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Restoring the Lower Snake River

gavelFriday, January 26, 2018

Plaintiffs in a case before the US District Court of Oregon that resulted in a remand of NOAA Fisheries’ 2014 biological opinion for Columbia Basin salmon and steelhead are now arguing that the schedule for the remand should be changed.

In a brief filed this week, National Wildlife Federation attorney Todd True said that the National Environmental Policy Act process now underway would not result in a finished environmental impact statement on the federal Columbia River power system’s impacts on threatened and endangered salmon and steelhead until 2021.

Staying on the course set by the court to complete a BiOp by the end of this year, then, would be illegal because it would lack the backing of an EIS.

True was echoing a question raised by District Court Judge Michael H. Simon in a status conference in late November 2017. He had set the meeting to weigh the progress of the 5-year NEPA/EIS process required by his May 2016 order to redo the 2014 (and current) BiOp for Columbia Basin salmon and steelhead.

At that Nov. 28 status conference, Simon acknowledged that the next BiOp would not have the foundation of a new EIS, asking 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.” He asked both plaintiffs and defendants in the case to offer their thoughts on the idea in January briefs.

Until 2021, when the court-ordered BiOp is due, the system could continue to operate under the current 2014 BiOp, Simon added at the time. That could also mean that the system would operate with the additional court-ordered spring spill through 2021.

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.

After Simon’s remand in 2016, he set a schedule for federal agencies to replace the 2014 BiOp. The agencies charged with the NEPA process – 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 the EIS in 2020 and submit a new BiOp to the Court in 2021.

NWF, in its Jan. 22, 2018 brief to the court, said keeping the 2018 BiOp in the schedule would not be in compliance with NEPA and the federal Endangered Species Act, saying 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.”

NWF went on to say that it would also “be appropriate to continue the Court’s spring spill injunction pending compliance with NEPA and the ESA in 2021, as well as continue the Court’s direction to the federal action agencies regarding implementation of the RPA from the 2008/2014 BiOp.”

In the brief, True said that he had approached the federal agencies to get their agreement on this change in schedule, but that the agencies and NWF were not able to come to reach that agreement.

In a Dec. 13, 2017 letter to True, defendants’ counsel Michael Eitel of the U.S. Department of Justice, said:

“As you also are aware, the 2008/2014 BiOp and associated incidental take statement expire at the end of 2018. Thus, to comply with the Court’s order and to ensure ESA compliance after that date, the agencies must complete consultation and NMFS must issue a new biological opinion by the end of 2018.”

He went on to say that the agencies have pursued the court-ordered NEPA process for the last 18 months, that the agencies are now consulting with NOAA Fisheries and that NOAA intends to issue a new BiOp and incidental take statement by the end of December.

“We are not aware of any changed factual or legal circumstances since that time that would warrant re-opening the Order of Remand to pursue Plaintiffs’ proposal to strike the 2018 BiOp deadline and replace the BiOp with some alternative action or process,” Eitel wrote. “Accordingly, the Federal Defendants intend to continue the consultation and preparation of a final BiOp by the end of 2018 as ordered by the Court, and we believe that issuance of a new BiOp is the appropriate mechanism to meet the agencies’ obligations to comply with ESA after 2018.”

Regardless, the NWF’s brief said, the agencies have not explained how they would actually comply with both NEPA and ESA for a 2018 BiOp, and they have not offered a plan that would explain how they would comply with both laws.

True also said that he knows of no law that would require a new BiOp after ten years (the remanded BiOp is the 2008/2014 BiOp) and that there is no specific expiration date on a BiOp. Nor, the brief said, is there any indication that consultation is in progress between the agencies and NOAA.

“The agencies were provided an opportunity to offer a plan to comply with both the ESA and NEPA, and could have done so in a number of ways, including by deciding to continue implementing the 2008/2014 BiOp until they completed an EIS for a new BiOp, or by choosing to comply with NEPA in time for a BiOp in 2018, but they did not do so,” the brief concluded.

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