the film forum library tutorial contact

Irrigators File Lawsuit Targeting Hydro BIOP'S Legality, Science by Barry Espenson Columbia Basin Bulletin - October 3, 2003

The Columbia-Snake River Irrigators Association and the Eastern Oregon Irrigators Association filed a lawsuit Tuesday against NOAA Fisheries, demanding changes to what the irrigators call "misleading and absurd standards" for the federal agency's salmon recovery planning.

The lawsuit targets NOAA Fisheries' 2000 biological opinion -- the document which analyzes the effect of Federal Columbia River Power System operations on salmon and steelhead listed under the Endangered Species Act and outlines actions the agency feels necessary to avoid jeopardizing the survival of those species.

The lawsuit says the BiOp violates ESA provisions and accuses the agency of "arbitrary and capricious decision-making" in violation of the Administrative Procedure Act."

The federal document is already under remand by order of U.S. District Court Judge James A. Redden. He ruled in May that "NOAA's reliance on federal range-wide, off-site mitigation actions that have not undergone section 7 consultation and non-federal range-wide, off-site mitigation actions which are not reasonably certain to occur was improper and, as to eight of the salmon ESU's, the jeopardy opinion in the RPA is arbitrary and capricious." He gave NOAA until June 2, 2004 to correct the deficiencies.

The BiOp, which remains in effect, says that planned hydrosystem operations posed jeopardy to the survival of eight of the 12 Columbia Basin stocks listed under the Endangered Species Act. It describes 199 actions NOAA says should be taken both within the system and off-site to improve survivals.

The initial challenge of the BiOp was made by a coalition of fishing and conservation groups who said the plan does not do enough to avoid jeopardy. The new lawsuit says many of the recovery strategies are misguided and unnecessarily inflict financial damage on the irrigators. The actions prescribed in the BiOp, such as spill passage at the dams and flow augmentation from reservoirs, serve to restrict irrigators' water use and drive up the cost of pumping water to their fields.

The lawsuit filed this week in Oregon's U.S. District Court in Portland asks the court to vacate and remand it to the federal agency to correct the deficiencies cited in the irrigators' complaint, which was prepared by Portland attorney James Buchal.

Darryll Olsen, a board CSRIA representative, says the ESA violations alleged in the irrigators' complaint should be put at the top of the list in the District Court's, and Redden's, consideration of the biological opinion's legality.

"These are the first principles that should be considered in the development of the biological opinion," Olsen said.

He says the BiOp ignores the fact that natural phenomena, improved conditions in the ocean, had already begun to allow a rebound in Columbia Basin salmon and steelhead populations. "That is the same thing that brought populations down" in the late 1980s and 1990s, Olsen said of cyclical ocean conditions that took a turn for the worse during that timeframe as regards to salmon survival.

Meanwhile, the survival of smolts and adults through the hydrosystem, including barge transportation, has improved the point that the system's effects on the listed stocks is negligible, Olsen said.

A revamped BiOp needs to update the actual status of the stocks, rework analyses used to determine the extinction risk and better sort out the exact causes of mortality.

"This needs to be addressed up front," Olsen said.

"The BiOp's inherent, structural flaws create false standards for measuring hydro system impacts and place unrealistic conditions on what is defined as the "risk of extinction" for ESA-listed fish runs (also known as the jeopardy criteria)," according to a press release from the irrigators. "Under the BiOp, NOAA Fisheries burdens the hydro system with full responsibility for fish survival, and then fails to recognize increasing salmon runs that make "risk of extinction" a moot issue. These key features of the BiOp's foundation are technically and legally unsound; and changes must be made to bring credible resource management back into focus."

The irrigators list what they say are "key points of fact and law that the federal fish and river managers have refused to acknowledge or appropriately address within the BiOp." The irrigators say:

• The 2000 BiOp was based on an arbitrary time frame of salmon abundance data that exaggerated risks to the species. ". for most groups of salmon, the 2000 BiOp arbitrarily omits 2000 data, which in nearly all cases showed substantial increases in salmon populations. The errors identified in this Count individually and collectively constitute a failure to use the 'best available scientific and commercial data' as required" by of the ESA, according to the complaint. The irrigators stress that that trend has continued, with record or near record runs of salmon and steelhead returning to the river in 2001, 2002 and 2003.

• The 2000 BiOp was based on "an Orwellian re-definition of the 'risk of extinction,' " according to the press release. The irrigators said NOAA broke the law in judging extinction risk for an entire population based on trends of small subgroups of fish.

  "The listed salmonid populations constitute metapopulations composed of many individual runs, and NOAA Fisheries must identify risk to the unit of fish actually listed, not some tiny fraction of that unit. Individual components of salmon metapopulations in Pacific salmon frequently disappear, even where the metapopulation as a whole is not in danger," the lawsuit says.

  "By finding 'extinction' when only a small number of index runs 'zero out' in stochastic forecasts, NOAA Fisheries created an arbitrary and capricious exaggeration of extinction risk because NOAA Fisheries found jeopardy to the listed 'species' even where the overall ESU is at no risk of extirpation. NOAA Fisheries also failed to take account of the role of hatcheries in eliminating the risk of outright extirpation of any ESU."

• The 2000 BiOp "failed entirely to assess the 'effects of the action' as required in ESA consultations, instead pretending that virtually every fish that died while migrating in the Columbia River system died because of discretionary choices of the dam operators. In a context where enormous natural mortality occurs in rivers with and without dams, and survival rates through the dammed portion of the Columbia is equivalent to (or even better) that survival in an undammed river, NOAA's assumptions were absurd," the irrigators say.

The hydro managers or so-called "action" agencies are the Bonneville Power Administration, which are markets power generated in the system, and the U.S. Army Corps of Engineers and Bureau of Reclamation, which operate the dams

CSRIA is a Washington nonprofit corporation formed to represent the "direct pumpers" from the mainstem Columbia and Snake River systems. Members include several municipal entities, as well as irrigators and other commercial interests. EOIA is an Oregon association, likewise formed to represent entities that pump water directly from the mainstem.

NOAA Fisheries spokesman Brian Gorman said at midweek that agency officials had not had time to review the complaint.

"We'll have to look at it and see what the next steps are," Gorman said.