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Posted on Friday, May 14, 2004 (PST)

By Barry Espenson


The agency charged with protecting Columbia River basin salmon and steelhead listed under the Endangered Species Act will have more time than originally scheduled to remold its opinion about the effects of federal hydrosystem operations on the fish, according to the judge that last year ruled the prevailing recovery strategy invalid.


U.S. District Judge James A. Redden on Thursday issued an order that gives NOAA Fisheries until Nov. 30 to produce a "biological opinion" on Federal Columbia River Power System operations to replace the December 2000 document that continues to guide fish protection activity in the basin. Redden in a June 2, 2003, order gave NOAA one year to fix flaws he had noted in the 2000 BiOp.


NOAA Fisheries had requested the six-month extension to allow a continuing collaboration with state and tribal fishery co-managers to play out. The collaboration was begun this winter to allow co-managers input on the scientific processes being used to evaluate whether FCRPS operations jeopardize the survival of 12 ESA-listed Columbia Basin salmon and steelhead stocks.


The scientific exchanges are expected to be completed by the end of May. In extending the overall deadline, Redden gave NOAA 90 days after completion of the collaboration to produce a "draft" biological opinion. The fishing and conservation groups that challenged the 2000 BiOp successfully had told the court an extension was needed but said the BiOp should be completed more speedily -- by Sept. 15.


The 2000 BiOp had judged that eight of the stocks were jeopardized but prescribed a variety of hydrosystem and off-site mitigation actions NOAA felt would remove that jeopardy. Redden one year ago ruled that the no-jeopardy conclusion improperly relied on federal actions that had not undergone the required ESA consultation and on off-site, non-federal actions that were not "reasonably certain to occur."


The five-page order issued this week set the stage for discussions about a variety of related issues of concern for the judge, ranging from salmon recovery funding, to evolving salmon listing policies to the actual reconstruction of the new BiOp.


Redden's order said he supported the remand and collaboration " on the belief that defendant would actively solicit and successfully obtain funding necessary to implement and improve the mitigation measures set forth in the 2000 BiOp. In the court's view, a concerted and adequately-funded effort by defendant, the action agencies, and other interested parties can result in mitigation measures reasonably certain to occur that will allow the Northwest to enjoy plentiful hydropower and salmon." The action agencies are the Bonneville Power Administration, which markets power produced at the federal projects, and the U.S. Army Corps of Engineers and Bureau of Reclamation, which operate the dams.


"The court is concerned, however, that the requested six-month extension of time to complete the revised 2000 BiOp will be essentially futile because adequate funding is not in place and will not likely be secured in the near future," Redden wrote. The judge has in meetings with the many parties involved in the lawsuit quizzed federal attorneys about whether congressional appropriations and other funding sources are adequate to implement the BiOp's "reasonable and prudent alternative."


Redden this week also asked if the remand process had "diverged from the intent and terms" of his original May 7 order declaring the BiOp's conclusion arbitrary and capricious. He listed a variety of questions to be answered when attorneys involved in the lawsuit meet next month.


"It appears that defendant has now proposed a new analytical framework to determine whether the FCRPS poses jeopardy to listed salmon and steelhead. Is the defendant using the time remaining during the remand period to 'create a new biological opinion,' as suggested by an intervenor, rather than modifying the portion of the 2000 BiOp that addressed mitigation measures? If so, what would be the consequences of that?"


The federal proposal would assume the dams and reservoirs as a part of the environmental baseline and judge the incremental survival impact of day-to-day operations alone. The 2000 jeopardy analyses considered both the existence and the operation of the FCRPS.


This week's order noted that NOAA Fisheries is ready to deliver at month's end a new policy for how to regard the existence of hatchery fish when it makes determinations about whether a salmon or steelhead stock should be listed under the ESA. The agency, under order from another federal judge, is also to deliver in late May determinations about whether eight listed West Coast salmon and steelhead stocks should remain listed. Six of those stocks are spawn in the Columbia River basin.


" the court would like the parties to address the possible ramifications, if any, of such policy changes to this case, including any impact on the listing status of Columbia River salmon and steelhead runs," Redden wrote.


Attorneys for the conservation and fishing groups were displeased that the judge allowed the lengthy extension, but happy that NOAA would have to show its hand by late summer. The draft would map out the federal salmon protection strategy.


"The sooner we get that look (at the strategy) the better," said Todd True of Earthjustice, which is representing the plaintiffs in the lawsuit. They and attorneys for treaty tribes and the state of Oregon have expressed a wariness about a strategy that shifts the environmental baseline.



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