The state of Washington this week officially joined the legal defense of the latest federal Columbia/Snake river hydro system salmon protection plan.

"In Washington's view, the federal agencies have done what we asked them to do: conducted an honest assessment of the science, listened to our concerns and endeavored to accommodate different perspectives where possible, explained the reasoned path chosen where there were divergent views, and ultimately adopting a reasoned scientific analysis while following the legal requirements of the ESA," according to a memorandum filed with the U.S. District Court in Portland.

The motion to intervene as a defendant in long-running litigation over NOAA Fisheries' Federal Columbia River Power System biological opinion was filed Friday (Sept. 26). Judge James A. Redden granted the request Monday.

Washington has long been involved in the litigation with amicus status and has often been at odds with the federal government on the strategies for assuring that the hydro system doesn't jeopardize the survival of salmon and steelhead stocks that are listed under the Endangered Species Act.

But in the latest BiOp, released in May and challenged two months later by fishing and conservation groups and the state of Oregon, the federal government got it right, Washington says.

"Unfortunately, for many years Washington experienced a command and control approach by the federal agencies that, as detailed in some of our prior filings, was neither collaborative nor productive," the Sept. 26 memo said of its criticisms of BiOps produced in 2000 and 2004. Redden declared both illegal and ordered NOAA to produce legally defensible plans.

"Fortunately, the federal government's efforts with regard to the 2008 BiOp reflect a substantial change in its willingness to work collaboratively to produce a legally valid and biologically sound BiOp," Washington's memorandum says. The development of the 2008 BiOp included a 2 ½-year collaboration between federal agencies, states and tribes.

"Because the federal government listened carefully, utilized the best science available, explained its decisions where no consensus could be reached, and issued an opinion that conforms to the legal standards mandated by the ESA, Washington believes it is time to stop debating the strategies for operating the FCRPS in a way that will preserve listed fish and allow them to recover. It is time to implement those operational strategies, including the performance standards and adaptive management practices that aim for success."

NOAA, the U.S. Army Corps of Engineers and the Bureau of Reclamation are defendants in the challenge of the 2008 plan brought by Earthjustice for the National Wildlife Federation and other fishing and conservation groups. Oregon likewise filed a complaint claiming that the new plan did not provide adequate protections for fish. The Bureau and Corps operate the dams.

New status as intervenor expands Washington's legal options and better allows it to represent the state's considerable interest in the operation of the hydro system and the recovery of salmon stocks.

"Unless Washington is made a party to this case, it will have no legal means to challenge any injunctive relief that may be ordered, should that become necessary," the memo said. Injunctions have been sought in the past to alter, as an example, flow management and fish spill prescribed in NOAA BiOps.

"As it is, Montana, Idaho, and Oregon are already parties to this case for precisely these same reasons. With this motion, Washington is merely seeking comparable status," the memo says. Washington's goal as intervenor is to protect the product of the lengthy collaboration and its citizens' interests.

"It is beyond question that Washington citizens have an interest in protecting the sensitive fish species that are found within the state. From an economic standpoint, Washington residents have a stake in hydropower decisions that may precipitate major rate increases for their share of BPA power and in changes in the system that could curtail barge traffic or irrigation waters upon which Washington's farmers and other business communities depend."

"The primary focus of Washington's intervention as a defendant is to argue against any claims that the 2008 BiOp is invalid on ESA and APA grounds, and further to participate in any motion practice for injunctive relief seeking to supplant FCRPS operations under the BiOp.

"Because this litigation now involves a claim under the Clean Water Act not raised in prior litigation over FCRPS BiOps, some additional discussion regarding Washington's role with regard to that claim is warranted," Washington's memo says.

Earthjustice's request for summary judgment says the new BiOp and its "incidental take statement" violate the ESA, the Administrative Procedures Act and the CWA. The request says that ITS is a federal permit for which the CWA requires state water quality certification.

"This is a novel and unprecedented legal issue - so novel that no state in the Columbia Basin expressly asserted during the collaborative BiOp remand that section 401 of the Clean Water Act may have been triggered by the consultation process or that the accompanying state water quality certification process would have to be undertaken in each of the four basin states in connection with the 2008 FCRPS BiOp/ITS.

"Nevertheless, now that this theory has been advanced, Washington is not prepared to reflexively reject the argument as a part of the State's defense of the 2008 BiOp.

"Washington will not intervene as a plaintiff with regard to the CWA claim and any statements it may make about the merits of that claim will be nothing more than as a friend to the court."

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