BiOp Plaintiffs Oppose Nov. 30 Deadline;by Barry Espenson
More time should be allowed for the reconstruction of the biological opinion on federally protected Columbia River basin salmon and steelhead, but not nearly as much time as the federal government has requested, according to the plaintiffs in the lawsuit that forced the work.
NOAA Fisheries now has in front of it a court-ordered June 2 deadline to complete revisions to the salmon protection strategy it released late in 2000 -- the Federal Columbia River Power System biological opinion. Agency officials have said they are at work on more than a revision. Rather, the agency plans a complete redrafting of the BiOp and a recalculation of the scientific analysis that judges whether FCRPS operations jeopardize the survival of salmon and steelhead stocks listed under the Endangered Species Act.
The U.S. Justice Department last week asked U.S. District Court Judge James A. Redden that the deadline be pushed back as far as Nov. 30 to allow a continuing collaboration between federal scientists and tribal and state co-managers on the scientific analyses that will support the BiOp's ultimate jeopardy conclusion. That collaboration, an extra step in the BiOp development process, was requested at mid-winter by the co-managers.
Last week's federal motion said "additional time to complete the revised biological opinion is necessary to account for the time that has been devoted, and will continue to be devoted, to the collaboration process requested by the State and Tribal resource co-managers and to the review and synthesis of the information that results there from." A quarterly update on the progress of the BiOp "remand" issued April 1 said that all work on the BiOp itself was halted to redirect energies to the collaboration, which is expected to be completed by the end of May.
Additional time is needed, but the plaintiffs in the case say a deadline of Sept. 15 is more appropriate than the end of November.
The BiOp remand process is being watched carefully with states, tribes, utility and navigation interests and others officially signed on as either intervenors or amici in the lawsuit. Redden informed those parties to the lawsuit that they have until Friday (May 7) to respond to the federal request for a remand extension. Oral arguments on the issue would follow.
That NOAA BiOp was challenged in 2001 by a coalition of fishing and conservation groups led by the National Wildlife Federation. Earthjustice represents them in the case. 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.
The plaintiffs' response to the extension request says NOAA "has made no serious showing that an additional six months is needed to address the specific legal defects the Court identified in the 2000 FCRPS..
"The purpose of the remand, therefore, was not to allow NOAA Fisheries an extended opportunity to develop an entirely new approach to ESA consultation on FCRPS operations but to allow the agency to correct the shortcomings the Court had identified expeditiously by identifying actions that would more reliably avoid jeopardy to salmon and steelhead," the motion filed April 30 said. A July 3, 2003, supplemental order issued by Redden said the court had not addressed or made findings on the BiOp's science and "does not intend to delve into the science during the remand period."
The motion filed by Earthjustice says that the NOAA request "has misidentified by at least a month the starting point of the collaborative process" -- saying it started earlier than it actually did. The collaboration process structure was established Feb. 12, according to the brief. Calculating from that date to the end of May -- the supposed end of the collaboration -- is slightly more than 100 days.
The National Wildlife Federation's proposal to the judge is that the remand be extended by that amount of time to Sept. 15, "two and a half months sooner than the very generous extended schedule NOAA Fisheries seeks."
Earthjustice attorney Todd True said that NOAA Fisheries officials have said the collaboration will require extra work, "but they haven't pointed to anything yet" that justifies such a long extension.
"To the extent NOAA Fisheries asserts that such a lengthy extension is necessary to consider and incorporate information from the co-managers collaboration, NOAA has made no showing that any such information exists or will even emerge from the collaboration," according to the April 30 motion.
"More importantly, the fundamental goal of the remand was to ensure that mitigation actions were well-defined and certain to occur. The longer the remand process continues without producing a revised biological opinion that accomplishes this goal, the longer salmon and steelhead will suffer under the legally and biologically inadequate status quo."
Justice Department attorney Fred Disheroon emphasized that the scheduled laid out by NOAA Fisheries was driven by the desire to produce a quality product shaped at least in part from the co-managers' input.
"The question is do you do a hurry up job or do the best job you can," Disheroon asked rhetorically. He said that the co-managers, not NOAA, had requested the collaboration and that the federal agency should not be disadvantaged in terms of time as it returns to the task of producing a new BiOp.
Disheroon pointed out that the early winter timeframe puts the plan in place well before juvenile salmon begin their migration down through the hydrosystem.
"The most important things happen the following spring," Disheroon said.
The NWF motion pointed out that improving fish survival during migration is just one facet of the flawed BiOp. It has judged that extensive off-site mitigation measures must be implemented "aggressively" to avoid jeopardy.
"Although the Opinion failed to identify these measures with sufficient certainty or ensure their reliable implementation, the Opinion and the Court's decision both highlight the risks of delay in identifying and actually taking effective steps to protect these species," the motion said. Thus the need to bring surety to the salmon strategy as soon as possible.
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