Judge Redden Gives Feds
by Bill Rudolph
Oregon District Court Judge James Redden has given NOAA Fisheries until Nov. 30 to rewrite the BiOp document he tossed out last year. Redden earlier gave the feds until June to complete the task, but a collaborative process currently underway among all parties led to the extension. One plaintiff, the National Wildfire Federation, had recommended considerably less time, hoping to cut short the new analysis that will drive the next BiOp.
The Justice Department filed a motion April 27 for more time, asking that the original June 2 deadline be extended until Nov. 30. Redden had granted a continuance during an April 16 meeting of the attorneys' steering committee, agreeing with all parties that more time was needed to allow for the continuing collaboration between federal scientists and state and tribal agencies over scientific issues he had ordered in the first place.
Plaintiffs, represented by Earthjustice attorney Todd True, recommended a Sept. 15 deadline for the final BiOp. It's no secret that True and others have been unhappy with the new direction of the BiOp analysis, which until recently the feds had characterized as "tentative." But at a recent meeting of collaborators, the feds said the new direction for analyzing dam effects on listed fish populations is definitely the way they will steer the next BiOp.
In a written order released on May 13, Redden said he was concerned that the remand process may have "diverged" from the intent and terms of the court's May 2003 order that found the BiOp was illegal because it relied on offsite mitigation activities that weren't reasonably certain to occur. That issue will be discussed at the next meeting of the remand steering committee, Redden said in his order.
The judge also expressed concern that the six-month extension might be futile because adequate funding to implement changes isn't yet in place, nor likely in the near future. Redden said he was aware that NOAA Fisheries' policies were "in flux" about counting hatchery fish and wanted the parties to address the possible ramifications of such policy changes. If it's still relevant when the committee meets on June 4, the judge wanted to discuss the annual spill issue as well.
True had argued that the shorter remand schedule "is reasonable and necessary to protect salmon," noting that the purpose of the remand wasn't "to allow NOAA Fisheries an extended opportunity to develop an entirely new approach to ESA consultation. Rather, True said, a shorter schedule would "allow the agency to correct BiOp shortcomings."
Plaintiffs said that NOAA Fisheries, which argued that the lengthy extension was needed "to consider and incorporate information from the co-managers' collaboration, hasn't showed that any such information exists or will even emerge from the collaboration."
But the judge wasn't buying True's argument or the plaintiffs' notion that "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."
Meanwhile, the "collaboration" was scheduled to continue through May. The feds met May 13 with states and tribes to discuss their "reference" hydro operation that will serve as a basis to estimate fish survival from proposed operations.
The controversial new analysis includes dam operations in the environmental baseline for the new BiOp that the old BiOp did not. Since this is likely to reduce estimates of adverse impacts of hydro operations on listed stocks from the 2000 BiOp's analysis, plaintiffs have voiced opposition from the start.
The earlier BiOp found that proposed operations jeopardized the ESA-listed fish and could only be approved if 199 different actions were undertaken to boost survival throughout the system. It also called for many improvements to Columbia Basin habitat, hatchery operations and harvest management.
In another collaboration meeting last week, it was reported that state and tribal agencies still differed significantly with NOAA's recent revision of a scientific document that outlines the latest findings on dams and fish survival.
The feds' latest draft contains the same message the original draft reported, though delivered in a kinder, gentler way. It says the belief by the states and tribes in some kind of "delayed mortality" effect of dams and barges on fish is still mostly hypothetical, without much data to back it up, and is something that could be explained another way.
The feds prefer to use the term "latent mortality," and say that other factors like fish size and timing of ocean entry may account for differences in fish survival between transportation and in-river strategies. They said smaller fish tend to enter bypass systems at dams, which is a necessary route before barging, and could skew survival rates of transported and bypassed fish low, since smaller fish generally have lower survival rates than larger ones.
However, the feds said in the May 6 draft, "the recent return rates of wild fish implies that hydropower system-related latent mortality is not such an overwhelming force that it will prevent stocks from returning to abundances observed before the hydropower system was completed."
Dams do not play the biggest role in fish survival, the feds claim. "It is clear, though, that ocean conditions are the dominating factor in determining return rates, overriding variability associated with the hydropower system. Return rates have increased by an order of magnitude since the recent upturn in ocean conditions while survival through the hydropower system has remained relatively constant. Improvements in SARs, though, do not preclude the existence of hydropower system-related, latent mortality or a latent mortality/ocean condition interaction."
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