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NOAA'S Draft BiOp Generates
Large Volume of Comments

by Bill Crampton
Columbia Basin Bulletin - October 29, 2004

Ranging from lengthy, detailed critiques to succinct post cards, tens of thousands of comments have poured in regarding agencies' plans to operate the federal Columbia River hydrosystem while protecting salmon and steelhead stocks listed under the Endangered Species Act.

The most substantial comments were posted for public review this week at

In addition, NOAA Fisheries received more than 28,000 e-mails, over 7,100 form letters, in excess of 10,600 post cards, as well as approximately 2,300 signatures on petitions. The agency also received approximately 60 letters from concerned individuals.

In the comments, the states of Oregon, Washington and Alaska, tribes and conservationists expressed concern over both the direction and details of the action agencies' draft "Updated Proposed Action" and NOAA Fisheries' draft Federal Columbia River Power System 2004 biological opinion. The action agencies are the Bonneville Power Administration, which sells the power generated at the federal dams, and the Corps of Engineers and Bureau of Reclamation, which operate the dams.

Idaho, Montana, utilities, industry and agriculture organizations, while focusing on certain details of specific concern, generally supported the federal agencies' overall approach.

The two draft documents and associated materials released for comment last month are available at Comments were due Oct. 8.

The first document, the Updated Proposed Action, or UPA, describes how the action agencies intend to operate federal dams to protect fish, generate power, control flooding, and facilitate navigation and other uses. The "BiOp" evaluates if that action plan jeopardizes the survival of ESA-listed salmon and steelhead stocks.

The draft BiOp judges that the proposed operations do cause a reduction in survival of migrating juvenile salmonids, but that a variety measures proposed by the action agencies' plan will serve to mitigate those effects over the 10-year life of the plan. The draft BiOp concludes that none of the 13 listed stocks will be jeopardized with extinction because of the operations.

The no-jeopardy conclusion is based on a new method of analysis and new "environmental baseline," which includes the existence of the dams in the baseline and judges alone the effects of operations on listed fish. The 2000 and previous FCRPS BiOps did not separate the effects of the dams' existence from the operations of the system for hydro generation, irrigation, flood control, navigation and fish.

Federal officials say they included dams in the baseline because in reality the agencies, due to previous congressional authorizations, have no discretionary ability to remove the dams, and that the ESA jeopardy assessment requires judgment of a proposed action or operation.

Washington Gov. Gary Locke, in his comments, said the draft 2004 BiOp "greatly narrows the FCRPS scope of responsibilities" under the ESA "and, through technical and new legal arguments, essentially eliminates its role in a comprehensive fish recovery strategy for the Columbia Basin. This leaves Columbia Basin salmon and steelhead to an uncertain future, especially given the adverse effect of dams on these fish populations . . ."

Locke said he is concerned that "by narrowing FCRPS' scope of responsibilities" the ESA obligation for fish recovery will be "transferred to local governments, landowners, and fishing and agricultural communities."

He added that the "path you have taken" may "reopen heated debate on the dams and how best to manage the FCRPS for fish. The consequences of again polarizing the region on this issue could be extremely serious for those who depend on the river for irrigation, barging and power."

In addition, Washington Department of Fish and Wildlife submitted extensive comments, contending that the "No-Jeopardy determination by NOAA Fisheries does not appear to be supported by the analysis of the proposed action." WDFW Director Jeffrey Koenings suggests an "independent scientific review may be in order."

Michael Carrier, Oregon Gov. Ted Kulongoski's natural resources policy director, echoed Locke's concerns about shifting the burden of salmon recovery to others. "Frankly," Carrier wrote, "Oregon is also concerned that the novel legal theories the action agencies and NOAA Fisheries are pursuing may end up having the unintended result of putting our regional energy, agricultural and transportation infrastructures at significant risk."

In its extended comments, Oregon contends that NOAA Fisheries "fails to articulate any meaningful rationale for why this proposed action does not result in jeopardy . . ."

Kevin Duffy, commissioner of the Alaska Department of Fish and Game, wrote that the "existence and operations of the dams are significant causes for the decline of Columbia River salmon and steelhead …without the dams there would likely be no extirpated stocks in the upper Columbia basin, which would mean annual production of millions more salmon and steelhead."

Duffy says that Alaska believes "the 2004 BiOp's inclusion of the dams into the environmental baseline is a subject that needs thorough discussion and review, and that the present flow and spill must be continued until such a time as RSWs (Removable Spillway Weir), corner collectors, and another mechanical devices have proven safe and effective at all dams."

In contrast, Idaho submitted comments supporting "as a matter of law, the 2004 BiOp's overall jeopardy framework and the no-jeopardy determination. …Idaho believes that the jeopardy framework is consistent with applicable CEQ regulations and a reasonable approach to the task of separating out discretionary from nondiscretionary FCRPS operational features.

" . . .the fact remains that the primary impact of the FCRPS on currently listed species took place by virtue of simply constructing the relevant hydroelectric facilities and that those effects are necessarily part of the "environmental baseline" as defined in the regulations," said Idaho in its 28 pages of general and technical comments.

Montana Gov. Judy Martz submitted commits supporting "the general approach in the new BiOp that eliminates any notion of breaching the dams in the Columbia and Snake rivers. It makes sense that you focus on the proposed actions that are within the authority of the Action Agencies to implement. Removal of the dams is not in the Action Agencies' authorities and is therefore not something that NOAA can require. The dams in the region can be operated effectively for fish, while at the same time providing the low cost renewable electricity that is so important to the people and economy of the Pacific Northwest."

Most of Martz's comments focused on operations at Libby and Hungry Horse Dams. "Changes in operational decisions including reductions in summer spill need to occur," she said. "We should continue to look for alternatives to costly operations . . . . I strongly support your efforts to continue to review operations, including summer spill, with a commitment to cost effectiveness."

The Columbia River Inter-Tribal Fish Commission -- representing four Columbia Basin treaty tribes with reserved fishing rights, the Yakama Nation, Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes of the Warm Springs Reservation, and Nez Perce Tribe -- asked the Fish Passage Center to review the draft BiOp. CRITFC submitted that review as its comments.

The BiOp's proposed measures "do not avoid jeopardy," wrote Fish Passage Center Michele DeHart in a 12-page memo to CRITFC. "This draft Biological Opinion is based on a flawed concept and insufficient scientific analysis."

The federal power system "is responsible for adversely modifying the critical habitat of ESA listed salmonid species," said the FPC in its review of the BiOp. "Unlike previous versions of the BiOp, this current draft steps away from biological criteria for determining jeopardy and establishes criteria that are limited by the continued and uninterrupted operation of the present hydrosystem."

The FPC reviews notes the draft BiOp establishes a "biological baseline" to describe the impacts of the power system. "The biological baseline is described as the juvenile survival obtained in the base period of 1994 to 2003 in a hydrosystem configuration as developed in 2004. This baseline capitalizes on the recent good ocean conditions that yielded increased numbers of adult returns. These ocean conditions compensated for the effects of the hydrosystem and the net effect is setting the biological baseline too high."

Both the Nez Perce Tribe and Warm Springs Tribes submitted separate comments which question the draft BiOp's no-jeopardy conclusion. The Nez Perce say the BiOp represents "an incredible step backward, with enormous adverse consequences for salmon, and, in turn, for our people whose culture and way of life are dependent on the salmon."

Many industry, utility, ports and agricultural organizations submitted comments, with most agreeing that it's correct to include the existing dams in the environmental baseline.

"The 2002 draft BiOp is appropriate in including the dams as part of the environmental baseline," says the Coalition for Smart Salmon Recover in its comments. "The draft recognizes that the federal dams and related facilities are in place and are already operating. The Action Agencies do not have legal authority to remove or breach the dams. Thus, the draft BiOp is correct in confining its scope to actions that are actually proposed."

The coalition stresses that cost effectiveness should be a major factor in identifying actions and "continues to be concerned about river operations, like summer spill, that are extremely expensive and provide little to no biological benefit to ESA listed fish."

The Inland Ports and Navigation Group also agrees with the new baseline and stresses cost effectiveness. IPNG also addresses the role of ocean conditions.

"We hope that critics of the current recovery plans who give most credit to improved ocean conditions also will assign equal blame to poorer ocean conditions in some future time when the decade-long ocean conditions again shift, and the growth of returning adults slows or stagnates, or even falls."

Several of the industry and utility comments not only support the new baseline, but lauded the distinction in the draft Biop between recovery plans for listed species and a jeopardy analysis.

"The 2000 BiOp adopted a framework that confused a jeopardy analysis with a recovery analysis," wrote John Saven, director of the Northwest Requirements Utilities. "This blurred the action agencies' separate obligations to avoid jeopardy under ESA section 7 (a) (2) on the one hand, and contribute to recovery of the species under ESA section 7 (a) (1) on the other. Thus, the 2000 BiOp adopted programs to achieve recovery, rather than to avoid jeopardy. The 2004 Draft BiOp clarifies these two different legal obligations, and thus is an improvement over the 2000 BiOp."

The Pacific Northwest Generating Cooperative said in its comments that the draft BiOp is "legally sustainable" and "provides exhaustive protections for the Columbia River Basin's ESA listed fish by including hundreds of the actions from the 2000 BiOp, while also adding new actions.

"Unfortunately," says the PNGC, "the new draft continues to include actions that have not adequately proven to provide biological benefit. The new draft also continues to have a large impact on the region's electricity rates."

Several conservation organizations, too, filed extensive comments, with many stressing their concerns about the new baseline, the no-jeopardy determination and the distinction between survival and recovery.

"Overall, we find the draft 2004 BiOp legally and scientifically deficient," says the Save Our Wild Salmon Coalition, which claims a membership of over six million. "…the agencies have concocted an entirely new jeopardy framework that ignores the biological requirements and status of listed species in determining the effects of dam operations, masks the true impact of the operation and existence of the dams by treating them as immutable parts of the river environment, and disregards critical aspects of both the survival and recovery prongs of jeopardy."

The draft 2004 BiOp is the result of District Court Judge James A. Redden's ruling in May 2003 that the no-jeopardy conclusion in 2000 FCRPS BiOp's was invalid. He later ordered that the document be reworked to correct certain deficiencies during a year-long remand.

The judge faulted the 2000 plan because it did not contain sufficient guarantees that certain mitigation actions would be implemented. The draft 2004 version delivered to the court at the end of August provides greater details about habitat improvements and hatchery operations throughout the Columbia River watershed that will be relied upon to improve survival.

The operations plan includes most of the hydrosystem fish protection measures outlined previously, including hotly debated strategies such as spill and flow augmentation from upstream federal reservoirs.

Brian Gorman, spokesman for NOAA Fisheries in Seattle, said his agency is now going through the comments, and that the substantive comments will be addressed in the final BiOp. In addition, NOAA is categorizing the comments and will post a general response to each of the categories.

The final 2004 BiOp is due before Nov. 30.

Bill Crampton
NOAA'S Draft BiOp Generates Large Volume of Comments
Columbia Basin Bulletin, October 29, 2004

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