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BiOp Remand Plaintiffs Press for Broader BiOp ‘Action Area’ by Barry Espenson Columbia Basin Bulletin - December 5, 2003

The plaintiffs in the lawsuit that has forced the federal government to rethink its Federal Columbia River Power System salmon protection plan continue to press in U.S. District Court for a broader interpretation of that plan's responsibility.

The document in question is the FCRPS biological opinion, which was issued by NOAA Fisheries late in 2000 but is now under reconstruction as a part of a remand ordered by Judge James A. Redden early this past summer.

Attorneys for a coalition of 14 conservation groups say the federal process aims to count actions taken in the Upper Snake River -- such as the provision of water to augment flows for fish -- as a salmon survival benefit without acknowledging the negative consequences to fish from the drawing off of water in that region for irrigation.

The biological opinion challenged successfully in federal court is focused on an FCRPS "action" proposed by three federal action agencies -- the Bureau of Reclamation, the Corps of Engineers and the Bonneville Power Administration.

The 2000 BiOp describes the FCRPS as the mainstem Columbia and Snake River from Chief Joseph Dam and Hells Canyon Dam down to and including the estuary and plume. Salmon and steelhead passage to historic habitat has been blocked since their construction. The BiOp analyzes the impact of some 14 sets of dams, powerhouses and reservoirs on listed species. The RPA or reasonable and prudent alternative describes actions that can be taken within the system of dams, and off-site, to improve salmon survival.

That FCRPS BiOp does not include federal projects above Coulee and Hells Canyon, with the exception of Libby and Hungry Horse dams in Montana and Albeni Falls Dam in northern Idaho. The BOR's upper Snake River irrigation projects were judged in a separate BiOp as not jeopardizing the survival of listed salmon and steelhead downstream.

The legal representatives for the plaintiffs objected -- during an October meeting last month with the judge and attorneys for other entities involved in the lawsuit -- to NOAA's revised action area definition. In an Oct. 1 report to the court NOAA said it has redefined the action area "as not only the areas directly and indirectly affected by the FCRPS but also any watersheds in which off-site mitigation activities required by the (BiOp's) RPA may occur." The area "will cover most, if not all, of the freshwater habitat of the affected ESUs discussed in the 2000 RPA." ESUs or evolutionarily significant units" are the individual ESA-listed chinook, chum and sockeye salmon and steelhead stocks.

Redden then ordered briefs on a request from the plaintiffs for a clarification of the "action" and the action area definitions that the federal agency is using in determining whether that action is jeopardizing the survival of listed stocks. The plaintiffs, and parties in support of their position, started the briefing in early November, then the federal government and its supporters were allowed to respond. Last week's filings by the plaintiffs, the Yakama Nation, the Warm Springs Tribes and the Confederated Tribes of the Umatilla Indian Reservation and the state of Oregon completed the filing schedule set out by Redden. Now the parties await the judge's next move -- potentially a call for oral arguments.

The conservation groups and tribes, in replies filed with the court last week, said the FCRPS and upper Snake "actions," prior to 2000 judged in a common BiOp, should not have been separated.

"NOAA's response brief confirms that NOAA will exclude the Upper Snake Projects from the FCRPS action and will only consider them in the context of the Reasonable and Prudent Alternative (RPA)," the tribal brief said.

"By excluding the Upper Snake projects form the FCRPS action and only considering the positive mitigation benefits of these projects in the context of the RPA, NOAA fails to account for the negative effects of the Upper Snake Projects, including their depletion of millions of acre-feet of water from the Columbia/Snake Basin," the tribes said. That depletion has resulted in the inability to meet lower Columbia and Snake flow targets outlined in the FCRPS BiOp

Both the tribes called the federal agencies action area definition confusing.

"… the agency is unwilling to simply identify the action area on a map of the Columbia/Snake River Basin to resolve the contradictory interpretations that are inherent in NOAA's new verbiage concerning the action area," the tribes wrote.

"They continue to argue in a way that doesn't say this is what it is, and this is what it is not," said Earthjustice's Steve Mashuda, an attorney for the plaintiffs.

The federal attorneys say their intent should be clear.

The federal government says the action is defined by the action agencies and, for the BiOp now under remand, that does not and should not include the upper Snake River irrigation projects.

"The court should decline Plaintiff's request for an order directing NOAA to unilaterally alter the proposed 'action' under consultation and preemptively resolving the scientific determination of the scope of the effects of the proposed action (and, hence, the 'action area') before NOAA has had an opportunity to do so," the federal defendants' Nov. 14 filing.

The federal response to the plaintiffs' initial filing said that "NOAAA plans to complete its forthcoming biological opinion on the same action that was at issue in the 2000 Biological Opinion, which itself was a response to the action agencies' designation of the precise action for which consultation was sought. This proposed action does not include the operation of BOR's Upper Snake Basin irrigation projects."

The state of Oregon, an intervenor in the case, says there is really no conflict at all, and that the court and litigants should move on to more important issues.

"Our assertion is that we believe the federal government and the plaintiffs are talking about the same thing," said Kevin Neely, a spokesman for Oregon Attorney General Hardy Myers.

A memo filed Nov. 26 by the state says that "… the United States agrees that the action area includes not only the specific location of the proposed action, but also watersheds affected by RPA measures. Second, the United States clearly implies, consistent with defense counsel's previous 'informal' statements, that the upper Snake River basin is similarly subject to inclusion in the action area."

The Oregon memo cites the federal government's Nov. 14 response memo that said NOAA has already agreed "that any measures that are required as 'mitigation' for the hydrosystem as part of any forthcoming RPA that NOAA might propose necessarily must be considered as part of the 'action' under consultation and may, consequently enlarge the action area' "

"Because that is consistent with the scope of the action area advocated by the plaintiffs, Oregon suggested that the purported dispute is unripe."