A five-year federal review of the
Columbia/Snake River power system will not produce a finished environmental
impact statement until 2021. That has U.S. District Court Judge Michael H.
Simon asking whether a new biological opinion for salmon and steelhead,
scheduled for 2018, should simply be suspended until the EIS is completed.
NOAA Fisheries’ biological opinion, or “BiOp,”
sets “reasonable and prudent alternatives” intended to mitigate for impacts of
the federal dams on 13 species of Columbia River basin salmon and steelhead
listed as threatened or endangered under the federal Endangered Species Act.
Subsequent recovery plans for each listed species outlines the standards for
recovery and the actions required to meet them.
A status conference Tuesday, November 28 in
Portland, weighed the progress of the 5-year National Environmental Policy
Act/EIS process required by Simon’s 2016 order to redo the 2014 (and current) BiOp for Columbia Basin
salmon and steelhead.
The conference was also slated to discuss the
progress of an injunctive spring spill plan that was to be done by the Tuesday
meeting. A discussion of the plan for more spill at the dams for migrating
juvenile fish was put off.
Parties to the BiOp lawsuit instead debated
the status of the NEPA review process that is in progress by the U.S. Army
Corps of Engineers, the U.S. Bureau of Reclamation and NOAA Fisheries.
Acknowledging that the next BiOp, which is due
by December 31, 2018, would not have the foundation of a new EIS, Simon said
that if the NEPA process will not be done by 2018, then “it would be best to
dispense of the 2018 BiOp until we get to a point where we can operate under a
sufficient EIS,” and he asked both plaintiffs and defendants in the case to
offer their thoughts on the idea.
Until 2021, when the court-ordered BiOp is due,
the system could continue to operate under the current 2014 BiOp, Simon added.
That could also mean that the system would
operate with the additional court-ordered spring spill through 2021.
The 5-year long process under NEPA to produce
an EIS was put into motion by Simon in his remand of the 2014 BiOp. At their
request, Simon granted the operating agencies five years to complete the
process, initially expecting a new BiOp in 2018 and another, final BiOp in 2021
at the end of the process.
(For more information on the process
background, see CBB, January 6, 2017, “Comment Period Extended For Feds’
Scoping On New EIS For Columbia/Snake River Hydro System,” http://www.cbbulletin.com/438159.aspx)
A status report on the NEPA process from the
agencies was due to the court on October 30. After a comment period in which
plaintiffs weighed in on the federal agencies’ progress, a status conference
was held this week.
The draft EIS is to be completed and ready for
public review in March 2020, with the final EIS in March 2021, followed closely
by a record of decision.
In their status brief, the federal agencies
described a wide-ranging NEPA review, far beyond a focus on reasonable and
prudent alternatives that would inform a new BiOp, according to comments by the
In its counter brief to the federal status
report, the National Wildlife Federation said that the NEPA status report by
the federal agencies indicates they “have chosen to prepare an EIS that is
substantially broader in scope and complexity, and so much more expensive and
time consuming, than the EIS the Court indicated is necessary.
“Rather than address the Court’s conclusion
that the agencies should comply with NEPA by preparing an EIS ‘parallel in
scope’ to a new proposed action or reasonable and prudent alternative that
avoids jeopardy to ESA listed species from operation of the federal dams on the
Columbia and Snake Rivers, Federal Defendants have embarked on preparing a
sweeping system operations EIS that seeks to consider and balance all of the
multiple purposes and uses of the hydrosystem and of each dam.
“This unnecessary choice will lead to an EIS
that obscures, rather than clarifies, the tradeoffs among reasonable
alternative courses of action for dam operations and mitigation measures that
comply with the ESA. It also is the main cause of Federal Defendants’ repeated
expressions of concern about the demands of preparing an EIS, and of their
oft-repeated anxiety about meeting the current remand schedule.”
The plaintiffs also noted that the process
would violate NEPA in 2018 by issuing a biological opinion that would include
proposed reasonable and prudent alternatives “without any accompanying NEPA
analysis or document, the very problem the Court asked the agencies to address
and resolve in their status report.”
Simon agreed but said he did not have the
authority to change the NEPA schedule, leaving the scope and schedule up to the
federal agencies. He would, however, entertain a motion that would dispense of
the 2018 BiOp and leave the 2014 BiOp in place until the conclusion of the NEPA
process and new BiOp in 2021.
Todd True of Earthjustice and lead attorney
for NWF said plaintiffs would submit such a proposal in January.
However, the defendants’ lead attorney at this
week’s status conference, attorney Romney Philpott, III, of the Justice
Department, disagreed, saying that “NOAA Fisheries and the action agencies are
focused on meeting the deadlines originally proposed.”
He added that it’s absurd to say the NEPA
review is too broad.
“The ESA is a very important issue and it will
be fully covered,” Philpott said at the status conference, “but it’s not the
only issue. We’re intent on complying with your order, but we also have the
NEPA requirements. The proposal to get rid of the 2018 BiOp tries to solve a
problem that doesn’t exist.”
“You’re not anticipating an EIS until 2021 and
we need to ensure that the next BiOp I see is NEPA compliant,” Simon said. “The
best way to integrate, coordinate and sequence these obligations is to suspend
the 2018 BiOp and wait to see the 2021 BiOp.”
Rather than the broad NEPA review proposed by
the defendants, True said the federal agencies should first focus more on the
range of alternatives that would comply with the ESA and then they could go on
to evaluate the impacts on all their other obligations.
Attorneys James Buchal of the Columbia-Snake
River Irrigators Association and Jay Waldron of the Inland Ports and Navigation
Group, both defendant intervenors in the BiOp case, suggested that the real
reason plaintiffs want to suspend the 2018 BiOp is to extend the experimental
spring spill out to 2021.
In response to this worry of some defendant
intervenors, Simon suggested all parties propose how spill would be extended or
ended. That, he said, could be included in a proposal on whether to suspend the
The request for injunctive relief for more
spill for fish was enjoined with the earlier case argued in Simon’s court that
resulted in the remand. The spill plea was brought to Simon in January 2017 by
the National Wildlife Federation and the State of Oregon, with the support of
the Nez Perce Tribe. The groups asked the court to begin ordering spill to
maximum total dissolved gas levels beginning April 3 and to continue for each
year of the BiOp remand. Simon agreed that more spring spill will benefit
ESA-listed fish, but delayed the action while federal agencies completed a
spill plan for the lower Snake and Columbia river dams.
However, the spill decision was appealed by
the federal agencies and Northwest River Partners in early June to the Ninth
Circuit Court of Appeals and the parties have now moved forward on expediting
the appeal, asking the Appeal Court for a decision prior to the additional
spill beginning April 3, 2018.
-- CBB, Nov. 3, 2017, “Federal Agencies Update
Court On NEPA, EIS Process For Columbia/Snake Salmon, Steelhead” http://www.cbbulletin.com/439818.aspx
-- CBB, June 23, 2017, “Litigants In Salmon
BiOp Case Working Together To Develop Court-Ordered Spill-For-Fish Plan In
--CBB, May 19, 2017, “Spill Advocates, Federal
Agencies Agree To Status Conference Schedule, Protocol In Salmon BiOp Case,” http://www.cbbulletin.com/438950.aspx
-- CBB, April 7, 2017, “Court Order Requires
Earlier Spill For Salmon In 2018; Orders Design Study, Monitoring,” http://www.cbbulletin.com/438675.aspx
-- CBB, May 6, 2016, “Federal Court Again
Rejects Columbia Basin Salmon/Steelhead Recovery Plan; Orders New BiOp By