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Judge Redden Cites Concerns About BiOp Implementation by Barry Espenson Columbia Basin Bulletin - January 23, 2004

As the rewrite of the biological opinion on the Federal Columbia River Power System's impact on salmon and steelhead survival hit its halfway point, the judge that ordered the remand is keeping a careful eye on the success the federal government is having at implementing the current "BiOp."

U.S. District Court Judge James A. Redden in May 2003 declared the December 2000 FCRPS BiOp's no-jeopardy conclusion was arbitrary and capricious under the Endangered Species Act because, in large part, it relied on certain federal actions that had not completed ESA consultation and other range-wide, off-site non-federal mitigation actions that were not reasonably certain to occur.

The 2000 BiOp said hydrosystem operations posed jeopardy to eight of the Basin's ESA listed salmonid species. It described a set of actions to be taken within the hydrosystem and off-site that NOAA Fisheries felt could lift survivals to the point of avoiding jeopardy.

Redden ordered a remand of the document so the federal agencies involved could correct the legal shortcomings he cited. It is due by June 2. Meanwhile the 2000 BiOp -- intended to hold sway for 10 years -- was left in place.

In its second "status report" to the court Jan. 1 regarding progress of the remand process, NOAA Fisheries noted several areas in which BiOp implementation was lagging.

The judge in a meeting last week cited several concerns about BiOp implementation -- funding shortfalls, no establishment of processes to monitor the success of mitigation actions, no fish survival performance standards and no completed off-site mitigation plans. All, according to a schedule lined out in the BiOp, were supposed to be in place by the end of fiscal year 2003.

Those issues were noted in a "findings" report issued at year's end by NOAA. The findings evaluate whether the BiOp is being implemented by federal "action agencies" at the rate called for in the BiOp. NOAA's grading system has three levels -- "green light" if no changes are needed to the implementation plan; "yellow light" if changes are needed within the action agencies' existing authorities to improve implementation or survivals, or "red light" if the plan of action is failing and the agencies must either seek additional authority to implement additional actions, or reinitiate consultation.

The Dec. 30, 2003, findings gave the effort a yellow light.

Given the laundry list of worrisome issues noted by the agencies, and by the judge, Redden asked "are we in the yellow zone as described by the government as opposed to the red zone?"

The findings letter says that "while there has been a slower start than anticipated in several areas, NOAA Fisheries recognizes that there are processes currently under way to develop the delayed products and we expect their completion within 1-2 years.

"In spite of the delays in developing planning products and initiating some monitoring programs, implementation of offsite mitigation actions has been proceeding. The main impact of the delayed planning products is reduced certainty that the implemented actions are of the appropriate type and magnitude to meet performance standards for each ESU," the findings said. An ESU is an evolutionarily significant unit, or listed stock.

"We conclude that, at this point, new authorities or a change in the fundamental direction of the Biological Opinion implementation are not warranted."

Department of Justice attorney Fred Disheroon told the judge in last week's meeting that, given strength of stocks in recent years, "there is time to get up to speed" and meet the ultimate goals of the BiOp. Attorneys involved in the case met Jan. 16 to discuss the status report to the court and other issues.

The action agencies -- the Bonneville Power Administration, Corps of Engineers and Bureau of Reclamation -- reported that they are spending collectively $400 million annually for fish and wildlife mitigation, a 28 percent increase since the 2000 BiOp was issued.

The NOAA findings noted that while "most key actions" had been implemented as expected during the first three year of the BiOp, "some important actions have not been implemented…. e.g., completing priority subbasin assessments, priority subbasin plans, Hatchery and Genetic Monitoring Plans, and research and monitoring actins that are important for implementing and evaluation f progress by 2005 and 2008."

The findings later say that "funding limitations have clearly affected the scope and rate" of implementation. The bulk of the funding comes either from congressional appropriations or from power revenues generated by the federal hydrosystem.

Redden, referring to the Northwest congressional delegation and the administration, asked Disheroon, "can the folks back there get money for you." Disheroon said that the administration is working to get the necessary implementation funding, but had yet to unveil its budget plan for the next fiscal year.

Walt Evans of the Inland Ports and Navigation Group, which is aligned with NOAA in the lawsuit, said that those on both sides of the legal issue are lobbying for congressional support.

"The delegation is continuing to seek more money," Evans said.

Nicole Cordan of Save Our Wild Salmon agreed that there is a bipartisan, regionwide effort. Her organization, with many of its members joining the National Wildlife Federation in the legal challenge to the BiOp, have long said that the effort is not being funded at the level necessary to give it a chance for success. She admitted, however, that the federal budget is limited, and the competition is fierce.

"There's just not money in the federal budget to meet the needs of this plan," Cordan said.

Evans said there is a general belief on Capital Hill that the Northwest fish recovery effort is important, but lawmakers are "occasionally skeptical about whether we're entitled to more funds."

True said that he was skeptical that BiOp implementation could miss so many cues, yet "somehow we end up in the yellow zone." During the Jan. 16 "attorneys steering committee" meeting, he urged the judge to take the government to task for missing the BiOp benchmarks.

In Redden's supplemental order outlining the schedule for the remand, he said "if meaningful and specific progress has not been made, the second report must identify specific plans for hydropower mitigation actions available to the government, up to and including those referred to in the aforementioned section of the 2000 Biological Opinion." That section refers to the federal agencies seeking authorization for dam breaching.

"I don't think the government is saying the meaningful and significant progress is being made" to implement the 2000 BiOp, True said. The status report says such progress "will" be made.

True asked the judge to prepare an order requiring the federal government to inform the court what other hydrosystem mitigation actions could be taken to make up for the shortfalls in BiOp implementation.

The 2000 BiOp prescriptions are described as an aggressive, non-breach approach. To be aggressive, it has to be adequately funded, True said.

A judge's order "would force the region to face up to the fact that we're not doing what we said we'd be doing," True said.

Redden said he didn't not want to issue such "red-flag" order.