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NOAA Fisheries Finds Jeopardy Unlikely from Operating Federal Dams by K.C. Mehaffey NW Fishletter, May 6, 2019

The Endangered Species Act "does not require an improvement to a species status, growth rates, or other metrics to demonstrate compliance,"
It "only requires agencies to insure that their actions are not likely to jeopardize 'the continued existence' of listed species."

A new biological opinion (BiOp) for the Columbia River System concludes that the operation and maintenance of 14 federal dams are unlikely to jeopardize the existence of eight salmon runs and five listed steelhead runs listed as threatened or endangered in the Columbia Basin.

Released by NOAA's National Marine Fisheries Service (NMFS) on March 29, the BiOp also concludes that operating the dams is not likely to adversely affect southern resident killer whales, or a distinct population of green sturgeon.

Operations are also not likely to destroy or adversely modify the critical habitat of any of those species, the document finds.

The new BiOp covers operations at four lower Snake River and four lower Columbia River dams under a new flexible spill schedule developed in an agreement between the three federal action agencies, the states of Oregon and Washington, and the Nez Perce Tribe.

The agreement provides higher spill--at 120 percent total dissolved gas (TDG) at all eight dams this year--to aid juvenile fish passage for 16 hours each day, and allows more water for power generation during the 8 peak hours when electricity prices are highest each day.

"We're happy that our consultation with NOAA was successful and that we have a new Biological Opinion to guide our system operations," Bonneville Power Administration spokesman David Wilson said in an email. "The hydro operations addressed in this new BiOp are largely the same as analyzed in the previous Biological Opinion, except for the new Flexible Spill Operation which has a goal of benefiting salmon and steelhead while providing additional power generation opportunities for BPA."

The BiOp covers the continued operation and maintenance of dams in the Columbia River System (CRS)--called the Federal Columbia River Power System in previous BiOps--along with tributary and estuary habitat mitigation, conservation and safety net hatchery programs, predator management, and research, monitoring and evaluation efforts.

The document notes that the actions covered by the BiOp are of "limited duration" because the action agencies--BPA, the Bureau of Reclamation and U.S. Army Corps of Engineers--are developing an environmental impact statement (EIS) to assess long-term system operations, maintenance and configurations, and are under court order to complete the EIS records of decision by Sept. 24, 2021. A new federally mandated schedule speeds up the EIS process, with records of decision now scheduled for Sept. 30, 2020.

NOAA Fisheries spokesman Michael Milstein told NW Fishletter that this interim BiOp is necessary to cover any incidental take of listed species caused by the dams and other operations. It includes five "reasonable and prudent measures" to minimize the impact of the amount or extent of incidental take.

These include specific operational measures for both juveniles and adults; implementation of specific habitat improvement actions; a continuation of Caspian tern management on East Sand Island to reduce smolt predation; and the monitoring and reporting the level of take from hydrosystem, hatchery and habitat actions.

Milstein also acknowledged that the new BiOp is "more of a back-to-basics approach" compared to prior BiOps that were deemed inadequate by federal courts.

In the BiOp's introduction, NMFS offered a brief history of the litigation leading up to this BiOp, including a 2016 ruling in U.S. District Court that invalidated its 2008/2014 BiOp in National Marine Fisheries Service et al. v. National Marine Fisheries Service et al.

In prior biological opinions, the agency wrote, the agency intended to adopt standards that provided "ample assurances" that the Endangered Species Act's jeopardy provisions were not violated. Howe

"The courts thus overturned standards and analyses we developed specifically for the CRS. Rather than continue on this path of developing CRS-specific standards, we return to our usual practice applied in most (if not all) ESA consultations," the introduction says.

The new BiOp uses statutory language and the agency's "long-standing interpretations" to determine whether the action is likely to jeopardize continued existence of the listed species. The Endangered Species Act "does not require an improvement to a species status, growth rates, or other metrics to demonstrate compliance," it says. It "only requires agencies to insure that their actions are not likely to jeopardize 'the continued existence' of listed species."

The BiOp also provides details for the flexible spill levels this year--when the eight dams will operate to 120 percent of total dissolved gas in tailraces for at least 16 hours every day, and in 2020, when most of the dams will operate to 125 percent of total dissolved gas in tailraces for 16 hours every day if Washington and Oregon change their water quality standards to enable the change.

"This increase in spill cap will result in higher spill levels for 16 hours per day at most dams, however, The Dalles Dam will spill less at 40 percent and John Day Dam will spill either 32 percent or maintain up to 120 percent TDG flexible spill. The reductions in spill at these two projects are intended to meet the power benefit objective of the Flexible Spill Operation Agreement. Spill caps will be limited during low and moderate flows by powerhouse minimum generation requirements at some projects," the BiOp states.

Flexible spill operations in both years are subject to change through adaptive management processes in case any unintended consequences arise, it says.