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NW Fishletter #381, May 7, 2018

[8] Federal Agencies Given Until 2021 To Complete BiOp And EIS Concurrently

U.S. District Judge Michael Simon has agreed to delay the deadline for a new BiOp on the Northwest federal hydro system until 2021, largely granting plaintiffs' request to modify a remand order in National Wildlife Federation et al. v. National Marine Fisheries Service.

Simon's April 17 ruling allows, but does not require, NOAA Fisheries to take until March 26, 2021, to complete a new BiOp, which the agency has been working to complete by Dec. 31.

Plaintiffs, including conservation and fishing groups and the State of Oregon--with support from the Nez Perce Tribe--filed a motion in February asking the court to modify its remand schedule that required federal agencies to complete a new BiOp by Dec. 31, 2018, and to instead allow completion of an environmental impact statement providing alternatives for operating federal dams by March 26, 2021. The federal agencies opposed the motion, noting they had been working for the past 18 months to complete a biological opinion this year.

Federal defendants opposed the plaintiff's Feb. 9 motion, arguing that plaintiffs only wanted to keep a 2014 BiOp in place now so they can continue to seek court injunctions and force additional spring spill over eight federal dams for three more years. They said that, 18 months after the court set deadlines, they should not be required to start the process over.

Plaintiff reply briefs filed March 30 said their motion offers federal agencies a way to comply with the National Environmental Policy Act, and avoid hashing it out in court.

NWF and the State of Oregon, with an amicus support brief from the Nez Perce Tribe, argued that federal agencies must complete an environmental impact statement when issuing a new BiOp to replace the 2014 BiOp that is deemed inadequate. Since federal defendants indicated they plan to release a new BiOp in December with no EIS, the court should extend its deadline for a new BiOp until 2021, the court's deadline for agencies to complete an EIS for operating 14 federal dams, the plaintiffs said. They argued that federal agencies "refuse to acknowledge any problem with a stand-alone BiOp in 2018," and giving them three more years will "help the parties avoid a train-wreck of the federal defendants' own creation," NWF's brief stated.

"NWF's motion does not seek to compel federal defendants to violate the ESA. They have already done that all on their own--five times," it said, adding, "The agencies will have to decide whether they will accept that opportunity or choose another path."

Federal agencies said in an April 3 response that the plaintiffs changed their original request, wasting everyone's time, therefore the court should deny the motion. "Plaintiffs unambiguously asked the Court to 'require' the agencies to complete a consultation at a date-certain in 2021 and then 'direct' agency actions through 2021," NMFS' reply states. "On reply, they abandon the relief they originally requested and now argue that the court should merely give federal defendants the option on when to comply with the ESA and what actions to implement through 2021."

In his four-page decision, Simon wrote that the issue of how federal agencies would reconcile the need to complete an EIS in order for action agencies to adopt a new BiOp had never been resolved. "Indeed, the Federal Defendants stated that 'ideally, these processes would run concurrently,'" he wrote.

When the remand schedule was set, the court deferred to the federal agencies' requested schedule, but also left open the possibility of changing that schedule, he wrote. "In their briefing filed before the November hearing, the Federal Defendants did not clarify the best way to integrate the two processes or explain how the existing deadlines were the optimal way to move forward," he wrote. However, "producing a 2018 BiOp creates a situation where the Action Agencies may violate [the National Environmental Policy Act] in adopting the 2018 BiOp, just as they did in adopting the 2014 BiOp."

In his decision, Simon wrote that NOAA Fisheries is now under no obligation from the court to complete a BiOp before the NEPA process is finished. "If NOAA Fisheries chooses to issue the next biological opinion after December 31, 2018, the Court will at that time consider any motion for further appropriate relief relating to the incidental take statement and other related issues."

Todd True, attorney for the plaintiffs, said the ruling only partially grants their motion to modify the remand order. The motion had asked the judge to delay the deadline for a new BiOp until 2021 to give the agencies a chance to complete the EIS--which was granted--and to allow the federal hydro system to continue to operate under the 2014 BiOp until the new one is finished. "The court ended up deferring how to address that issue," he said.

True said he thinks the decision will enable federal agencies to prepare a new BiOp with the benefit of the EIS analysis. "The agencies have been saying they're going to do a BiOp by the end of 2018, and not do any kind of EIS or NEPA analysis with it. We have urged them not to do that. There's a legal problem with it, but apart from the legal issue, we think having a BiOp is important to actually getting this problem solved," he said.

"I think this ruling is an opportunity to really focus on the big picture," he said. "The government said, 'we need five years [to complete an EIS]'. Well, they've got five years, so let's get it right." True added, "Sure, we're going to have to figure out what to do in the interim. There's an opportunity to work together and come up with a plan that makes sense."

Terry Flores, executive director of Northwest RiverPartners, an intervenor-defendant in the case, said she's concerned about that interim period, and that the decision doesn't clarify how the system will operate between now and 2021. NOAA Fisheries must now decide whether to complete its BiOp by the end of this year, or delay its completion until BuRec and the U.S. Army Corps of Engineers complete an EIS outlining alternatives--including an analysis of removing four lower Snake River dams. "If the federal agencies take the judge up on the offer, it paves the way for the plaintiffs to run the hydro system, through filing spill injunctions," she said.

Flores questioned whether the plaintiffs would actually work with federal agencies to come up with a system operating plan over the next few years that's agreeable to everyone. "We've seen what that means in practice," she said. "The plaintiffs' whole history has been to say they're willing to work together, but then coming into court and filing a spill injunction. What it ultimately means in my opinion is, if the feds were to take the judge up (and delay the BiOp until 2021), it would essentially punt the ball to the plaintiffs." -K.C. Mehaffey

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