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BPA Buys Tribes' Support For New BiOp by Bill Rudolph NW Fishletter, April 11, 2008

BPA Administrator Steve Wright announced April 7 that the action agencies [BPA, Corps of Engineers, Bureau of Reclamation] have reached long-term settlements with four Columbia Basin tribes that would cost $900 million for 10 years' worth of more habitat restoration and hatchery improvements, while providing long-term funding certainty for many existing projects in the region's fish and wildlife program.

In return for the 200 or so new projects, three lower Columbia tribes promised not to contest the upcoming hydro BiOp, scheduled for release in early May, nor support breaching of the four lower Snake dams for the next 10 years. The agreements also allow parties to back out if there are "material" changes to BiOp-mandated hydro operations or tribal harvests.

Wright said, if implemented, these agreements would provide "substantial" fish benefits, help federal agencies meet their statutory obligations, and acknowledge the tribes' substantive role in managing fish resources and the trust and treaty relationships with the tribes.

"We believe they will provide greater long-term certainty for fish restoration funding and through reduced litigation risk increase certainty for Northwest ratepayers," Wright said.

He also said the MOAs [Memorandum of Agreement] would support the actions in the upcoming BiOp and the listed stocks' prospects for recovery. BPA will take comment on the proposed agreements through April 23.

Citing a new spirit of teamwork and trust with the tribes, Wright said, "the focus will turn to implementation, rather than litigation."

Ron Suppah, chair of the Warm Springs Tribes, said they came to the table with federal agencies as courtroom adversaries, but "leave that table as partners. We have built an aggressive plan that fixes problems wherever the fish encounter them." He said his tribes' main concern was restoration of the resource, and as part of that, "the recognition of the tribal scientists to have equal footing with their counterparts in the federal government."

Environmental groups are still expected to go after the new BiOp in court, but without most tribal support, the federal agencies feel they have a better chance that BiOp judge James Redden will OK the new prescription for dealing with ESA-listed salmon and steelhead stocks. The BiOp includes its own extensive list of proposed habitat actions and hatchery operations for improving listed fish numbers.

But most of the funding in the latest settlements will go to improve the lot of unlisted fish stocks in the Basin, including lamprey, which is being targeted for $50 million in spending to improve fish passage facilities and its freshwater habitat. At this stage, however, no one has any idea how that spending would translate into future numbers of salmon, steelhead, or lamprey.

Unlike the other three lower Columbia tribes (Yakama, Warm Springs, Umatilla) The Nez Perce Tribe hasn't reached any agreement yet, but that didn't stop the tribe from sending its own wish list to the Northwest Power and Conservation Council, whose deadline for recommendations to amend the F&W program was April 4. There were no cost estimates attached to the Nez Perce documents, but judging what the other tribes had received, it will add up to plenty. However, the tribe still may not climb aboard the MOA train, since it released a statement last week that still expressed their desire to see dams breached on the lower Snake.

The AP reported that the Colville Tribes, who signed a separate MOA, will receive about $200 million over the 10 years, the Warm Springs Tribes $80 million, the Umatilla Tribes $150 million and the Yakama Tribes $330 million, while the Columbia River Inter-Tribal Fish Commission would receive $90 million for many new projects involving research, monitoring and evaluation.

The deal also calls for secure funding for the Fish Passage Center for the next 10 years.

Warm Springs attorney John Ogan said the two-year MOA negotiation restores the region's commitment to fish not listed under the ESA. He said it did not begin with a process like the BiOp's concern for filling survival gaps, but started by asking tribal F&W staffers, "experts in their fields," a question: "If you had the resources available to you in the next decade, population by population, subbasin by subbasin, river by river, tell us what you would do to improve the health and number of steelhead, chinook, lamprey."

But others think the final product is still well short of enough independent review.

Terry Flores, executive director of Northwest River Partners, said the proposals aren't exempt from scientific scrutiny, and should be reviewed by the independent panel that judges the merit of F&W proposals for the BPA-funded program.

The 3-tribe MOA calls for ISRP review, but if problems are found, the affected tribe and BPA are charged with reaching an "adjustment." If none can be reached, then a replacement project will be identified.

BPA senior policy advisor Lori Bodi, told NW Fishletter that instead of a project-by-project review, BPA and the tribes would like the ISRP to review the projects at the subbasin scale, to ensure that the limiting factors analyses are correct and the right fish populations are targeted for improvement.

But she said the new habitat projects would be evaluated for biological benefits, in much the same way BiOp projects are being analyzed for future benefits, by using the "best professional judgment" of local biologists. She expected the 200 or so projects to be ramped up over the next two to three years.

Some of the new hatchery projects -- which are budgeted at $130 million over the next 10 years -- may become quite controversial. But the agreements say they can still be funded by BPA, even if the ISRP judges them to have little value.

Bodi said it was up to NOAA Fisheries to judge whether certain hatchery projects help or hinder recovery of ESA-listed stocks. She said an upcoming review of hatchery operations would also play a role in evaluating the proposals.

In the past, the science panel has found little scientific support for supplementing wild fish populations with hatchery stocks. It was an issue the ISRP raised only last month in a review of the latest step towards a new hatchery program slated for the Upper Columbia, a facility heavily promoted by the Colville Tribes, who say it's been promised since Grand Coulee Dam was built.

But in their Mar. 7 review, the ISRP said, "...we caution Council [NPCC] that the project has yet to gain the full support of the ISRP based on scientific merit."

Bodi acknowledged that BPA sometimes does not follow the advice of the ISRP, noting that the science panel had called for ending the Redfish Lake sockeye program because they judged the stock to be functionally extinct. BPA still funds it as part of a mandatory ESA program (The Nez Perce wish list also calls for reintroducing sockeye at other lakes in its region).

The hatchery proposals have torqued one long-time advocate of wild fish. "The tribes have turned their back on stewardship of wild salmon recovery," said Bill Bake, executive director of the Native Fish Society, "by agreeing to not legally enforce environmental laws associated with dam operations such as water temperature and gas bubble disease or dam removal as a necessary salmon recovery action.

"By joining the Bush administration salmon team," said Bakke, "the tribes are getting $94 million for hatcheries that have already been scientifically discredited as a recovery tool, and $32 million for habitat that will not compensate for the salmon kill at the dams. This rate payer gift to the tribes can be added to the $9 billion already spent on salmon recovery with no measurable benefit."

The notion that the tribes sold out was echoed by environmental groups. The Save Our Wild Salmon Coalition said in an April 7 press release that the three tribes "must disavow their prior biological recommendations, which are steeply at odds with the federal approach. The tribes must also refrain from advocating for measures they have long said were scientifically necessary for salmon survival such as removing the four dams on the lower Snake River."

Tribal officials took umbrage at the idea they had compromised their position. The agreement says if the Snake ESUs are still in big trouble by 2015 and more must be done to save them, the tribes may advocate for breaching one or more of those projects.

"The folks on the other side are terribly disappointed," said Yakama tribal attorney Tim Weaver, "because they have had the opportunity to use an awful lot of good tribal science in their efforts and they are not going to be able to enjoy that same luxury this time around." He said it sounded like "sort of sour grapes on their part. We're doing something for the fish, we're consolidating the gains that we have gained through the litigation process and are forging a new partnership here with the action agencies to really bring back the fish."

"It's been fun, quite frankly, beating Bonneville over the head in the courtroom," said Weaver, "but it hasn't produced any fish. We believe what we're doing now is going to have that impact and we're going to do it together with the action agencies."

BPA customer groups were still reserving judgment on the MOAs, though in comments they had filed with the NPCC's amendment process, they questioned BPA's legal obligation to fund all offsite mitigation when the NW Power Act calls for F&W spending to be tied directly to mitigation for losses from hydro operations.

Scott Corwin, executive director of the Public Power Council, said his group was still trying to get to a bottom line on added costs from the agreements. He said his members were very concerned about the level of biological benefits that would be realized from the added expenditures.

At last Monday's press conference, action agencies did not have an answer to the new costs question, but by Wednesday afternoon, they were saying that 60 percent of the $900 million was "new" money and would add another two to four percent to wholesale power rates. Later that day, another $65 million was added to the total, when a new F&W agreement between the state of Idaho and action agencies was announced.

The number is likely to go up even more. BPA's Bodi said a deal is imminent with the state of Montana and they are still talking with the Nez Perce Tribe and the state of Oregon. Just before presstime, it was announced that a $15 million MOA had been reached between Montana and action agencies. BPA spokesman Scott Simms said that was all "new" money, but was not expected to have any effect on future power rates.

WDFW sent a late February letter to BPA, to get in on the action, though Washington state had earlier decided it didn't need a formal MOA. Evidently, some state officials were growing concerned that all this proposed spending may adversely impact efforts of their own salmon recovery board. BPA told WDFW in an April 1 letter that it would grandfather some land purchases and easements to protect critical fish and wildlife habitat into an MOA

The governor of Washington has endorsed the BPA-tribal agreements, but it was also reported that the state of Oregon has actively campaigned against the new MOAs.

Oregon Gov. Ted Kulongoski was not happy that two tribes from his state had signed one of the agreements. "It's a sad day for me," he said last Monday. It has been reported that the state has held out for future dam operations that include more spill and a drawdown of John Day reservoir.

The 3-tribe MOA does mention the JD drawdown issue. It says the action agencies will meet with the tribes "in the near-term to discuss relevant existing hydraulic and biological information to better understand the biological benefits and/or detriments associated with John Day reservoir operations." It also notes that an action to draw down JD to minimum operating pool "is a contingency and so may be decided as a product of the 2015 comprehensive review." -B. R.