Biop hearing Redden close to legal 031009

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THE COLUMBIA BASIN BULLETIN: Weekly Fish and Wildlife News
www.cbbulletin.com March 9, 2009
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* BiOp Court Hearing: Redden Says 'I Think It Is Very Close' To Being Legal
http://www.cbbulletin.com/324249.aspx

U.S. District Court Judge James A. Redden entered his courtroom Friday (May 6) with three major areas of concern about the federal plan intended to boost survival for protected salmon that traverse the Columbia-Snake river hydropower system.

Redden left at the end of the day with, apparently, one worrisome topic that he said he and litigants need to continue to mull regarding NOAA Fisheries Service's May 5, 2008, Federal Columbia River Power System biological opinion.

"The most serious flaw in it is the habitat and in particular the estuary habitat. you know, reasonably certain to occur," the judge said at the end of 5 ½ hours of oral argument over the legal validity of the 2008 BiOp.

Endangered Species Act regulations prohibit NOAA from relying on the effects of any non-federal actions that are not "reasonably certain to occur" in assessing whether listed stocks are jeopardized. Redden struck down NOAA's 2000 FCRPS BiOp, in part, because it did rely on non-federal mitigation actions that weren't reasonably certain to occur.

The 2000 BiOp was replaced by a 2004 version that was also declared illegal by Judge Redden, who faulted its biological analysis of whether Columbia River salmon and steelhead stocks were jeopardized by the hydro system. There are now 13 ESA-listed salmonid stocks in the Columbia Basin.

The 2008 BiOp was released last year, replacing the 2004 BiOp. It includes a "reasonable and prudent alternative" that list strategies for increasing fish survivals through hydro operational and capital improvements and through habitat protection and restoration, and better harvest and hatchery management.

In legal complaints filed soon after the BiOp's release, a coalition of fishing and conservation groups and the state of Oregon have alleged that that NOAA's jeopardy analysis is again flawed and that neither the habitat improvements nor the survival benefits anticipated in the BiOp are certain to occur.

Federal attorneys said that scientific strategies produced by federal agencies following a three-year collaboration with the region's states and tribes are sound. And that funding commitments signed a year ago are legally binding and make it certain that an aggressive and unprecedented habitat improvement effort will be mounted over the next 10 years to better conditions for salmon.

But the judge on Friday questioned whether the BiOp plan would be enough.

"Give it some thought -- how it can be made reasonably certain to occur," Redden said of tributary and estuary habitat enhancement strategies that are intended to mitigate for negative impacts that the hydro system have on salmon and steelhead.

In a Feb. 18 letter to litigants that set the agenda for Friday's hearing, Redden said that "Federal Defendants and the sovereigns have worked very hard on this biological opinion and it shows -- we have come a long way from the 2004 BiOp.

"I am concerned, however, about the 'trending towards recovery' jeopardy standard, the proposed reduction in spill, and the lack of certainty and the assumed benefits associated with the proposed habitat measures."

Federal attorneys on Friday assured the judge that the new BiOp's reduction in spring spill -- as compared to court-order regimes of recent years -- would not be implemented this year. Flooding water through spill gates is done to facilitate juvenile salmon passage at the dams. Defendants in the lawsuit are NOAA Fisheries and the agencies that operate the dams, the U.S. Army Corps of Engineers and the Bureau of Reclamation.

In his closing remarks, the judge made no mention of the trending towards recovery jeopardy standard used by NOAA in judging the level of risk faced by the listed salmonid stocks. That standard was debated for nearly three hours Friday morning.

"I cannot tell you what I'm going to rule," Redden told a standing-room only crowd of more than 150 people attending the hearing.

He said he would go over the transcript of the hearing and other materials and potentially produce a new round of questions for the litigants.

"It won't be quick," Redden said of the prospect of a decision from him in the lawsuit. The coalition and Oregon have asked the judge to declare the BiOp illegal and direct NOAA to produce a legal plan. Federal attorneys have asked Redden to throw out the lawsuit.

"I think it is very close" to being a legal strategy, Redden said of the 2008 BiOp.

"I may end up saying this is a fine one as it is," Redden said of the BiOp. But he indicated he needed more information and possibly more commitments before making that determination.

He stressed again, as he did in the Feb. 18 letter, that it is advisable to have a contingency plan in place, as the 2000 plan did, in case the habitat-dependent strategy failed to produce the anticipated benefits for salmon. The 2000 BiOp said the agencies should be prepared, if all else was failing help listed Snake River stocks, to seek congressional authorization to breach lower Snake River dams.

The 2000 document said "we'll take a look at the dams" if other measures did not buoy listed stocks, the judge said.

"I don't know that the breaching of the dams is the solution. I don't know," Redden said.

But if another seven years or so passed and the BiOp was not producing needed results, "you can't say let's go do some more habitat work."

"I think it's going to work," Redden said of the 2008 BiOp RPA. "But if the money runs out.."

For more information about BiOp litigation go to www.salmonrecovery.gov

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Recent CBB stories on 2008 BiOp litigation:

* Redden Issues Letter Setting Stage For Oral Argument Over 2008 BiOp Legality
http://www.cbbulletin.com/320723.aspx

* Judge Redden's Questions For BiOp Litigants For March 6 Oral Argument
http://www.cbbulletin.com/320722.aspx

* Redden Adds Two More Questions About BiOp, Deals With Estuary, Stimulus Funds
http://www.cbbulletin.com/321829.aspx

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Columbia Basin Bulletin Issue Summary No. 1:

"Salmon and Hydro: An Account of Litigation over Federal Columbia River Power System Biological Opinions for Salmon and Steelhead, 1991-2009."

For information go to http://www.cbbulletin.com/Issue+Summaries/default.aspx