A week after federal agencies said they could
complete the NEPA process in five years, not the two years given by U.S. District
Court Judge Michael H. Simon to complete both a new recovery plan for protected
Columbia/Snake River salmon and steelhead and associated National Environmental
Policy Act documents, plaintiffs in the case said the federal plan takes too
The federal agencies – the U.S. Army Corps of
Engineers, the Bureau of Reclamation and the Bonneville Power Administration –
had said in June 3 court briefs that the NEPA process needs at least five years
if they are to do it right.
However, the National Wildlife Federation, the
State of Oregon and the Nez Perce Tribe in their joint brief of June 17 says
the federal agencies five-year timeline fails to reflect an urgency for fish
listed under the federal Endangered Species Act. Their proposal is to complete
the combined recovery plan and the NEPA documents by December 31, 2018, the
date “on which the agencies indicate the current, illegal BiOp will expire,”
the brief said.
The defendants’ (federal agencies) opening
brief “fails to acknowledge or address the fact that the FCRPS has been
operating in violation of the law since at least December of 2000 and, under
its current configuration and operation, the system is failing to avoid
jeopardy to ESA-listed salmon and steelhead. The lethal conditions these fish
faced in 2015 only underscore the urgency of this problem.”
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.”
As was required by the Court, the defendants June
3 filed a plan to complete the EIS, but instead of two years, they said it was
not possible to complete unless it was given five years.
Plaintiffs disagree and offered their own plan
in court documents June 17 that would require just a few months more than two
The lengthy proposed schedule proposed by the
federal defendants fails to offer an expeditious path to complying with both NEPA
and the ESA, the plaintiffs said, adding that the longer the defendants take to
complete these analyses, the longer the species will remain at risk.
“Rather than address this situation, Federal
Defendants base their proposed schedule for preparing a programmatic EIS
largely on EISs prepared on the agencies’ own time line, not under a court
order following repeated violations of the law and continuing high risk to
ESA-listed species,” the brief says. “Their
approach could postpone compliance with the environmental laws that govern
FCRPS operations for a total of more than 20 years.”
They said that other agencies – NOAA Fisheries
and the U.S. Fish and Wildlife Service – have completed a NEPA analysis within
one year when they have been under a court order to do so and that the timeline
to complete the NEPA work should be on the court’s schedule, not the federal
“This combined assertion of unique expertise
beyond the ability of the Court to assess, and an implied threat of failure if the
Court tries, is unwarranted and incorrect,” the brief said.
“(T)heir effort to comply with the law should
be undertaken with an urgency commensurate to the scale of the problem they
have created,” the brief said.
And, the brief said, it appears the defendants,
by extending the processes (biological opinion and NEPA) by three more years
puts the final product beyond the 2018 requirement to complete a new BiOp,
committing the same violations for which Judge Simon has put them on the
The federal agencies can and should run
concurrent BiOp and NEPA processes and the court should hold the agencies to
the two year limit, the plaintiffs said.
They offered an alternative schedule to the
one proposed by the federal agencies with a completion date of December 31,
2018. The steps include:
Scoping – Federal agencies, the brief said,
have not provided an adequate reason that they couldn’t publish a scoping
notice in the Federal Register by Sept. 30, 2016, with a 90 day public comment
period, completing the scoping process by Jan. 1, 2017.
The federal agencies in their June 3 brief
said the Scoping process would take one year.
Draft Environmental Impact Statement -- The
draft EIS will need to articulate and evaluate the impacts of a range of
reasonable alternatives for operating the FCRPS in a way that avoids jeopardy
to ESA-listed salmon and steelhead and otherwise complies with all applicable
laws, the brief said.
It said that many components of some of these
alternatives for a NEPA analysis are already apparent, such as bypassing the
four lower Snake River dams, increasing spill during the spring juvenile
migration season, drawing down John Day or other reservoirs during juvenile
migration season to increase water travel time and increasing river flows to
meet specific minimum flow targets on a weekly basis during the migration
For much of this work, the brief said, the
government has existing studies as a starting point and does not need to start
This is the most time-consuming step in the
NEPA process, so the agencies may need almost seventeen months, or until
November 30, 2017 – to prepare and publish the draft.
The federal agencies said this part of the
process would take two-and-one-half years.
The plaintiffs believe the agencies should
also begin to prepare a draft BiOp concurrently with this process so that it is
ready for review when the draft EIS is ready. Those documents would be followed
by a 90 day comment period.
Final EIS – After the close of comment on the
draft EIS, the agencies will need to review the comments and prepare a final
EIS. “The release of a Final EIS should be closely contemporaneous with release
of a new BiOp,” the brief said. Plaintiffs give NOAA and the action agencies
until Dec. 31, 2018 to complete the process.
Federal agencies said the final EIS will take
about one year following publication of the draft EIS.
The formal Record of Decisions on both
documents would take another 30 to 60 days, they plaintiffs said.
Federal agencies said the ROD would take six
“In short, NWF, Oregon, and the Nez Perce
Tribe urge the Court to adopt the schedule set out above, or one that is even
shorter, for compliance by Federal Defendants with both NEPA and the ESA,” the
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.
For background, see:
--CBB, June 17, 2016, “Court Says Two Years
For New Basin Salmon Recovery Plan, NEPA; Feds Say Will Take Five Years,” http://www.cbbulletin.com/436944.aspx
--CBB, May 20, 2016, “BiOp Judge Approves
Extension For Feds In Delivering A Plan For Responding To Court Directives,” http://www.cbbulletin.com/436764.aspx
--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 Targets,”
-- CBB, Aug. 5, 2011, “Redden Orders New
Salmon BiOp By 2014; Says Post-2013 Mitigation, Benefits Unidentified,” http://www.cbbulletin.com/411336.aspx