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Revised Hydro BiOp Released; More Litigation Expected by Bill Rudolph NW Fishletter, December 7, 2004

The revised and possibly final hydro BiOp went public Nov. 30 when NOAA Fisheries Regional Administrator Bob Lohn explained to regional stakeholders that negative effects of federal hydro system operations on ESA-listed fish would be offset by the additional actions proposed in the revised opinion.

It appeared on schedule--the result of a remand process begun last year when Oregon District Court Judge James Redden ruled the 2000 BiOp illegal because of uncertainties in its call for offsite mitigation. However, lawyers on both sides of the original lawsuit [National Wildlife Federation v. NMFS] were putting the finishing touches on a schedule for litigating the revised opinion before Lohn had explained the thinking behind his agency's determination. Environmental and fishing groups are expected to file an amended complaint by Dec. 30.

Before the announcement, federal agencies and their critics had revved up publicity for the event. Two weeks ago, the Corps of Engineers led reporters on a tour of a 1.7 million-pound steel bypass weir that will be bolted to the back of Ice Harbor Dam later this spring to improve juvenile passage survival.

Meanwhile, a coalition of fishing and environmental groups, Save Our Wild Salmon, has been soliciting support from scientists throughout the country in the form of a letter to President Bush criticizing government agencies for not comparing fish survival in the hydro system to survival in a river without any dams. By Nov. 30, they had 250 signatures on a letter that said federal efforts were unlikely to recover the listed stocks, but failed to mention that only four stocks out of 16 listed ESUs in the Northwest were affected at all by the four lower Snake dams long targeted for removal by the coalition.

Limited Scope for New Analysis
Lohn used the BiOp announcement to counter critics who found fault with the agency's new framework analysis. The revised BiOp compares the proposed action to a theoretical "reference" hydro operation maxed out for fish, and leaves out adverse effects on fish from the dam's existence. Lohn said his agency believes the new approach "is consistent with existence, law and standards used in federal biological opinions across the country."

Lohn said the analysis didn't look at dam removal because it was beyond the scope of "any opinion, including the last one," which spelled out steps the agency might take to prepare for the possibility of removing them. However, he added that authorization for dam breaching was still up to Congress.

"The agencies were able to get to no-jeopardy with the dams in place," Lohn said, noting that the last BiOp was thrown out because it didn't meet the requisite certainty of containing only proposed actions on which his agency had completed consultations. But even if dam removal had been listed as an alternative to the proposed actions, Lohn said his agency still had no authority to consult on the matter.

"Dam removal would not have met Judge Redden's test for factors to be considered in writing a biological opinion," Lohn said. He said the agency had worked hard to distinguish between the effects on fish due to the dam operations and the effects due to the existence of dams. "The action proposed here was not building dams, but rather operating dams that already existed, so there was a limited range of activity."

Then the agency consulted with action agencies to develop mitigation to close the gap in fish survival between the proposed and reference operations. "By the end of the 10-year period covered by this," Lohn said, "for each of the ESUs, the gap should either be reduced to a point that's not appreciable at all, or, in a number of instances, improved beyond a 'no net loss' to a genuine increase in the number of fish surviving over the reference case."

The opinion includes five new white papers from the NOAA Science Center in Seattle and updated data through 2003, and has benefited from a collaborative effort with state and tribal co-managers to help formulate the gap analysis, Lohn said.

The 30-day public comment period was very unusual for a biological opinion, he said, but it was important enough to do so. The agency received 28,000 e-mailed messages, 7,200 form letters, nearly 11,000 postcards, and petitions containing more than 2,300 signatures.

He said the models used in the BiOp were substantially revised and its text had "substantially changed" because of the comments, but that outcomes didn't change much.

"Basically," he said, this shows that "there is a relatively small difference between the system run optimally for fish and how the action agencies are proposing to operate it." He said that's because many of the effects on fish occur from the existence of the dams, not their operation. Secondly, dams operations are "vastly different" from what they were 10 years ago.

Lohn said surface bypass structures are being planned for all major dams by 2010. He called it a major improvement in both fish survival and operational efficiency, since more fish can be spilled over dams with less water.

Though improved ocean conditions have done much to improve fish runs in recent years, Lohn pointed out that improved juvenile survival in the hydro system has helped Columbia Basin runs take advantage of those improved conditions.

Same Operations, Renewed Commitment to Recovery
A letter included with the opinion reiterates the obligations of federal agencies to overall salmon recovery and their commitment to producing recovery plans for listed stocks in 2005. It also stresses that the new BiOp approach isn't an attempt to shift the financial burden of the $600-million annual recovery effort to other regional parties, Lohn said.

The document itself contains the same recipe for operations as the previous BiOp, but fish barging will commence a few weeks later in the spring to reflect results of NOAA Fisheries' survival research conducted since 2000. Otherwise, spill and flow augmentation efforts will remain the same, said Karen Durham-Aguilera, the Corps of Engineers' Northwest division director of programs.

By 2014, she said, the agency was committed to have new surface bypass technology at all federal dams. One is already in place at Lower Granite, and another will be installed by next spring at Ice Harbor.

Bonneville Power Administration customers gave a generally positive response to the BiOp, but were privately discouraged at the total rollover of older BiOp actions into the new one.

"This BiOp gives some hope for better adaptive management, " said Scott Corwin, vice president of the Pacific Northwest Generating Cooperative. "But, in the near-term, it contains the entire, inefficient summer spill regime and increased spring spill in low water years. From a ratepayer standpoint, the burden remains onerous."

The state of Montana, which had fought hard this year to stabilize summer outflows from its two big reservoirs, was not happy, either. "Given the recent information from November's flow symposium, we are concerned that NOAA Fisheries continues to maintain in their BiOp a strong flow/survival relationship in the Columbia River," said John Hines, one of the state's representatives to the Northwest Power and Conservation Council."

Hines was referring to a two-day gathering of regional scientists and an independent panel that took place in early November ( see NW Fishletter 188). The panel had serious questions about NOAA's flow/survival presentation for fall chinook and is expected to weigh in with a review of the proceedings by Dec. 13.

Sources said that an earlier version of the BiOp had included a reduced summer flow and spill regime, similar to the operation developed earlier this year by the action agencies and OK'd by NOAA Fisheries. The change was quashed by Judge Redden after environmental groups sought a temporary restraining order against its implementation.

BPA Administrator Steve Wright said the new BiOp contains "clauses" that would allow agencies to propose summer spill reduction or other changes "if, in fact, we were able to come up with a set of biological offsets that would produce a similar or greater biological benefit."

Wright said as the BiOp was moving from the draft stage to its final version, "the science has been moving on this with respect to fall chinook," but not to the place where the region yet understands it.

Recent research has found some Snake River fall chinook hold over and migrate as yearlings, which has confounded survival estimates. In fact, the new BiOp admits in an appendix that current survival estimates may be "conservative."

Wright said the agencies aren't prepared to develop a specific proposal for summer operations until they get "a better handle" on the survival estimates. He said it's a 10-year opinion, "so we'll continue doing what we've done in the past, but we're leaving the door open to have further discussions about alternative measures as the science evolves."

Though the revised BiOp maintains past hydro operations, environmental groups and some tribes were predictably upset with BiOp analyses that differentiated between the dams' existence and their operations.

A Nov. 30 press release from Save Our Wild Salmon still pushed for breaching lower Snake dams, saying "special interests" have exaggerated the cost of removing them, and a revitalized rail system could easily make up for the loss of the barge industry.

Olney Patt Jr., executive director of the Columbia River Inter-Tribal Fish Commission called the new BiOp "a step backward" that failed the charge of long-standing recovery goals.

But Rob Walton, NOAA Fisheries' assistant administrator for salmon recovery, disagreed. "We have an ambitious schedule," Walton said, "and we're very excited about it." He said Washington Gov. Gary Locke will present NOAA Fisheries with a draft recovery plan for the Lower Columbia (Washington side only) on Dec. 15. The state is expected to turn in other plans for the upper- and mid-Columbia by next June.

"This is exactly the kind of bottom-up effort we're looking for," Walton said, who noted that his agency may add a few things to the draft plans, but doesn't expect to change them much. He said the agency should have six plans completed within the next 12 months.