Thanks to Aunty, I had to modify this response, and it was written before I had read Salmo newest posting! But nothing has changed, so I will let it run as I had originally posted it. Salmo will understand


Aunty has said it far better than I could (or would) because I would have told you what I think man to man. eddie, You and I are very deferent, and we both must accept that fact

That's all that is needed to be side to eddie by me right now!

But Salmo will not get off so easy!

Salmo is a pretty old friend, and I have known him for well over ten years now. I have told him "how it is" on many different occasions, and for the most parts he respects my opinion even if he may disagree with it at times. And I do the same to him!

So when I get on him like I am about to do, he may not agree with what I have to say, but he will respect my view. I fully expect that he will take quite a bit time and think his way through this post before he replies to what I am about to say.

Your right on Salmo, you did frost my pumpkin….but not for the reasons that you may think! You have spent quite a bit of time in your reply to me and I will not spend a lot of time rebutting what you have stated. I will spend some time on explaining to our board members where you are totally wrong, and show them undisputed facts that you are misleading them. I find this extremely unusual and out of character of you.

You say that "Tacoma’s responsibilities are spelled out in the Federal Power Act (FPA) and other applicable laws"

Well you know as well as I do that is totally a misleading statement. If your statement was true, as you have claimed it to be, then why did Tacoma spend over three years in a "alternative" relicensing process trying to cut themselves a better deal? If it was so "cut and dry" on "what Tacoma's responsibilities" were in the FPA, why then was there such a need for any "Settlement Agreement"?

Please take some time and explain that to the board! (And me too)

Here's one more of your statements that really need to be corrected because you have totally twisted it out of reality! YOU say;

"Yes, I know that Tacoma was asked to change the Cowlitz River flow regime. I also know that change would only come about if persuasive biological and or legal arguments were made. 'I think the reason changes were not made is because the arguments were not biologically or legally persuasive'. The fact that you argued doesn’t make you right. And if you were right, that often still isn’t enough. You have to be right and biologically and legally persuasive under the conditions of the FPA and other applicable laws. I could not require a change in Tacoma’s flow regime unless I could produce evidence meeting the “best available science” standard that Tacoma’s flow proposal does or would harm fish (not fishing)."

Ok, let's go through your statement in some detail! First, National Marine Fishery Service (NMFS) was mandated by the Federal Law to do a "Biological Opinion" (BO) …right?

The BO is the "backbone for NMFS in making any sound legal "biologically decisions", and is their only way to "justify what their decisions are founded upon". Somehow you guys at NMFS short circuited the "public process" and signed onto a "Settlement Agreement" without giving your legal justifications for making the deals that you had made with Tacoma in the Settlement Agreement! Can you explain how and why you did that in some detail?

So how possibly could you expect us, or anyone else, to make any "arguments" or "challenges"against any of NMFS "biological justifications" for doing what they have done, especially after you (NMFS) has failed for over three years now to do what the federal law had mandated you to do? Without NMFS BO, it prevented anyone from changeling them or there actions that justified NMFS's biological reasons that they used to justify the signing of the Settlement Agreement! What a screwed up mess that the NMFS has made!!

And if you think I am wrong - eddie or Salmo, maybe you should both read what FERC has ruled about your failure (NMFS) to do a timely BO.

You're (Salmo) is going to say that they (or you) were "overloaded" and that the Cowlitz isn't the only project that NMFS has to deal with, but no one will buy your story Salmo about it being ok that it's "three year later" and you still havent done the mandated BO! There is NO EXCUSE, and you know it Salmo!!

Please take the time to read what FERC has recently ruled on concerning the failure of NMSF to do what they were mandated by law to do.

Once you have read the ruling, you will also be able to see why "WE" could not make any "legal argument" as Salmo has claimed that we have failed to do. Remember this, because it contradicts almost 100% of what Salmo has stated to the board.

This came directly from the FERC ruling:

Endangered Species Act Consultation:

2. NMFS and Intervenors argue that we erred in issuing our relicensing order before completing formal consultation with NMFS pursuant to Section 7 of the ESA. That section requires every federal agency, in consultation with FWS or NMFS, as appropriate, to ensure that its actions are not likely to jeopardize the continued existence of a listed species, or destroy or adversely modify critical habitat for a listed species. To date, the Commission has been unable to complete formal consultation with NMFS for this relicensing.

3. On April 25, 2001, the Commission staff submitted a biological assessment (BA) to both NMFS and FWS. The staff concluded in the BA that relicensing the project in accordance with the terms of the Agreement was "not likely to adversely affect" the bald eagle and northern spotted owl, but was "likely to adversely affect" chinook salmon, chum salmon, and steelhead trout, as well as their critical habitat. FWS concurred with the staff's conclusions for the bald eagle and northern spotted owl on July 3, 2001. As a result, formal consultation with FWS was not required for those species.

4. For chinook salmon, chum salmon, and steelhead trout, NMFS responded to the staff's conclusions on January 29, 2002, over nine months later. NMFS requested that the Commission delay action on the license application and Agreement until at least September 2002 in order to coordinate formal consultation efforts with those underway at another upstream project, Lewis County Public Utility District's Cowlitz Falls Project No. 2833. Tacoma responded by letter dated February 19, 2002, urging that NMFS issue its biological opinion expeditiously to allow for earlier implementation of the Agreement. On February 25, 2002, Commission staff informed NMFS that further delay of formal consultation was neither necessary nor appropriate. On March 13, 2002, after receiving no further response from NMFS, the Commission issued its order approving the Agreement and issuing a new license for the Cowlitz Project. At that point, the biological opinion was already 6 months overdue.

5. A little over a year later, in a letter dated March 27, 2003, NMFS renewed its request to combine consultation for the Cowlitz River Project with that for Cowlitz Falls, stating that it anticipated being able to begin consultation on both projects by approximately April 1, 2003, with biological opinions to follow within 90 days after an initial meeting with both licensees. On April 18, 2003, staff informed NMFS that it was unable to agree to the extension of time to complete formal consultation for the Cowlitz River Project, and requested that NMFS file its biological opinion within 30 days. To date, NMFS has neither filed it biological opinion nor indicated when it might be able to do so. The opinion is now nearly two years overdue.

6. Under Section 7(a)(2) of the ESA, a federal agency must ensure, in consultation with the Secretary of the Interior or Commerce, as appropriate, that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. When a federal agency determines that a proposed action may affect a threatened or endangered species, it must consult with FWS or NMFS and obtain a biological opinion on whether the action is likely to result in a violation of the ESA. The agency is ultimately responsible for the action, and is technically not bound by the findings of the biological opinion. However, an agency that proceeds with an action in a manner that is inconsistent with the biological opinion runs the risk of having its action found to be arbitrary, capricious, and contrary to law.

7. Both Section 7 of the ESA and the regulations implementing it establish time limits for completing formal consultation. Section 7(b) provides that consultation must be completed within 90 days, unless the agency and FWS or NMFS mutually agree to extend consultation. Extensions of more than 60 days require the consent of the license applicant. Promptly after completion of consultation, defined in the regulations as within 45 days, FWS or NMFS must deliver its biological opinion. After initiation of formal consultation, Section 7(d) of the ESA prohibits a federal agency from making any irreversible or irretrievable commitment of resources that would foreclose the formulation or implementation of any reasonable and prudent alternative measures which would not violate Section 7(a)(2).

8. In Chelan County, we considered whether, in light of these provisions, a federal agency must delay its proposed action indefinitely while awaiting a biological opinion from FWS or NMFS. We concluded that these sections of the ESA, when read together, suggest that, so long as the proposed action does not jeopardize listed species, destroy or modify critical habitat, or foreclose reasonable and prudent alternatives, a federal agency may proceed without awaiting a biological opinion if no incidental taking of listed species is likely to result.

9. In that case, Commission staff had found in its BA that the proposed action would not result in any incidental taking of listed species. This case presents the more difficult issue of whether we may proceed in the absence of a biological opinion when our staff has found that the proposed action is "likely to adversely affect" listed species, and thus might result in some incidental taking. As explained below, our decision to move forward is not without some risk. Nevertheless, on balance we believe that, in view of the unacceptable delay in this case, as well as the existence of a comprehensive settlement agreement designed, among other things, to benefit listed species, it is reasonable to allow implementation of the new license without awaiting a biological opinion from NMFS.

10. NMFS argues that, if the Commission finds that a proposed action may affect listed species, it may not proceed without first obtaining either concurrence that the action is not likely to adversely affect those species, or a biological opinion from NMFS that the action is not likely to jeopardize the continued existence of those species. In support, NMFS cites the Houston case, in which the court held that the Bureau of Reclamation violated the ESA by failing to request formal consultation with NMFS on some species after that agency failed to concur, and by issuing 40-year water contracts while formal consultation on other species was still underway, without awaiting a biological opinion from FWS. The court therefore affirmed the district court's rescission of the contracts.

11. The Houston case is relevant, and it suggests some degree of risk. However, it does not address the issue now before us: whether we may proceed with a proposed action that will have beneficial effects on listed species, notwithstanding the potential for some incidental taking, when a biological opinion is nearly two years overdue and there appears to be no reasonable prospect of receiving one in the foreseeable future. In these circumstances, we believe that we can do a better job of meeting our ESA responsibilities by proceeding, rather than continuing to wait.

12. NMFS argues that the Commission must have written authorization in the form of an incidental take statement that is part of a biological opinion before proceeding with an action that results in incidental taking. In support, NMFS cites Defenders of Wildlife v. EPA. In that case, the court enjoined EPA's registration of strychnine because it would result in incidental taking of listed species, and EPA had not entered into formal consultation or obtained an incidental take statement authorizing the taking. NMFS argues that both the ongoing operation of the Cowlitz Project and the mitigation measures included in the new license, such as the trap-and-haul program for fish passage, may result in the taking of listed species or adverse modification of their critical habitat.

13. NMFS is correct that, by not awaiting a biological opinion, we are proceeding with a proposed action that may result in some incidental taking of listed species, without the authorization that would be provided by an incidental take statement. Unlike Defenders of Wildlife, in this case we have initiated consultation but have to date been unable to complete it. In addition, the measures in the new license are designed to benefit listed species and are part of a settlement agreement that NMFS has signed. By delaying the implementation of these measures, we are failing to mitigate adverse effects to those species that are ongoing. If, by its inaction, NMFS can require us to indefinitely defer our issuance of a new license, we are placed in the difficult position of being required by Section 15(a)(2) of the FPA to continue issuing annual licenses under the terms of the original license, with greater adverse effects on listed species than would occur as a result of project operation under the new license terms, with which NMFS has agreed. Therefore, issuing the new license in advance of the biological opinion, coupled with an appropriate reservation of our authority to make any necessary changes, provides better protection for listed species in these circumstances.

14. NMFS argues that the Commission's reliance on a post-licensing reopener proceeding to address issues that may arise from consultation violates Section 7(d) of the ESA. After initiation of formal consultation, Section 7(d) prohibits an agency from making any irreversible or irretrievable commitment of resources that would foreclose the formulation or implementation of any reasonable and prudent alternative measures. NMFS argues that issuance of the license is an irreversible, irretrievable commitment of resources, and may foreclose the formulation of reasonable and prudent alternatives. However, NMFS does not demonstrate how this might be so. Rather, NMFS maintains that the Commission's use of a reservation of authority to reopen the license to include the results of formal consultation is inadequate under the ESA, again citing the Houston case.

15. In Houston, the court found that a savings clause in the water contracts that allowed for future adjustments was insufficient to avoid a violation of Section 7(d). In this case, however, we are implementing measures that NMFS has already agreed to as a result of the agreement. In addition, we are adding Article 408 to the license to address ESA concerns. Article 408 is a specific reservation of our authority to require the licensee to take whatever action we deem necessary as a result of a biological opinion from NMFS on the effects of the Cowlitz Project on chinook salmon, chum salmon, and steelhead trout and their critical habitat, including, as appropriate, any reasonable and prudent alternatives, reasonable and prudent measures to implement those alternatives, and incidental take conditions. Therefore, we fail to understand how proceeding without a biological opinion could foreclose reasonable alternatives that would be necessary to avoid jeopardy. Presumably, if the measures in the Agreement presented a risk of jeopardy to listed species, NMFS would not have endorsed them. In these circumstances, it seems sufficient to include a reservation of authority that will allow us to impose whatever additional conditions NMFS may ultimately specify in its biological opinion.

16. NMFS argues that failure to complete formal consultation in a timely manner does not relieve the Commission of its substantive obligation to meet the requirements of Section 7 of the ESA. In support, NMFS cites a case in which a district court declined to order NMFS to complete a biological opinion in a specific time frame where it appeared that the agency was working diligently to complete consultation. That is not the case here; by its own admission, NMFS had not yet begun to prepare a biological opinion for the Cowlitz relicensing when it requested an extension some two months ago.

We agree that the failure to complete formal consultation in a timely manner does not relieve us of our ESA responsibilities. However, by proceeding in this case, we are seeking to meet those responsibilities as best we can, given that we have been unable to complete formal consultation with NMFS to date. As we stated in Chelan County, we do not make this decision lightly. We recognize the importance of protecting endangered species and the benefit of having a biological opinion to inform our licensing decisions. We also recognize the strain that the Services are under to complete consultations, particularly in the Pacific Northwest, with far more ESA consultations to conduct than staff to handle them. We stand ready to assist the Services in developing creative solutions to manage their Commission-related workload in a more timely manner. However, when the period specified in ESA Section 7(b) for completing consultation has elapsed, and our action, while possibly entailing some taking, will provide a meaningful benefit to the species under consultation, we do not believe that either the public interest or the listed species are served by the continued delay in our ability to issue orders that will advance the protection of the species in question."

eddie; Can you now see how Salmo's agency(NMFS) has taken away everyone's else's chance to legally challenge the actions of Salmo's group (NMFS)? To bad you didn't spend a day or two going to some of those hundreds of meetings like I have done before you made such an asinine statement about me!

But I guess a guy will do whatever he hast to do.

The facts are, you know absolutely nothing about the Cowlitz, or of its relicensing, or the meeting that have occurred!

Salmo, you said; "Just because Tacoma is running the river differently today than historically doesn’t mean they are doing something wrong. I really don’t care"

That is pretty obvious!

You say;" The fact that you argued doesn’t make you right. And if you were right, that often still isn’t enough. You have to be right and biologically and legally persuasive under the conditions of the FPA and other applicable laws. I could not require a change in Tacoma’s flow regime unless I could produce evidence meeting the “best available science” standard that Tacoma’s flow proposal does or would harm fish (not fishing)."

The lack of the NMFS BO says it all!!

The people for who you work for have screwed us and "YOU" have failed to write the BO in a timely fashion (3 years late and still no BO). By doing that, NMFS has robbed the public of their opportunity to challenge your agency's "unwritten BO" that is needed to support your agency agreeing to the terms, and conditions in the Settlement Agreement!

This is enough for the board to try to understand now, so I will wait for your reply before I write anymore.

Please try to explain how "you guys" didn't screw "us guys" by not writing your BO in atimely matter, and please try to explain how that action has affected every ones else actions.... if you dare.

This will be the "SPIN FACTOR" for you, so take your time ..... I am not done stopping the spin yet!


Cowlitzfisherman