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NW Fishletter #266, September 17, 2009
 Administration Hopes BiOp Tweaks Will Satisfy Judge
Against an almost surreal backdrop of the increasing likelihood of absolutely huge salmon runs next year in the Columbia Basin, Obama administration officials said last Tuesday they will support the 2008 hydro BiOp. But they added some significant tweaks before sending it off to BiOp Judge James Redden for his review, hoping to get his final approval. The feds said their additions include a more precautionary approach to salmon recovery than the original plan, mainly due to uncertainties associated with climate change.
Environmental groups who had sued to have the "Bush" salmon plan thrown out were livid, and said the administration had reneged on its word to put science first in all policy deliberations.
But NOAA Administrator Jane Lubchenco told reporters Sept. 15 that the science behind the salmon plan was solid, a decision she and other officials made after spending months weighing the strengths and weaknesses of the third try by federal agencies to pass the judge's muster since 2000.
Back in May, Judge Redden made some strong recommendations to federal agencies about what would be needed before he would OK the salmon plan, despite the fact that most states and Basin tribes already supported it, and BPA had committed an added billion dollars to pay for it over the next 10 years.
Lubchenco said the points raised by the judge have been addressed, as well as concerns by others. But the administration still didn't give the judge everything he wanted, and the big question is whether they have done enough for him to approve it, or will he side with environmental and fishing groups, the state of Oregon and the Nez Perce Tribe, who all say it should be thrown out.
It has been tough for policymakers to read Judge Redden's intent. Back in March, he said it was a pretty good BiOp that needed some tweaks. However, in May, he confused policymakers when he added a whole slew of conditions that he strongly hinted must be satisfied before he would endorse the 2008 BiOp, including some contingency studies if the BiOp failed to improve ESA-listed stocks, that also looked at the possibility of breaching the four lower Snake dams.
NOAA's Lubchenco said the administration was committed to follow the science in its exhaustive review, a process that included listening to defendants and plaintiffs, intervenors, agency and independent scientists before the decision was made to keep the BiOp and strengthen it by the addition of an adaptive management implementation plan.
"The administration determined that the science underlying the opinion is fundamentally sound," said Lubchenco, "but there are uncertainties in some predictions regarding future conditions of the listed species. As a result, the administration has developed what we're calling an insurance policy for the fish as part of the biological opinion."
She said key additions are new contingency measures that could be triggered by significant declines in fish abundance, along with improved efforts to track and detect climate change and its effect on listed species.
With the added implementation plan, Lubchenco said the BiOp is biologically and legally sound, based on the best available scientific information, and that it satisfies the ESA jeopardy standard, another issue raised by the judge back in May.
She gave credit to the region for its general consensus, and thanked the judge for facilitating regional dialog and collaboration.
The NOAA administrator said the implementation plan has several main elements; accelerated and enhanced actions to protect species; enhanced research and monitoring to improve the certainty of information needed for decision-making; and two types of specific biological triggers for contingencies linked to declining abundance of listed fish, that will prevent further declines if some fish populations start dropping fast.
But fish populations would have to decline significantly before they got a closer look -- down to 20 percent of the four-year average return. At that point, potential "rapid response" actions would be readied to aid in the short-term, like more spill at dams, increased control of predators, reducing harvest, or cranking up safety net hatcheries.
Studies of long-term contingencies could be triggered if a population declined to 10 percent of its 4-year rolling average, implementing strong actions that would take longer to put in place, but have more overall effect. Lubchenco said these actions would be based on a comprehensive analysis of which populations were in trouble, and under which H (hatcheries, harvest, habitat, hydro) actions would be most beneficial.
"Possible breaching of the Snake River dams remains on the table in this plan, but it is considered a contingency of last resort, and would only be implemented if the analysis suggests that it is appropriate and would, in fact, be beneficial," Lubchenco said. Another long-term contingency is the possibility of drawing down John Day Reservoir.
In lengthy analyses during the production of the 2000 BiOp, the Corps of Engineers found that neither of these drastic actions would be needed to recover the ESA-listed stocks, and that was during a time when Snake stocks showed severe declines.
In the 1990s, Snake River spring chinook numbers dropped into that 10-percent range, after two strong El Ninos reduced both ocean and fresh water productivity. But after 1999, their numbers increased by an order of magnitude, aided by a strong La Nina, that sent ocean productivity skyrocketing. Since then, productivity has dipped, and bounced back again. In 2008, ocean productivity was the highest seen in over 20 years, and has led to record jack counts in the Columbia for both spring and fall chinook.
"It's pretty obvious that climate change is already under way and is expected to have very significant impacts on the Pacific Northwest, and therefore we felt it important to include that into our planning and our thinking," Lubchenco said.
She said enhanced monitoring will give fish managers a better idea when conditions may be changing for listed fish. She said contingency actions were designed to help respond to unforeseen developments, and a new life-cycle analysis of the salmon will help point out where in their life-cycle added actions would be more beneficial.
Lubchenco also stressed that the ongoing incorporation of science into the plan will allow agencies to take advantage of new developments of their understanding of climate change and how it may affect salmon.
The Corps of Engineers will start building a study plan for contingencies like dam breaching that is scheduled to be completed by March 2010. NOAA and other regional scientists will build the analytical tools to assess the impacts of the dams on salmon, so if a dropping population activates a severe decline trigger, an All-H analysis will be conducted to see if the dams are a factor.
Even if such an analysis is inconclusive, said Brig. General William Rapp, commander of the Corps' Northwestern Division, technical studies will be initiated to examine biological, environmental, and economic factors involved in breaching the dams. They will be completed within two years and give the Corps a basis to decide whether to go ahead and complete an EIS on breaching the dams, a necessary requirement before Congress could authorize the action, which could take another two or three years.
The feds may satisfy Judge Redden with their contingency studies, but they admit they are still at odds with the bench over other issues like the BiOp's jeopardy standard and his spill regime.
They are sticking with the BiOp's "trending towards recovery" jeopardy analysis, but they are changing some terminology. They argue that the BiOp's interpretation is correct because it follows in line with a recent Ninth Circuit Court decision that upheld the "survival with an adequate potential for recovery" interpretation of the survival and recovery prongs of the jeopardy standard (Salmon Spawning & Recovery Alliance v. NMFS, 2009).
In their Sept. 15 brief, the feds said, "To the extent there is any remaining confusion or concern that "trend towards recovery" is the legal standard, as described in our previous pleadings and incorporated here by reference, it is not, and any suggestion to the contrary, is incorrect."
The feds also said they will not automatically implement the court's added spill regime for the life of the BiOp because they still feel that it shortchanges overall Snake steelhead and spring chinook survival in May by barging fewer fish. The BiOp calls for ending spill at Snake dams for two weeks in May to maximize the transport of juvenile fish.
Now the feds say they will evaluate the data each year with members of the regional oversight group before a decision is made. They also said they will work with other parties to end spill at lower Snake dams before Aug. 31, because the benefits to fish are insignificant. By drawing out the action until the end of the month, they say the added spill costs several million dollars, and increases CO2 production from alternate energy sources, along with less ability to integrate wind power.
They also told the judge they won't be committing to additional flows for fish, noting that water temperature, not flow, is the most important factor in July and August, and that water from Dworshak Dam is doing a good enough job to cool the route for Snake fall chinook, "an ESU with remarkable recent return numbers."
As for the judge's questioning whether habitat improvement actions in the BiOp will actually result in predicted survival improvements, the feds said both tributary and estuary projects will be monitored annually, along with a comprehensive review every three years. If they find benefits were significantly overstated, they said replacement projects will be implemented to achieve the benefits that were originally estimated.
Utilities and river user groups were generally supportive of the administration's position, but they were not happy that the breaching contingency was included.
"Dam destruction already has been extensively studied and rejected, doing so again is a waste of time and money," said Terry Flores, executive director of Northwest RiverPartners. "It may not help and may even harm the four runs of listed fish on the Snake, and, in fact, is counterproductive because it would take away resources from efforts to protect all the listed resources."
But environmental groups were still trying to paint the plan as Bush-era thinking. "This Bush salmon plan appears to be inconsistent with President Obama's public statements about relying on sound science," said Bill Shake, former regional director for the United States Fish and Wildlife Service. "We scientists believed the President when he said he would protect science and strengthen the ESA, but Secretary Locke has seemingly allowed political pressure to circumvent a decision based on sound science. The federal agency action today is a true reversal of fortune for the Pacific Northwest economy, for an important American resource and endangered species, for communities that depend on salmon for their livelihood, and those who believe that policy should be based on science not politics. We had hoped for more because fishing families and communities deserve more."
Consultant Darryll Olsen, speaking for the Columbia-Snake Irrigators Association, said he was OK with the federal response to the judge's recommendations. He said plaintiffs have told the Justice Department they will not accept the feds' response as adequate and will likely ask for some form of injunctive relief.
Olsen said if Judge Redden rejects the BiOp, he would likely install his court oversight review committee, and call for more spending and other actions. If the judge throws out the salmon plan, Olsen said a clear decision path is open for defendant-intervenor groups to file a lawsuit against the 2008 harvest BiOp, which used the same jeopardy standard in its analysis as the hydro BiOp.
Plaintiffs are not about to give up. "We look forward to explaining to the Court just how little this latest effort accomplishes," said Earthjustice attorney Todd True. "We can do much better -- but not by trying to avoid the problems facing wild salmon in the Columbia and Snake rivers." -Bill Rudolph
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