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NW Fishletter #376, December 4, 2017

[1] Plaintiffs in BiOp Case Tell Court the EIS Approach 'Obscures' Tradeoffs

The planned EIS on the Federal Columbia River Power System is "broader in scope and complexity and more expensive and time consuming than the court indicated is necessary," plaintiff parties in National Wildlife Federation et al. v. National Marine Fisheries Service et al. [01-640] argued in a Nov. 28 status conference before U.S. District Judge Michael Simon.

The plaintiff parties--National Wildlife Federation representing environmental and fishing groups, the Nez Perce Tribe and State of Oregon--were responding to the federal defendants' progress report on plans for the National Environmental Policy Act EIS required by a May 2016 order of the district court. The federal status report was filed in district court Oct. 30.

Most of the alternatives the planned EIS will examine won't be germane to operating the federal power system in a manner that addresses the survival, recovery and habitat needs of Endangered Species Act-listed fish that are the subject of the litigation, the plaintiffs' briefs argued.

The federal status report said the range of alternatives to be considered would be more than one alternative that the government agencies "believe could be adopted in compliance with the ESA."

"This is not, of course, to say that all of the action alternatives evaluated will meet this goal," the federal report said.

The federal defendant parties are National Marine Fisheries Service (NOAA Fisheries), U.S. Army Corps of Engineers and U.S. Bureau of Reclamation.

Defendant-intervenors in the case are Northwest RiverPartners, Inland Ports and Navigation Group, State of Idaho, State of Montana, State of Washington, Kootenai Tribe of Idaho, Confederated Salish and Kootenai Tribes, and the Northwest Power and Conservation Council.

Instead of alternatives that comply with the ESA, the plaintiffs' briefs emphasized, the federal plan is for the EIS to cover the multiple purposes of 14 FCRPS dams--flood control, navigation, hydropower production, irrigation, fish and wildlife conservation, recreation, municipal and industrial water supply, and water quality.

The federal action agencies have estimated the cost of the EIS at $80 million.

The plaintiff brief says the federal approach "will lead to an EIS that obscures, rather than clarifies, the tradeoffs among reasonable alternative courses of action for dam operations and mitigation measures that comply with the ESA."

The Nez Perce's brief said that the scope of the planned EIS could result in failure after five years of effort but "consume extraordinary agency, party and regional resources over the next four years."

The schedule proposed by the federal defendants and adopted by the court is for the EIS to be completed in 2021.

U.S. Department of Justice attorneys argued that the NEPA review must be broad, because in addition to scoping a set of alternatives for ESA and listed species, a number of statutory requirements are affected.

The other issue brought by the plaintiffs involves the plan for a new BiOp in 2018.

Plaintiff attorneys told the judge that the planned 2018 BiOp--ordered by Simon--would not comply with NEPA, at least for the three-year period before the EIS is completed.

The plaintiffs stress that adoption and implementation of an ESA BiOp requires NEPA compliance. To fix the flaws alleged by plaintiff parties, the National Wildlife Federation proposed that the federal agencies alter their plans and "match the scope of the EIS that is necessary to comply with NEPA," which requires federal agencies to prepare an EIS on "major federal actions significantly affecting the quality of the human environment."

NWF also suggested the court modify its injunction to require the continuation of the current 2014 BiOp until 2021, when the EIS would be completed.

In its brief, Oregon also wrote in regard to keeping the current BiOp, "Any such discussion must consider extending the spill injunction beyond the 2018 spill season."

In March 2017, the court ordered additional spill at eight federal dams to aid downstream passage of juvenile salmon and steelhead.

At the Nov. 28 status conference, Simon said he was inclined to agree with the plaintiffs that the planned EIS was overly broad and more than the court intended.

But as Terry Flores, executive director of Northwest RiverPartners, told NW Fishletter in an email, "the court does not have the authority to tell the feds how to do the NEPA process," which Simon has acknowledged.

Steve Mashuda, an Earthjustice attorney for NWF, told Fishletter the judge seemed interested in the idea of maintaining the 2014 BiOp, supplemented with the new court-ordered spill, until the EIS is finished.

The justice department attorneys, however, said they would proceed with a 2018 BiOp.

Federal attorneys argued it would be inappropriate for the court to try to amend its May 2016 order to craft a new BiOp and questioned whether the court had the authority to do that, Flores said.

She said that "other parties also weighed in, notably, attorney Jay Weiner for the State of Montana, who said on behalf of Montana and upriver tribes--the Kootenai Tribe of Idaho and Confederated Salish and Kootenai Tribes--that because upper river dams and species also are affected, a broad NEPA process was needed."

According to Flores, RiverPartners' attorney Beth Ginsberg recommended an evidentiary hearing "if the judge wants a spill order beyond 2018," while Inland Ports' attorney Jay Waldron said "the plaintiffs were simply trying to keep 24/7 maximum spill in place through the duration of the NEPA process and the judge should be aware that is their goal."

Simon asked the parties to return to court in January, in part to address some of these issues.

Mashuda and Flores reported that Simon said the parties should submit a motion to amend the remand order, allowing the 2014 BiOp and the spill injunction to continue through the NEPA process, and if there's not agreement, motions by one or more of the parties regarding the dates and/or extent of spill.

Or the other alternative, the judge said, was to provide a status report that no change was needed, which according to Flores, would mean they had figured out how to integrate the BiOp to meet NEPA and ESA requirements.

"RiverPartners is very concerned with the notion of dispensing with a 2018 BiOp and having federal hydro system operations run from the bench via injunctive motions during the NEPA process," Flores said.

Mashuda said he hopes the plaintiffs' efforts result in a "reset." -Laura Berg

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