Time to Take Action
Our Klamath Basin Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.

Posted on Thursday, December 23, 2004 (PST)

Eleven fishing and conservation groups said this week that the Bonneville Power Administration, U.S. Corps of Engineers and Bureau of Reclamation will be targeted with a lawsuit if the agencies implement their newly developed "Updated Proposed Action" for the operation of 14 Columbia Basin federally hydro projects.


The groups, in their 60-day notice of intent to sue, say the UPA's mix of hydro operations and mitigation projects does not adequately project 12 salmon and steelhead stocks that are listed under the Endangered Species nor their habitat.


The notice says the plan's scientific underpinnings, a NOAA Fisheries Federal Columbia River Power System biological opinion, misrepresents the status of the listed fish and the hydrosystem's effects on them. The UPA's fish-related operations and off-site habitat actions are intended to offset survival losses resulting from hydrosystem operations.


"They can't rely on a deeply flawed biological opinion in order to ensure their own compliance with the ESA," said Jan Hasselman of the National Wildlife Federation, one of the entities signing the letter. The others are the Washington Wildlife Federation, Idaho Wildlife Federation, Federation of Fly Fishers, Sierra Club, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Idaho Rivers United, Northwest Sportfishing Industry Association, American Rivers, Salmon For All, and Trout Unlimited.


The federal agencies do not agree with the conservation groups regarding the biological or legal merits of the newly developed plans.


"The biological opinion and Updated Proposed Action respond to Judge (James A.) Redden's concern that actions to protect endangered species are 'reasonably certain to occur.' It provides improvements over the actions in the 2000 BiOp, which have contributed to positive adult returns and improved passage survival," according to Sarah McNary, senior policy adviser for BPA. "The 2004 BiOp defines specific measures to offset the effect of hydro operations by addressing limitations in tributaries, restoring estuary habitat, increasing predator control, and improving hatchery production.


"We believe our approach is consistent with existing law and standards used in biological opinions across the country," McNary said.


The Dec. 20 letter to the three action agencies, the departments of Commerce, Interior and Energy and to NOAA Fisheries alleges ESA violations in five specific categories. If those flaws are not corrected within 60 days, the groups say they intend to file a lawsuit against the Corps, Bureau and BPA under the citizen provisions of the ESA.


U.S. District Court Judge James A. Redden in May 2003 declared the 2000 BiOp illegal and ordered its flaws corrected during the course of a remand. That remand was completed Nov. 30 with the issuance of the 2004 FCRPS BiOp and UPA. The new BiOp declared that planned operations -- which include most of the previous BiOp's RPA actions -- do not jeopardize the survival of the listed salmon and steelhead.


The new BiOp's jeopardy analysis and assumptions are "fundamentally flawed," Hasselman said this week. The groups plan to file on or before Dec. 30 an amended complaint against NOAA Fisheries challenging the BiOp's analysis and conclusion.


The goal of the 60-day notice and potential lawsuit is to gain the necessary legal footing to seek preliminary injunctions to force particular actions they deem necessary to protect fish. That includes assuring adequate spill and flow to help the fishes' migrations.


A press release issued this week by the groups says the BiOp ignores the action that would be the cheapest and most effective -- breaching of four Lower Snake River Dams as a recovery option.


The notice letter says the BiOp and an "incidental take statement" giving ESA coverage for the dams' adverse effects on fish are invalid because of they rely on inadequate jeopardy analysis and fail to address all of the impacts caused by the FCRPS.


The ESA prohibits making "irretrievable and irreversible commitments of resources" that would foreclose potential future actions to help the listed salmon and steelhead. The UPA makes such illegal commitments, including "producing power with water otherwise necessary to save fish, delivering water for irrigation, foregoing river flow levels necessary to avoid salmon and steelhead mortality, transporting salmon and steelhead in trucks and barges, and entering into agreements that could require such actions in the future," according to the notice.


The notice also says the action agencies are violating the ESA by:


-- failing to insure that their actions are not likely to jeopardize the continued existence of listed species or destroy or adversely modify their habitat. The letter says the action agencies have a duty, independent of NOAA's, under the ESA to avoid jeopardy.


"The proposed action, when added to the environmental baseline and cumulative effects, has both short-term and long-term adverse impacts on listed species that jeopardize their continued existence," the letter says. Likewise, the planned hydrosystem operations adversely affect water quality and quantity, water temperature, water velocity and safe passage conditions, the groups say.


-- take actions that "may affect" listed species and their designated critical habitat without a valid biological opinion.


-- the action agencies are "taking" listed species without an incidental take statement. The groups say that, because the BiOp and its incidental take permit are illegal, the hydro operations are being carried out without the proper ESA authorization.


-- the action agencies have failed to comply with the ESA provision that makes it mandatory that the federal agencies develop programs for recovery of the listed species. The groups say the action agencies need to go beyond avoiding jeopardy and identify "those steps they will take to recover these species to the point where they can be removed from ESA protection."


Recovery is not being ignored by any means, according to the federal agencies involved. Work is ongoing.


"The challenge for our region as we move ahead will be to work together to develop and implement recovery plans that build on our good efforts to date," McNary said. "This will call for us to better align the many resources that we have available and make the best use of those resources. The federal agencies are committed to working with all regional parties to that end."

NOTE: In accordance with Title 17 U.S.C. section 107, any copyrighted
material  herein is distributed without profit or payment to those who have
expressed  a  prior interest in receiving this information for non-profit
research and  educational purposes only. For more information go to:






Page Updated: Thursday May 07, 2009 09:15 AM  Pacific

Copyright klamathbasincrisis.org, 2004, All Rights Reserved