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Conservation, Fishermen Groups Challenge Upper Snake BiOp by CBB Staff Columbia Basin Bulletin - January 23, 2004

Conservation groups and Pacific Coast commercial fishermen filed a lawsuit Jan. 16 asking a federal judge to declare illegal a NOAA Fisheries' biological opinion governing the operation of Bureau of Reclamation irrigation projects in the Snake River basin.

The case involves 22 Bureau storage projects located upstream of Hells Canyon Dam, designated in federal documents as "Upper Snake" projects.

The lawsuit was filed in U.S. District Court of Oregon in Portland on behalf of Idaho Rivers United, American Rivers, National Wildlife Federation, and the Pacific Coast Federation of Fishermen's Associations and Institute for Fisheries Resources (PCFFA/IFR) by Earthjustice attorneys.

The complaint asks the court to order the fisheries agency to correct what the groups say are numerous errors in the analysis of the effects of these projects have on threatened and endangered salmon and steelhead and develop a comprehensive plan to restore these fish. The groups also want to have the new analysis of Upper Snake operations integrated into an on-going rewrite the Federal Columbia River Power System biological opinion.

The FCRPS rewrite, ordered by a federal judge last May, is due to be completed by June 2004.

On Aug. 22 of last year the three conservation groups sent a letter to the Bureau and NOAA Fisheries informing them that they intended to sue over Upper Snake operations. At the request of Sen. Mike Crapo, R-Idaho, they withdrew that letter and engaged in discussions with water user groups and government representatives in an attempt to resolve the disputes. The discussions did not produce an agreement.

On Nov. 17, the Idaho water users sent their own notice of intent to sue over Upper Snake operations. The conservation and fishing groups sent a revised 60-day notice to the Bureau and NOAA Fisheries on Dec. 19, addressing other aspects of the issue. The groups said that, once the 60 days have elapsed, the Jan. 16 complaint would likely be amended to bring the Bureau into the lawsuit as a defendant.

The lawsuit filed last week says that the existing Upper Snake BiOp issued in 2001, and a three-year extension or supplement released the next year, violate procedural and substantive requirements of the Endangered Species Act, and allows the Bureau to operate Upper Snake projects in ways harmful to endangered salmon and steelhead. The lawsuit does not immediately seek flows from Idaho reservoirs to aid the fish during their seaward migration.

"If the court grants what we've requested, the federal agencies will need to develop an adequate and comprehensive recovery for Snake River salmon and steelhead," said Bill Sedivy of Idaho Rivers United. "Operation of the Bureau's Upper Snake projects have a profound impacts on the survival of Snake River salmon, and even affect fish downstream in the Columbia. It makes sense to look closely at the effects of these projects, as well as how they are operated in conjunction with other federal projects on these rivers."

"NOAA Fisheries, the agency responsible for recovering wild Snake River salmon and steelhead, has completely failed to do a scientific analysis of the impacts of the Bureau's Upper Snake dams on Idaho's wild salmon and steelhead," said Rob Masonis of American Rivers. "Such an analysis is at the heart of any biological opinion, and its absence renders the Upper Snake BiOp worthless."

The groups accuse NOAA Fisheries of violating the ESA and Administrative Procedures Act by "without any rational basis concluding in the 2001 Upper Snake BiOp and the 2002 Supplement that the operation of the Upper Snake projects are not likely to jeopardize any listed species or destroy or adversely modify their critical habitat…."

The complaint says the BiOp is arbitrary and capricious because:

• NOAA "improperly segmented a single federal action (namely operation of the entire system of inter-related federal dams and projects on the Columbia and Snake rivers) with effects on listed species that must be considered and addressed in one single consultation and biological opinion."

• NOAA's no-jeopardy conclusion relies on "measures for survival and recovery specific to other life stages for this ESU as per the 2000 FCRPS Biological Opinion." Since the federal judge declared the FCRPS illegal because it relied on certain of those measures that were not "reasonably certain to occur," the Upper Snake BiOp conclusion is illegal.

• NOAA failed to conduct an adequate jeopardy analysis and "ignores the best available science."

• NOAA relied on "an assumed outcome in the SRBA settlement proceedings, a prospective and uncertain action which has not come to pass."

• NOAA decision to extend the 2001 BiOp for an additional three years in the 2002 Supplement "with no additional analysis whatsoever, ignored changed circumstances since issuance of the 2001 Upper Snake BiOp, including but not limited to the a continuing absence of any SRBA settlement agreement, and failed to articulate a rational basis for concluding that the bureau's actions would not jeopardize listed species in the period 2002 through March 2005…."

The adjudication involves the Bureau, NOAA, the Department of Interior and the Nez Perce Tribes, state of Idaho and Idaho water interests in a court-directed attempt to resolve competing water claims in the basin.

Glen Spain of PCFFA/IFR said that commercial fishing groups joined the lawsuit because downriver communities and coastal fishermen have an enormous stake in Snake River salmon restoration. He said coastal fishing ports and processors from California to Alaska have lost thousands of jobs as a result of collapses in Snake River salmon runs.

"Most of the West Coast salmon fishery is severely restricted to protect endangered Snake River salmon," Spain said. "Without dam removal or enough water in the Snake River, those fisheries will never recover and thousands of fishery jobs will be lost forever. It needs to be made clear to the federal government that this issue affects the entire West Coast economy."

Although the groups are moving forward to address the Upper Snake BiOp in court, they renewed their promise to Crapo and Idaho farmers on last week to limit the amount of water pursued for 2004 salmon flows to the amount now authorized by the Idaho Legislature. Idaho law allows 427,000 acre-feet of water to be purchased from willing sellers to augment flows for salmon, a practice state, federal and tribal fisheries managers maintain helps boost survival of salmon during their migration to the Pacific.

For the past three months, Idaho Rivers United has been working with individual farmers and irrigation companies to identify water that may be available for salmon flows during 2004 through voluntary leases, according to a press release announcing the lawsuit.

The groups say they do not believe that Idaho farmers and irrigators are the primary cause of dwindling salmon and steelhead populations in the Snake Basin. The real culprits, they say, are four federal dams on the Lower Snake River. Slack water behind those dams cause too many juvenile salmon to die during their migration to the Pacific Ocean, the groups say.