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BIOP Meeting Focuses on Environmental Baseline Proposal by Barry Espenson Columbia Basin Bulletin - April 16, 2004

Attorneys for the state of Oregon and tribal fish managers told a federal judge today (April 16) that they had deep concerns about a federal proposal that makes dams and reservoirs part of the environmental baseline and judges the perils faced by salmon on day-to-day operations alone.

The "attorneys' steering committee" meeting scheduled to discuss the progress of a court-ordered rewrite of the 2000 federal biological opinion focused on two subplots -- NOAA Fisheries' proposed framework for determining if fish are jeopardized by federal hydro operations and a separate federal proposal to reduce summer spill for fish from standards outlined in the reigning BiOp.

Both would, if implemented, likely prompt additional legal action, the judge in the case predicted.

The BiOp released in December 2000 by NOAA determined that the federal "action agencies' " proposed operations plan jeopardized the survival of eight of 12 Columbia River Basin salmon and steelhead stocks. It recommended a host of mitigation actions both in the system and off-site that the agency expected to improve survivals enough to remove jeopardy. The jeopardy analyses considered both the existence and the operation of the Federal Columbia River Power System. The actions agencies are the Corps of Engineers and Bureau of Reclamation, which operate the projects, and the Bonneville Power Administration, which markets the power produced in the system.

That NOAA BiOp was challenged the following year by a coalition of fishing and conservation groups led by the National Wildlife Federation. Portland-based U.S. District Court Judge James A. Redden ruled in May of last year that the BiOp relied improperly on certain mitigation actions that either had not completed federal consultation or were non-federal actions that were not reasonably certain to occur as the ESA requires. He ordered those parts of the BiOp shored up during a yearlong remand that was to end June 2. NOAA launched into a complete overhaul of the document and the science on which its conclusions are based.

The remand process led to the establishment of a "collaborative" process that would allow state and tribal fish co-managers to review and provide input on NOAA's developing science for the new BiOp. That collaboration, ongoing since Jan. 16, is focused in five areas -- hydrosystem effects, dam passage, the role of hatchery programs in off-site mitigation, habitat off-site mitigation potential, and the potential framework for application of the jeopardy standard.

NOAA officials announced during a technical meeting March 19 that it was considering a shift in the environmental baseline in the development of its jeopardy analysis for the new BiOp.

"What we've been handed is a bombshell," said Tim Weaver, an attorney for the Confederated Tribes and Bands of the Yakima Nation. Four lower Columbia River treaty tribes, the states of Idaho, Montana, Oregon and Washington and a number of private stakeholders have joined the lawsuit as either intervenors or amicus curiae.

He said that tribal scientists had been participating in the process in the context of the 2000 document's framework. He and Nez Perce tribal attorney David Cummings said they feared that their scientists' work in the technical groups may have been misdirected given NOAA's apparent choice to shift the environmental baseline.

"We're tremendously concerned," Weaver said. The scientists', and lawyers', time, he said, is precious with other legal and scientific issues to evaluate such as the summer spill proposal.

"We're putting hundreds of hours into that process," Weaver said.

David Leith of the Oregon Attorney General's office told Redden that the collaborative process "has gone quite well" and that the state would like to continue the talks.

He said the state's scientists were still trying to understand the potential implications of what he called "a radical departure from what was done in the 2000 BiOp and earlier BiOps."

"We have serious concerns about the proposal," Leith said. The proposed framework, if adopted, "potentially renders all of the other work we're trying to do with the federal government irrelevant." He did tell the judge that the state did not at this point want to abandon the collaboration effort.

Justice Department attorney Fred Disheroon refuted an assertion by Earthjustice attorney Todd True that the technical collaboration "may turn out to be a waste of the co-managers time." Earthjustice is representing the plaintiffs in the case.

"I think that is flatly wrong," Disheroon said. He said that the technical information being developed through the processes would be pertinent regardless what path NOAA chose for the jeopardy analysis.

He said the collaborative process is "working well. It gives everybody an opportunity to see where things are going" as NOAA develops the science to inform its jeopardy/no jeopardy decision.

True noted that there is "a fundamental difference of legal opinion" about whether the proposed framework is legal under the ESA, and whether it conforms to Redden's order.

"I think this is going to land back up in your lap," True told the judge. He said the plaintiffs want a BiOp that "complies with the law and protects the fish."

Cummings told Redden that adoption of the new baseline approach could result "in a big legal issue headed your way." Disheroon said that the federal agency had not made a final decision on the framework for the jeopardy analysis. That would come sometime during the production of a draft biological opinion. The Justice Department has told Redden that an extension of the remand would likely be necessary to allow the scientific exchanges. Disheroon said he expected the collaboration to continue to the end of May. Then a draft would be produced, followed by a final BiOp sometime in November.

"I think there's still room to talk," Redden said in encouraging NOAA and the co-managers to continue discussions related to the jeopardy analysis framework and the technical issues.

"I'm willing to extend it to beyond the election time," Redden said of the remand deadline. That is when the plaintiffs in the lawsuit and others should decide if the framework issue merits litigation, according to Clay Smith of the Idaho Attorney General's office.

"The appropriate method for challenging whatever NOAA Fisheries decides to do is to challenge the BiOp," Smith said.

Redden considered the idea of calling on Judge Malcom Marsh to preside over settlement discussions regarding the issue.

"That may be something worth considering," True said.

Redden told the committee that he fully expected litigation if the Corps of Engineers decides to implement a proposal to reduce summer spill levels in July and eliminate spill in August.

"We'll resolve that as we go along with this (NWF v NOAA Fisheries lawsuit)," Redden said.