A coalition of fishing and conservation groups on Tuesday filed a petition asking
that a federal appeals court review, and vacate, a Feb. 27 Bonneville Power
Administration “record of decision” to implement a plan that assures a set of
federal dams in Columbia-Snake river basin do not jeopardize the survival of
protected salmon and steelhead species.
groups who believe the federal strategy falls short of what is needed to
protect and restore salmon populations, in the past petitioned the Ninth
Circuit for reviews of the BPA RODs endorsing the two previous NOAA Federal
Columbia River Power System BiOps, a 2008 version and its 2010 supplement. In both
cases those petition processes were put on hold as the legal action moved to
U.S. District Court, where NOAA Fisheries BiOps themselves were challenged.
District Court Judge James A. Redden ruled in May 2011 that NOAA Fisheries
2008/2010 FCRPS BiOp, which was to prevail for 10 years, was illegal and
ordered that its flaws be corrected by Jan. 1, 2014. BiOps are required under
the ESA to evaluate whether federal actions, such as the operation of the dams,
jeopardize listed stocks.
coalition has yet to decide whether to mount a district court challenge to the
2014 BiOp produced in response to Redden’s order. But the petition filed this
week claims the BPA record of decision would implement a flawed BiOp that
violates the ESA, the National Environmental Policy Act and the Administrative
is one the “action agencies” charged with implementing FCRPS BiOp provisions.
Bonneville markets power generated in the federal power system. The other
action agencies are the U.S. Army Corps of Engineers and the Bureau of
Reclamation, which operate the FCRPS dams. Those dams include four mainstem
hydro projects on the lower Columbia and four on the lower Snake River.
action agencies must under ESA rules consult with NOAA Fisheries Service during
the development of BiOps which, as is the case with the 2014 FCRPS BiOp,
produce plans to avoid jeopardy.
NOAA Fisheries 2014 BiOp judges that the existence and operation of the dams
jeopardizes the existence of 13 Columbia basin salmon and steelhead species,
but prescribes actions the federal agency says will mitigate for hydro impacts
on fish. Those actions are outlined in a “reasonable and prudent alternative.”
petitioners include American Rivers, International Federation of Fly Fishers,
Sierra Club, Pacific Coast Federation of Fishermen’s Associations, Institute
for Fisheries Resources, Salmon for All, Idaho Rivers United, and Northwest
Sportfishing Industry Association.
groups are represented by Earthjustice, which also provided counsel for a
broader coalition of fishing and conservation groups, led by the National
Wildlife Federation, that challenged 2008/2010 BiOp.
appeals court responded to the petition this week, requiring that petitioners
submit a mediation questionnaire by June 3. The time schedule order also set up
a briefing schedule with the petitioners’ filing due Aug. 15. A respondent
brief would then be due by Sept. 15 from the Bonneville Power Administration.
An optional reply brief from the petitioners would be due 14 days later.
Northwest Power Act requires that legal challenges to BPA actions, such as the
ROD, be pursued through the Ninth Circuit. BPA is charged under that act with
funding mitigation for FCRPS impacts on Columbia River basin fish and wildlife.
BPA markets power generated at the dams, and mitigation actions are funded with
revenues from ratepayers.
petition says that “the ROD and related actions reveal that BPA is not
complying with its duty to avoid jeopardy and adverse modification of critical
habitat under the ESA.
although BPA asserts that its adoption of the RPA from the 2014 BiOp in its
2014 ROD complies with the National Environmental Policy Act (‘NEPA’), 2014 ROD
at 23-24, BPA has not completed an environmental impact statement or any other
NEPA document to analyze the impacts of its adoption of the RPA from the 2014
BiOp, an action that constitutes a major federal action significantly affecting
the quality of the human environment under NEPA,” the petition says.
petitioners say that BPA’s clearly stated reliance on the 2008 and 2010 BiOps
and the 2014 BiOp and supporting documents in making its decision came with the
knowledge that that such documents were invalid and “fails to meet BPA’s
independent and continuing legal duty to comply with the substantive
requirements” of the ESA.
has not obtained a valid, complete § 7(a)(2) consultation for operation of its
projects and other actions or offered any other adequate basis to establish its
compliance with these ESA requirements, and has not evaluated, proposed, or
implemented further or adequate alternative protective measures for ESA-listed
salmon and steelhead in order to avoid jeopardy and destruction and adverse
modification of critical habitat,” the petition says.
petition says BPA’s decision “may foreclose implementation of measures required
to avoid jeopardy, including, but not limited to, decisions to produce and
market power by running water through the turbines rather than spilling it over
the dams, rapidly fluctuating water flows in response to power demand, drafting
water from upstream reservoirs and operating the projects at elevations that do
not avoid harm to listed species, and otherwise managing water resources and
power marketing in a way that does not minimize or avoid mortality of salmon and steelhead.”
petition also says that the BPA decision adopts what the conservation groups
claim is a faulty NOAA Fisheries “incidental take statement” that authorizes
the “take” of listed salmon and steelhead, which is also based on prior,
invalid BiOp conclusions. Such ESA take statements set limits on the amount of
mortality resulting from dam existence and operations that might be acceptable.
the ITS in the 2014 BiOp nor the ITS in the 2008 and 2010 BiOps protects BPA
from liability under Section 9 because the BiOps are arbitrary, capricious, and
contrary to law. The incidental take statements contained therein are
consequently also invalid,” the petition says.
petition also says that the BPA ROD improperly relies on outdated NEPA analysis
from prior BiOp production processes.
BPA asserts that it “continues to rely on” several previous NEPA analyses, see
2014 ROD at 24 (listing EIS and other documents prepared between 1995 and
2003), an agency may not rely on stale or outdated data or analyses to satisfy
its duty to examine the impacts of, or alternatives to, an action.
and its implementing regulations impose a continuing duty on agencies to
prepare a supplemental environmental impact statement whenever ‘(i) The agency
makes substantial changes in the proposed action that are relevant to
environmental concerns; or (ii) There are significant new circumstances or
information relevant to environmental concerns and bearing on the proposed
action or its impacts.’
of these circumstances apply here: The condition of the environment and BPA’s
options and operations of the FCRPS have changed significantly since these
earlier NEPA documents were prepared,” the petition says.
more information, see:
CBB, April 4, 2014, “Fishing/Conservation Groups File Sue Notice On Challenging
Salmon BiOp In Ninth Circuit” http://www.cbbulletin.com/430255.aspx
CBB, Jan. 17, 2014, “NOAA Fisheries Issues New Salmon/Steelhead Biological
Opinion For Columbia/Snake River Power System” http://www.cbbulletin.com/429522.aspx
CBB, Sept. 13, 2013, “NOAA Fisheries Releases Draft 2013 Salmon/Steelhead BiOp,
Says 2008 Biological Analysis ‘Still Valid” http://www.cbbulletin.com/428331.aspx
CBB, Aug. 5, 2011, “Redden Orders New Salmon BiOp By 2014; Says Post-2013
Mitigation, Benefits Unidentified” http://www.cbbulletin.com/411336.aspx
CBB, Aug. 23, 2013, “Federal Agencies Release Draft Plan Detailing 2014-2018
Actions To Meet BiOP Salmon Survival Targets” http://www.cbbulletin.com/428028.aspx