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States, Tribes Asked for Habitat Info as Part of BiOp Revision by Bill Crampton Columbia Basin Bulletin - December 5, 2003

As part of an effort to prepare for the court-ordered revision of the 2000 Biological Opinion for the federal Columbia River hydropower system, the National Marine Fisheries Service has sent a request for information from Tribes and states about non-federal salmon habitat actions that might be included in the new “BiOp.”

“In revising the BiOp, NMFS will consider relevant beneficial and adverse federal and non-federal actions that meet the proper legal criteria,” wrote Rob Walton of NMFS’ Salmon Recovery Office in a Nov. 26 letter to states, Tribes, the Northwest Power and Conservation Council, and subbasin planning coordinators.

In May 2003, Judge James A. Redden said that reliance on certain federal and non-federal activities results in a false assessment that federal Columbia/Snake river hydrosytem dams can be operated as planned without jeopardizing the existence of salmon and steelhead stocks listed under the Endangered Species Act.

"NOAA's reliance on federal range-wide, off-site mitigation actions that have not undergone section 7 consultation and non-federal range-wide, off-site mitigation actions which are not reasonably certain to occur was improper and, as to eight of the salmon ESU's, the jeopardy opinion in the RPA is arbitrary and capricious," Redden wrote in his opinion and order.

Judge Redden said NOAA also erred by defining the "action area" affected the BiOp as the hydrosystem corridor, then using a broader range in making its jeopardy calculation.

"If the proposed range-wide, off-site mitigation actions are not, in reality, part of the action area, they should not have been included within the 'cumulative effects' analysis of the 2000BiOp," Redden wrote. "However, it is apparent that NOAA included them as part of the RPA in the 2000BiOp to justify its no-jeopardy conclusion. The BSRS (Basinwide Salmon Recovery Strategy), which includes many of those mitigation actions, acknowledges their uncertainty."

Redden then quoted a passage from the BSRS that says it has a "reasonable chance" of being implemented.

"The problem with this analysis is that the regulatory standard is not 'reasonable chance’ but 'reasonable certainty,' " Redden wrote.

In his letter to states, Tribes and others, Walton said, “For non-federal actions we will consider those actions that have been completed since 2000 or future actions that are ‘reasonably certain to occur.’’’

“In the revised BiOp, we will consider completed actions as part of the environmental baseline and ‘reasonably certain’ future actions in the cumulative effects analysis section,” Walton said in the letter.

“NMFS is aware that the deadline for completion of current subbasin planning efforts is May 28, 2004 and that many state, tribal and local resources have been assigned to this task,” said Walton.

“We have placed a high priority on completing the revised BiOp by June 2, 2004, but we recognize the importance of the subbasin planning efforts and intend to revise the BiOp without causing a duplication of effort or disrupting the ongoing subbasin planning work,” Walton said.

“We therefore seek to compile the information necessary to complete the BiOp revision from available sources in the most efficient manner possible, making use of information and products that already exist or are already being prepared, wherever possible,” Walton said in the letter.

With the letter, NMFS attached for states and Tribes an informational Question and Answer about the NMFS Habitat Information Plan for the BiOp Remand that might guide them in submitting information.

NMFS says the information it seeks from non-federal parties includes:

• information about beneficial and adverse actions in salmon habitat in the Columbia Basin.
• from States, Tribes, and State subbasin planning coordinators, information regarding non-federal and non-federally funded actions
• completed actions that have been implemented since 2000.
• future actions which are “reasonably certain to occur,” which NMFS defines as: “Indicators of actions ‘reasonably certain to occur’ may include, but are not limited to: approval of the action by State, tribal or local agencies or governments (e.g., permits, grants); indications by State, tribal or local agencies or governments that granting authority for the action is imminent; project sponsors' assurance the action will proceed; obligation of venture capital; or initiation of contracts. The more State, tribal or local administrative discretion remaining to be exercised before a proposed non-Federal action can proceed, the less there is a reasonable certainty the project will be authorized.”

From Federal agencies, NMFS says it will solicit, in a separate memo, information regarding federal and federally funded or permitted actions:

• Completed actions that have been implemented since 2000. These include the Inventories from subbasin planning.
• Future actions that have completed section 7 consultation by June 2004.

The submitted information will be used in the updated jeopardy analysis related to habitat actions. In addition to the jeopardy analysis, this information will be relevant to any reconsideration of the Basinwide Salmon Recovery Strategy, says NMFS.

NMFS says it will work “with Regional and State staff from the Northwest Power and Conservation Council to ensure that NMFS work is as beneficial to subbasin planning as possible, while minimizing the interruptions or disruption to the subbasin planning process.”

Related Sites:
www.salmonrecovery.gov/R_Handouts.shtml