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Administration Gets Plenty of Advice as it Assesses Federal Salmon Recovery Plan by Staff Columbia Basin Bulletin, August 7, 2009

President Obama's mailbox is stuffed with advice from former governors, current senators and others as the administration prepares to issue a critique of the government's own plan for protecting wild Columbia-Snake river salmon and steelhead stocks affected by the basin's federal hydro system.

Some, such as former Northwest governors Cecil Andrus, John Kitzhaber and Mike Lowry, say the federal government should ditch the salmon strategy and set the stage for settlement discussions that could lead to needed solutions that protect salmon and the region's economy.

Others, such as Montana's senators and river user groups, urge a stout defense of a plan they say is scientifically sound and the product of a region-wide meeting of the minds.

The legal validity of the strategy - NOAA Fisheries Service's May 2008 Federal Columbia River Power System biological opinion -- is being mulled by U.S. District Court Judge James A. Redden.

The BiOp was challenged by the state of Oregon and a coalition of fishing and conservation groups shortly after its release in May of last year. They say the BiOp is based on faulty science and is inadequate to protect 13 Columbia basin salmon and steelhead stocks that are listed under the Endangered Species Act. Their arguments were supported by the Nez Perce Tribe.

The legal debate culminated in March with oral arguments.

The Obama Administration in May asked the court to withhold judgment for 30 to 60 days so newly ensconced administrators at the highest levels could review the plan. President Barack Obama was sworn in on January and many appointees, such as the head of NOAA, Jane Lubchenco, did not take over until this spring and summer. The administration has yet to name a head of NOAA Fisheries.

A 45-day extension was requested by federal attorneys and granted by the judge.

"At the end of this period we will advise the Court of the administration leadership's perspectives on the BiOp and whether further discussions are warranted," according to the request filed by the U.S. Department of Justice. Redden granted the extension to Aug. 14.

The ESA requires that NOAA Fisheries assess whether federal agency actions, such as the operation of FCRPS dams, threaten the existence of listed species. The 2008 BiOp says that mitigation strategies contained in the BiOp assure that the hydro system won't jeopardize the survival of 13 salmon and steelhead stocks that are ESA-listed. NOAA and the dam operators, the U.S. Army Corps Engineers and Bureau of Reclamation, are defendants in the lawsuit.

Redden has twice before declared FCRPS BiOps illegal. The 2000 version was replaced by a 2004 BiOp. After the 2004 BiOp was declared illegal, NOAA and the federal "action" agencies engaged in an ESA "consultation" that lasted nearly three years and included court-ordered collaboration with basin states and tribes. The action agencies include the Corps, Bureau and the Bonneville Power Administration, which markets power generated in the hydro system.

The end result satisfied the states of Idaho, Montana and Washington and many of the basin's Indian tribes. But Oregon and the coalition of fishing and conservation groups say the 2008 plan is no better than past BiOps that were declared in violation of the ESA. The three former governors concur.

"We think the District Court's guidance letter, issued May 21, indicates that the plan, like its two predecessors, is likely to be found illegal if you decide to support it," according to the Aug. 3 letter from Andrus (Idaho), Kitzhaber (Oregon) and Lowry (Washington) to President Obama. "We urge you not to take that course."

"Instead, we believe the time has come, and is propitious, for settlement talks under the court's aegis on law and science, and under your leadership for related economic and political issues," the former governors, all Democrats, say.

The judge's letter to litigants "briefly sets out the court's tentative position on the validity of the 2008 Biological Opinion, and suggests additional actions that may avoid another remand."

The letter said the BiOp's "conclusion that all 13 species are, in fact, on a 'trend toward recovery' is arbitrary and capricious…" for a number of reasons. Redden's letter then asked those involved "to consider implementing some, or all, of the following measures as part of the adaptive management process:

• committing additional funds to estuary and tributary habitat mitigation, monitoring, and evaluation;

• identifying specific tributary and estuary habitat improvement projects beyond December 2009;

• providing periodic reports to the court, and allowing for independent scientific oversight of the tributary and estuary habitat mitigation actions;

• committing additional flow to both the Columbia and Snake rivers;

• developing a contingency plan to study specific, alternative hydro actions, such as flow augmentation and/or reservoir drawdowns, as well as what it will take to breach the lower Snake River dams if all other measures fail (i. e., independent scientific evaluation, permitting, funding, and congressional approval); and

• continuing ISAB's recommended spring and summer spill operations throughout the life of the BiOp."

Idaho Sen. Mike Crapo in a Tuesday letter said the salmon plan is complete even though a regional consensus is not.

"Not all have signed settlement agreements, however this BiOp is a product of regional collaboration, current science, and contains positive elements that are broadly viewed as helpful to the recovery of our wild anadromous fish, and I support it."

"I do not support dam breaching," Crapo's letter to Lubchenco says.

That lack of consensus will undoubtedly lead to appeals of any Redden decision on the BiOp's legality, Crapo said.

"Given this likelihood and after Judge Redden's ruling, I offer to help organize and lead further regional collaboration in an attempt to find genuine consensus on a recovery plan, which should incorporate the science upon which the 2008 BiOp is based," according to the Idaho senator. "This type of approach would properly frame the discussion around real solutions and help all stakeholders realize that by working toward a common regional interest, they can create both the will and the way to recover wild Snake River salmon and steelhead."

A July 24 letter from Montana Sens. Max Baucus and Jon Tester to Nancy Sutley, chair of the White House Council on Environmental Quality, said the administration should defend the FCRPS strategy.

"The effectiveness of the 2008 BiOp is reflected in its widespread support throughout the region. We urge you to support the 2008 BiOp and move forward in the nation's recovery efforts for all endangered fish species in the region, both upstream and downstream, as well as provide clean, renewable power to meet our energy needs into the future."

Oregon Sen. Jeff Merkley, in a July 24 letter to the president, said that the Oregon Department of Fish and Wildlife, U.S. Fish and Wildlife Service and Fish Passage Center had noted serious scientific flaws in the BiOp that need to be corrected.

"I believe your administration's fair and full review of the scientific and legal issues, and amendment of the Biological Opinion as warranted by your review, will be critical to ensuring that the science of this plan is sound and to moving toward resolution of this important issue."

"If we make significant changes to the hydropower system that is so important to our region - whether that include dam removal or additional spill and flow - we create new challengers for the stakeholders who use and depend on the dams for electricity generation, barge transportation and other functions," Merkley wrote.

"To ensure that all perspectives and all science-based options are fully considered, I urge you to create a forum for open, transparent discussion with stakeholders, one that allows for careful consideration of all scientifically viable salmon recovery options and the needs of affected communities."

"I strongly believe that science, not politics, must guide the way toward an effective federal plan that will recover these magnificent fish and can create thousands of new family-wage jobs, invest in rural communities, and save taxpayer dollars."

Representatives of more than 90 sport fishing businesses and organizations signed on to an Aug. 5 letter to President Obama that said an effective federal plan is needed to recover salmon runs and thus can create jobs and boost rural economies.

"To this end, we urge you to help develop a stakeholder-driven, science-based process for identifying and implementing comprehensive solutions to the Northwest's salmon crisis. Specifically, we ask for your support and assistance in convening a 'solutions table' that brings regional stakeholders together to draft a real recovery blueprint that will restore the Columbia Basin's wild salmon and steelhead runs to vibrant, self-sustaining levels while creating new economic opportunities for the Northwest and beyond. This forum must be constituted with a commitment to consider all scientifically credible and economically viable salmon recovery measures."

A July 15 letter from water user and power interests to Lubchenco said the administration should uphold, not tear down, the product of the collaboration between the federal government, states and tribes.

"Your strong support of the BiOp will carry great weight and help move us out of the court room and onward with implementation of these critical biological measures," according to the letter signed by representatives of the Northwest Requirements Utilities, the Pacific Northwest Waterways Association, Northwest RiverPartners, the Idaho Water Users Association and Idaho state Rep. Dell Raybould.

"We welcome your rigorous review of the BiOp, and, in particular, the ESU-by-ESU (Evolutionary Significant Unit) approach it advances, using the best science available. The BiOp exceeds ESA (Endangered Species Act) legal requirements by affirmatively putting the listed stocks on a path towards recovery, creating a high bar for other opinions throughout the country."

For more information and documents related to BiOp litigation go to www.salmonrecovery.gov

Related Sites:
Letter from Ex-Governors