The state of Oregon on Tuesday asked the U.S. District Court to send federal agencies back to the drawing board to develop a Columbia/Snake hydro system strategy that makes imperiled salmon stocks, not the power system, the top priority.

A NOAA Fisheries Service Federal Columbia River Power System biological opinion released May 5 is severely flawed scientifically and "a novel and unsustainable interpretation of the ESA," according to the supplemental complaint filed by the state Attorney General's office. The new plan, if anything, is less adequate than 2000 and 2004 BiOps struck down in district court, the state says.

"This court has repeatedly admonished NOAA that the imperiled condition of federally protected Columbia and Snake River salmon and steelhead cannot adequately be addressed merely by minor adjustments to the status quo," according to Oregon's supplemental complaint.

"Repeatedly, this court has rejected NOAA's efforts to justify inadequate proposed operations-driven by allegiance to status quo power production -- through novel methodologies and defective science. With the 2008 BiOp, we return again to that same juncture."

The federal government will get the chance to defend its new plan in the coming months as the legal briefing process plays out.

NOAA Fisheries spokesman Brian Gorman said the agency was "disappointed" with Oregon's legal stance on the BiOp. "Oregon has seen the glass as half empty from the beginning. We see it as half full."

The fact that the states of Idaho and Washington and four basin tribes "have signed on to this suggests that the future is pretty good for this BiOp," he said.

"We obviously don't agree with it," Gorman said of the contention that the new strategy is status quo. "We wouldn't have put in thousands of staff hours and negotiated for weeks and weeks and weeks and then put out the same document." The BiOp's development involved court-ordered collaboration with Columbia basin states and tribes carried out over the past two years.

"It says new things and sets new standards. We think it is better," he said. "We see progress being made and more progress in the future."

Oregon Gov. Ted Kulongoski, announcing the legal maneuver, said the state will continue to press for "a true salmon recovery plan for the Columbia River Basin…." The complaint asks the court to vacate the 2008 BiOp.

The governor said that the plan fails to provide adequate protections for the survival and recovery of 13 basin salmon and steelhead stocks as required under the Endangered Species Act. ESA BiOps are required to determine whether federal actions jeopardize the survival of listed species.

The FCRPS dams on the Columbia and Snake Rivers were built by the federal government. They are operated by the U.S. Army Corps of Engineers and Bureau of Reclamation; the Bonneville Power Administration markets the power generated in the system. Together they are the "action agencies."

NOAA Fisheries Service developed the BiOps in consultation with the action agencies. The new BiOp says the 13 stocks are not jeopardized by the dams. Its "reasonable and prudent alternative" outlines operational changes and structural improvements that the agency says will improve survival of migrating fish. Likewise survival improvements are expected from numerous habitat, hatchery and harvest strategies to be implemented over the next 10 years.

Oregon's filing said it intends to send a 60-day notice of intent to sue the action agencies for parallel and additional violations of the ESA, both procedural and substantive, arising out of their implementation of the RPA in the 2008 BiOp.

"… unless the Action Agencies take steps to correct their illegal actions, the State of Oregon intends to amend this complaint to add claims for violations of the ESA and the APA against those agencies."

The supplemental complaint is the second to be filed since the BiOp was issued. Earthjustice, on behalf of the National Wildlife Federation and other fishing and conservation groups, filed a document that also asks that NOAA be ordered to withdraw the 2008 BiOp.

NOAA "has reached a no-jeopardy/no-adverse modification finding for actions that do little to address the fundamental obstacles to the survival and recovery of ESA-listed salmon and steelhead in the Columbia River basin," the NWF complaint says.

The fishing and conservation groups are plaintiffs in what is a long-running lawsuit. They successfully challenged the 2000 and 2004 BiOp, which were declared arbitrary and capricious under the ESA by Judge James A Redden. Oregon is an intervenor-plaintiff in the lawsuit.

The new BiOp substantially lowers the standard for evaluating whether hydro power operations jeopardize the survival and recovery of protected species and does not assess the necessary levels to achieve viable fish populations, the state says.

"The approach taken in the 2008 BiOp to evaluate the risk to the likelihood of both survival and recovery for each Evolutionarily Significant Unit (ESU) and Distinct Population Segment (DPS) does not rationally address either one, because it fails to consider population viability requirements and the species' minimum requirements for survival and recovery," the Oregon complaint says.

"Because NOAA fails to first determine the point at which survival and recovery are placed at risk, it cannot demonstrate that the likelihood of achieving both will not be appreciably reduced."

"Time is literally running out for these populations," Oregon's complaint says. "Meaningful changes in hydro system operations readily could occur, and must occur, if we are to reverse the unacceptably high risk of extinction of several ESUs in the basin.

"Such changes are essential to avert the need to move to the "natural river option" as a long-term solution to meet ESA requirements," according to the Oregon filing. That natural river option would include breaching of four lower Snake River dams, a strategy favored by the NWF.

"Instead they propose actions that would clearly impair in-river migration conditions, including reductions of flow and spill compared to recent court-ordered operations that apparently benefited fish," Oregon says. "As an example, the 2008 BiOp and RPA requires cessation of spill in favor of maximum collection and transport of juvenile fish during much of May."

"Although COMPASS, as well as other models, has clearly demonstrated that reduction of fish travel time (FTT) through the FCRPS increases both direct juvenile (system) survival as well as smolt-to-adult return (life-cycle) survival of Snake River spring Chinook and steelhead, the 2008 BiOp and RPA reduce reliance on actions that are directly aimed at improving in-river migration conditions and thus reducing FTT, such as increases in flow through reservoir releases to speed water travel time, and reductions in fish delays at dams through increased spill.," according to the complaint.

The BiOp also fails to take into account risks caused by transportation, including those to endangered sockeye salmon, according to Oregon.

"Preliminary analyses indicate juvenile sockeye survival and subsequent adult returns improved dramatically during recent outmigration years associated with court-ordered river operations, which increased spill and reduced smolt transportation," the complaint say. "Thus measures that NOAA claims will improve survival rates for some other ESUs are likely to adversely impact Snake River Sockeye, yet NOAA fails to account for these effects."

The state says the BiOp credits significant, but unproven, survival improvements to new machinery -- such as removable spillway weirs and temporary spillway weirs – that pass fish with less water than traditional spill.

"But the 2008 BiOp does not take into account that the effectiveness of surface passage routes has not been fully evaluated and demonstrated, in particular RSWs and TSWs," Oregon's complaint says. "There is considerable uncertainty whether the expected survival will in fact occur, and whether these technological improvements will provide at least as good of fish benefits as a full spill program."

"Any dam improvements proposed in the plan are clouded by a failure to test benefits to fish prior to increasing power production," according to the governor's press release.

The state says the new BiOp "diverts attention from necessary changes in the operation of the dams by focusing on hatcheries and tributary habitat improvements that are inadequate to recovering Oregon's wild fish and ignore the known harm of physically transporting juvenile smolts downstream," according to a press release issued by Kulongoski's office. "The proposed measures, similar to those outlined in the 2000 and 2004 plans, are now predicted to result in dramatically stronger improvements in fish runs than they were in the previous plans."

"I support efforts to secure funding for hatcheries, habitat and tribal infrastructure," the governor said. "But I take issue with the plan's lack of improvement and accountability in the hydro power system, which remains the primary constraint to wild fish recovery. What I am looking for is a plan that restores wild fish populations to viable and sustainable levels."

The state's filing also encourages the Court to impanel independent experts to assist it in evaluating the efficacy of different available hydro power operations.

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