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Judge Gives Feds Nearly Five Years To Complete NEPA Process For New Basin Salmon/Steelhead Recovery
Posted on Friday, July 15, 2016 (PST)

The federal judge presiding over the rewriting of the recovery plan for thirteen species of Columbia River salmon and steelhead says a thorough National Environmental Policy Act review is more important than the shortened remand schedule proposed by the litigation’s plaintiffs.


(See CBB, May 6, 2016, “Federal Court Again Rejects Columbia Basin Salmon/Steelhead Recovery Plan; Orders New BiOp By 2018,”


U.S. District Court Judge Michael H. Simon ruled July 6 in favor of the nearly five-year NEPA process proposed by the federal defendants.


He also approved a time extension on when the next Federal Columbia River Power System biological opinion for salmon and steelhead is final, from March 31, 2018 to December 31, 2018, an extension the federal defendants had requested.


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.


Simon had rejected May 4 much of NOAA Fisheries’ 2014 biological opinion for salmon and steelhead impacted by the FCRPS. 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.


Among other issues, Simon held that the federal agencies had failed by not complying with NEPA by preparing 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.”


He ordered the federal defendants to come up with a NEPA schedule and submit it to the court by June 3, and in a cross motion, the plaintiffs to propose a NEPA schedule by June 17.


(See CBB, June 24, 2016, “BiOp Challengers Urge Court To Reject Feds’ Five-Year Timeline For New Salmon Recovery Plan,”


The plaintiffs, the National Wildlife Federation, the State of Oregon and the Nez Perce Tribe in their joint brief of June 17, said the federal agencies five-year timeline failed to reflect an urgency for fish listed under the federal Endangered Species Act. They proposed that federal agencies 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,” their brief said.


“Although the Court agrees with Plaintiffs that there is an urgent need to address the problems facing the listed species, truncating the NEPA process to meet an arbitrary court deadline may be counterproductive to the purpose of NEPA and result in an inadequate response to the Court’s concerns expressed in its Opinion and Order,” Simon’s July 6 order said.


“The Court emphasized in its Opinion and Order the importance of a comprehensive NEPA analysis so that the Action Agencies, tribal and state sovereigns, relevant public officials, and the public generally may be adequately informed regarding the relevant issues and alternatives,” Simon said. “The NEPA process must be sufficiently thorough to enable thoughtful and meaningful scoping, robust public and sovereign participation throughout the process, and appropriate consideration by the Action Agencies of the issues raised and reasonable options and alternatives.”


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 the agencies were given five years.


Plaintiffs disagreed and offered their own plan in court documents June 17 that would require just a few months more than two years.


Also at issue was coordinating the updated BiOp with the NEPA process.


“The Federal Defendants state, however, that because of the complexity of the analyses in this case, they are not yet in a position precisely to delineate how the two processes can be integrated, coordinated, and sequenced. The Court defers to the expertise of NOAA Fisheries and the Action Agencies and leaves for future consideration how best to integrate the two processes,” Simon said.


The Court ordered a final remand schedule that includes:


-- Federal Defendants shall complete scoping under NEPA on or before September 30, 2017;


-- Federal Defendants shall file a status report with the Court on or before October 30, 2017;


-- A status conference is set for November 30, 2017, at 10AM.


--NOAA Fisheries’ further consultation under Section 7 of the Endangered Species Act, correcting the deficiencies identified in the Court’s Opinion and Order of May 4, 2016, shall be completed on or before December 31, 2018;


--The draft EIS shall be completed on or before March 27, 2020;


--The final EIS shall be completed on or before March 26, 2021; and


--The Records of Decision shall be issued on or before September 24, 2021


For background, see:


--CBB, June 17, 2016, “Court Says Two Years For New Basin Salmon Recovery Plan, NEPA; Feds Say Will Take Five Years,”


--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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