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Groups Challenge in Ninth Circuit BPA's Record of Decision Accepting Feds' New Hydro/Salmon Plan by Staff Columbia Basin Bulletin, May 30, 2014

A coalition of fishing and conservation groups on Tuesday filed a petition asking that a federal appeals court review, and vacate, a Feb. 27 Bonneville Power Administration "record of decision" to implement a plan that assures a set of federal dams in Columbia-Snake river basin do not jeopardize the survival of protected salmon and steelhead species.

Conservation groups who believe the federal strategy falls short of what is needed to protect and restore salmon populations, in the past petitioned the Ninth Circuit for reviews of the BPA RODs endorsing the two previous NOAA Federal Columbia River Power System BiOps, a 2008 version and its 2010 supplement. In both cases those petition processes were put on hold as the legal action moved to U.S. District Court, where NOAA Fisheries BiOps themselves were challenged.

U.S. District Court Judge James A. Redden ruled in May 2011 that NOAA Fisheries 2008/2010 FCRPS BiOp, which was to prevail for 10 years, was illegal and ordered that its flaws be corrected by Jan. 1, 2014. BiOps are required under the ESA to evaluate whether federal actions, such as the operation of the dams, jeopardize listed stocks.

The coalition has yet to decide whether to mount a district court challenge to the 2014 BiOp produced in response to Redden's order. But the petition filed this week claims the BPA record of decision would implement a flawed BiOp that violates the ESA, the National Environmental Policy Act and the Administrative Procedures Act.

BPA is one the "action agencies" charged with implementing FCRPS BiOp provisions. Bonneville markets power generated in the federal power system. The other action agencies are the U.S. Army Corps of Engineers and the Bureau of Reclamation, which operate the FCRPS dams. Those dams include four mainstem hydro projects on the lower Columbia and four on the lower Snake River.

The action agencies must under ESA rules consult with NOAA Fisheries Service during the development of BiOps which, as is the case with the 2014 FCRPS BiOp, produce plans to avoid jeopardy.

The NOAA Fisheries 2014 BiOp judges that the existence and operation of the dams jeopardizes the existence of 13 Columbia basin salmon and steelhead species, but prescribes actions the federal agency says will mitigate for hydro impacts on fish. Those actions are outlined in a "reasonable and prudent alternative."

The petitioners include American Rivers, International Federation of Fly Fishers, Sierra Club, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Salmon for All, Idaho Rivers United, and Northwest Sportfishing Industry Association.

The groups are represented by Earthjustice, which also provided counsel for a broader coalition of fishing and conservation groups, led by the National Wildlife Federation, that challenged 2008/2010 BiOp.

The appeals court responded to the petition this week, requiring that petitioners submit a mediation questionnaire by June 3. The time schedule order also set up a briefing schedule with the petitioners' filing due Aug. 15. A respondent brief would then be due by Sept. 15 from the Bonneville Power Administration. An optional reply brief from the petitioners would be due 14 days later.

The Northwest Power Act requires that legal challenges to BPA actions, such as the ROD, be pursued through the Ninth Circuit. BPA is charged under that act with funding mitigation for FCRPS impacts on Columbia River basin fish and wildlife. BPA markets power generated at the dams, and mitigation actions are funded with revenues from ratepayers.

The petition says that "the ROD and related actions reveal that BPA is not complying with its duty to avoid jeopardy and adverse modification of critical habitat under the ESA.

"Similarly, although BPA asserts that its adoption of the RPA from the 2014 BiOp in its 2014 ROD complies with the National Environmental Policy Act ('NEPA'), 2014 ROD at 23-24, BPA has not completed an environmental impact statement or any other NEPA document to analyze the impacts of its adoption of the RPA from the 2014 BiOp, an action that constitutes a major federal action significantly affecting the quality of the human environment under NEPA," the petition says.

The petitioners say that BPA's clearly stated reliance on the 2008 and 2010 BiOps and the 2014 BiOp and supporting documents in making its decision came with the knowledge that that such documents were invalid and "fails to meet BPA's independent and continuing legal duty to comply with the substantive requirements" of the ESA.

"BPA has not obtained a valid, complete § 7(a)(2) consultation for operation of its projects and other actions or offered any other adequate basis to establish its compliance with these ESA requirements, and has not evaluated, proposed, or implemented further or adequate alternative protective measures for ESA-listed salmon and steelhead in order to avoid jeopardy and destruction and adverse modification of critical habitat," the petition says.

The petition says BPA's decision "may foreclose implementation of measures required to avoid jeopardy, including, but not limited to, decisions to produce and market power by running water through the turbines rather than spilling it over the dams, rapidly fluctuating water flows in response to power demand, drafting water from upstream reservoirs and operating the projects at elevations that do not avoid harm to listed species, and otherwise managing water resources and power marketing in a way that does not minimize or avoid mortality of salmon and steelhead."

The petition also says that the BPA decision adopts what the conservation groups claim is a faulty NOAA Fisheries "incidental take statement" that authorizes the "take" of listed salmon and steelhead, which is also based on prior, invalid BiOp conclusions. Such ESA take statements set limits on the amount of mortality resulting from dam existence and operations that might be acceptable.

"Neither the ITS in the 2014 BiOp nor the ITS in the 2008 and 2010 BiOps protects BPA from liability under Section 9 because the BiOps are arbitrary, capricious, and contrary to law. The incidental take statements contained therein are consequently also invalid," the petition says.

The petition also says that the BPA ROD improperly relies on outdated NEPA analysis from prior BiOp production processes.

"While BPA asserts that it "continues to rely on" several previous NEPA analyses, see 2014 ROD at 24 (listing EIS and other documents prepared between 1995 and 2003), an agency may not rely on stale or outdated data or analyses to satisfy its duty to examine the impacts of, or alternatives to, an action.

"NEPA and its implementing regulations impose a continuing duty on agencies to prepare a supplemental environmental impact statement whenever '(i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.'

"Both of these circumstances apply here: The condition of the environment and BPA's options and operations of the FCRPS have changed significantly since these earlier NEPA documents were prepared," the petition says.

For more information, see:

• CBB, April 4, 2014, "Fishing/Conservation Groups File Sue Notice On Challenging Salmon BiOp In Ninth Circuit"

• CBB, Jan. 17, 2014, "NOAA Fisheries Issues New Salmon/Steelhead Biological Opinion For Columbia/Snake River Power System"

• CBB, Sept. 13, 2013, "NOAA Fisheries Releases Draft 2013 Salmon/Steelhead BiOp, Says 2008 Biological Analysis 'Still Valid"

• CBB, Aug. 5, 2011, "Redden Orders New Salmon BiOp By 2014; Says Post-2013 Mitigation, Benefits Unidentified"

• CBB, Aug. 23, 2013, "Federal Agencies Release Draft Plan Detailing 2014-2018 Actions To Meet BiOP Salmon Survival Targets"