NOAA will Review
by Kim Murphy
After a federal judge made it clear that it was either fix it or risk losing it, the Obama administration announced it will revamp its plan for recovering salmon on the mighty Columbia River.
Accepting U.S. District Judge James A. Redden's offer of a voluntary three-month remand in the long-running legal case, National Oceanic and Atmospheric Administration Administrator Jane Lubchenco made it clear the government does not necessarily intend to make substantial changes to the plan, which conservationists say is not strong enough to prevent extinction of the fish on the Columbia and Snake rivers in Washington, Oregon and Idaho.
"The court noted that we do not need to start over from scratch, develop a new jeopardy framework or put at risk the progress made through the regional collaborative process," Lubchenko emphasized in her statement.
NOAA is proposing no major changes in the operation of dams on the rivers, long blamed for killing the threatened and endangered fish, though it says it will tailor river flows to help juvenile salmon in their journeys to the sea.
To beef up protections for the fish, the agency in September proposed to spend millions of dollars on new habitat improvements up and down the rivers by way of an "adaptive management implementation plan" that includes close monitoring of salmon stocks and quick, serious measures to intervene if the plan isn't working.
This month, Redden of Portland called the adaptive management plan "a positive development" and said government officials "deserve credit" for the additional mitigation measures and enhanced research and monitoring provisions.
But he said the government must go back and include the new adaptive program in the administrative record for the 2008 biological opinion -- the heart of the court case -- which concludes that operation of the massive hydropower system on the Columbia and Snake rivers is not a threat to the fish.
The judge said that accepting a three-month remand, as NOAA has now done, "does not require [the government] to admit fault, reopen the entire decision-making process, or commit to a change in course." At the same time, he said NOAA officials do have "an obligation under the Endangered Species Act to rely on the best available science."
"They cannot rely exclusively on materials that support one position, while ignoring new or opposing scientific information, [and] if that data requires additional analysis or mitigation,...[the government] must adequately address those issues," Redden said. Read Judge Redden's letter.
That leaves both sides in some disagreement over how deeply the federal government must wade into recent science on salmon recovery -- and how much, if at all, it must change the recovery plan based on new scientific data, including research on how climate change might be affecting the fish.
Brian Gorman, spokesman for the National Marine Fisheries Service, said the government will focus not on making major changes to the plan, but on making sure it incorporates the most current scientific studies, and establishes a legally defensible basis for moving forward.
"Judge Redden, while he seems impressed with the implementation plan, wants to make sure that it is folded into the biological opinion in a way that passes legal muster," Gorman said. "I think we're going to look at any science that has developed since we issued the implementation plan back in September of 2009, principally compiling for the purposes of the court what's called the administrative record, so the court and the plaintiffs will fully understand what's driving us, and how our decisions are made."
But a coalition of conservation and fishing groups that is hoping for substantial changes in the operation of the dams -- including the consideration of removing four dams on the Lower Snake River in eastern Washington -- says federal agencies should use the three-month review to consider the plan itself, which is fundamentally based on an approach engineered by the George W. Bush administration.
"If they just take a sort of pro forma approach, I think they're both missing a major opportunity to try to fix an issue that has been plaguing this region for a very long time, and secondly, they will not be listening to what the judge has asked them to do," said Nicole Cordan, legal director for Save Our Wild Salmon in Portland.
The plaintiffs in the case have pointed to a new scientific review, released last week by the Western Division of the American Fisheries Society, which found the adaptive management plan "inadequate for ensuring the protection" of salmon.
"Rather than use a precautionary principle to protect threatened and endangered salmon and steelhead, the AMIP seems to use a precautionary principle to support the 2008 Biological Opinion and to defend the status quo," the review said. It cited several instances in which the plan purportedly does not consider important scientific information about salmon survival and recovery.
Todd True of the environmental legal group Earthjustice said that with the three-month review, "They have one last opportunity to change direction, and put together a plan that does what the law requires....I hope they come up with a significantly revised plan."
Redden letter as PDF
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