BiOp Judge Worries
by Bill Rudolph
Earlier this month, BiOp judge James Redden told parties to the remand process that he was concerned about the new tack the federal government has taken in its quest to complete a new biological opinion for the hydro system. At the June 4 steering committee meeting in Portland, Redden said if the new BiOp didn't fit into the order of the remand, it "could cause a train wreck."
Redden candidly voiced his concern about whether the government was even able to pay for BiOp actions, and wondered whether the feds were abandoning the task of addressing the BiOp alternatives "in favor of the new analytical framework."
NOAA Fisheries has announced it will change the analytical structure from the old BiOp, which includes effects of dam construction as well as operations, to one that simply looks at effects of dam operations on fish.
But Redden said if the government goes with the new baseline, and hence a new BiOp, he wanted someone to explain how the feds could come up with a new jeopardy finding, or non-finding, "and still comply with the remand."
Justice Department attorney Fred Disheroon said there was a misunderstanding about what was going on.
The baseline has not been changed, he told the judge, but to comply with Redden's finding "speculative matters could not be taken into account." He said the government has to go back to a "standard approach," which calls for differentiating between effects of the dams' existence and effects of the operations.
"So NOAA has gone back and is essentially doing a standard biological opinion," said Disheroon. "But it has not changed the baseline. It is providing for definition, it is changing back from the hundred-year approach to one that conforms with the regulations."
Earthjustice attorney Todd True said the parties were now in a "different ball game" than anyone had anticipated. Plaintiffs are concerned that by focusing on operations, analyses of the hydro system's effects on ESA-listed Columbia Basin salmon and steelhead stocks will be less severe than conclusions of the earlier analysis, which found that offsite mitigation was necessary to each a no-jeopardy decision for the hydro system.
Redden had ruled more than a year ago that the 2000 BiOp was illegal because it relied on some actions, namely, offsite mitigation, for fish losses that weren't reasonably certain to occur. But after weeks of collaborative efforts, True said "we found ourselves in an entirely new world."
Attorneys representing Washington and Oregon also expressed concern about the government's new direction, and supported the notion of having the feds produce a "white paper" delineating the differences in the analytical framework between the old and new BiOp. Disheroon said a draft BiOp will be completed by Aug. 30, which should suffice. Redden reluctantly agreed that there wasn't much he could do until it comes out. By the end of the meeting, Redden said his concerns had been allayed.
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