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Salmon Plan is Close, Judge says by Matthew Preusch The Oregonian, November 24, 2009

But the federal government must decide whether it wants to reopen the process
to make sure Obama administration additions are legal.

PORTLAND - U.S. District Judge James Redden praised the White House's additions to a Bush-era dam and salmon plan for the Columbia and Snake rivers.

He said in a hearing Monday that "with a little bit of work," the federal government might be able to get approval for the plan to operate the federal hydroelectric system that provides most of the power for the Pacific Northwest, provides barge transportation of goods between Lewiston and the Pacific and influences flows of water throughout a watershed that is larger than France.

But he all but gave up his hopes that the two sides could reach a settled agreement.

"We have tried really hard," said Coby Howell, the U.S. Justice attorney who spoke for the federal agencies. "We just have very different philosophical ideas on how to run this system."

Redden spoke directly to Jane Lubchenco, administrator of the National Oceanic and Atmospheric Administration and the highest administration official to attend a court hearing since Columbia salmon cases began under the auspices of the federal Endangered Species Act in 1994.

"I think you've done a good job," Redden said.

But he said the administration's changes wouldn't be legal unless the government went through the legal procedures to add them to the 2008 plan - called a "biological opinion" - or at least put out for public scrutiny the scientific review that underlies it. That process, federal attorneys said, could end up reopening a legal process that has been in Redden's court since 2001.

Redden was cagey about whether he still has substantive issues with the plan. Attorneys for environmentalists, the state of Oregon, the Nez Perce and Spokane tribes, and fishermen groups said the plan - even with the additions - doesn't go far enough to avoid jeopardizing the 13 stocks of salmon and steelhead protected in the watershed.

"The government could take this time to make this the strongest BiOp (biological opinion) possible," Redden said.

The federal agencies want the judge to endorse their proposal to spend more than $1 billion over a decade on improvements to habitat, hatcheries and harvest practices to offset some of the impacts of the four federal dams on the lower Snake River that scientists say are impeding the recovery of the fish.

They have the support of the rest of the region's Indian tribes and the states of Washington, Idaho and Montana. All of their attorneys urged the judge to approve the plan and allow them to take the next step of developing a separate recovery plan, which would be guided by a separate section of Endangered Species Act in the lawsuit.

But the fishing groups' attorneys said no more changes would be made to the hydroelectric dams without the teeth of the section of the act that requires federal agencies to avoid jeopardizing endangered species.

Their major sticking point is that federal officials only would consider breaching four Snake River dams as a last resort, and would not take significant action unless species were nearly extinct.

Lubchenco, a marine ecologist from Oregon State University, told reporters afterward that she stands by the plans that "follow the science and the law" - and acknowledged Redden's role in pushing the government to make tougher decisions.

"I don't think we would be here without the judge's involvement," she said.