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Redden's BiOp Orders Hint at Expectations, Deadlines

by Barry Espenson
Columbia Basin Bulletin - July 11, 2003

Two orders issued last week by U.S. District Court Judge James A. Redden hint at his expectations and set out firm deadlines for federal government reporting on how it will bring a Columbia/Snake river salmon and steelhead protection plan into compliance with the Endangered Species Act.

On May 7 the judge declared that the NOAA Fisheries Federal Columbia River Power System biological opinion violates the Endangered Species Act. The court remanded the document, and its "reasonable and prudent alternative" to the federal agency for resolution of "two specific deficiencies," Redden said in a July 1 opinion.

Those deficiencies, as the original judgment states, are a reliance on federal mitigation actions that have not undergone Section 7 consultation under the ESA and range-wide off-site non-federal mitigation actions that are not reasonably certain to occur. Redden gave NOAA Fisheries one year to complete the reworking of the BiOp, a 10-year plan issued in December 2000.

The document says that planned federal hydrosystem operations jeopardized the continued existence of eight of 12 ESA-listed Columbia River basin salmon and steelhead stocks. It then outlined 199 mitigation measures -- some within the hydrosystem and some off-site -- that the agency said would improve the stocks survival rate enough to avoid jeopardy.

The BiOp was immediately challenged by a coalition of fishing and conservation groups that said the document leaned too heavily on anticipated off-site actions -- such as habitat restoration -- to make up for hydrosystem-caused mortality. The plaintiffs said many of those actions could not be guaranteed, calling them "speculative and voluntary."

Redden sided with the plaintiffs in calling the BiOp illegal but left the document in place during the year-long remand. The plaintiffs had wanted the BiOp vacated, "to ensure that ESA-listed salmon and steelhead in the Columbia and Snake rivers will be fully protected.."

"Plaintiffs do not make any convincing argument, however, that an injunction at this stage, while the 2000 BiOp is on remand, will substantially increase the jeopardy to the affected salmon," Redden's July 1 order said. "Nor do plaintiffs effectively counter the concerns of NOAA and the defendant-intervenors that an injunction would substantially disrupt federal power operations in the Columbia River Basin and expose the action agencies to unwarranted liability arising from take of salmon during the remand period." The action agencies are the U.S. Army Corps of Engineers and Bureau of Reclamation, which operate the dams, and the Bonneville Power Administration, which markets power generated by the federal system.

"The court has found serious flaws in the 2000 BiOp that need to be addressed and remedied in the immediate future," the judge's July 1 order said. "The court, however, has not yet ruled on the issue of the science supporting the 2000 BiOp. In the absence of any showing by plaintiffs that an injunction will, at this stage in the proceedings, somehow enhance the survivability or recovery of the affected salmon, the balance of equities favors allowing the 2000 BiOp to remain in place during the remand."

During the lawsuit proceedings the conservation and fishing groups have insisted that the BiOp is both legally and biologically flawed and does not do enough to help fish. Dan Rohlf, an attorney for the plaintiffs, said he was disappointed with the judge's decision to leave the BiOp in place but heartened by the general tenor of Redden's latest orders.

Rohlf said he interprets the judgment to mean that the foundation of the BiOp is flawed, and that the federal agencies must find additional means to escape jeopardy. That may be by changing the way the hydrosystem is operated and/or by providing more surety that the BiOp's off-site measures are implemented and bring the expected survival improvements.

"We're still encouraged that the judge has been concerned about the fish," Rohlf said of Redden's orders, which hold NOAA to a tight remand schedule.

"In the initial status conference, the court expects the government to update it on the efforts it is undertaking, and the plans to continue to ensure that federal mitigation actions have undergone the required consultation and that the range-wide off-site non-federal mitigation actions that it earlier relied on, for at least eight salmon species, will be reasonably certain to occur."

Redden's supplemental order, issued July 3, calls for that initial conference on July 21. Its purpose is to "outline the court's expectations and consider the parties' recommendations to ensure that the issues to be dealt with on remand will be concluded within the one-year period allotted."

"He makes it very clear that he wants everyone to focus on the issues at hand," said Brian Gorman, a spokesman from NOAA Fisheries' regional office in Seattle. That means working with the other parties to complete the work on time.

"We have a lot of work ahead of us. The big challenge for us is not the federal actions," Gorman said. Wrapping up the required federal agency-to-agency consultations means following established processes. Gaining "reasonable certainty" that non-federal actions will be implemented -- whether it be through contracts or memorandums of understanding with states, tribes and other entities, or through other devices -- will be less familiar road.

The BiOp describes a variety of hydrosystem operational strategies intended to ease salmon migrations as well as research and technical improvements aimed at aiding fish passage through the dams and reservoirs. The off-site actions include research, habitat work and protections, and harvest and hatchery refinements to reduce the impact on wild, listed fish.

Redden's supplemental order adds detail to his earlier call for a quarterly progress reports. The first report, due Oct. 1, "shall contain a comprehensive and cumulative assessment of the government's progress" toward resolving both remand issues. He notes that the BiOp itself calls for a self-judgment at the end of fiscal 2003 -- the so-called three-year "check-in." If the implementation of key RPA measures is insufficient, NOAA Fisheries is obliged to issue a "failure report."

"The consequences of insufficient implementation include hydropower mitigation actions, up to and including the breaching of Snake River dams," Redden said, excerpting the BiOp. He asked that that check-in report, the 2003 Annual Progress Report, be submitted to the court along with court-ordered quarterly status report.

"The October (status) report shall include the government's consideration of hydropower mitigation action options should the habitat and hatchery options falter," Redden said. The July 3 supplementation order calls for similarly status reports on Jan. 1 and April 1 of 2004.

"If meaningful and specific progress again has not been made, the third report provide a specific timetable for implementation of the planned hydropower mitigation actions that the government has identified in its earlier progress reports," Redden wrote.

At the conclusion of the remand period next June, Redden wants a summary of "what progress has or has not been made to bring the 2000 Biological Opinion and its RPA into compliance with the requirements of the Endangered Species Act, and that identifies all mitigation actions, including hydropower, hatchery and habitat actions, that will be undertaken to ensure compliance."

Redden's orders emphasized that he will not accept additional motions from the parties to the lawsuit regarding the two remand issues. And he said he will not let the conversation stray.

"The parties should keep in mind that, because the remand to the defendant agency was on the basis of threshold preliminary issues, the court has yet to address or make findings as to the science underlying the defendant agency's conclusions as to each of the threatened or endangered salmon species," Redden wrote. "The court therefore does not intend to delve into the science during the remand period."

Barry Espenson
Redden's BiOp Orders Hint at Expectations, Deadlines
Columbia Basin Bulletin, July 11, 2003

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