U.S. District Court Judge Michael H. Simon
gave federal agencies two years – to March 1, 2018 – to return to court with a
new recovery plan for protected Columbia/Snake River salmon and steelhead,
along with associated National Environmental Policy Act documents.
The federal agencies – the U.S. Army Corps of
Engineers, the Bureau of Reclamation and the Bonneville Power Administration –
say in June 3 court briefs that the NEPA process needs at least five years if
they are to do it right.
“Based on the agencies’ collective experience
and expertise in completing comprehensive NEPA analyses, the action agencies
have determined it will take a minimum of five years in order to analyze a
projected range of alternatives and associated environmental effects, provide
an adequate opportunity for meaningful public involvement, and complete a NEPA
analysis that satisfies federal laws and regulations and is consistent with the
guidance in the Court’s May 4, 2016 Order,” David Ponganis, Director of
Programs in the Corps’ Northwestern Division, said in his brief submitted to
the court June 3.
The federal agency brief said the 5-year
process will yield dividends and will ensure a “well-informed, well-considered,
and publicly vetted long-term strategy” for the federal Columbia River power
system “that complies with all federal laws, including Section 7 of the
Endangered Species Act.”
However, the brief continues, the court needs
to allow the agencies the five years it will take them to do that.
“We are disappointed in the agencies’ schedule
proposal,” said Todd True of Earthjustice and lead counsel for the
plaintiffs. “We will be filing a
response to it with the Court on Friday, June 17th in accordance with the
briefing schedule the Court has set.
That response will be available to the public.”
As of today, Simon has yet to act on the
federal five-year NEPA plan. However, the action agencies’ NEPA plan leaves
unsaid what the timing would be of the recovery plan (the biological opinion)
that also must be completed by NOAA Fisheries.
NOAA said that is still under discussion
amongst the federal agencies.
“The agencies are considering how best to
integrate the ESA consultation and NEPA review, recognizing the Court's
decision for a new biological opinion by March 2018,” said Michael Milstein,
spokesperson for NOAA.
Simon had rejected May 4 much of NOAA
Fisheries’ 2014 biological opinion for salmon and steelhead impacted by the
Federal Columbia River Power System. In his opinion, he said the rejected BiOp
“continues down the same well-worn and legally insufficient path” followed by
previous recovery plans over the past 20 years.
He said that the current BiOp’s standard of
“trending toward recovery” is insufficient to ensure recovery, that habitat
improvement benefits are uncertain, that NOAA Fisheries’ assessment of climate
change impacts on recovery do not use the best available science, and that the
U.S. Army Corps of Engineers and the Bureau of Reclamation must comply with
NEPA and assess all reasonable and prudent alternatives (RPAs), including one
that federal agencies seem to be avoiding, breeching lower Snake River dams.
Simon held that the federal agencies had
failed by not preparing any environmental impact statements that would support
the 2014 BiOp and its RPAs. If that had been done, according to the judge’s
BiOp decision, the EIS may have allowed, even encouraged, “new and innovative
solutions to be developed and discussed. The federal agencies, the public, and
our public officials will then be in a better position to evaluate the costs
and benefits of various alternatives and to make important decisions.”
The process for preparing an EIS includes:
--Scoping, an initial public phase that helps
the agencies determine the breadth of an issue and what will be addressed in
the EIS. Scoping could take as much as one year to complete.
--Draft EIS, the most time-consuming of the
steps, will take about two-and-one-half years. A draft EIS will include a
description of a reasonable range of alternatives, including breaching of one or
more federal dams.
--Final EIS will be prepared after another
public comment period for the draft EIS. Those public comments will be included
and may inform the final EIS. The final EIS will take about one year following
publication of the draft EIS.
--Record of Decision, the final step in the
process, will require about six months.
This is the fifth rejection of an FCRPS BiOp
for a system that impacts thirteen species of salmon and steelhead listed as
endangered or threatened under the federal Endangered Species Act. Previous
challenged BiOps were in 2000, 2004, 2008 and a supplemental BiOp in 2010.
The National Wildlife Federation, the lead
plaintiff, had successfully obtained legal rejection of BiOps for the same
issues in 2000, 2008 and 2010.
The states of Idaho, Washington and Montana,
the Kootenai Tribe of Idaho, Confederated Salish and Kootenai Tribes of
Montana, the Umatilla Indian Reservation, the Confederated Bands of the Yakama
Nation, the Confederated Tribes of the Warms Springs Reservation of Oregon, the
Confederated Tribes of the Colville Reservation, Inland Ports and Navigation
Group, Northwest River Partners, and the Northwest Power and Conservation
Council participated in this lawsuit.
The Nez Perce was the only tribe to side with
the plaintiffs and Oregon was the only state.
The main gist of the plaintiffs’ arguments in
their challenge of the 2014 BiOp was that fisheries management agencies had
failed to provide enough certainty that their methods for fishery protection
will succeed, but the defendant agencies contended that is an unreachable
standard and they will be subject to perpetual litigation.
Throughout the legal proceedings, the agencies
maintained that momentum and collaboration has built for effective salmon and
steelhead restoration, and the court should not impede that progress.
For background, see:
--CBB, May 20, 2016, “BiOp Judge Approves
Extension For Feds In Delivering A Plan For Responding To Court Directives,”
--CBB, May 6, 2016, “Federal Court Again
Rejects Columbia Basin Salmon/Steelhead Recovery Plan; Orders New BiOp By
-- CBB, August 28, 2015, “BiOp Litigants Respond
To Judge’s Questions, Now Await Ruling On Summary Judgement Motions,” http://www.cbbulletin.com/434825.aspx
-- CBB, June 26, 2015, “Attorneys Present
Pros/Cons Of Columbia/Snake Salmon BiOp At Federal Court Oral Argument
-- CBB, October 3, 2015, “State Of Oregon
Again Joins Plaintiffs In Challenging Feds’ Columbia Basin Salmon/Steelhead
-- CBB, June 20, 2014, “Groups File Challenge
Against New Federal Columbia Basin Salmon/Steelhead Recovery Plan,” http://www.cbbulletin.com/431171.aspx
-- CBB, May 30, 2014, “Groups Challenge In
Ninth Circuit BPA’s Record Of Decision Accepting Feds’ New Hydro/Salmon Plan,” http://www.cbbulletin.com/430946.aspx
-- 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,”
-- CBB, Sept. 13, 2013, “NOAA Fisheries
Releases Draft 2013 Salmon/Steelhead BiOp, Says 2008 Biological Analysis ‘Still
-- CBB, Aug. 23, 2013, “Federal Agencies
Release Draft Plan Detailing 2014-2018 Actions To Meet BiOp Salmon Survival
-- CBB, Aug. 5, 2011, “Redden Orders New
Salmon BiOp By 2014; Says Post-2013 Mitigation, Benefits Unidentified,” http://www.cbbulletin.com/411336.aspx