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Federal Agencies Respond: With Collaboration New BiOp will Comply with Endangered Species Act by Staff Columbia Basin Bulletin, November 16, 2012

Critiques of the process are well taken and are helping move toward the goal of satisfying requirements that the federal Columbia/Snake river hydro system avoid jeopardizing the survival of salmon and steelhead stocks that are protected under the Endangered Species Act, notes a brief filed Nov. 9 by the U.S. Department of Justice in Oregon's U.S. District Court.

But it is not yet time to cry foul, say federal agencies in the brief.

The filing came in response to comments submitted by plaintiffs in a long-running lawsuit over the validity of NOAA Fisheries Service's 2008/2010 ESA biological opinion on the existence and operation of the Federal Columbia River Power System.

(See, CBB, Nov. 2, 2012, "Salmon BiOp Challengers Say Agencies' Progress Report To Court Inadequate; RiverPartners Praise" www.cbbulletin.com/423674.aspx)

A coalition of fishing and conservation groups led by the National Wildlife Federation and the state of Oregon sought and received a court decision declaring the 10-year BiOp illegal. Judge James A. Redden in an August 2011 order said that the "2008/2010 BiOp's conclusion that the operation of the FCRPS does not violate the ESA is remanded to NOAA Fisheries for consideration consistent with this order." He required that a legal BiOp be produced by Jan. 1, 2014.

The judge ordered that the federal agencies continue implementation of BiOp measures expected to produce fish survival benefits, and report annually regarding implementation progress. The second such report was issued in late September. Comments filed with the court by NWF, Oregon and the Nez Perce Tribe said the report on 2011 BiOp implementation did little to chart progress.

NWF says the report 2011 report, like its 2010 predecessor, lacks the detail necessary to drive adaptive management aimed at bringing needed survival improvements.

The report "fails to illuminate whether the specific actions described in the RPA are being implemented as anticipated in the 2008/2010 BiOps, whether the survival improvements from these actions, which NOAA determined are necessary to avoid jeopardy, are actually accruing as predicted, or what concrete actions the agencies have taken to compensate for any shortfall in either actions or survival improvements," the NWF comments say.

The BiOp's "reasonable and prudent alternative" describes habitat, harvest, hatchery and hydro system mitigation actions aimed at improving survival of ESA-listed salmon and steelhead stocks that are negatively impacted by the 14-dam FCRPS, which includes hydro projects in the Columbia and Snake river basins. A total of 13 basin salmon and steelhead are listed.

"In short, the 2011 Report fails to provide a basis for the Court, the parties, or anyone else to evaluate whether, or the extent to which the RPA actually has been implemented, let alone whether the specific survival improvements from these actions have occurred," the NWF's Oct. 31 comments said.

The federal response filed last week said such comments are ill-timed and off base.

"Federal Defendants certainly do not agree with all of Plaintiffs' comments," last Friday's federal filing said.

"For instance, Plaintiffs speculate that the agencies prefer to 'operate the FCRPS without spill,' even though the agencies have implemented spill as an effective means of improving juvenile passage and survival through the hydrosystem and continue to do so in collaboration with the region's sovereigns," according to a footnote in the Nov. 9 federal brief.

Spilling water through floodgates has long been argued as the most benign means of passing migrating juvenile salmon down past hydro projects. Redden has in recent years issued orders requiring more spill than recommended by the agencies in charge of directing dam operations -- the U.S. Army Corps of Engineers, Bureau of Reclamation and Bonneville Power Administration.

"But, the Federal agencies will utilize their experts and those within the region to make certain that the relevant scientific issues identified by Plaintiffs in their comments and by others during the remand process are appropriately considered and addressed.

"In doing so, the agencies will utilize the sovereign collaboration and independent review forums that are already established and working effectively in the region, and they will seek additional stakeholder input on products like the 2013 comprehensive evaluation and draft biological opinion," the federal brief said.

"With such continued sovereign collaboration and regional input, this remand will be successful, and NOAA's biological opinion will comply with the law," the federal brief says.

The 10-year BiOp completed in 2008 and amended in 2010 requires that the Corps, BPA, and Reclamation submit to NOAA Fisheries comprehensive evaluation of multi-year implementation activities by the end of June 2013 and again by June 2016. The Redden remand order also requires that the federal agencies work with other stakeholders -- such as states and tribes -- in building the new BiOp.

The evaluations "shall review all implementation activities through the end of the previous calendar year (as would be covered in the Annual Progress Report) and compares them to scheduled completion dates as identified in this RPA or modified in the Implementation Plans in 2009, 2013 and 2016," the BiOp says.

"The Comprehensive Evaluations will also describe the status of the physical and biological factors identified in this RPA, and compare these with the expectations in the survival improvements identified in the Comprehensive Analysis or Supplemental Comprehensive Analysis." the BiOp says.