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Court Says Two Years For New Basin Salmon Recovery Plan, NEPA; Feds Say Will Take Five Years
Posted on Friday, June 17, 2016 (PST)

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 2018,”


-- CBB, August 28, 2015, “BiOp Litigants Respond To Judge’s Questions, Now Await Ruling On Summary Judgement Motions,”


-- CBB, June 26, 2015, “Attorneys Present Pros/Cons Of Columbia/Snake Salmon BiOp At Federal Court Oral Argument Hearing,”


-- CBB, October 3, 2015, “State Of Oregon Again Joins Plaintiffs In Challenging Feds’ Columbia Basin Salmon/Steelhead Plan,”


-- CBB, June 20, 2014, “Groups File Challenge Against New Federal Columbia Basin Salmon/Steelhead Recovery Plan,”


-- CBB, May 30, 2014, “Groups Challenge In Ninth Circuit BPA’s Record Of Decision Accepting Feds’ New Hydro/Salmon Plan,”


-- CBB, April 4, 2014, “Fishing/Conservation Groups File Sue Notice On Challenging Salmon BiOp In Ninth Circuit,”


-- 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 Valid,”


-- CBB, Aug. 23, 2013, “Federal Agencies Release Draft Plan Detailing 2014-2018 Actions To Meet BiOp Salmon Survival Targets,”


-- CBB, Aug. 5, 2011, “Redden Orders New Salmon BiOp By 2014; Says Post-2013 Mitigation, Benefits Unidentified,”


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