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Feds Say Dams May No Longer be Jeopardizing Fish Runs by Bill Rudolph NW Fishletter, June 30, 2003

The federal government has told an Oregon federal court judge that the Columbia River salmon bonanza of the past few years could mean that all 199 fish improvement strategies spelled out in the 2000 hydro Biological Opinion may not be needed. Judge James Redden ruled in May that the BiOp was inadequate because of uncertainty over how many of those strategies could actually be successfully implemented [National Wildlife Federation v. NMFS].

"NOAA Fisheries will analyze this information in the context of the remanded opinion and it may be that the status of the stocks are sufficiently improved that a 'no jeopardy' opinion is justified without the need of an RPA [Reasonable, Prudent Alternative]," Justice Department attorneys argued in a brief filed June 13. "However, even if an RPA is required, it may well be that significantly less conservation measures are required given the improved status of the stocks."

The brief was filed in response to an attempt by environmental and fishing groups to have the BiOp vacated for the upcoming year that Judge Redden has given NOAA Fisheries to fix it. Redden has already ruled that the BiOp is invalid because language in the document was too uncertain in regard to whether salmon recovery activities outside the hydro system--like habitat improvement--were "reasonably certain to occur." He gave the feds a year to strengthen the language, with progress reports due every three months.

But just a few days after his ruling, Earthjustice attorneys called for vacating the BiOp while it is being re-worked. If the current BiOp had been vacated, they would have been able to seek injunctive relief through the court to add other elements to a new BiOp. Though they haven't said anything particular about what they want to see added, it's likely the groups wanted more flow augmentation and bypass spill for fish at major dams.

As long as the document remains in place, however, the environmental and fishing groups cannot add to the complicated recipe for future hydro operations and the wide range of improvements slated for harvest management, habitat and hatcheries.

In a brief filed last month, Earthjustice attorney Todd True cited several cases involving the Endangered Species Act in which a biological opinion was judged invalid and dismissed while a new one was being developed.

But the latest federal brief points out that Earthjustice itself has recently argued for keeping a biological opinion in place (Alsea Valley Alliance v. NMFS) while the United States Court of Appeals for the Ninth Circuit decides an appeal by environmental groups on whether hatchery salmon that are part of the same Evolutionarily Significant Unit should be listed for ESA protection along with the wild component of the stock.

The feds also took issue with plaintiffs' claims that the listed fish are in imminent danger. They noted that the record runs over the past few years are "indicating that the stocks are in much better shape than NOAA Fisheries assumed in 2000."

The brief also disputes the plaintiffs' assumption "that the Court found that more (and more certain) actions needed to be taken to avoid jeopardy," which will allow them "to impose as-yet-unspecified changes in the operation regime" if the BiOp is vacated. This, the feds argue, could create "enormous uncertainty" over future hydro operations.

"Without the certainty provided by a biological opinion during the remand," said the federal brief, "the action agencies will not be able to conduct their essential planning functions and will be left to the vagaries of any litigant seeking to overturn the delicate balance in order to meet their own unidimensional desires."

This issue has already been important enough for the region's governors to send a letter to President Bush calling for the BiOp to remain in place during the remand.

Even the state of Oregon, which originally filed an amicus brief supporting the plaintiffs, filed a new brief with defendants supporting the notion of keeping the BiOp in place while it is being re-worked. "Moreover, this court's ruling invalidating the biological opinion does not question the propriety of its basin-wide perspective or the adequacy of its scientific basis," Oregon attorneys said in their brief. "The court rejected only the opinion's overly optimistic reliance on mitigation measures that are not adequately assured."

An intervenor brief filed by Northwest Irrigation Utilities said that "irreparable harm" could come to Northwest citizens in the near-term from managing the federal hydro system without a "scientifically grounded, expertly coordinated and administered plan of operation."

The NIU brief said the plaintiffs' assurances that operations would continue under the signed records of decision if the BiOp is vacated "are illusory, nothing more than a chimera that is inconsistent with Plaintiffs' actions." The brief noted that Earthjustice served its notice of intent to sue on the action agencies only two days after Judge Redden remanded the 2000 BiOp.

Vacating the BiOp would leave day-to-day operational decisions for the hydro system to the court, said the NIU brief, not to the agencies with the expertise to run the system.

Environmental lawyers have offered to substitute plan for operations, the NIU said in its brief, which would likely lead to added power supply costs and decreased reliability, and could actually harm listed species by reducing BPA's ability to fund fish recovery efforts.

Redden denied an amicus brief filed by the Columbia-Snake River Irrigators Association, which some power industry types called "beautiful" and "right on the mark." The brief said there was no evidence that salmon survival would improve from the higher levels of flow and spill supported by plaintiffs. Rather, they said more harm to fish would likely result from the "mis-directed, piecemeal remedies" sought by the plaintiffs, since, in general, less fish are transported when spill at dams is increased.

The irrigators said the BiOp should never have concluded the stocks were at a high risk of extinction, noting that salmon returns have set records in recent years. The irrigators also said the jeopardy standard adopted by federal agencies was too strict because it included effects from the dams' existence as well as their operations, whereas Congress clearly intended otherwise.