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Judge Floats Idea of Suspending Work on 2018 BiOp for Salmon/Steelhead Due to Lack of Completed EIS by Staff Columbia Basin Bulletin, December 1, 2017

A five-year federal review of the Columbia/Snake River power system will not produce a finished environmental impact statement until 2021. That has U.S. District Court Judge Michael H. Simon asking whether a new biological opinion for salmon and steelhead, scheduled for 2018, should simply be suspended until the EIS is completed.

NOAA Fisheries' biological opinion, or "BiOp," sets recovery standards and recovery actions for 13 species of Columbia River basin salmon and steelhead listed as threatened or endangered under the federal Endangered Species Act.

A status conference Tuesday, November 28 in Portland, weighed the progress of the 5-year National Environmental Policy Act/EIS process required by Simon's 2016 order to redo the 2014 (and current) BiOp for Columbia Basin salmon and steelhead.

The conference was also slated to discuss the progress of an injunctive spring spill plan that was to be done by the Tuesday meeting. A discussion of the plan for more spill at the dams for migrating juvenile fish was put off.

Parties to the BiOp lawsuit instead debated the status of the NEPA review process that is in progress by the U.S. Army Corps of Engineers, the U.S. Bureau of Reclamation and NOAA Fisheries.

Acknowledging that the next BiOp, which is due by December 31, 2018, would not have the foundation of a new EIS, Simon said that if the NEPA process will not be done by 2018, then "it would be best to dispense of the 2018 BiOp until we get to a point where we can operate under a sufficient EIS," and he asked both plaintiffs and defendants in the case to offer their thoughts on the idea.

Until 2021, when the court-ordered BiOp is due, the system could continue to operate under the current 2014 BiOp, Simon added.

That could also mean that the system would operate with the additional court-ordered spring spill through 2021.

The 5-year long process under NEPA to produce an EIS was put into motion by Simon in his remand of the 2014 BiOp. At their request, Simon granted the operating agencies five years to complete the process, initially expecting a new BiOp in 2018 and another, final BiOp in 2021 at the end of the process.

(For more information on the process background, see CBB, January 6, 2017, "Comment Period Extended For Feds' Scoping On New EIS For Columbia/Snake River Hydro System")

A status report on the NEPA process from the agencies was due to the court on October 30. After a comment period in which plaintiffs weighed in on the federal agencies' progress, a status conference was held this week.

The draft EIS is to be completed and ready for public review in March 2020, with the final EIS in March 2021, followed closely by a record of decision.

In their status brief, the federal agencies described a wide-ranging NEPA review, far beyond a focus on reasonable and prudent alternatives that would inform a new BiOp, according to comments by the plaintiffs.

In its counter brief to the federal status report, the National Wildlife Federation said that the NEPA status report by the federal agencies indicates they "have chosen to prepare an EIS that is substantially broader in scope and complexity, and so much more expensive and time consuming, than the EIS the Court indicated is necessary.

"Rather than address the Court's conclusion that the agencies should comply with NEPA by preparing an EIS ‘parallel in scope' to a new proposed action or reasonable and prudent alternative that avoids jeopardy to ESA listed species from operation of the federal dams on the Columbia and Snake Rivers, Federal Defendants have embarked on preparing a sweeping system operations EIS that seeks to consider and balance all of the multiple purposes and uses of the hydrosystem and of each dam.

"This unnecessary choice 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. It also is the main cause of Federal Defendants' repeated expressions of concern about the demands of preparing an EIS, and of their oft-repeated anxiety about meeting the current remand schedule."

The plaintiffs also noted that the process would violate NEPA in 2018 by issuing a biological opinion that would include proposed reasonable and prudent alternatives "without any accompanying NEPA analysis or document, the very problem the Court asked the agencies to address and resolve in their status report."

Simon agreed but said he did not have the authority to change the NEPA schedule, leaving the scope and schedule up to the federal agencies. He would, however, entertain a motion that would dispense of the 2018 BiOp and leave the 2014 BiOp in place until the conclusion of the NEPA process and new BiOp in 2021.

Todd True of Earthjustice and lead attorney for NWF said plaintiffs would submit such a proposal in January.

However, the defendants' lead attorney at this week's status conference, attorney Romney Philpott, III, of the Justice Department, disagreed, saying that "NOAA Fisheries and the action agencies are focused on meeting the deadlines originally proposed."

He added that it's absurd to say the NEPA review is too broad.

"The ESA is a very important issue and it will be fully covered," Philpott said at the status conference, "but it's not the only issue. We're intent on complying with your order, but we also have the NEPA requirements. The proposal to get rid of the 2018 BiOp tries to solve a problem that doesn't exist."

"You're not anticipating an EIS until 2021 and we need to ensure that the next BiOp I see is NEPA compliant," Simon said. "The best way to integrate, coordinate and sequence these obligations is to suspend the 2018 BiOp and wait to see the 2021 BiOp."

Rather than the broad NEPA review proposed by the defendants, True said the federal agencies should first focus more on the range of alternatives that would comply with the ESA and then they could go on to evaluate the impacts on all their other obligations.

Attorneys James Buchal of the Columbia-Snake River Irrigators Association and Jay Waldron of the Inland Ports and Navigation Group, both defendant intervenors in the BiOp case, suggested that the real reason plaintiffs want to suspend the 2018 BiOp is to extend the experimental spring spill out to 2021.

In response to this worry of some defendant intervenors, Simon suggested all parties propose how spill would be extended or ended. That, he said, could be included in a proposal on whether to suspend the 2018 BiOp.

The request for injunctive relief for more spill for fish was enjoined with the earlier case argued in Simon's court that resulted in the remand. The spill plea was brought to Simon in January 2017 by the National Wildlife Federation and the State of Oregon, with the support of the Nez Perce Tribe. The groups asked the court to begin ordering spill to maximum total dissolved gas levels beginning April 3 and to continue for each year of the BiOp remand. Simon agreed that more spring spill will benefit ESA-listed fish, but delayed the action while federal agencies completed a spill plan for the lower Snake and Columbia river dams.

However, the spill decision was appealed by the federal agencies and Northwest River Partners in early June to the Ninth Circuit Court of Appeals and the parties have now moved forward on expediting the appeal, asking the Appeal Court for a decision prior to the additional spill beginning April 3, 2018.