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Feds Tell BiOp Judge
Breaching Not In The Cards

by Bill Rudolph
NW Fishletter, August 8, 2006

U.S. attorneys have told a federal judge that they aren't going to include a dam breaching alternative in their quest for a court-approved solution to salmon operations at Columbia and Snake River dams.

Plaintiff environmental and fishing groups have been pushing for the lower Snake breaching alternative to be studied in the so-called "collaborative" process between federal agencies, states and tribes that is trying to forge an agreement over the salmon science behind the next BiOp. Lower Columbia tribes also wanted an "aggressive, non-breach" strategy to be studied as well.

But Justice Department attorney Robert Gulley brought six boxes of documents into U.S. District Judge James Redden's court at the July 21 status conference containing the Corps' years-long feasibility study of lower Snake dam breaching.

"We're not going to go there," Gulley told Redden. He said the Corps of Engineers had been studying that option since 1992 and spent $20 million on it, also noting that drawdowns and dam breaching are not consistent with the scope of the present action. Nor does the Corps even have the authority to implement these types of operations.

Gulley also dismissed other potential alternatives, such as the spillway-crest drawdown option pushed by lower Columbia tribes. He said the consequences of that option for salmon passage would be severe, because removable spillway weirs wouldn't operate, juvenile bypass systems and adult fish ladders wouldn't work, and barge navigation--including the juvenile fish transportation program--would have to end.

The U.S. attorney also assured Judge Redden that the Bonneville Power Administration's latest rate case wouldn't restrict funding future ESA obligations, and agreed to supply a brief to the judge on the topic.

The feds also promised to send another memo the judge's' way, one that describes the agencies' latest thinking on how it will conduct its jeopardy analyses of dam effects on ESA-listed stocks, with another copy going to plaintiffs.

Sources said the draft jeopardy memo already circulating among some parties is very non-specific in nature--but outlines the basic direction the feds will be headed--that the dams do jeopardize the listed stocks, a conclusion that last BiOp (2004) did not reach because it separated the dams' existence from their operation.

In their response to the feds' latest status update, plaintiffs want the government to "clearly articulate" the jeopardy standard and analysis to be used.

Redden, who seemed to take his cues from a litany of treaty tribe complaints, also asked the feds about the state of the northeast Oregon hatchery funding designed to add more spring chinook to the Snake River population. The Bonneville Power Administration is awaiting approval from NOAA Fisheries before it will fund a $16-million hatchery upgrade.

Gulley told the judge that, on the one hand, hatcheries could play valuable recovery and harvest roles, but, on the other, poorly managed facilities could hurt wild fish stocks. He said hatcheries will be looked at during the remand, but the feds haven't developed management goals for the different ESUs [Evolutionarily Significant Units]. Gulley told the judge that BPA needs more information before it funds the facility to make sure the northeast Oregon upgrade falls "on the right side of the ledger."

Redden observed that more time may be needed to complete the remand than allowed by the February deadline now scheduled, especially since the feds have to look at Upper Snake operations as well, thanks to a recent Redden ruling.

After the hearing, plaintiff environmental and fish groups issued a press release that accused federal agencies of heading down "an all too familiar path that involves only minor changes in dam operations." Earthjustice attorney Todd True said they were "simply asking" the feds to evaluate the biological benefits of "several significant alternatives" to current operations.

The groups said, despite the court's previous admonition that the federal agencies cannot ignore dam removal, the government still refuses to look at breaching the four lower Snake dams.

But at the status hearing, Redden didn't order the feds to look at more draconian alternatives, despite the enviros' continued message that removing the dams is the only action shown so far that can restore the fish populations.

That's a different conclusion from the Corps' $20 million study on the lower Snake, which led to the 2000 BiOp. Ocean conditions were so poor in the late 1990s that federal scientists said then that even by removing the dams, adult return rates would be too poor to achieve recovery unless juvenile fish numbers could be substantially boosted before the fish even entered the hydro system.

This line of thinking led to the 2000 BiOp's 199 actions designed to improve fish numbers, many of them focused on improving habitat throughout the Columbia Basin. Policy makers estimated another $200 million to $300 million in added annual costs would be needed that would also pay for an offsite mitigation plan designed to save the hydro system's bacon. However, that came with a caveat--if the dams met performance standards for juvenile and adult fish survival, but off-site improvement goals weren't met, the four lower Snake dams could still be in jeopardy.

But in 2003 Judge Redden threw out the 2000 BiOp, mainly because there wasn't any guarantee that most of the offsite mitigation was "reasonably certain" to occur. Since then, return rates of most ESA-listed stocks have vastly improved with better ocean conditions, despite a dip in survival for the past couple years. Cooling ocean waters may have improved fish survival once again this past spring.

The feds promised Judge Redden to put the fish on the road to recovery and said they were committed to filling the gaps between current fish numbers and ultimate goals through improvements in habitat, harvest, hatcheries and hydro. According to their latest status report, they have generated an estimate of that portion of fish mortality that can be attributed to the hydro system, but it's still under wraps. The gaps, however, quietly went public in the middle of May (NW Fishletter 215), and some of these are close to what appeared in the BiOp over five years ago.

In the 2000 BiOp, the survival gap for Snake River spring chinook that needed to be filled by habitat improvements was estimated from 53 percent to 98 percent. The latest analysis hasn't changed the goal all that much--29 percent to 88 percent improvement is needed, depending on ocean conditions, including hydro.

For some other listed stocks in the interior Columbia, the latest gap analysis by the interior Columbia Technical Recovery Team shows smaller differences, and with ESUs like the Middle Columbia and Snake River steelhead, there may be no gaps at all.

In the 2000 BiOp, the mid-C steelhead gap was estimated from 122 percent to 268 percent. For the Snake River steelhead, it was 72 percent to nearly 300 percent.

For upper Columbia spring chinook, the 2000 BiOp said the ESU needed a 55 percent to 86 percent improvement. The latest assessment says the spring chinook suffer from a 53 percent gap at best.

Listed steelhead from that part of the basin need more than a 300-percent improvement in survival to reach the 5-percent risk level under the most optimistic analysis. In 2000, the needed steelhead improvement was estimated from 47 percent to 243 percent.

But two weeks ago at the July Power Council meeting, NMFS scientists said that the region could only expect to wring about 5 percent better survival from the hydro system in the lower Snake, even after removable spillway weirs are installed.

That means the next BiOp will be faced with filling most of the gaps with improvements outside the hydro corridor, similar to the 2000 BiOp. But sources said that during the remand process, little progress is being made on harvest and hatchery fronts, so it's likely that prospective habitat improvements will play the largest role in reducing the gaps between current fish numbers and fish goals of healthy runs and sustainable harvests.

Bill Rudolph
Feds Tell BiOp Judge Breaching Not In The Cards
NW Fishletter, August 8, 2006

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