Hydro BiOp Rewrite Nears, Just how much Still Unclearby Bill Rudolph
NW Fishletter, January 16, 2004
Oregon federal judge James Redden is meeting with parties in the hydro BiOp remand case (NWF v. NMFS) today to discuss progress in rewriting the opinion to satisfy his concerns. Redden threw out the BiOp last May, saying that its proposed offsite mitigation actions were not reasonably certain to occur.
NOAA Fisheries regional administrator Bob Lohn has hinted that his agency might tackle a major revamp of the document, in addition to satisfying the court's immediate concerns. But insiders say there is nothing particularly new that Justice Department attorneys will offer the judge this week. Lohn was vacationing out of the country and unavailable for comment. Also before the court is a motion to consolidate litigation against the federal government by irrigators, who have filed a suit against NOAA Fisheries over scientific issues to do with the BiOp. If the judge agrees, the irrigators, represented by Portland attorney James Buchal, may stay their suit until June for a seat at the table during the remand process.
NOAA's Lohn had earlier promised to release a draft BiOp by the end of March. The judge wants it finalized by early June. Judge Redden ruled to keep the old BiOp in place while it's being fixed, and the feds have submitted a report to the court that says most BiOp actions are on schedule.
But they found that the region's subbasin planning process, key ingredient in the BiOp's offsite mitigation effort, is behind schedule. The subbasin process is being led by the Northwest Power and Conservation Council, and involves coordinating watershed planners, and local, state and tribal officials throughout 58 different subbasins in the Columbia drainage.
The subbasin planning work, which began as an amendment to the council's 2000 fish and wildlife plan, has been prioritized to speed work that involves ESA-listed fish stocks. However, ESA issues have bogged down subbasin planning work, and some participants have complained about a lack of direction from NOAA Fisheries. Plans are scheduled to be completed by the end of May, when they will be reviewed by the panel of independent scientists who will judge the merit of proposals in the Bonneville Power Administration's fish and wildlife program.
Feds Go on Defensive
Back in September, NOAA Fisheries assistant administrator Rob Walton told a subbasin planning coordination group about getting an "assurances package" to satisfy ESA obligations out soon and making sure the results were legally defensible. The plans may include a general assessment and a management plan for each major watershed.
A month later, Walton told the group that NOAA scientists were not intending to "trump" local efforts, but to add input to make a defensible BiOp reflecting the best available science. He called for a candid discussion to "try to make lemonade out of what is turning out to be a lemon," according to minutes posted on the council's Web site.
But last week, council members like Washington's Tom Karier still weren't satisfied. "NMFS should be meeting more in technical committees," Karier told NW Fishletter, though he thought his state's subbasin planning efforts were pretty much on track. "I don't see any reason to be alarmed," Karier said.
In its BiOp check-in report delivered to the court two weeks ago, NOAA itself recommended establishing a "fix-it loop" to add input from technical reviews to subbasin plans between next May and December. It's seen as a way to show the judge that the process is on track.
An important element of the subbasin planning effort is an analysis of hatchery operations in each watershed and their effects on ESA-listed stocks, but NOAA Fisheries has yet to release its updated policy on the hatchery/wild issue. A draft policy shopped last year among states and tribes has been quietly shelved.
Contributing to the understanding of this issue is NOAA Fisheries' new white paper on hatcheries that reviews the scientific literature dealing with the relative fitness of hatchery and wild fish. The paper is an attempt to better quantify growth estimates of ESA-listed wild stocks that contain naturally spawning hatchery fish. Most studies were conducted with steelhead, but the reviewers found that hatchery fish seemed less fit the longer they spent in captivity.
Any new BiOp would have to include a hydro system jeopardy analysis that incorporates the latest research results. NOAA released some preliminary results in another white paper presented to the court together with the hatchery paper. It shows for the past few years that ESA-listed Snake River spring/summer chinook are returning at a rate of nearly 4 percent. That's nearly a 600 percent improvement over average return rates from 1988-1997. During this period dam operations were guided by a 1995 hydro BiOp, itself a rewrite performed to satisfy another Oregon judge, Malcolm Marsh, who said the status quo wouldn't do.
Unfortunately, there's little evidence so far that the subbasin effort is taking advantage of the latest research. An October missive from Mobrand Biometrics to subbasin planners advised them to use a return rate of less than 1 percent for the Snake spring chinook, claiming it had been taken from "the  PATH process and elsewhere." A committee effort begun in 2001 and charged with an attempt at validating the EDT [Ecosystem Diagnosis and Treatment] method, developed by Mobrand and being used to assess potential productivity gains, died some time ago, wasting $140,000 in BPA funding and not producing a single report.
To satisfy Marsh's ruling, federal policymakers called for boosted spill regimes and flows throughout the system. The increases were challenged as inadequate by fishing and environmental groups and the state of Oregon, but they eventually lost and the 1995 BiOp has become the basis for the latest one, completed in late 2000. However, the results of the new federal research reviews don't report much of a relationship between flow augmentation and fish survival, especially for the spring runs.
Rumors are even circulating that when the latest returns are factored into the status updates, the feds may call for the potential de-listing of several Evolutionarily Significant Units--upper Columbia steelhead and Snake River fall chinook seem to be primarily mentioned as candidates. Both wild components of these stocks have rebounded strongly in recent years, and both have a large hatchery component included in their respective ESUs.
What happens next will depend largely on how the federal agency handles its thorny hatchery policy. A case that deals with the hatchery/wild issue that is on appeal in the 9th U.S. Circuit Court of Appeals hasn't yet been ruled on. The Niners, in the meantime, stayed a lower court's decision that ruled NMFS must offer hatchery fish the same ESA protection as wild fish if the agency had designated them in the same ESU.
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