Clean Water Act arguments have been added to the slate as attorneys this autumn debate whether a newly devised strategy adequately protects salmon and steelhead that migrate up and down the federal Columbia/Snake river hydro system.

U.S. District Court Judge James A. Redden on Friday (Sept. 12) granted a National Wildlife Federation request to file a "Fifth Supplemental Complaint" in ongoing litigation regarding NOAA Fisheries Service's Federal Columbia River Power System biological opinion. BiOps are required under the Endangered Species Act to determine whether federal "actions" jeopardize the survival of listed species. The Columbia River basin is home to 13 listed salmon and steelhead stocks.

Federal attorneys last week filed opposition to the request that existing claims of ESA and Administrative Procedures Act violations be supplemented with charges that the NOAA BiOp also violates the CWA.

The U.S. Justice Department filing said that adding CWA issues "will unnecessarily complicate this case, usurp the time and resources of the parties, and distract attention from the central issues in the case." It also said the requested supplement would inappropriately raise "novel" issues in the long-running litigation and was not filed in a timely manner.

The federal brief said that if the NWF wanted to pursue the CWA claims it should do it in a separate lawsuit.

Redden's Sept. 12 order said he disagreed with the federal arguments.

"NWF's CWA claims will not unnecessarily complicate or delay the resolution of this case," the judge wrote. "As Federal Defendants acknowledge, the CWA claim presents a 'purely legal issue.' As such, no evidence will be necessary.

"The CWA and the Endangered Species claims arise out of the same final agency action and rely on the same administrative record. There will be no delay in briefing the claims because NWF intends to address the claims in its forthcoming summary judgment motion.

"Contrary to Federal Defendants' argument, judicial resources would be best spent addressing all of NWF's claims in this case, rather than requiring NWF to file a separate action…," Redden said.

He also said he was not convinced that the CWA claims were untimely, noting that some litigants had brought up the issue in comments on NOAA's 2008 BiOp and the NWF had touched on the issues in its 60-day notice of its intent to sue the U.S. Army Corps of Engineers and Bureau of Reclamation over hydro operations.

"In any event, it is difficult to see how NWF should have raised this claim in 2000 when the Supreme Court did not make clear that hydroelectric dams were subject to CWA permitting requirements until 2006," Redden said.

The merits of NOAA FCRPS BiOps have long been debated in Redden's court. He declared 2000 and 2004 versions in violation of the ESA. The 2008 BiOp, which replaced the 2004 plan, was released May 5 and challenged two months later by NWF and other fishing and conservation groups. The state of Oregon has also taken the 2008 BiOp to legal task.

The supplemental complaint continues to pursue ESA and APA claims but also says that the dams are being operated without state water quality certifications. That makes the dams' ESA operational go-ahead -- the BiOp incidental take statement -- illegal, according to Earthjustice, which represents the fishing and conservation groups. The ITS allows a certain level of hydro-caused mortality of listed fish.

The Corps and Bureau operate the dams.

Earthjustice is scheduled to file its opening brief in the case today. It wants the judge to declare the BiOp illegal and order NOAA to develop a legal plan. Arguments will wage back and forth until Dec. 8.

Redden this week scheduled oral arguments on summary judgment motions at Portland's federal courthouse Jan. 16.