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NOAA Says It Must Complete New Salmon/Steelhead BiOp In 2018 To Ensure ESA Compliance
Posted on Friday, June 01, 2018 (PST)

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 Flexibility,” http://www.cbbulletin.com/440567.aspx)

 

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 alternative actions.

 

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 the species.

 

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 decision.”

 

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 September 2016.

 

“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 those alternatives.”

 

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 synergistically.”

 

Included in fish passage alternatives are increased spill to 125 percent TDG and lower Snake River dam breaching, Grimm said.

 

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 obligations.

-- 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 navigation.

 

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.

 

Also see:

 

--CBB, May 18, 2018, “Court-Ordered Spring Spill Now Moot As High Columbia/Snake Flows Forcing Involuntary Spill At Dams,” http://www.cbbulletin.com/440765.aspx

 

--CBB, April 27, 2018, “House OKs Bill Requiring Columbia/Snake Federal Hydro System To Operate Under 2014 BiOp Until 2022,” http://www.cbbulletin.com/440607.aspx

 

--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 Foundation,” http://www.cbbulletin.com/440137.aspx

 

--CBB, December 1, 2017, “Judge Floats Idea Of Suspending Work On 2018 BiOp For Salmon/Steelhead Due To Lack Of Completed EIS,” http://www.cbbulletin.com/439901.aspx

 

-- 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 2018,” http://www.cbbulletin.com/439147.aspx

 

--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 2018,” http://www.cbbulletin.com/436667

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