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Feds' New Analysis may Turn Hydro BiOp on Its Head by Bill Rudolph NW Fishletter, April 2, 2004

The federal agency responsible for rewriting a new biological opinion on Columbia River hydro operations is proposing to take a much narrower look at dam effects on ESA-listed fish than the earlier document which is now in remand.

NOAA Fisheries assistant administrator Brian Brown dropped that policy bomb at a March 19 scoping meeting among remand parties to discuss the framework for analysis.

If federal policymakers go ahead with the proposal, it will mark a sea change in their thinking about the responsibility of the hydro system for fish declines that led the government to list many Columbia Basin stocks for protection under the Endangered Species Act. Rather than saddle the hydro system with the lion's share of blame for fish losses and the consequent responsibility for recovery, the new proposal would look at dam operations alone to see whether those actions jeopardize the listed runs. Such a shift in the analysis would effectively decouple the effects of a dam's existence from day-to-day operations, a position that's long been supported by some stakeholders.

Just last week, in a motion for partial summary judgment in their own BiOp lawsuit (Columbia Snake Irrigators v. Evans), basin irrigators focused on this issue, pointing out that dam operations have actually increased survival of the listed stocks, "making a jeopardy finding impossible as a matter of law."

The feds themselves seem to be embracing something akin to the irrigators' position, and have suggested changing the environmental baseline of the ESA analysis from the 1980-1999 period of the earlier BiOp when some fish populations crashed, to a more up-to-date time frame between 1999 and the present, a period when most listed fish populations have been on the rise, thanks mainly to improved ocean conditions that helped increase survival rates up to tenfold.

At the March 19 meeting, NOAA Fisheries' Brown cited chapter and verse from the ESA itself to make his point--that an action does not jeopardize a species if its net effect does not "appreciably reduce" its likelihood of survival and recovery.

By developing a reference survival percentage to estimate the maximum fish survival that could be wrung from dam operations (taking into account such non-discretionary actions as flood control) and comparing it to the estimated survival from proposed operations, analysts could develop what Brown termed an "initial gap analysis," to quantify the percent improvement needed to reach that reference point.

The reference hydro survival would become a component in a new environmental baseline that will include updated run status. If operations are still found to jeopardize listed stocks, fish losses from hydro operations could then be mitigated by a mix of habitat, hatchery and harvest actions, but would likely be much less draconian than the 199 different measures in the current BiOp designed to avoid jeopardy. The action agencies would only have to mitigate the effects of the proposed hydro operations to get a passing grade for ESA concerns.

The ruling by Oregon District Court Judge James Redden last May pointed to only one major legal problem in the 2000 BiOp--that offsite mitigation for fish losses caused by the hydro system weren't sufficiently certain to occur. Since then, the litigants have sparred over questions such as the scope of the action area, and are now in the midst of collaborating with federal scientists on scientific issues involved.

But Redden has yet to rule on any scientific question, nor does he have the authority to tell NOAA fisheries how to rewrite the BiOp, according to attorneys familiar with the lawsuit.

Reading Between the BiOps
However, environmental and fishing groups who are plaintiffs in this case probably didn't expect the federal government to tackle a major revision of the hydro BiOp as part of the remand, even though NOAA Fisheries' regional administrator Bob Lohn has hinted strongly since last May that a major rewrite was a good possibility, especially in light of the agency's efforts to update ESA fish status and develop a hatchery policy.

Shortly after Redden announced his decision, Lohn said his agency must choose whether to respond to the technical issues of the ruling and more carefully "document" the certainty of fish recovery actions outside the hydro system, or undertake a more intense analysis that used more and better information than was previously available.

In a brief filed in Redden's court last June, Justice Department attorneys noted that the status updates now underway might show that fish numbers are so much better than when the BiOp was written that it might justify a 'no jeopardy' opinion for hydro operations.

Last November, while addressing a group of lawyers in Seattle, Lohn said his agency had two choices. It could patch up the current BiOp with its 199 salmon recovery activities, redo the stock analysis and see what that brings, or it could restructure the document with fish recovery measures set up in another way. The big question, Lohn said, was whether the region could develop priorities for each 'H' (harvest, hydro, habitat, hatcheries)--whether performance-based or outcome-based--and integrate them within the current framework. "The opportunity is there," he said. "We'll have to see what time brings."

The performance standards theme was reiterated in December by utility lobbyist Randy Hardy, who represented about half of BPA's customers when he spoke before the Northwest Power and Conservation Council, recommending that the federal agencies rewrite the BiOp and shift to a regime of performance standards similar to the plan developed for the mid-Columbia PUDs "rather than 200 RPAs and very prescriptive individual measures that characterize the current B.O."

"It's kind of elementary and yet, we've got it back-asswards in this fish program," Hardy said. "Where we try to dictate the means and the ends, the result is you end up with one of these with everybody blaming everybody else, and when you heap that on top of the tremendous conflicts and data that exist, you don't have any accountability."

He said more flexibility through performance standards would allow better biological results and save BPA "well beyond" the $100 million a year from eliminating summer spill and operating turbines outside of peak efficiency. He said the utilities had been actively soliciting support for this scenario, both in Washington, D.C., and among Northwest governors and others. Hardy said if it was implemented, he guaranteed it would be better for both fish and finances.

But salmon managers from state and tribal agencies have already vowed to respond to the federal proposal. They are expected to weigh in soon with their arguments supporting the notion to keep the analysis framework from the current BiOp.

Regional administrator Bob Lohn characterized the new policy direction as a "tentative proposal," which is still in the initial modeling stages, but is also one "which seems to satisfy our obligations--fundamentally, what the Act [ESA] requires us to do," Lohn told NW Fishletter. "We'll see where it goes from there."

Did Lohn think that Judge Redden would support the new direction? Lohn said the judge reminded his agency that they could only look at certain things, and that other approaches like those in the earlier BiOp are wrong.