CFM,

The FPA doesn’t spell it out in a cut and dried form. But case law does spell out the concept of “mitigation proportionate to project impacts.”

The settlement agreement provides for modifications required by any subsequent ESA section 7 biological opinion (BO). The analysis of the settlement agreement doesn’t anticipate any major modification of the settlement, but by law, it isn’t precluded.

The ESA requires timely completion of BOs. The reality is that agencies must live within their budgets and resources regardless of other seemingly superceding legal requirements. This isn’t all that unusual, but it’s a lot more visible in this instance. There are BOs that are more delinquent than Cowlitz. No one’s happy about this, but the regulations that govern this stuff would try anyone’s patience.

Ouch! That’s foul taking my “I don’t care” comment out of context. Feels like a cheap political shot.

I cannot do anything about the timeline for NMFS BO. I haven’t written it, and I won’t be; I’m not assigned to it. Someone else will, and it’s being written at this time. Oh, and it’s not 3 years late, although it hardly matters. It’s about 2 years, 3 months late based on the BA date. Still, that’s not the issue. How is the lack of a BO “says it all”?

The BO is but a small part of the license proceeding. All it will do is analyze whether the FERC license jeopardizes the survival and recovery of listed species. Since the species are already extirpated upstream of the Cowlitz dams, the reintroduction can only enhance survival and recovery prospects, not jeopardize. The license does authorize actions that will cause incidental take of listed species. However, in this case, the benefits considerably outweigh the losses to listed fish. I think the BO is necessary to close the book on the license proceeding, but I don’t see how it will profoundly affect the outcome compared to the mitigation actions contained in the settlement agreement - EXCEPT - in one significant way. Issuance of the BO is likely to trigger the clock that causes Tacoma to open up their checkbook and begin spending the serious money that is required to get the new downstream fish passage facilities constructed and in operation. In what other way is the BO going to significantly affect the outcome on the Cowlitz?

I’m sorry if you feel screwed by me, by NMFS, or any other party to the settlement. I think the settlement achieves the objective of fully mitigating Tacoma’s impacts to the fishery resource, which was my goal from the outset of the relicense proceeding. It was never my goal to give you, Tacoma, or anyone else what they believed they should get. If you or anyone had shown evidence that meets the best available science standard that the Cowlitz River would produce more salmon and steelhead, in a without dams condition, than provided for in the settlement, then I wouldn’t have settled for any lessor value.

I won’t be responding further to this thread. I’ve got other personal priorities for the next week or so.

Sincerely,

Salmo g.