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Groups Threaten Suit Over Upper Snake Project Operations by CBB Staff Columbia Basin Bulletin - September 5, 2003

A coalition of business, fishing, and conservation groups have sent a legal warning to the federal Bureau of Reclamation and NOAA Fisheries that the operation of 10 dams and reservoirs on the upper Snake River in Idaho needs to be re-evaluated to avoid harm to salmon and steelhead listed under the Endangered Species Act.

Attorneys for Idaho Rivers United, Idaho Conservation League, American Rivers and the National Wildlife Federation notified the agencies' regional chiefs, Interior Secretary Gale Norton and Commerce Secretary Donald L. Evans in a letter sent Aug. 22 that a lawsuit will be filed unless steps are taken to ensure that the Bureau's upper Snake projects comply with the ESA. The groups are being represented by Advocates for the West, a non-profit environmental law firm based in Boise, and EarthJustice.

"On Friday (Aug. 22), President Bush stated that everyone involved in salmon recovery must contribute to that effort. Right now, federal agencies in Idaho are not doing their part," said Laird Lucas, an attorney with Advocates for the West. "Our letter puts the agencies on notice that they must fulfill their role in the regional salmon recovery effort by providing necessary water flows from the upper Snake River."

At issue, the groups say, is whether NOAA Fisheries' 2001 Upper Snake River "biological opinion", a document intended to ensure that operation of the upper Snake River projects and dams does not threaten the survival of federally protected salmon and steelhead, is adequate to protect the fish. In that biological opinion NOAA concluded that Bureau of Reclamation operation of the projects would not jeopardize the protected species.

NOAA Fisheries spokesman Brian Gorman said the agencies had received the notice but had not decided how, or if, they would respond.

"There's isn't much I can say about it," Gorman said.

"This case is about complying with the law," said Justin Hayes of the Idaho Conservation League. "The plan for operating the upper Snake projects is illegal because it relies largely on another plan that has been ruled illegal. That situation needs to be corrected to make sure salmon get the water they need to survive."

The coalition says that a recent ruling by the federal district court in Oregon -- which declared illegal the 2000 NOAA BiOp regarding operations of the federal hydroelectric projects on the Columbia and lower Snake rivers -- requires the Bureau and NOAA Fisheries to take a fresh look at the Bureau's dam operations in the upper Snake River basin. Judge James A. Redden ordered the remand of that BiOp. NOAA has until June 2 of next year to produce a new document that corrects the deficiencies noted by the judge.

"NOAA Fisheries and BOR have a duty to reinitiate consultation because BOR retains substantial federal control over operation of its upper Snake projects and circumstances have changed since NOAA Fisheries issued the 2001 Upper Snake BiOp such that the proposed action may affect listed salmon and steelhead stocks in a manner or to an extent not previously considered," according to the letter.

"Most significantly, the U.S. District Court for the District of Oregon has determined that the 2000 FCRPS BiOp violated the ESA because NOAA Fisheries' reasonable and prudent alternative to avoid jeopardy relied on a suite of state and private mitigation actions that were not reasonably certain to occur, and on federal actions which had not yet undergone their own (ESA) Section 7 consultation," the notice reads.

"The 2001 Upper Snake BiOp specifically relies on these same vague and uncertain future measures to reach its own no-jeopardy determination for operation of BOR's Upper Snake projects," the letter says. "The National Wildlife Federation decision requires BOR and NMFS to reinitiate consultation on operation of the BOR's Upper Snake projects."

The coalition's 60-day notice of intent to file a lawsuit also contends that NOAA Fisheries failed to conduct adequate analysis in analyzing upper Snake River project impacts when it issued the BiOp currently in place.

"To cure these violations, BOR must immediately fulfill its independent duty to avoid jeopardy by taking all necessary steps to ensure that the operation of its Upper Snake projects complies with the procedural and substantive requirements of the Endangered Species Act," according to the notice. "Such steps would include, but not be limited to, ensuring that BOR makes timely and adequate water allocation decisions for the 2004 migration season that avoid harm to listed salmon and steelhead."

The notice says the Bureau has failed to provide the water necessary to meet spring and summer objectives set by NOAA Fisheries for salmon and steelhead.

"BOR's operation of these projects for irrigation water delivery and other purposes, however, has failed to allow enough water to remain in streams to meet those flow objectives in recent years, including the current year. By failing to operate its Upper Snake projects to provide adequate streamflow for salmon and steelhead, BOR is violating its duty to insure that its actions are not likely to jeopardize listed species," the notice says.

The conservation groups say they hope that the Bureau and NOAA Fisheries will commit to re-evaluating the upper Snake River storage projects without the need for litigation, but the agencies failed to make that commitment when several of the groups requested it in July.

"With the lower Snake River dams still in place, adequate water delivery from upstream is critical to juvenile salmon, especially fall chinook, migrating to the sea," said Bill Sedivy with Idaho Rivers United. The groups say Bureau has provided less water in 2001-2003 than it had in the 1990s to aid salmon and steelhead.

During his late summer visit to Washington, President Bush restated his opposition to removing the four lower Snake River dams.

"The Bush administration should not be allowed to have it both ways," said Rob Masonis of American Rivers. "If the lower Snake River dams are not going to be removed, the administration must deliver the water necessary to adequately mitigate the harm caused by the dams."

"The salmon recovery menu doesn't let you order up low flows with your dams, but that is precisely what the administration seems to crave," Masonis said. "An objective and credible analysis of this situation is long overdue."

The coalition cited a recent Independent Scientific Advisory Board report that the groups say affirms that salmon survival decreases substantially when flow targets are not met. The ISAB, formed by NOAA Fisheries and the Northwest Power and Conservation Council to provide expert scientific advice, issued the report in February 2003.

"The Bureau needs to make sure that enough water is flowing into the Snake River out of Idaho so that fish can make it past the dams," said Jan Hasselman of the National Wildlife Federation. "Instead, they're providing a fraction of what the government's own scientists say is necessary to protect fish and the communities that depend on them."

According to background provided in the notice letter, the Bureau operates and maintains ten irrigation projects in the Snake River basin above Hells Canyon and Brownlee dams. These projects involve twenty-two major storage facilities as well as other smaller reservoirs and diversion works.

"BOR estimates that water from these projects irrigates almost 1.6 million acres in the Upper Snake basin. To accomplish this, BOR facilities divert 4.9 million acre-feet of water from streams in the upper basin each year, 2.7 million acre-feet of which comes from stored water while the rest comes from natural flows.

"BOR operates some of its projects in the Upper Snake basin for flood control and power generation purposes as well. Finally, BOR can, and does to some extent, release water from its storage facilities to provide flow augmentation for salmon and steelhead in the Snake and Columbia Rivers below the Hells Canyon complex dams."