[1] Feds Get Last Words In BiOp Fight
Federal attorneys say they won't gamble with the survival of ESA-listed steelhead, and that's why they are sticking to their BiOp recipe for a maxed-out fish barging policy in May, which is at odds with the court-ordered spill regime blessed by U.S. District Judge James Redden.
Their comments were included in the Justice Department's reply to plaintiffs' response to the Obama administration's additions to the 2008 BiOp governing federal hydro operations in the Columbia Basin, which were released Sept. 15.
Most of the Obama administration's modifications dealt with specific changes that Redden suggested should be included before he would approve the salmon plan back in May. Redden recommended his own court-ordered spill regime be extended over the 10-year life of the BiOp.
Plaintiff environmental and fishing groups, the state of Oregon and the Nez Perce Tribe are asking for even more than what Redden has OK'd. They want 24-hour, seven-day-a-week spill to the dissolved gas caps that the feds say has no support from scientific studies.
However, such an action would make significant reductions in the number of steelhead barged from lower Snake dams. Years of studies have shown benefits to adult steelhead survival from barging juveniles rather than letting them migrate inriver.
The feds have modified their position a little. They say now that the spill/transport issue will go before a regional implementation group every year to make sure the latest information is being incorporated before a final decision is made.
But it seems the government isn't going to budge on the steelhead issue. In its latest filing, it said the plaintiffs have shown no "identifiable" quantitative benefit from their proposed 24/7 gas cap spill regime, but are asking the court to assume that it will not harm the fish.
"The agencies are not prepared, nor are they permitted, to gamble with Snake River steelhead," said the feds' filing.
The feds also claimed the plaintiffs' contentions regarding summer spill are not based on the best science. Plaintiffs want summer spill to last until Aug. 31, regardless of how many, or how few, fish are passing the dams.
The feds' plan also says 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.
The feds also took issue with the Nez Perce Tribe's recommendation that Snake River dam breaching should have been included in the plan. But without authorization from Congress, the feds said it's not an action reasonably certain to occur. Besides, they said it still hasn't been proven that such drastic action would have a net biological benefit for the ESA-listed Snake stocks.
To satisfy the judge, the feds' plan includes the contingency of breaching if stock levels drop precipitously and future studies show a real benefit.
The feds also defended the habitat improvement actions in the BiOp, but said survival benefits are not guaranteed, because that kind of standard, which plaintiffs want, is impossible to achieve.
In their earlier response, plaintiffs argued that benefits predicted by the feds were unsupported by any scientific literature. They referred sarcastically to new restoration actions as a product of the feds' "Lake Woebegone hypothesis--that henceforth, all estuary habitat projects will be above average."
The feds came back swinging, noting that the nearly $1 billion in added fish-recovery actions might be in jeopardy if the judge agrees with plaintiffs.
"But, if this court decides that the plaintiffs are correct in their assertions that survival benefits must be guaranteed with project-level descriptions in advance of multi-year implementation, the foundation of these agreements [the Fish Accords with states and tribes] with the FCRPS BiOp will be called into question," said the feds, who also noted that their incentive to pursue habitat mitigation commitments would be "significantly diminished" if the projects had no ESA value, as plaintiffs claim.
The feds also explained why they decided no extra flows are needed for fish, in addition to what the BiOp already called for. They also took aim at the state of Oregon's "quest for more water," by including a pie chart that showed the state made up just a tiny piece of the flow augmentation pie compared to any of the other players.
The feds' turned down Oregon's request for a new collaboration, because they don't agree with the state position that "habitat cannot mitigate for hydro."
The state of Oregon, in an earlier filing, said that long-term contingencies like drawing down John Day Pool or breaching lower Snake dams should be ready for action before fish population levels sank to 10 percent of their four-year geometric mean, as the Obama plan calls for.
But the feds said that Oregon has confused recovery plans with biological opinions.
"While the administration appreciates Oregon's gesture," said the feds, "irreconcilable differences and unsuccessful discussions between the federal agencies and the state demonstrate that such an agreement is not possible."
The parties to the Accord process--three Northwest states and six tribes that support the salmon plan--sent their own response to the plaintiffs' criticisms of the Obamacized BiOp.
"For several decades, and to this day," said the sovereigns' filing, "Oregon and the Nez Perce Tribe have passionately pursued and spent millions of BPA and other state and federal dollars annually on the type of habitat projects required by this BiOp, and the environmental plaintiffs have time and again stood before this court and effusively stated their support for habitat restoration and protection and the Fish Accord habitat funding commitments. We applaud and support each of the plaintiff's efforts to make habitat protection a cornerstone of salmon recovery in their management actions. The lack of consistency between their management and policy actions and their legal tactics on the issue of habitat is curious."
Redden scheduled a Nov. 17 conference in his courtroom to discuss issues raised by the Obama administration's additions to the hydro BiOp, but last week he announced the date has been moved to Nov. 23 so that NOAA head Jane Lubchenco can attend the proceeding. The addition of one of the federal government's top scientists could dramatically change the dynamics of the review, say some long-time salmon policy wonks.
They say it means the government is going all out to defend its scientific positions in the latest salmon plan.
Lubchenco personally led a review of the salmon plan by the new administration, which found it to be scientifically sound.
After the review, which included input from an independent panel of scientists, the new administration added elements to address some of the key uncertainties. These included contingency measures such as studies that would examine the possibility of breaching lower Snake dams 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.
Lubchenco was a well-known marine ecology professor at Oregon State University before she was tapped for the top spot at NOAA. She has earned many scientific honors over the course of her career, has served as president of the American Association for the Advancement of Science and won a MacArthur "genius" grant some years ago.
NOAA Fisheries spokesman Brian Gorman said Lubchenco's appearance may have a triggering effect of its own, with the possibility of more big names from the administration showing up. He said one or more tribal chairs may also appear at the hearing to express support for the government's 10-year salmon plan. -Bill Rudolph
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