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Columbia River: The federal government added “insurance” for fish, but it needs work

By Matthew Preusch
The Oregonian

Many hoped that more than 10 years of lawsuits over protecting Northwest salmon and operating Columbia Basin dams would come to a close in a Portland courtroom Monday.

It didn’t, but the end could be in sight.

Twice before, U.S. District Judge James Redden rejected the federal government’s plan to run its hydroelectric dams without pushing protected salmon closer to extinction. In court Monday, however, Redden had kind words for the third versio of that plan, called a biological opinion, or biop.

"This I think is the most significant hearing we’ve had so far, and I really think that with a little more work, we’ve got biop,” Redden said.

What Redden thinks is important because his ruling will govern everything from ratepayer electricity bills to river shipping.

If Redden signs off on the plan, all parties — Oregon, Washington, Northwest tribes, the Bonneville Power Administration to name just a few—will finally be out of court.

However, this fall the federal government tacked on a series of habitat improvement and other measures it called an ‘insurance plan” for fish.

That tripped up Redden on Monday. In adding those changes, made without the same level of public disclosure as their other salmon-saving measures, the U.S. government could throw open the door to yet more legal challenges.

At issue is whether federal procedure rules allow Redden to consider that insurance plan when weighing whether the overall strategy meets the requirements of the Endangered Species Act.

The rules don’t, he said, and he can’t. But he’d like for the administration’s attorneys to figure out a way he can, he said.

"I think they are good documents,” Redden said Monday. "I think we can do it. The government has to do something a little bit more, I think.”

The plan is supported by most Northwest states and tribes but opposed by the state of Oregon, Nez Perce Tribe and fishing and conservation groups. The judge asked the federal attorneys to submit some ideas to him for squaring the plan with federal rules by mid-December.

"Plainly, there will be parties that disagree with the end result,” Redden said, But I think it’s in everyone’s interest, including this court, to rule on an integrated document that’s not subject to the obvious procedural challenges.”

Redden also wondered why the government won’t continue to spill extra water over its dams to aid fish migrating downstream. That spill has been contributed to recent high returns of salmon and steelhead.

The spills "look like they worked,” Redden said. ‘Why change them?”

"Your honor, that comes with a cost,” answered Coby Howell, lead attorney for the government.

"And I’m not talking about financial cost. I’m talking about carbon. The more we spill, the more we are going to have to offset that with natural gas and coal.”

Salmon advocates argue that the loss of hydroelectric generation that results from spilling water that otherwise would go through the dams’ turbines can easily be offset with renewable sources of power, like wind.

On Monday, they argued that the fastest way for the judge to get a legal plan that protects fish would be for him to reject the current one and force the government back to the drawing board.

"If we don’t get a new decision, we can’t begin to address how to solve this problem. We can’t work our way around the (procedural rules),” said Todd True, an attorney with Earthjustice.

Making an appearance in Redden’s court to holster the government’s arguments was Jane Lubchenco, the Oregon ecologist now leading the National Oceanic & Atmospheric Administration, the nation’s top fisheries agency.

Speaking after the hearing, Lubchenco said she supported the science behind the plan "100 percent.’

"We paid attention to the science; we paid attention to the law,” she said.

Portland, OR
November 24, 2009

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