New BiOp Delayed
by Bill Rudolph
Federal judge James Redden last week OK'd a request by the federal government for an extra week to turn in its homework in the hydro BiOp remand process which had stipulated a draft document by Aug, 31. The reprieve means that federal agencies are nearly at the finish line in a process that began more than a year ago, after Redden ruled the 2000 BiOp illegal. Then the feds spent months deciding whether to tweak the old BiOp with its 199 different actions, or go for a whole new approach. In the end, they opted for the new direction, a process that has had its share of glitches.
At a hastily-called Aug. 31 press conference, NOAA Fisheries regional administrator Bob Lohn said the draft was only undergoing final legal and technical review and offered general comments about why the agency will give proposed hydro operations a no- jeopardy ruling as far as ESA-listed stocks are concerned. He didn't mention anything about a last-minute in-house flap over some of the analyses that several sources have said is responsible for the delay.
The new BiOp, while using many of the leftover river operations from the 2000 Biop, will contain a new jeopardy analysis that accepts the dams' existence as part of the baseline and focuses on determining the differences in fish survival between current operations and a "reference" operation that would run the system with few constraints to maximize survival. However, sources have told NW Fishletter that draft analyses found some real puzzles, namely, why did fast-rising populations like the fall chinook in the lower Snake seemed to need most of the survival improvement?
Gaps in the Gap Analysis
An early August analysis showed a gap of about 15 percent between current juvenile survival and what NOAA Fisheries considers necessary for the Snake fall chinook to avoid jeopardy. Upper Columbia spring chinook seemed to be in the same situation, while the main stocks that have driven past BiOps, spring/summer Snake River chinook and steelhead, were reported to need a boost of only a few percent to avoid jeopardy (It has also been reported that later analyses have found even wider gaps with most ESUs).
Others say NOAA Fisheries scientists in Seattle found fault with the Portland hydro branch, the group charged with writing the new BiOp, over the use of data in its analyses of the Snake River fall chinook. In a May 6 technical memo that is still undergoing final review, the Seattle scientists had already pointed out the paucity of information on the stock. Citing widely varying survivals among years and many factors affecting survival of the young fall chinook to the first dam on the lower Snake, the draft memo said "we cannot partition what portion of the mortality occurred within the hydropower system..."
The discrepancies in the analyses finally caused NOAA Fisheries brass to trash the effort two weeks ago and have it re-done. A more qualitative response is now expected to surface in the new BiOp.
NOAA's Lohn didn't mention the re-analysis at the press conference, but he did note that agency has developed a "standard operation" for the hydro system to measure performance. He called it "a demanding one" as well, and a step forward from the current opinion, with enough flexibility to use other means than hydro operations to help achieve survival goals for ESA-listed fish, like keeping major fish protection efforts from the previous BiOp such as predator control and habitat improvements, steadily fueled by $140 million in annual funding by BPA for the basin's fish and wildlife program.
Lohn acknowledged that the recovery effort has been helped mightily by the great improvement in basin fish runs over the last few years, with many of them doubling since 2000. "The efforts we are taking, coupled certainly with favorable ocean conditions, are producing very substantial returns and there is good reason for hope," Lohn said.
The new modifications at dams to improve survival, Lohn said, coupled with flexible ways to boost fish survival, have led his agency to conclude that the proposed hydro operations will not jeopardize the ESA listed stocks in the basin.
Lohn pointed out that the new BiOp will only be part of the federal salmon recovery program. He rattled off a long list of direct salmon spending efforts by the federal agencies on the West Coast--"A very impressive commitment," he said, that adds up to nearly $400 million a year.
A Call For More Efficient Spill
According to Lohn, the "new" part of this BiOp is the 10-year commitment to boost fish survival "through efficient spill at all eight federal dams," using removable spillway weirs like the prototype tested at Lower Granite Dam or similar improvements. He called it a huge step forward for fish.
"It's also a huge step forward for the regional economy, " Lohn said, "because it allows fish to pass with much less spill," with ultimate cost-saving benefits to ratepayers."
Lohn said the new BiOp will also do a better job at identifying remedial actions for the listed stocks to satisfy the court's concern, and will spell out in greater detail the specific hydropower, habitat and hatchery actions that need to be taken, with clear performance standards. Judge Redden had tossed the old BiOp because it failed to ensure that many of the actions were reasonably certain to occur.
Lohn said the result of all these efforts has led his agency to conclude that the proposed operations will not jeopardize ESA-listed stocks, and that is a significant achievement for both salmon and Northwest citizens.
But environmental and fishing groups took issue with Lohn's rosy assessment before he produced any details. They are planning a Sept 8 rally in Portland to protest the new plan which they characterized as a continuation of "nothing but failures." According to their announcement for the rally, "...the more smolts that make it downriver to the ocean, the more big fish we have on ice at the end of the day."
A few hours before the press conference began, the conservation group American Rivers e-mailed a statement from their regional director Rob Masonis to Northwest reporters, which included a list of questions he suggested the press should ask federal authorities.
"With this 'no jeopardy' finding, NOAA Fisheries will no longer be required to set forth a suite of actions to ensure that jeopardy to the species is avoided," Masonis said in the e-mail. "Rather, by including man-made dams in the "natural" environmental baseline, NOAA avoided having to even examine the full effects of the dams."
The change in the baseline was an issue that had already been raised in Redden's court by Earthjustice attorney Todd True, who characterized the new BiOp's focus on operations as moving the goalposts in the middle of the game.
But Lohn, in answer to another question, noted that the jeopardy standard is technically the same as the previous BiOp's, but that the earlier document, partly because of limited information on fish survival available at the time, was unable to separate the affects of operations from the existence of the dams.
"Previous opinions simply said, 'We want to require enough to make sure that these fish don't go extinct.' The difference in this opinion is we're much more specific," said Lohn. "We want to make sure that these operations, the choices that the federal agencies are making in operating the dams and releasing water and spilling or not spilling, we want to make sure that that activity will not jeopardize fish. And what we've determined in this opinion, together with the changes proposed by the federal agencies, is that it will not jeopardize fish."
Feds Say New BiOp "More Faithful" to ESA
Lohn said the jeopardy standards in both BiOps are the same, but the new point of analysis, the dams' operations, was adopted because it was more faithful to the ESA, and had partly come about because Judge Redden asked federal agencies to be much more specific as to their findings.
Lohn characterized the new BiOp as a useful step toward salmon recovery planning, but local watershed planning initiatives such as the subbasin effort in the Columbia Basin "remain the foundation of our recovery planning." He said the new BiOp would be used to measure expectations for inriver survival, but that was just part of the recovery picture, pointing to other areas where improvements can be made. "Now what else do we need to do in tributaries, how do we need to manage harvest, etc."
The subbasin plans that will be the backbone of salmon recovery efforts in the Columbia Basin have recently completed a first scientific review by an independent panel that previewed its report several weeks ago at the August meeting of the Northwest Power and Conservation Council in Montana. Only about 25 percent of the plans passed muster on the first try and are going through a public comment period at present before revision. Council staffer John Ogan said the reviews were mainly positive and will give the region a good start at identifying the factors in each region which limit fish productivity. But Ogan said it's still not clear how NOAA Fisheries will adopt the new plans for use in the next BiOp
BPA customers, speaking through the Coalition for Smart Salmon Recovery, said the investments in improving salmon survival were clearly paying off. "We are encouraged that so many fish are recovering, and expect NOAA's new plan to be better than the previous one," said coalition spokeswoman Shauna McReynolds.
Some participants seemed truly shocked when Lohn mentioned that any language to trigger a dam removal option like that found in the old BiOp, will not be contained in the new one. "What we're seeing in terms of the rebound of the various stocks of fish gives me hope we can achieve a 'fishable' recovery for most of these stocks," Lohn said.
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