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NW Fishletter #379, March 5, 2018

[2] Irrigators Turn To 'God Squad,' Others Push For Litigation Timeout

Some say it's time to take decisions about operating federal hydropower out of the courts, either permanently or temporarily. Groups opposed a U.S. District Court order to spill more water over eight federal dams are using different tactics in attempts to stop or delay continued litigation.

Darryll Olsen says if ever there's a time to invoke the Endangered Species Committee--a rarely used provision of the Endangered Species Act commonly known as the "God Squad"--it's now.

As board representative for the Columbia-Snake River Irrigators Association, Olsen says 25 years of litigation over BiOps designed to mitigate hydropower operations, capped by what he terms a "fish kill" in 2015, prove the ESA isn't working, and that the Federal Columbia River Power System should be exempt.

Other hydropower proponents are supporting a federal bill that would put continuing litigation over FCRPS operations on hold until 2022. HR 3144, introduced in the U.S. House of Representatives by Rep. Cathy McMorris Rodgers (R-Wash.) last June, would allow federal agencies to operate the FCRPS under the 2014 BiOp, while working to develop an EIS and long-term biological opinion.

"We need to take a time out from litigation," says Terry Flores, executive director of Northwest RiverPartners--one of the groups appealing U.S. District Judge Michael Simon's March 2017 spill order. The bill has broad public support, she said, including the cosponsorship of an Oregon Democrat, Rep. Kurt Schrader. "Let's keep this existing BiOp that we know is working and delivering benefits, and allow the agencies to really focus their limited resources on doing a good NEPA process," she said.

But support for the bill is beginning to split along party lines. Washington Gov. Jay Inslee and Oregon Gov. Kate Brown, both Democrats, have issued public statements opposing it.

On Feb. 20, U.S. Sen. Patty Murray and Reps. Pramila Jayapal and Adam Smith, all Democrats, also joined the opposition.

Environmental groups defending the court's spill order say the proposed bill is misleading, and would thwart efforts to protect endangered salmon and to develop a more efficient and reliable power system.

Sean O'Leary, spokesman for the NW Energy Coalition, said his group is disappointed by continuing efforts by the irrigators group to initiate the ESA exemption. "We think it's an unfortunate and a completely unnecessary step," O'Leary told NW Fishletter. He said there is no legal basis to invoke the ESA Committee, as there are still other options that haven't been tried to restore endangered fish, including removal of dams.

Olsen said CSRIA, a defendant-intervenor in National Wildlife Federation et al. v. National Marine Fisheries Service et al. [01-640], decided not to appeal Simon's spill order, and instead has focused its energy on the ESA exemption. "We realized it would be pointless," Olsen said of the appeal. "We're not going to play this game."

The irrigators, he said, believe they have a better shot at convincing a few top officials that the hydropower system is in jeopardy, and that there's a basis for exempting operations from ESA requirements. He said the turning point came when Simon rejected CSRIA's motion with new information showing that 2017 returning Chinook salmon runs would have been significantly larger if, two years earlier, the agencies in charge had transported at least half of the spring/summer Chinook, and steelhead, past the lower Snake River dams, as outlined in longstanding "spread the risk" policies.

"Our point is, how can you go forward with this kind of spill regime when the plaintiffs had already violated the 2014 spill protocol?" Olsen said. "It's not a small deal."

A "spread the risk" policy ensures juvenile fish are protected in different river conditions by splitting the juvenile downstream journey between in-river migration and barging. Olsen said fish managers knew 2015 was a low-water, high-temperature year, which should have prompted agencies to begin transporting juveniles earlier, so more fish would be transported and not be harmed by warm-water conditions. Instead--and despite two requests from NOAA Fisheries to begin barging fish earlier--the transport program didn't start until May 1, leaving only 15 percent of the juveniles for barging.

Minutes from the April 14 and April 27 Fish Passage Advisory Committee show that a NOAA Fisheries biologist requested twice--offering three alternative proposals--to begin the transport program early, but did not receive support from the rest of the committee. The Fish Passage Center's Draft 2017 Comparative Survival Study shows that four times as many of the 2015 transported juvenile Chinook survived and returned as adults compared with those that migrated in the water.

"The bottom line is--and we've been really blunt--they killed about 65 percent of the run by holding back on the transport," Olsen said, adding, "Things have gotten so bad that, now the very people who are supposed to be protecting the fish are killing them. It doesn't get any worse."

Olsen said CSRIA has been working with federal lawmakers and has had "detailed discussions" with the U.S. Department of Interior, whose secretary would chair the Endangered Species Committee. If convened, the committee would also include the secretaries of the Army and Agriculture, the chairman of the Council of Economic Advisors, administrators of the Environmental Protection Agency and National Oceanic and Atmospheric Administration, and an individual from each affected state.

The irrigators themselves cannot apply for the exemption, however, as only three entities are eligible: the federal agency proposing the action, the state governor where the action is proposed, and the permit applicant related to the agency action.

Still, CSRIA put together a draft application to ease the path for an applicant, which notes that federal courts have remanded BiOps in 2000, 2004, 2008/10 and 2014, and in May 2016 ordered NOAA Fisheries to correct deficiencies in a new BiOp by Dec. 31, 2018, and to prepare an EIS by March 2021.

Since the exemption became an amendment to the Endangered Species Act in 1978, its use has rarely been attempted, and even more rarely invoked. According to a January 2017 Congressional Research Service report, the exemption process is "for those unusual cases where the public benefit from an action is determined to outweigh the harm to the species."

The report also noted, "The exemption process allows major economic factors to be judged to outweigh the ESA's mandate to recover a species when the federal action is found to be in the public interest and is nationally or regionally significant." It noted that issues surrounding an ESA exemption usually signal a much greater struggle over habitat or resources needed to protect a species that are also considered human needs.

In the past 40 years, an exemption has been sought only six times, and granted only twice. But these odds don't faze Olsen. "The God Squad exemption process is in the statute, and we're the poster child for it. There's never been a better fit," he said.

The irrigators' effort comes alongside HR 3144, a bill proposed by several federal lawmakers from the Pacific Northwest who hope to postpone any continuing litigation until 2022, after a new BiOp, and EIS, are complete.

The bill, introduced last June, is sponsored by Washington Republican Reps. Cathy McMorris Rodgers, Jaime Herrera Beutler and Dan Newhouse, along with Oregon Democrat Kurt Schrader and Oregon Republican Greg Walden.

A U.S. Department of Interior official testified in favor of the bill during an Oct. 12 hearing before a subcommittee of the House Committee on Natural Resources. "In our view, HR 3144 aims to allow NOAA Fisheries and the federal agencies responsible for System operations to focus on development of a long-term biological opinion and EIS without diverting resources for preparation of a short term biological opinion to cover the period of 2019-2022," Acting BuRec Commissioner Alan Mikkelsen testified.

He told the subcommittee the bill also aims to reduce litigation during that period. "The need to balance the ongoing operations of the System and achieving compliance with environmental laws is what HR 3144 seeks to achieve," he said.

Jared Powell, press secretary for McMorris Rodgers, told NW Fishletter she hopes language in the bill will either be included in other legislation, or passed by the House and sent to the Senate for consideration. "We're optimistic we could see the bill move this year," he said. He said staff members have also met with CSRIA representatives to discuss their efforts to move the ESA exemption process forward. "Her opinion is, we need to get out of the courtroom now," he said.

Some Democrats and environmental groups disagree. Environmental groups involved in lawsuits with NOAA Fisheries came out opposed to HR 3144 within days of its introduction. In a news release, Earthjustice and Save Our Wild Salmon wrote that the bill seeks to "lock-in status quo hydropower operations in the Columbia-Snake river system that primarily benefit taxpayer subsidized barge transportation and continued capital investments in four expensive and unnecessary federal dams on the lower Snake River that should be removed to help save wild salmon and steelhead and the public's money."

The news release says that a broad coalition of stakeholders, including the State of Oregon, the Nez Perce Tribe, commercial and sport fishermen, and clean energy and conservation organizations opposed the 2014 BiOp, and each of its predecessors since 2001, for failing to protect salmon and steelhead from extinction.

"During the most recent NEPA scoping public comment period, nearly 400,000 people submitted comments calling for removal of the four lower Snake River Dams," it said. "While the bill's sponsors say, 'It is time for science, not politics, to drive our energy and salmon restoration policies,' their approach would do the exact opposite by substituting politics for the rule of law, science and objectivity."

More recently, federal Democrats from Washington joined their opposition. In a letter to congressional leaders from Murray, Smith and Jayapal, they state that "The action agencies are now developing alternatives for detailed evaluation, which we understand range from no changes in operations to 'breaching, bypassing, or removing one or more of the four lower Snake River dams' as mandated by the court." The bill, according to these lawmakers, would "undermine the important, ongoing work on the EIS and BiOp by forcing the use of the 2014 BiOp, which has been found flawed by the court, until September 2022 or until the EIS process is completed."

In a Feb. 22 joint statement, McMorris Rodgers, Newhouse and Herrera Beutler noted that the 2014 BiOp came after years of collaborative work during then-President Barack Obama's administration, involving states, tribes and other local stakeholders.

"Breaching the dams, which provide critical benefits for communities in our state, should not even be an option," they wrote.

Their statement also said electric ratepayers in Washington state will be paying for lost power, including an estimated $40 million from increased spill over dams this year alone. They criticized the Democratic lawmakers who recently came out against the bill.

"They claim to support clean renewable energy, while simultaneously working to destroy hydropower, Washington state's largest source of carbon-neutral, clean energy," the joint statement said. -K.C. Mehaffey

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Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: K.C. Mehaffey
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