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Amended Complaint Filed in Salmon Lawsuit

by Kevin McCullen
The News Tribune, August 26, 2010

PORTLAND -- Plaintiffs in the lawsuit over salmon recovery in the Columbia River Basin system have filed an amended complaint contending the latest plan by federal agencies violates portions of the Endangered Species Act and other regulations.

A coalition of environmental and fishing groups filed a sixth amended complaint last week in federal court in Portland, contending the 2008 and 2010 Federal Columbia River Power System BiOp plans fail to protect and restore stocks of 13 wild salmon and steelhead species listed under the act in the Columbia River Basin.

The groups are asking U.S. District Judge James Redden to throw out both BiOps -- the 10-year plans for operating federal dams on the rivers and offsetting their effect on listed fish -- and accompanying incidental take statements and permits and force NOAA Fisheries and other federal agencies to prepare a new biological opinion.

They also allege the recovery plans violate sections of the federal Clean Water Act because dams on the Columbia and Snake rivers alter or affect water quality by heating it and by creating dissolved gas supersaturation that is harmful to fish during periods of involuntary spills.

"We're probably as disappointed as anyone that we're back in court with a new complaint," said Steve Mashuda, a Seattle-based attorney for EarthJustice, which represents the plaintiffs. "A lot of people were hoping we'd see something different by now in the operation of the hydropower system. But since 2000, it's been the same theme from the federal agencies. They're not complying with the law."

The amended complaint contends that the 2010 BiOp adopted the 2008 plan developed under the Bush administration without making any significant changes, alleging the new plan "does not propose a single new action that would ensure salmon and steelhead survival at the levels required by the 2008 BiOp."

Agencies involved in salmon recovery, however, point to this year's large return of adult salmon and steelhead in the Columbia -- including a record sockeye run -- as validation of a multi-pronged effort by federal, state and tribal entities to restore fish populations.

This year's figures also follow two strong years of runs. And based on catches of juvenile fish in May by NOAA Fisheries researchers during an ocean survey, biologists say they believe returns of wild and hatchery fish into the system appear promising next year and beyond.

The spring chinook run count at Bonneville Dam was 256,996 as of Aug. 23, compared with the 10-year average of 167,834. At Lower Granite Dam on the Snake River, the count was 100,612 as of Aug. 23, compared with the 10-year average of 67,446.

Sockeye returns at Bonneville this year easily dwarfed the record set in 1955 with 386,511, compared with the 10-year average of 94,583. The return of endangered Snake River sockeye at Lower Granite as of Aug. 23 was 2,152, compared with the 10-year average of 242.

"It's becoming increasingly difficult for the plaintiffs to argue things are going to hell in a handbasket. The spectacular returns we are seeing this year and we project into the fall are the result of good ocean conditions and a number of remarkable improvements in the region that continue to help recovery," said Brian Gorman, Seattle-based spokesman for NOAA Fisheries.

"We are just much more attuned today to what needs to be done to recover salmon stocks, and there is much more optimism -- in the law, the biology and the policy. People now feel that there is a light at the end of the tunnel for some of the stocks," Gorman said.

Some of the efforts include installation of removable spillway weirs and surface weir work at dams to facilitate juvenile passage, improvements to habitat and hatcheries and better management of harvests, federal officials have said.

Plaintiffs, however, argue that the large adult returns largely are the result of good water spill over the dams for juveniles several years ago.

"High flow years generate higher returns because you've got more fish going downstream," said Liz Hamilton of the Northwest Sport Fishing Association. "The current BiOp does not anchor spill as a centerpiece of what we need to do for fish."

Federal officials, though, say spill is built into the overall salmon recovery effort. They also say spilling and barging or trucking smolts from the Snake River dams to below Bonneville has bolstered fish numbers.

The amended complaint also alleges federal agencies haven't undertaken specific projects to improve fish habitat, nor has NOAA Fisheries taken into account the impact of climate change on habitat. Mashuda said federal agencies have completed only a quarter of the projects they said they would in the estuary below Bonneville Dam.

But the Obama Administration has amended the BiOp with five new actions to address the climate change issue, said Terry Flores, executive director of Northwest RiverPartners, a group that includes farmers, electric utility customers and thousands of businesses.

Federal agencies in June rolled out a comprehensive three-year, $525 million plan aimed at habitat restoration. The plan includes continued structural improvements to dams -- from new bypasses to modifying spillway chutes -- as well as improvement and protection of thousands of acres of riparian habitat.

"I don't think there's any action the government or the coalition of state and tribal (partners) could take that would satisfy the plaintiffs," Flores said.

A hearing before Redden is not scheduled until late in the year, and Flores is among those who say they are optimistic the judge could rule then or soon afterward on the long-running lawsuit. But that may not resolve the issue, as many involved in the lawsuit expect the losing side to appeal to the 9th U.S. Circuit Court of Appeals.

"All parties in the litigation assume that, and it will depend on how the judge rules on who appeals," Flores said.

Kevin McCullen
Amended Complaint Filed in Salmon Lawsuit
The News Tribune, August 26, 2010

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