Though a federal court is not requiring it,
NOAA Fisheries said last week it will complete by the end of the year a 2018
biological opinion for Columbia/Snake river salmon and steelhead.
U.S. District Court Judge Michael H. Simon had
given federal agencies a choice to bypass the planned 2018 BiOp in order to
focus on a longer National Environmental Policy Act process that will culminate
in a 2021 BiOp. NOAA Fisheries and its federal partners last week said it still
plans to complete the BiOp this year by the end of December.
Simon in late April lifted the requirement
that NOAA must complete its next iteration of a salmon/steelhead biological
opinion for the federal Columbia River power system by December 31, 2018.
Instead he said in his April 17 decision that
if NOAA does not want to or cannot complete the BiOp by the end of this year,
it can deliver the document any time up to March 26, 2021, the date the next
BiOp is due.
“While the Court is not requiring a new
biological opinion in 2018, the incidental take coverage for operation of the
system expires at the end of 2018,” NOAA spokesperson Michael Milstein said.
“To ensure ESA compliance, we need a new biological opinion.”
(See CBB, April 20, 2018, “Judge Lifts
Requirement For Feds To Produce New Salmon/Steelhead BiOp In 2018; Offers
In 2016, Simon remanded NOAA’s 2014 BiOp and
set a schedule for federal agencies to replace it. The agencies charged with
the NEPA process to replace the BiOp – the U.S. Army Corps of Engineers, Bureau
of Reclamation and Bonneville Power Administration – said the process would
require five years of public involvement and work, but along the way it would
meet the prior schedule for a 2018 BiOp, complete an Environmental Impact
Statement in 2020 and submit a new BiOp to the Court in 2021.
That process has been underway for almost two
years and this week federal agencies said they are moving into the fourth step
of the process and are currently fleshing out the details of a range of
NOAA Fisheries’ 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.
An incidental take permit allows the
incidental taking of species listed as threatened or endangered under the
federal Environmental Species Act. According to NOAA, a condition of the permit
is a conservation plan that specifies actions to minimize negative impacts to
Plaintiff in the case, the National Wildlife
Federation, in its Jan. 22, 2018 brief to the court, said keeping the 2018 BiOp
in the schedule would not be in compliance with either NEPA or the ESA. NWF
suggested it would be appropriate to modify the current remand order to
“eliminate the requirement for a new biological opinion by December 31, 2018,
since Federal Defendants will not be preparing an EIS or other NEPA document to
accompany such a BiOp. Consequently, any decision by the federal action
agencies to adopt the proposed action or reasonable and prudent alternative
(“RPA”) in such a BiOp would violate NEPA and be contrary to the Court’s
In his April 17 decision that gave NOAA the
option to produce a 2018 BiOp, Simon said: “The Court extends the deadline for
the next biological opinion from on or before December 31, 2018, to on or
before March 26, 2021. NOAA Fisheries is thus under no court-ordered obligation
to produce a biological opinion before the NEPA process is complete. If NOAA
Fisheries chooses to issue the next biological opinion after December 31, 2018,
the Court will at that time consider any motion for further appropriate relief
relating to the incidental take statement and other related issues."
While Simon did not continue the incidental
take statement specifically, he did say that he would take up appropriate
relief at the time the BiOp is released, according to Milstein.
Todd True, Earthjustice attorney for the plaintiff,
said that he had previously told the court that the 2014 BiOp doesn’t
explicitly expire and that it could order its continued implementation,
including the incidental take statement.
“It’s pretty clear that the incidental take
statement is not required,” True said. “But we did say that (with a 2018 BiOp)
NOAA will not be complying with NEPA and that is the problem.”
He suggested that the federal agencies “get
off the idea of a 2018 BiOp and on to the idea of ‘how do we operate the system
to protect fish.’”
However NOAA proceeds, “we believe it needs to
be supplemented by strong spill provisions,” True added.
Court-ordered spring spill to the upper limit
of total dissolved gas allowed by the State of Washington at four lower Snake
River dams began April 3. Court ordered spring spill, also to gas cap limits,
began at the four lower Columbia River dams April 10. Caps on total dissolved
gas (caused when spill plunges into the river) are intended to protect young
fish from gas bubble trauma during spill.
In the meantime, the NEPA process is moving
into its fourth step. Wednesday, May 30, BPA, the Corps and BOR provided
through a webinar an update of their progress on the process that began in
“We’re focused on 14 projects (dams) with multiple
objectives,” said Lydia Grimm of BPA as she outlined the agencies’ progress.
”We have developed alternatives and are moving into the detailed analysis of
Alternatives are the “heart of the analysis
for an Environmental Impact Statement,” she said.
The process looks at single-objective
alternatives aimed at fish passage survival, as well as multiple-objective
alternatives, which looks at how single-objective alternatives are impacted by
and impact other hydro-electric project objectives of producing power,
distributing water for irrigation, providing safe navigation, among others.
“How we package the alternatives is important
on how we determine their effects,” she explained of the complexity of any
analysis. “It’s important to see how the combinations of alternatives work
Included in fish passage alternatives are
increased spill to 125 percent TDG and lower Snake River dam breaching, Grimm
Basic objectives are eight-fold:
--improve ESA-listed juvenile fish rearing,
passage and survival.
--improve ESA-listed adult fish passage.
--improve ESA-listed resident fish survival
and spawning success.
--provide adequate, efficient, economical, and
reliable power supply that supports the integrated Columbia River Power System.
--minimize greenhouse gas emissions.
-- maximize operating flexibility by
implementing updated adaptable water management strategies.
-- meet existing authorized water supply
-- Improve conditions for lamprey within the
Columbia River project area
The NEPA process is approaching its fourth
step, which began with a Notice of intent in September 2016, transitioning
through two more steps – scoping and alternative development – and is now
beginning to develop a detailed analysis of the alternatives.
A draft will be issued March 27, 2020, a final
EIS March 26, 2021 and a Record of Decision September 24, 2021.
More information on the NEPA process is at www.crso.info
To further complicate BiOp and spill issues, a
bill was passed April 25 by the U.S. House of Representatives that would until
at least 2022 require congressional authorization for any structural
modification or action -- including court-ordered spill for fish -- at
Columbia/Snake river federal dams that would restrict power generation or
The bill would require the Federal Columbia
River Power System to operate under the 2014 Biological Opinion for salmon and
steelhead until a new BiOp is completed.
H.R. 3144, approved 225-189, is sponsored by
Rep. Cathy McMorris Rodgers, R-WA. Co-sponsors are Reps. Jaime Herrea Butler,
R-WA, Dan Newhouse, R-WA, Greg Walden, R-OR, Kurt Schrader, D-OR, Mark Amodei,
R-NV, Raul Labrador, R-ID, Greg Gianforte, R-MT, Paul Gosar, R-AZ. The bill now
goes to the Senate where 60 votes will be needed for passage.
--CBB, May 18, 2018, “Court-Ordered Spring
Spill Now Moot As High Columbia/Snake Flows Forcing Involuntary Spill At Dams,”
--CBB, April 27, 2018, “House OKs Bill
Requiring Columbia/Snake Federal Hydro System To Operate Under 2014 BiOp Until
--CBB, April 13, 2018, “Court Ordered Spring
Spill For Fish Begins On Four Lower Columbia River Dams,” http://www.cbbulletin.com/440516.aspx
-- CBB, April 6, 2018, “New Court-Ordered
Spill Regime Based On Dissolved Gas Caps Begins This Week,” http://www.cbbulletin.com/440479.aspx
--CBB, January 26, 2018, “Salmon BiOp
Challengers Argue New 2018 BiOp Due End Of Year Would Be Illegal Without EIS
--CBB, December 1, 2017, “Judge Floats Idea Of
Suspending Work On 2018 BiOp For Salmon/Steelhead Due To Lack Of Completed
-- 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