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NW Fishletter #269, December 15, 2009

[2] Biop Judge Says Salmon Plan Is Close

In late November, federal agencies were pleasantly surprised at the reception the latest additions to their Columbia Basin ESA salmon plan received in U.S. District Judge James Redden's courtroom. The judge told federal officials at a Nov. 23 hearing that it was a great move to take the hydro BiOp back to Washington and work on it.

But Redden also said it will take a little more work to get the BiOp add-ons to pass muster under the strictures of the Administrative Procedures Act.

That extra work could involve restarting consultation over the biological opinion that would be limited to adding the Obama administration fixes, now lumped together in something called the Adaptive Management Implementation Plan. This course of action would also allow for insertion of the documents used to develop the AMIP into the administrative record.

Redden asked for help on the subject, and the feds are expected to brief him before Christmas. He specifically wanted to know whether they will voluntarily reinitiate such a limited consultation. He also solicited any other "creative, constructive suggestions." Plaintiffs will get a chance to respond.

Federal attorney Coby Howell said the feds had real concerns about reinitiation because it could renew the whole cycle of litigation over the salmon plan. At a previous hearing, Howell had told the judge that the feds would not reinitiate any consultation.

This time, Howell said he didn't know if reinitiation could be as limited and as simple as inserting the AMIP into the BiOp. "It could take a very long time," he told the judge. "We've been at this for four years now. We don't want to go into that cycle again."

He recommended that the AMIP simply be added to the current BiOp under the 9th U.S. Circuit Court of Appeals' record-review rules.

But the judge was still unsure whether APA guidelines would be satisfied if such a course of action were pursued. "I'm not convinced on it," he said.

Earthjustice attorney Todd True, representing plaintiff environmental and fishing groups, argued that there was no precedent for doing what Howell had suggested.

Once the legal issues are resolved, Redden indicated that he would likely OK the plan. He just wants to make sure the Niners won't send the BiOp back to his court on a technicality.

It seemed clear to everyone that the plan will be appealed by plaintiffs once the judge signs off on it.

Plaintiff groups got the message loud and clear after Redden voiced praise for the salmon plan--both the BiOp and the AMIP--calling it a "good piece of work."

And though the judge still had concerns about some specific actions, he didn't complain too much that the feds didn't take his May advice and boost spill at dams and add more flows above BiOp levels.

Obama officials, led by NOAA head Jane Lubchenco, actually did take many of his recommendations to heart, since the AMIP calls for more actions to improve habitat, more monitoring, and a contingency plan that includes looking at breaching lower Snake dams if the runs start to crash.

Redden had said in May that he would likely can the plan without more estuary and tributary restoration actions, monitoring of results and contingency planning for drastic actions like breaching dams and drawing down John Day Pool to boost juvenile fish survivals.

Before the lunch break, the judge said he realized that a settlement plan with both sides "was probably never going to work," and he stumped for one of his pet issues.

"If we can get more water without chopping down the temples [the dams] on the Snake," he said, "I want to talk about that [after lunch] ... that's not in anything, and I think it would cover an awful lot of problems."

But in the afternoon session, Redden seemed a little less concerned about adding more water and dam spill to the BiOp equation.

In their last filing before the hearing, the feds were quite adamant about sticking to their BiOp barging policy that cut spill for two weeks in May and boosted barging young fish from lower Snake dams. Otherwise, they said they would be gambling with the survival of the ESA-listed Idaho steelhead runs and operating counter to the best available science.

But Justice Department attorney Howell told the judge that at this point, they don't know whether they will go to maximum transport in the spring, and no final decision has been made on when to terminate summer spill.

Howell may have been unaware that just a few days before the hearing, NOAA Fisheries had released a preliminary report of its latest research on fish barging.

The report found that wild steelhead barged from the Snake down through the hydro system in 2006 returned at about three times the rate of inriver migrating wild steelhead that were not detected at the Snake dams (1.46 percent versus 0.57 percent--see story 3). Non-detected fish pass the dams via turbine or spillway, rather than a route that bypasses them around turbines. Inriver migrating wild spring chinook returned at a slightly higher rate than barged wild chinook (0.84 percent versus 0.73 percent).

Terry Flores, executive director of Northwest RiverPartners, a coalition of BPA customers, said it was very clear that Redden was impressed with the Obama administration's review, and that he was interested in getting the AMIP included in the record without much second-guessing of its elements.

She said it was obvious that Redden was not buying plaintiffs' allegations that they had been shut out of settlement talks.

The feds have until Dec. 21 to tell the judge how they plan to add the AMIP to the BiOp. -B. R.

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