Close, but
No Cigar: More Work Needed on Salmon and the Columbia Hydro
System
By
Svend Brandt-Erichsen Martenlaw
August 9, 2011
The decades-long fight over threatened salmon
runs and the Columbia River hydroelectric system may be on a
path to resolution – or not, depending on how you read a
district court ruling issued on August 2. Judge James A.
Redden held that federal plans to mitigate hydro impacts on
salmon only satisfy Endangered Species Act requirements through
2013. Firmer commitments must be made for the years thereafter,
the court held.[1]
The ruling marks the first time that Judge Redden, who has
reviewed three federal salmon plans in the last ten years, has
found that any portion of a biological opinion (BiOp) evaluating
hydro impacts on ESA-listed salmon runs meets ESA requirements.
But his stern words regarding the need for progress in future
years has dam opponents claiming that the ruling puts dam
removal back on the table.[2]
The federal agencies apparently view Judge Redden’s decision
differently, seeing it as endorsing the path they have chosen
while calling for more details about future plans.[3]
But some things are certain: Judge Redden has ordered the
federal agencies to continue implementing the mitigation plans
called for in the existing BiOp, to continue spilling water over
dams to help migrating juvenile salmon, to report back to him
annually, and to produce a new BiOp by January 1, 2014.
A Short Recap of a Long-Running Dispute
The Columbia River Basin is North America’s
fourth largest, draining about 250,000 square miles and
extending throughout the Pacific Northwest and into Canada.
There are more than 250 reservoirs and about 150 hydroelectric
projects in the basin, including 18 mainstem dams on the
Columbia and its major tributary, the Snake River.
Snake River sockeye salmon were first listed as
an endangered species under the ESA in 1991.[4]
Snake River spring and fall Chinook were then listed as
threatened in 1992.[5]
Today, thirteen distinct populations of anadromous fish (salmon
and steelhead) have been listed as threatened or endangered
under the ESA.
NOAA Fisheries (formerly called National Marine
Fisheries Service, and commonly referred to as “NMFS”) issued
the first BiOp on operation of the Columbia River hydroelectric
system in 1993. In 1994, a federal court rejected that BiOp,
concluding that NMFS had wrongly used a period of poor salmon
returns as its baseline against which to measure the impact of
hydro operations.[6]
Other arguments advanced in that case, and in a related one
decided the year before,[7]
prefigured the debates that have continued for the last two
decades: whether spilling water over dams helps migrating
juvenile salmon or simply makes hydroelectric power more
expensive; whether a distinction can be drawn between
hydroelectric dam operations and the impact they have on salmon
from their mere existence; and whether salmon harvest is
constraining salmon recovery as much, or more than, dam
operations.
In response to judicial decisions, NMFS issued
new BiOps for the hydro system in 1995, 2000, 2004 and 2008.
Legal challenges to the 2000 BiOp introduced a new issue, which
has dominated discussions for the last ten years: whether the
mitigation offered to offset hydro impacts on ESA-listed salmon,
particularly habitat improvements, are reasonably certain to
occur.[8]
The 2000 BiOp relied upon a combination of actions planned by
federal, state, tribal and local authorities to improve salmon
habitat as part of the Reasonable and Prudent Alternatives
(“RPAs”) that NMFS proposed in its BiOp to avoid jeopardy to
listed salmon. Judge Redden, in his first foray into Columbia
River salmon issues, followed then-recent ESA case law in
concluding that the RPAs improperly relied on future federal
actions that had not themselves been subjected to review under
the ESA and on actions by states, tribes and private parties
that were not “reasonably certain to occur.”[9]
Issues included reliance on non-federal projects which had not
yet been funded, or for which there were no binding commitments
to proceed.
Judge Redden remanded the BiOp to NMFS in 2003
so that it could reevaluate the potential for jeopardy to ESA-listed
salmon, taking into account only those federal actions that had
undergone ESA review and non-federal actions that were
reasonably certain to occur.[10]
On remand, NMFS tried (ultimately unsuccessfully) to take its
analysis in a new direction, revisiting the idea of
distinguishing the impacts of hydro operations from those of the
mere existence of the dams and only requiring mitigation for the
operational component of those impacts. NMFS tried to classify
the dams themselves as part of the environmental baseline. That
detour drew sharp rebukes from Judge Redden in 2005, whose
rejection of the 2004 BiOp was affirmed by the Ninth Circuit in
2007.[11]
See Jessica
Ferrell,
Ninth Circuit Sends Feds Back to Drawing Board in Columbia River
Dam Litigation, Marten Law Environmental
News (June 6, 2007).
The Current Dispute
In August 2007, the agencies responsible for
running the Columbia River hydro system – the Army Corps of
Engineers, Bureau of Reclamation and Bonneville Power
Administration – put forward a new 10-year plan that tried to
respond to the flaws Judge Redden identified in the 2000 BiOp by
improving the metrics of dam operations and by firming up
federal and non-federal commitments to habitat improvements and
other mitigation projects.[12]
The agencies’ plan also included more specific
commitments between federal agencies and states, tribes, local
governments and private parties, including the Columbia Basin
Fish Accords.[13]
The Fish Accords are ten-year agreements between the agencies
that operate the hydro system and the States of Idaho and
Montana, the Confederated Tribes of the Warm Springs Reservation
in Oregon, the Confederated Tribes of the Umatilla Indian
Reservation, the Confederated Tribes and Bands of the Yakama
Nation, the Confederated Tribes of the Colville Reservation, and
the Columbia River Inter-Tribal Fish Commission. Through the
Fish Accords the federal agencies committed to spend up to $933
million on salmon mitigation measures over ten years.[14]
NMFS issued a new BiOp in 2008 that relies
heavily on the Fish Accords. They provide the foundation for the
BiOp’s RPAs and mitigation plan, which relies on a variety of
tributary and estuary habitat improvements, changes to the
hydropower facilities, and hatchery measures to avoid jeopardy
to listed salmon.[15]
During 2007-09, the BiOp required the federal agencies to
complete specific habitat actions to achieve population-specific
survival improvements. For 2010 to 2018, the BiOp required the
agencies to commit to specific habitat quality improvements, but
did not require them to identify specific projects.[16]
Members of the coalition that had challenged the
2000 and 2004 BiOps filed suit challenging the 2008 BiOp. In
September 2009, NMFS issued an Adaptive Management
Implementation Plan (“AMIP”). That plan included an agreement
between the federal agencies and the State of Washington adding
restoration projects for the Columbia River estuary committing
another $4.5 million annually for the life of the BiOp, and an
agreement with the Shoshone-Bannock Tribe to provide another $61
million over 10 years for habitat restoration projects.[17]
Because the AMIP was developed after the 2008
BiOp, it was not part of the administrative record and could not
be considered in the litigation over the 2008 BiOp. To remedy
that situation, Judge Redden granted NMFS a voluntary remand
that allowed it to incorporate the AMIP, resulting in the 2010
Supplemental BiOp issued in December, 2010.[18]
The parties then proceeded with briefing on the adequacy of the
2008 BiOp, as supplemented by the AMIP and the 2010 Supplemental
BiOp (collectively, the “2008/2010 BiOp”).
Judge Redden’s August 2, 2011 Decision
The plaintiffs advanced three arguments against
the 2008/2010 BiOp: (1) that the ESA jeopardy standard used by
NMFS – whether the species can be expected to survive with an
adequate potential for recovery – was unlawful; (2) that NMFS
failed to use the best available scientific data in measuring
the effects of the hydro system and the benefits of the proposed
mitigation; and (3) that the BiOp improperly relies on future
federal, state, tribal, and private actions that are not
reasonably certain to occur. In his August 2 decision, Judge
Redden declined to rule on the first two issues and instead
focused only on the last argument. He concluded that the BiOp
did not satisfy the ESA because NMFS had “failed to adequately
identify specific and verifiable mitigation plans beyond 2013
when current plans expire or are scheduled to be completed.”[19]
Judge Redden noted his own prior 2003 ruling
that the ESA prohibits NMFS from relying on the effects of
uncertain and speculative actions that are not “reasonably
certain to occur,”[20]
and the Ninth Circuit’s affirmance of that ruling, in which the
Circuit Court said that mitigation measures may be relied upon
only where they involve “specific and binding plans” and “a
clear, definite commitment of resources to implement those
measures.”[21]
Judge Redden then concluded that the mitigation
measures slated for after 2013 were neither reasonably specific
nor reasonably certain to occur. He said that rather than
identify specific habitat improvement projects, NMFS had assumed
it would be able to identify and implement projects, and that it
could project the benefits to the salmon that would result from
those projects even though they had not been identified.[22]
In essence, funding commitments were not enough; he wanted to
see a list of specific projects with a specific timetable, and
an assessment of the benefits of those specific projects for
salmon populations. He concluded: “Federal Defendants cannot
substitute their ‘commitment’ to survival improvement for
specific actions they have evaluated and determined will provide
the necessary biological response.”[23]
The judge also expressed doubts about the
reliability of the methods NMFS uses to evaluate the benefits
from habitat projects, saying that while habitat improvement is
“vital” to recovery and may lead to increased fish survival, the
“lack of scientific support for NOAA Fisheries’ specific
survival predictions is troubling.”[24]
He then noted that NMFS scientists, independent scientists who
reviewed the 2008 BiOp, and an Independent Scientific Advisory
Board expressed skepticism about whether the specific
projections for species improvement from habitat projects would
be realized.
The Court’s final direction to NMFS was to
produce a new BiOp no later than January 1, 2014. In doing so,
he directed NMFS to consider some of the alternatives that the
plaintiff coalition has long advocated. He said that NFMS must
produce a new BiOp that “identifies reasonably specific
mitigation plans for the life of the biological opinion, and
considers whether more aggressive action, such as dam removal
and/or additional flow augmentation and reservoir modifications
are necessary to avoid jeopardy.”[25]
He added that, as a practical matter, it may be difficult to
develop a long-term BiOp that relies only on mitigation measures
that are reasonably certain to occur.
Finally, Judge Redden explained why he was
retaining jurisdiction while remanding the BiOp for further
work: “Given Federal Defendants’ history of abruptly changing
course, abandoning previous BiOps, and failing to follow through
with their commitments to hydropower modifications proven to
increase survival (such as spill) this court will retain
jurisdiction over this matter to ensure the Federal Defendants
develop and implement the mitigation measures required to avoid
jeopardy.”
Conclusion
NMFS and the other federal agencies are
understandably pleased that the district court has, for the
first time since 1995, concluded that the BiOp produced for the
Columbia River hydroelectric system satisfied ESA requirements,
at least for a period of five years. However, even as to the
2008-2013 period, Judge Redden did not rule on two of the
plaintiffs’ legal arguments: that NMFS had applied the wrong ESA
“jeopardy” standard, and that NMFS had failed to use the best
available science. Those arguments likely would be raised again
if the federal agencies appeal Judge Redden’s ruling.
The district court’s ruling offers the federal
agencies multiple paths forward. They may decide to pursue
shorter term BiOps, limited to the time period for which they
can identify and fund specific mitigation measures, including
specific habitat improvement projects. Alternatively, they may
appeal Judge Redden’s decision on grounds that it demands a
greater level of certainty for future mitigation projects than
is required by the ESA, and that the Fish Accords are sufficient
to meet the ESA’s requirement for future actions that are
“reasonably certain to occur.” An appeal also could challenge
Judge Redden’s direction that the next BiOp should consider more
aggressive actions, like dam removal, although that issue may
not be ripe until the next BiOp is issued and the matter is once
again back before the court – as it no doubt will be.
It also is possible that the federal agencies
could take up the judge’s invitation – and the plaintiffs’
admonition – to consider more sweeping changes like modifying
reservoirs, or even removing dams. However, there is no reason
to believe that that particular course of action is “reasonably
certain to occur.”
For more information about the ESA or Columbia
River Salmon, please contact
Svend Brandt-Erichsen or any member of Marten Law’s
Natural Resources practice.
[1]
National Wildlife
Federation v. National Marine Fisheries,
D.Or. CV01-00640-RE, Opinion and Order (August 2, 2011) (“Aug. 2
Order”).
[2]
Earthjustice, Federal
Judge Rules for Columbia and Snake River Salmon
(August 2, 2011).
[3] Federal Joint
Statement on Salmon Plan Ruling (August 2, 2011).
[4] 56 Fed. Reg.
58,619 (Nov. 20, 1991).
[5] 57 Fed. Reg.
14,655 (April 22, 1992).
[6]
Idaho Dept. of Fish &
Game v. NMFS, 850
F.Supp. 886 (D.Or. 1994).
[7]
Pacific Northwest
Generating Cooperative v. Brown,
822 F.Supp. 1479 (D.Or. 1993).
[8]
National Wildlife
Federation v. NMFS,
254 F.Supp.2d 1196 (D.Or. 2003).
[9] 254 F.Supp.2d at
1213.
[10]
Id.
at 1215-16.
[11]
National Wildlife
Federation v. NMFS,
524 F.3d 917 (9th Cir. 2008) (amending 2007 decision).
[12]
See
Federal Caucus,
Columbia River Basin Fish and Wildlife Recovery, Citizen Update
(September 2007).
[13]
See
Aug. 2 Order at 6-7.
[14]
Id.
[15]
Id.
at 7.
[16]
Id.
[17]
Id.
at 8.
[18]
Id.
[19] Aug. 2 Order at
10.
[20]
Id.
at 11, citing
National Wildlife Federation,
254 F.Supp.2d at 1207-09.
[21]
Aug. 2 Order at 11, citing
National Wildlife Federation,
524 F.3d at 935-36.
[22] Aug. 2 Order at
12-14.
[23]
Id.
at 16.
[24]
Id.
at 19.
[25]
Id.
at 20.
