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Collaboration Process may Push BiOp Rewrite to November by CBB Staff Columbia Basin Bulletin - April 2, 2004

Revisions to the Federal Columbia River Power system biological opinion will likely be completed in November, not June 2 as ordered by a federal court, so that a federal collaboration with state and tribal fish managers on related scientific and analytical issues can run its course.

That's the gist of an April 1 Justice Department "status" report to the judge, James A. Redden, who in May of last year declared that the federal salmon protection strategy's "no jeopardy" conclusion was arbitrary and capricious.

Redden said the 2000 BiOp relied improperly on certain mitigation actions and on June 2, 2003, remanded the 2000 BiOp to NOAA Fisheries so the agency could correct the plan. A BiOp is required under the Endangered Species Act when a federal action, such as hydrosystem operations, may affect listed fish.

He ordered the federal defendants to report quarterly on the progress of that remand -- on Oct. 1, 2003, and Jan. 1 and April 1 of 2004. The judge has stressed throughout the process the need to engage state and tribal co-managers in the crafting of a new BiOp.

The states of Oregon and Washington and the Columbia River Inter-Tribal Fish Commission complained late last year in letters to Justice Department attorney Fred Disheroon that that collaboration had not fully flowered. During a mid-January meeting of the Attorneys Steering Committee appointed by Redden, the topic surfaced. Federal attorneys said at the time that the remand schedule did not allow the necessary time for an intensive scientific give-and-take.

Redden told the parties that he felt such a process was important and intimated that his deadline could be stretched if necessary to allow the collaboration. That process is indeed happening. The actual BiOp-building process is not.

"In order to allow the collaboration process a full opportunity to inform the work on remand, NOAA has been required to redirect the focus of its efforts from implementing its Remand Work plan," according to the April 1 status report.

"Because that process is still ongoing, NOAA is deferring making any decisions about revisions to the 2000 BiOp until it has completed the discussion with the states and tribes and given full consideration to the results of those discussions," the report says. "NOAA staff will resume consultation and development of a revised biological opinion after the collaboration has run its course."

"Really, the idea was that if we're going to have a genuine collaboration we ought to hear what people say before we make any decisions," Disheroon said. The agency wants of ward off potential accusations that it is prejudging the issues, he said.

The status report says that "no final schedule for the collaborative process is available," but that NOAA expected it to wind down by the end of May. The report estimates that it will then take about 90 days to produce a "draft" BiOp. That includes the 68 days that remained on the clock for draft BiOp completion when work was suspended and an extra 21 days to integrate the information produced during the collaboration. NOAA had originally announced that a draft would be available March 24.

The work plan calls for a 70-day period for NOAA to advance the document from draft to final status on June 2. The status report now projects that draft will be out at the end of August. A 70-day work window would result in a final BiOp by early November.

"However, NOAA would be willing to afford the States and Tribes a second phase of collaboration after the release of the draft biological opinion," the report says. A two-week collaboration would result in completion of the final in late November, according to the schedule estimates.

The report says that the federal attorneys will file a motion with the court for an extension of the remand deadline. That motion will be forthcoming following an April 16 meeting of Judge Redden and the steering committee.

"We'll need to because we obviously aren't going to make it by June 1," Disheroon said. He added that as far as he knew the collaborations were proceeding smoothly.

The scientists are working in five subject areas: hydrosystem effects; dam passage; the role of hatchery programs in off-site mitigation; habitat offsite mitigation potential, and a potential framework for application of the jeopardy standard.

According to the report five "scoping" meetings have been held and the parties are now exchanging relevant information for each subject area.

Redden had ordered last summer that the 2000 BiOp, and its provisions intended to reverse any jeopardy posed to fish, remain in place during the remand. Implementation of those provisions is directed by "action agency" implementation plans that have been endorsed by NOAA Fisheries. The action agencies which NOAA consults are the dam operators (the Corps of Engineers and Bureau of Reclamation) and the Bonneville Power Administration, which markets the power produced in the FCRPS.

The six-page status report gave the judge a heads up about a proposal to alter fish spill regimes at four Columbia/Snake river dams during July and August for a three-year period.

The proposal is motivated by regional calls "for an examination of the benefits of the current spill program to determine whether the biological benefits attributed to spill could be achieved in a less costly manner" through other mitigation actions, according to the status report.

The "implementation plan refinements" -- changes from BiOp prescribed levels -- would, if approved, be incorporated into 1- and 5-year implementation plans, the status report says. Those plans would then join the set of actions analyzed during the part of the remand/BiOp development process that determines whether operations jeopardize the survival of listed stocks.