John Shurts General Counsel

Transcription

1 Henry Lorenzen Chair Oregon Bill Bradbury Oregon Phil Rockefeller Washington Tom Karier Washington W. Bill Booth Vice Chair Idaho James Yost Idaho Pat Smith Montana Jennifer Anders Montana John Shurts General Counsel National Wildlife Federation v. National Marine Fisheries Service: Litigation challenging the 2014 Federal Columbia River Power System Biological Opinion Briefing on the decision from the Oregon federal district court in 2016 that found fault with the 2014 Biological Opinion, as well as the court s ruling in spring 2017 on motions for injunctive relief with regard to spring juvenile passage spill and capital investments in the lower Snake River dams 1. Background reminder about the nature of the agency action, litigation, and court decision Endangered Species Act (ESA) Section 7 consultation on the operation of the Federal Columbia River Power System (FCRPS) as affecting listed salmon and steelhead. Agency actions challenged: o NOAA Fisheries 2014 FCRPS Supplemental Biological Opinion, a supplement to the 2008 Biological Opinion and an earlier 2010 Supplement o Records of Decisions on FCRPS operations from two of three Action Agencies (Corps of Engineers and Bureau Reclamation) -- note on the third: Bonneville Power Administration: Ninth Circuit NWF v. NMFS is on-going litigation in federal district court of Oregon o Remand rulings on 2000, 2004, 2008/10 BiOps before this. o 2014 FCRPS Supplemental BiOp was prepared on remand from 2011 ruling of Judge Redden on 2008/10 BiOp. Case now before Judge Michael Simon. o Review of agency decisions on cross-motions for summary judgement and the administrative record of the agency decisions. Plaintiffs are a coalition of environmental/fishing groups and the State of Oregon. Nez Perce Tribe is an amicus participant supporting the plaintiffs. 851 S.W. Sixth Avenue, Suite 1100 Steve Crow Portland, Oregon Executive Director Fax:

2 Besides federal defendants, intervenors in support of the federal defendants have been the States of Washington, Idaho and Montana, the Kootenai Tribe of Idaho, the Confederated Salish and Kootenai Tribes, Northwest RiverPartners, and the Inland Ports and Navigation Group. Confederated Tribes of the Warm Springs Reservation of Oregon, Confederated Tribes of the Umatilla Indian Reservation, Yakama Nation, and Confederated Tribes of the Colville Reservation are amicus participants in support of the defendants. The Columbia- Snake River Irrigators Assn are another defendant-intervenor that is opposed to the claims of the plaintiffs - but, not always aligned with the federal government and its other allies, either. Additional amicus participants are the Council (participation limited to issues that overlap and implicate Northwest Power Act requirement); Spokane Tribe (participated in past; did not file a brief this time.) 2

3 2. Summary of court s ruling in 2016 on the 2014 FCRPS Biological Opinion NOAA Fisheries violated the Endangered Species Act (and Administrative Procedures Act) in determining that the Reasonable and Prudent Alternatives (RPAs) in the 2014 FCRPS BiOp would not jeopardize the continued existence of listed salmon and steelhead. NOAA did not violate the Endangered Species Act (and APA) in determining that the 2014 FCRPS BiOp RPA would not adversely modify the critical habitat of the listed species and in determining that the RPAs are not likely to adversely affect endangered Southern Resident Killer Whales. Corps of Engineers and Bureau of Reclamation failed to comply with the National Environmental Policy Act (NEPA) by not preparing and considering an environmental impact statement before approving the records of decisions for operating the FCRPS. 3. Remand order ESA ruling: Prepare a new FCRPS BiOp by Spring [2018 was the time for a new BiOp in any event.] 2014 Biological Opinion left in place - not vacated. Continues to provide incidental take coverage; agencies to continue to fund and implement. NEPA ruling: Action Agencies must prepare an EIS that complies with NEPA. The Court required the federal agencies to submit a follow-on plan for the timing and scope of NEPA compliance. The federal agencies submitted, and the court approved, a five-year plan to 2022 to complete a Columbia River System Operations EIS. The federal agencies undertook a public scoping process in late 2016/early Now awaiting the development of alternatives to be analyzed in the EIS. Will have to cover many topics other than just effects on listed species. Will also likely necessitate a new ESA consultation on proposed actions and Biological Opinion(s) after completion. 3

4 4. Specific issues ruled on in finding fault with Biological Opinion Summary: NOAA used wrong recovery prong of jeopardy standard ( trending toward recovery ) jeopardy analysis improperly included too certain conclusions about survival improvement estimates despite uncertain habitat benefits and other uncertainties climate change analysis not complete critical habitat analysis ok: in hydrosystem migration corridor, surival estimates from flow and passage (including spill) operations for fish are reasonable NEPA: need for (and lack of) a fresh EIS analyzing issues and alternatives before records of decisions on operations under 2014 BiOp Details: Recovery prong of jeopardy standard: trending toward recovery inappropriate Jeopardy analysis with regard to effects on listed salmon and steelhead - arbitrary and capricious review standard 1. likelihood of recovery analysis a. issues about relevance of abundance and recovery end-points b. Oregon s issues regarding SARs/latent mortality/dam testing c. declining R/S metric 2. estuary and tributary habitat a. estuary habitat b. tributary habitat 3. climate change 4. steelhead kelt management 5. avian predation a. double-crested cormorants b. Caspian terns 6. treatment of uncertainty in general 7. environmental baseline/cumulative effects/contingency plan Critical habitat 1. standard - retaining the current ability to become functional standard 2. analysis - critical habitat analysis National Environmental Policy Act (NEPA) 1. inadequacy of existing NEPA coverage 2. comprehensive EIS required 3. alternatives 4

5 5. Injunctive relief motions - decided by Judge Simon in spring 2017 Increase in juvenile passage spill in spring: Increased spring spill at lower Snake and Columbia projects to begin in 2018 Parties instructed to work together to figure out details - order allows sufficient time to consider an appropriate protocol and methodology for spill at each dam, incorporating the most beneficial spill patterns What level of increase? Request was to increase spill to gas caps at each dam; presumably will be at that extent at some projects; not much less at others periodic status reports and ultimately (presumably) court approval of plan Capital improvements at federal dams in lower Snake River: Court declined to order the Corps of Engineers to stop making o&m improvements to federal dams on the lower Snake River pending completion of NEPA review, but left open the possibility the plaintiffs could renew motion Court found that spending millions of dollars on the four Lower Snake River Dams is likely to cause irreparable harm by creating a significant risk of bias in NEPA process BUT, Court did not enjoin any particular investment - investments challenged either were already underway or had primary benefit of increasing fish survival For the future, during the time of the NEPA process, the Corps of Engineers is required to disclose sufficient information to plaintiffs regarding planned projects at each dam at appropriate and regular intervals Plaintiffs may file new motion for injunctive relief regarding any lower Snake capital improvements projects not needed for safe operation of the dams or that do not provide substantial immediate survival improvement for listed species Federal defendants and allies have appealed injunction order to Ninth Circuit 5

6 6. Relationship to other decisions/litigation Ninth Circuit litigation vs. Bonneville on its Record of Decision following the 2014 FCRPS BiOp. Stayed pending the result of the challenge in the district court. Presumably remanded to Bonneville now. Bureau of Reclamation s 2008 Upper Snake Biological Opinion. Tied together with the 2014 FCRPS BiOp in a comprehensive biological analysis. But not challenged in court this time. Not sure whether it will be redone, but may need to look again after EIS? 2008 Biological Opinion covering implementation of U.S. v Oregon harvest management agreement. Tied together with the 2014 FCRPS BiOp in comprehensive analysis. Also not subject to litigation. Now on a separate track. Other biological opinions affecting the FCRPS: e.g., US Fish and Wildlife Biological Opinions on FCRPS regarding effects on bull trout and on Libby Dam regarding effects on Kootenai River white sturgeon; NOAA s Biological Opinions on operation of Corps projects in the Willamette River. Need to redo after system EIS? Depends on if the result is a revision in proposed actions. Council s 2014 Fish and Wildlife Program under the Northwest Power Act: o Reminder on nature of Fish and Wildlife Program decision: program to protect, mitigate and enhance fish and wildlife affected by hydrosystem; mainstem hydropower actions and offsite habitat and production mitigation. Funded/implemented by Bonneville and other federal agencies. ESA analysis is essentially a regulatory overlay over the regional fish and wildlife program. o 2014 Fish and Wildlife Program challenged at the Ninth Circuit by Northwest Resource Information Center, Inc., (Ed Chaney). o Briefed and argued - awaiting decision o Issue about inclusion of measures that are also actions reviewed under ESA - and thus an issue about effect (or lack thereof) of this new BiOp decision. 6