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Feds Oppose Including Upper Snake Projects in BiOp Remand by Barry Espenson Columbia Basin Bulletin - November 21, 2003

The effects of federal dams and water projects in the upper Snake River basin cannot be ignored as the NOAA Fisheries reassesses the impact federal projects elsewhere in the Columbia River Basin have on salmon and steelhead listed under the Endangered Species Act, according to a legal brief filed Oct. 30 in U.S. District Court by conservation groups.

But U.S. Justice Department attorneys say, in a Nov. 14 reply, that expanding the scope of the court-ordered Federal Columbia River Power System biological opinion remand to include the upper Snake would be illegal.

The federal response also says that the plaintiffs want the court to "give an advisory opinion on NMFS' scientific determinations before the determinations have even been made." That is also improper, according to the Justice Department.

The briefings are the first in the case since a series of opinions and orders by U.S. District Court Judge James A Redden this past spring and early summer. On May 7 he declared the "no-jeopardy" conclusion of NOAA's 2000 FCRPS biological opinion arbitrary and capricious. The judge faulted the BiOp for improperly relying on federal mitigation actions that have not undergone section 7 consultation under the ESA, and range-wide, off-site non-federal mitigation actions "that are not reasonably certain to occur."

He also called the federal agencies definition of the BiOp "action area" flawed "because it is inconsistent both with the regulatory requirements and the geographic region NOAA actually considered in order to justify the no-jeopardy conclusion."

The judge ultimately ordered that the FCRPS BiOp's existing provisions remain in force while the agency corrects the deficiencies he had noted. The legal representatives for the National Wildlife Federation and other plaintiffs objected, during a meeting last month with the judge and attorneys for other entities involved in the lawsuit, to NOAA's revised action area definition.

As a part of the year-long remand process, NOAA submitted a quarterly "status report" to the judge on Oct. 1. In that document the agency said it has redefined the action area "as not only the areas directly and indirectly affected by the FCRPS but also any watersheds in which off-site mitigation activities required by the (BiOp's) RPA may occur." The area "will cover most, if not all, of the freshwater habitat of the affected ESUs discussed in the 2000 RPA," according to the status report. ESUs or evolutionarily significant units are the individual ESA-listed chinook, chum and sockeye salmon and steelhead stocks.

That definition, according to the plaintiff's Oct. 30 brief, must include "areas that are accessible to salmon and those above impassable barriers, because these projects are part of a single course of federal action and because NOAA relies on the operation of some of these projects to provide mitigation for the effects of others.

"Second, limiting the action area for reconsultation to the main stem of the Columbia and Snake Rivers plus those watersheds accessible to salmon and steelhead where off-site RPA actions may take place is inconsistent with the scope of the direct and indirect effects of the hydrosystem itself. These effects extend into the accessible freshwater habitat of the listed salmon and steelhead in the Colmbia/Snake basin," according to the plaintiffs.

The 2000 BiOp describes the FCRPS as the mainstem Columbia and Snake River from Chief Joseph Dam and Hells Canyon Dam down to and including the estuary and plume. Salmon and steelhead passage to historic habitat has been blocked since their construction. The BiOp analyzes the impact of some 14 sets of dams, powerhouses and reservoirs on listed species. The RPA or reasonable and prudent alternative describes action that can be taken within the system of dams, and off-site, to improve salmon survival.

That FCRPS BiOp challenged by the conservation groups does not include Bureau of Reclamation projects above Coulee and Hells Canyon, with the exception of Libby and Hungry Horse dams in Montana. The remaining 17 BOR projects are mostly located in the upper Snake to provide irrigation water. Their operations were originally considered for inclusion in the FCRPS BiOp but were dropped at the 11th hour, pending a resolution from the Snake River Basin Adjudication.

The adjudication involves the BOR, NOAA, the Department of Interior and the Nez Perce Tribes, state of Idaho and Idaho water interests in a court-directed attempt to resolve competing water claims in the basin. An interim, no jeopardy, BiOp was released specifically covering those BOR projects. It calls for the basin to provide as much as 427,000 acre feet of water when possible from willing sellers to augment in-stream flows for migrating salmon. That expires in 2005.

Conservation groups in August mailed a 60-day notice of intent to sue NOAA and the BOR, claiming the Upper Snake River BiOp violated the ESA in a variety of ways. Within a few weeks the groups withdrew the letter at the request of Idaho Sen. Mike Crapo. He in turn instigated talks between the various groups on how issues, and particularly those related to the provision of augmentation water, could be resolved.

Earlier this month the conservation groups sent a letter to the senator, saying they could not set aside the possibility of litigation because several parties involved in the Crapo talks remain engaged in talks on many of the same issues through the adjudication process -- at the exclusion of the conservation groups. The groups remain undecided this week about whether they might reissue the notice letter and begin litigation, according Jan Hasselman of the National Wildlife Federation.

In their response to the plaintiffs' brief, federal attorneys say the plaintiff's request for clarification "almost magically… has morphed into two issues, only one of which has ever been at issue in this litigation.

"Plaintiffs now assert, for the first time in this case, that NOAA should complete its remanded biological opinion with reference to a different proposed action than that reviewed in the 2000 BiOp," the Nov. 14 reply says. "Specifically, they suggest that NOAA should unilaterally decide to consult on not just the hydrosystem operations for which the action agencies requested consultation, but also on the Bureau of Reclamation's irrigation projects in the Upper Snake Basin -- a separate action that was evaluated in a separate biological opinion."

The federal response says that the request is for a new ruling on a new issue, not a clarification as the plaintiffs attest.

"… if plaintiffs disagree with the scope of the proposed action, the proper course would be to bring a claim against the action agencies," the federal response says. The FCRPS "action" agencies are the BOR and the Corps of Engineers, which operate the dams, and the Bonneville Power Administration, which markets power generated at the facilities.

The federal brief says the request for clarification improperly asks for a judicial opinion "about how far the direct and indirect effects flowing from the proposed action reach. Clearly, that issue inherently calls for application of scientific judgment regarding causation and biological effects. Such issues will be resolved by NOAA in the course of the remand process."

The federal attorneys said "the Court should allow NOAA, in the first instance, to make determinations about the scope of the biological effects of the proposed action" before making a legal determination.

The judge has not indicated how or when he would respond to the request for clarification. The briefing schedule set by Redden allows for other parties to the lawsuit to react of the conservation groups' and federal agency's filings.

"We think that the motion is not well founded -- that the action area does not include the Upper Snake River," said Clive Strong, the Idaho attorney general's natural resources division chief.

"If you look at the upper Snake River projects, they have very little impact, if any," Strong said, on the downstream survival of migrating salmon and steelhead. Idaho is a "defendant intervenor" in the case. Defendant intervenors and amici had until the end of the day Wednesday to file supplemental briefs that might add to the arguments of the Justice Department.

While not officially involved in the FCRPS litigation, the Coalition for Idaho Water responded angrily to the "clarification" request.

"By attempting to insert the Upper Snake projects into the ongoing litigation, the environmental groups have undermined the negotiations previously organized by Sen. Crapo," said Norm Semanko, Coalition president. The Coalition includes more than 30 groups representing irrigation, agricultural, and business interests, as well as Idaho cities and counties.

"We are dismayed by their unscrupulous legal tactics. Instead of avoiding litigation, they have intensified their efforts to control Idaho's water, with reckless abandon," Semanko said. "While the rest of us had indicated a willingness to continue to sit down with Senator Crapo and discuss the issues, it is now clear that the environmental groups never had any intention to keep Idaho's water out of court."

Hasselman said that is not true; the groups are merely holding their ground.

"We have not by any means closed the door on discussions with Sen. Crapo or anybody else," he said.

"We can't hold off on court options if they continue their court options (through the adjudication)," Hasselman said.

Related Sites:
Federal Caucus: www.salmonrecovery.gov