Federal Agencies Give Judge Reddenby CBB Staff
A 16-page status report, with 18 related documents, has been forwarded to U.S. District Court Judge James A. Redden noting "substantial progress" in the efforts of NOAA Fisheries and other federal entities to rework plans to protect Columbia Basin salmon and steelhead populations that are listed under the Endangered Species Act.
Redden on June 2 remanded the Federal Columbia River Power System biological opinion to the agency, telling NOAA Fisheries to correct deficiencies noted in an May 7 court order. Redden's order declared the BiOp's jeopardy conclusion arbitrary and capricious, saying it improperly relied on salmon and steelhead survival gains from federal mitigation actions that have not undergone section 7 consultation under the Endangered Species Act; and on range-wide, off-site non-federal mitigation actions that are not "reasonably certain to occur." The National Wildlife Federation filed the lawsuit.
Redden gave NOAA one year to complete the tasks, and told the agency to report quarterly on its progress.
The BiOp, issued in December 2000, said that FCRPS planned operations jeopardized the survival of eight of the 12 Columbia Basin salmon and steelhead "evolutionarily significant units" listed under the ESA. It described 199 actions in its "reasonable and prudent alternative" that were believed to reduce that jeopardy.
The initial quarterly report delivered to the judge Wednesday notes that the remand is proceeding along two tracks. The first is an effort to address the judge's concerns. The second is to "refresh the jeopardy analysis for the FCRPS by updating the scientific information on which it relies.." That refreshing involves analyzing recent years' salmon and steelhead run date to update assumptions about productivity, abundance, diversity and distribution.
"The remand necessarily will lead to a determination as to whether the originally proposed FCRPS and any resulting Reasonable and Prudent Alternative (RPA) is or is not likely to avoid jeopardy now and throughout its term," the report says.
Several of the documents submitted to the court, and posted on a recently developed remand web site, "contain additional biological data, most of which has been gathered or collated since 2000, relevant to the status of the salmon and steelhead stocks affected by the FCRPS."
The involved federal agencies have also redefined the "action area" covered by the BiOp to include "not only the areas directly and indirectly affected by the FCRPS but also any watersheds in which off-site mitigation activities required by the RPA occur. Redden's order says that the BiOp misapplied the ESA action area definition. The BiOp's jeopardy conclusion relies on bringing improvements in salmon survival through such off-site activities as habitat improvements.
The federal agencies are also examining in more detail the activities of states and private entities that may be judged "reasonably certain to occur."
Primarily involved in the remand are NOAA and the so-called action agencies that operate the FCRPS -- the Bonneville Power Administration, the Corps of Engineers and the Bureau of Reclamation.
The report says NOAA "continues to complete consultations with other federal agencies" concerning proposed federal actions relevant to the area of the RPA. Several biological opinions issued since the 2000 BiOp are relevant to the remand. Among them are some that Redden noted specifically in his May 7 order -- BiOps for three Mid-Columbia Habitat Conservation Plans and for southern Idaho forest plans that use analysis prepared for the Interior Columbia Basin Management Plan for federal forests.
The federal agencies have established a site on the internet where documents relevant to the remand can be viewed and downloaded as they become available.
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