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NW Fishletter #360, August 1, 2016

[2] Judge Simon Gives BiOp Defendants Five Years For EIS

U.S. District Judge Michael Simon decided July 6 to allow federal agencies nearly five years to complete an environmental impact statement (EIS) on the Federal Columbia River Power System (FCRPS). The EIS will support a proposed new BiOp, along with reasonable and prudent alternatives.

In addition to adopting the federal defendants' proposal for a final EIS by March 26, 2021, the judge granted their request to extend the deadline for the new BiOp by nine months to Dec. 31, 2018. The plaintiffs, represented by Earthjustice, had asked for an EIS and a new BiOp in two-and-a-half years.

Prior to Simon's ruling on the BiOp/EIS schedule, the Warm Springs, Umatilla and Yakama tribes, said in a July 1 brief that the environmental impact statement will "eclipse any analysis ever conducted in the Columbia Basin." The tribes are amici curiae, or friends of the court, in the litigation.

The judge's May 4 decision determined that the 2014 BiOp on FCRPS operations violated the National Environmental Policy Act (NEPA), which requires a programmatic EIS.

The three amici tribes said the NEPA analysis could provide a "foundation for a potential repose after 25 years of FCRPS-related litigation, if done correctly.

"This should not be a harried discussion, lacking adequate time for deliberation and robust public involvement," the tribal brief said.

Also in July 1 briefs supporting a five-year timeline, defendant-intervenors Northwest RiverPartners and Inland Ports and Navigation Group (IPNG) expressed concerns about studying the drawdown of four lower Snake River dams in the EIS.

If dam removal is covered in the EIS, the ports and navigation group said that evaluating the socioeconomic impact from removal of one or more FCRPS dams would be a "monumental undertaking."

"Changes to geographic features will impact housing, population density, land use, FEMA designations and insurance, and will conceivably shift employment and economic realities along the Columbia and Snake Rivers," IPNG's brief said.

"In sum, a 'hard look' will require a deep look into the institution that the FCRPS has been in the region for more than 75 years," it said.

"This NEPA process, while conducted by three federal agencies, is more for the tribes, state citizens, and their congressional representatives than it is for the agencies," said the tribal brief.

Federal defendants NOAA Fisheries, U.S. Army Corps of Engineers, U.S. Bureau of Reclamation and BPA emphasized in their filing how they would integrate compliance with both NEPA and ESA and provide "robust public involvement." -L. B.

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