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NW Fishletter #359, July 5, 2016

[5] Plaintiffs Say Do BiOp And EIS In 2-1/2 Years

The National Wildlife Federation, State of Oregon and Nez Perce Tribe say two-and-a-half years is enough time to develop both an EIS and a new biological opinion for the Federal Columbia River Power System.

In their June 3 filing, the defendant federal agencies said an environmental impact statement alone would take five years. U.S. District Judge Michael Simon, whose May 4 ruling rejected the current 2014 BiOp, set a March 31, 2018, deadline for a new biological opinion.

The judge asked litigants to propose a timeline for a new EIS, a requirement of the National Environmental Policy Act (NEPA), which the judge said had been violated by NOAA Fisheries and the three "federal action agencies"--the U.S. Army Corps of Engineers, U.S. Bureau of Reclamation and BPA.

NWF, Oregon and the Nez Perce Tribe said in their June 17 joint response that the two-and-a-half-year schedule, starting July 2016, "provides a clear path for integrating compliance with NEPA and the ESA."

The plaintiffs are represented in the litigation by Earthjustice.

Their schedule "avoids the fundamental flaws of the federal defendants' proposal, which," the plaintiff filing continued, "would require either a new BiOp when the current illegal one expires in the absence of compliance with NEPA, or a significant and unanalyzed extension of the inadequate 2014 BiOp."

The plaintiffs said their proposed schedule is 10 months longer than the court allowed for a new BiOp.

Under the plaintiff's proposal, the scoping phase of developing an EIS would start now and be completed by Jan. 1, 2017. The scoping process is considered key to defining the range of actions for study in the impact statement.

The next step, a draft EIS, would take until Nov. 30, 2017, said plaintiffs. They acknowledged that in developing alternatives and their impacts, the government might need to contract for numerous analyses, including on economic and power-generation effects.

"But for many of these analyses," the Earthjustice attorneys wrote, "the government has existing studies as a starting point and does not need to start from scratch across the board."

Furthermore, they said a draft EIS should proceed in coordination with consultation on a new biological opinion, a requirement of the Endangered Species Act.

Thirteen salmon and steelhead species in the Columbia River Basin are listed as threatened or endangered under the ESA.

The court should require "submission of a draft biological opinion concurrently with or soon after publication of a draft EIS," the plaintiffs' response said.

Next would be a 90-day public-comment period on the draft EIS ending March 1, 2018, according to the proposed schedule.

Following the close of public comment, the agencies would review the comments and prepare a final EIS, which "should be closely contemporaneous with release of a new BiOp ... and no later than Dec. 31, 2018," recommended the plaintiffs.

Dec. 31, 2018, is the date the current, illegal BiOp will expire, the plaintiff brief said.

After that, formal records of decision from the federal agencies would normally follow a final EIS and BiOp in 30 to 60 days.

The plaintiffs based their proposal in part on the Central Valley Project EIS, in California, and the Klamath EIS, which were cases the federal defendants used as reference points to develop their proposed schedule.

The federal agencies proposed completing a final EIS by 2021 and, in a footnote, said a new BiOp might take longer than the court's March 31, 2018, deadline.

Replying to the plaintiffs' proposed timeline on July 1, the federal government and other defendant parties stuck with their proposal for a five-year EIS schedule. Next will be a decision by Judge Simon. -Laura Berg

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NW Fishletter is produced by Energy NewsData.
Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: Laura Berg
Phone: (206) 285-4848 Fax: (206) 281-8035

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