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Groups File Against 2008 Salmon/Steelhead Biological Opinion by CBB Staff Columbia Basin Bulletin, June 20, 2008

Oregon Also To Challenge

A new plan for protecting salmon and steelhead affected by the Columbia/Snake hydro system -- like the document it replaced -- faces a legal challenge from fishing and conservation groups who contend federal agencies changed their biological analysis methods in order to produce a "no jeopardy" conclusion, but changed little else.

The state of Oregon will follow suit.

"The governor does intend to join the lawsuit," said Jillian Schoene of Oregon Gov. Ted Kulongoski's communications office. Kulongoski has ordered the state Department of Justice to prepare a complaint to file with the court.

A fourth supplemental complaint filed Tuesday in Oregon's U.S. District Court in Portland says the federal "biological opinion" issued May 5 is "not materially different" from BiOps issued in 2000 and 2004 that were declared illegal. The 2004 strategy replaced the 2000 version; the 2008 BiOp supersedes the terms of the 2004 strategy.

"In fact, in some vital respects the actions considered in the 2008 FCRPS BiOp provide less protection for ESA-listed salmon and steelhead," according to the complaint filed by Earthjustice for a coalition of fishing and conservation groups led by the National Wildlife Federation.

"Today we are taking the only action we can against another legally inadequate plan from the Bush Administration," said Todd True, senior managing attorney for Earthjustice in Seattle.

"Despite two years of work and a clear warning from the federal courts that the administration cannot ignore the Endangered Species Act, we now have a plan that is worse than ever," True said. "Our only option is to ask the courts to intervene again, hold the government accountable, and require it to obey the law."

Kulongoski has been critical of the new salmon strategy, saying it "is not a credible approach to the recovery of wild salmon and steelhead" and that it "falls far short of what needs to be done." Oregon was aligned with the NWF as a plaintiff-intervenor in proceedings that resulted in the 2004 BiOp being declared illegal.

NOAA Fisheries spokesman Brian Gorman said he had yet to read the supplemental complaint, or discuss the issue with agency attorneys. But he said the agency was confident it had built a proper recipe for assuring that the hydro system did not jeopardize the survival of ESA listed stocks and would indeed put them on a trajectory towards recovery.

The rebuilding of the FCRPS BiOp since Judge James A. Redden declared the 2004 product invalid in May 2005 has involved, at the judge's order, collaboration with Columbia basin tribes and states.

"We have tribal support this time around," Gorman said of factions that have often been adversaries in court proceedings and supported dam breaching. The Colville, Umatilla, Warm Springs and Yakama tribes earlier this year signed memorandums of agreement with the Bonneville Power Administration that guarantee $900 million for tribal fish and wildlife projects over the next 10 years, the intended term of the 2008 BiOp. The four tribes in the MOAs pledged support for the new FCRPS BiOp, as did the states of Idaho and Montana in separate MOAs.

The NOAA BiOp judged the proposed actions of the U.S. Army Corps of Engineers, Bureau of Reclamation and BPA. The Corps and Bureau operate the 14 FCRPS hydro projects; BPA markets the power generated in the system. There are 13 listed salmon and steelhead stocks in the Columbia and Snake river basins.

The BiOp's executive summary noted that the collaborative process "added to the breadth of scientific data and knowledge available to understand the condition of the fish and the actions that would be most beneficial for their recovery."

The supplemental complaint filed this week says that the jeopardy analysis used in the new BiOp is "created from whole cloth" by the federal agencies and "is not the product of a successful collaboration among the various sovereign interests during the remand of the 2004 FCRPS BiOp.

"Rather it departs from a framework agreed to by all of the parties in the collaboration and is instead built on a novel approach announced by NOAA in July and September of 2006, an approach that was sharply criticized by many of the remand participants, and one that is unscientific and legally flawed," according to the Earthjustice filing in Redden's court.

"... by using a different analysis, different metrics, and different standards..., NOAA consistently, and in many cases substantially, shrinks the magnitude of the problem it faces by simply reducing the magnitude of survival improvement needed for each population to 'avoid jeopardy,'" the supplemental complaint says.

The BiOP says that on unresolved issues regarding the use and interpretation of science, NOAA "considered all of the relevant information from the collaboration in developing the 2008 FCRPS Biological Opinion."

The supplemental complaint says "The Prospective Actions, which form the RPA for the 2008 FCRPS BiOp, are either largely the same as -- or in some cases, represent a retreat from -- almost every major area of hydrosystem actions proposed in the 2000 and 2004 FCRPS BiOps. In fact, except where they have been reduced, these measures have largely been in place since adoption of the RPA in the 1995 FCRPS BiOp."

The "action agencies" (Corps, Bureau and BPA) reached the conclusion that operation of the hydro projects would jeopardize listed species, but proposed a package of additional measures designed to benefit listed species and mitigate for hydro system effects.

NOAA included, in a "reasonable and prudent alternative," these proposed mitigation measures as well as others it believed necessary to avoid jeopardizing the listed species. The RPA contains 73 detailed sets of actions that include hydro system operation and configuration changes, tributary habitat restoration and protection and hatchery reform.

"Notwithstanding the extraordinary length of these documents and a relentless effort to convey a sense of complexity in their analysis, the core judgment about whether the 2008 RPA for FCRPS operations avoids jeopardy and destruction or adverse modification of critical habitat for ESA-listed salmon and steelhead is remarkably thin, subjective, biased by a persistent optimism, and ultimately at odds with the best available scientific information as well as the law and this Court's guidance for how to comply with it," according to the supplemental complaint.

The organizations staged a press conference in Washington, D.C., to announce the new legal challenge and urged congressional leadership to seek legislative solutions to the declining salmon populations in the Columbia-Snake system and other West Coast rivers that have forced fishery closures on the West Coast.

The national coalition of commercial and sport fishermen, conservationists and clean energy and taxpayer advocates used the occasion to continue their pitch for more dramatic solutions, like the breaching of dams.

"After so many failed plans, we obviously cannot rely on the Bush Administration to help restore salmon in the Pacific Northwest," said Debbie Sease, conservation director for Sierra Club in Washington, DC. "Today we are urging our leaders in Congress to step up with legislation that will authorize removal of four outdated dams on the Snake River and provide real long-term solutions to the salmon declines that have left people and the environment bearing the brunt of the government's failures."

Fishermen's livelihoods and family businesses have been severely harmed by repeated fishery closures and cutbacks in recent years, the groups said.

"The administration's plan not only deliberately ignores science, it overlooks the tens of thousands of people on the West Coast who rely on these fish for their jobs. Without abundant, harvestable populations of salmon we can forget about long-term economic stability," said Pietro Parravano, President of the Institute for Fisheries Resources and commercial fisherman from Half Moon Bay, Calif.

Northwest RiverPartners -- an alliance of farmers, electric utilities, ports and large and small business owners -- in a press release defended the collaboration process and NOAA's science, and faulted the fishing and conservation groups' motive.

"The litigants appear to be the only ones not looking out for the fish with their single-minded focus on dam removal," said Terry Flores, RiverPartners executive director. "In the midst of the world seeking remedies for climate change, they persist in demanding removal of the lower Snake River dams, a renewable source of clean electric power."

"It makes no sense to remove renewable, non-polluting power generation from the Snake River and replace it with fossil-fired power plants that accelerate global climate change," Flores said.

"This plan addresses all of the issues Judge Jim Redden has raised in the courtroom. It includes an unprecedented, rigorous science analyses, has strong support in the region and major funding commitments." Flores said the plan proposes spending more than $8 billion -- most paid by the region's electricity consumers -- over the next 10 years on salmon and steelhead recovery measures.

The Coalition for Idaho Water, also involved in the long-running litigation, expressed disappointment about the new legal threat.

"It has been crystal clear for years now that these fringe environmentalists' only interest is in breaching the four lower Snake River dams," according to a coalition press release. "So what saddens us the most is that virtually everyone else in the Pacific Northwest region has agreed to roll up their sleeves and work together cooperatively on the salmon recovery issue. But the increasingly isolated environmental fringe has again chosen litigation, a strategy that does nothing to help the salmon recovery efforts."

"But as Idaho water users, we also are painfully aware that their misguided actions means litigation that will once again put Idaho's water and its sovereignty squarely in the cross-hairs of environmentalists. That is a threat we do not take lightly."

National conservation, fishing and taxpayer advocates say the new BiOp lacks credible science-based analysis.

"The new plan doesn't suggest even a single new action to address long-term impacts from climate change," said John Kostyack, executive director of Wildlife Conservation and Global Warming for National Wildlife Federation in Washington, DC. "Science tells us that the warming waters on the West Coast are making salmon populations even more vulnerable to other threats they're facing in the Columbia River Basin, such as the four outdated lower Snake River dams. It's unacceptable that the administration is ignoring the best science we have."

The supplemental complaint says that NOAA "without any rational basis in disregard of the best available scientific information concluded in the 2008 FCRPS BiOp that the proposed actions of the Corps, BPA and BOR are not likely to jeopardize any listed species or destroy or adversely modify their critical habitat."

It asks the court to declare the 2008 BiOp illegal under the ESA and require NOAA to reinitiate consultation with the action agencies with the goal of producing a legal document.

NOAA, the Corps and Bureau are defendants in the long-running lawsuit. The federal agencies have 60 days to respond to the supplemental complaint.

Earthjustice's complaint can be found at www.earthjustice.org/library/legal_docs/columbia-salmon-complaint-2008-biop.pdf

The 2008 BiOp and related information can be found at www.salmonrecovery.gov