illegal and scientifically corrupt plan, not the result of a thoughtful review by an administration that has repeatedly stated the importance of scientific integrity."
The increasing likelihood that the administration will add breaching studies of the four dams to the BiOp to satisfy the judge has led the plaintiffs to wage an all-out war in the press. Both the New York Times and the Los Angeles Times wrote editorials last week calling on the administration the dump the current salmon recovery plan.
"It has become clear," plaintiffs said in their filing, "that that the unilateral process federal defendants have followed to finalize their decision jeopardizes any opportunity that may remain to resolve this controversy. In order for this process to lead to any correction of the deficiencies in the 2008 BiOp, there must be a marked change of course in both substance and process by federal defendants."
Plaintiffs accused BPA and other federal agencies of presenting the Obama Administration with misleading information, an accusation that was echoed in the SOWS press release.
But plaintiffs themselves downplayed the improving numbers of listed fall chinook, runs that have actually surpassed recovery thresholds in recent years, by noting that "the adult returns have not been sustained over any meaningful period of time..."
They also said dam removal costs cited in a April 29 presentation by federal agencies to administration officials were lowballed by BPA, and that the amount of power needed to make up for the loss of the dams was overestimated.
But on Aug. 13, Paul Norman, BPA senior vice president for Power Services fired back, saying the plaintiffs "misrepresented the Northwest Power and Conservation Council's recent analysis of dam removal costs.
"We stand by the high end of our $450 to $850 million range of costs of dam removal," said Norman in a letter to SOWS' executive director Pat Ford.
An analysis of dam removal costs, evidently completed by Northwest Energy Coalition staffer Steve Weiss, provided the basis for the contested numbers. His analysis concluded that it would cost the region only $173 million to $321 million a year to replace the power lost by taking out the four lower Snake dams.
Norman said the Council's cost estimate was based on "average" forecasts of natural gas prices and CO2 emissions, but costs could actually be much higher. He also noted the Council estimate did not add in the value on the reserves and voltage support provided by those four projects.
Norman also said the plaintiffs' statement that only 750 aMW of the dams' 1,100 aMW output would be replaced, was also incorrect.
"Their [the Council's] analysis," said Norman, "reflects the reality that essentially all of the dams' 1,100 aMW would have to be replaced, either through construction of new power plants or increased output from existing power plants. Most of this generation would be C02 emitting and would cost much more than operating these dams."
Norman said the Council analysis did not show that conservation and renewables would be the replacement resources if the dams were removed, "since these resources will be developed even with the dams in place."
He also pointed out that the Council analysis verified that dam removal would boost carbon emissions by 3 to 4 million tons per year, from replacement of hydro by fossil-fuel generation.
He said dam removal would push carbon emissions up, and keep the region from reaching the Oregon goal for emission reductions.
Norman said the SOWS' rate impact estimates were also wrong , because the power replacement costs were too low.
"Parenthetically," said Norman," I would note that fully one-third of BPA's power rates to our 130 utility customers go to cover the costs of the current fish recovery program. If the costs of replacing the dams were added to BPA's rates, this would increase the impact to over half of our rates."
He noted that the four dams' output was almost equal to the 1,200 aMW of conservation tha BPA and its customers have achieved over the past 27 years at a cost of more than $2 billion.
On Aug. 17, federal attorneys sent a letter to all parties in the litigation inviting them to meet sometime around the end of the month. They said regional federal executives will attend as well. "We envision a morning session where the Administration will present its current position on the FCRPS BiOp and then the plaintiffs could present what they believe is required to settle this litigation. In the afternoon, we would enlist the aid of a mediator to facilitate a discussion to determine if there are areas of common ground."
They said even a second meeting might be possible. Neither would be open to the public.
Many of the same parties took part in mediation over the 2000 FCRPS BiOp, In a process that took more than a year, it ultimately failed to resolve differences over the old salmon plan which included dam breaching studies to commence if fish numbers hadn't reached certain levels five to eight years after implementation. Plaintiffs ultimately walked away from the table. -B. R.
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