Science and law disregarded in 2010 Obama Salmon Plan for Columbia and Snake Rivers
March 11, 2011: Scientists respond to NOAA Administrator Dr. Lubchenco in the Oregonian - Saving Columbia River salmon: Going where the 'best available science' leads us.
October 29th, 2010:
A broad coalition of salmon advocates, along with the State of Oregon and Nez Perce Tribe, have asked Federal Judge James Redden to declare President Obama’s Columbia and Snake river salmon recovery plan illegal. More on that court filing here.
On May 20, 2010, the Obama administration decided to adopt, with only minor tweaks, the Bush administration’s much-criticized Columbia River salmon plan, despite many chances to make real changes and repeated calls from scientists, courts, lawmakers, and regional stakeholders to take a different path. This plan could weaken protections for endangered species across the nation and rolls back in-river protections put in place by the federal court since 2006. Nonetheless, Dr. Jane Lubchenco, NOAA Administrator and nationally renowned scientist, has stated that she stands “100 percent” behind the science in this plan. However, scientific documents obtained through the court, and in the administrative record of the ongoing legal battle surrounding this issue, illustrate that science took a back seat to regional politics in this decision.
In June 2008, the State of Oregon, the Nez Perce Tribe of Idaho, and a coalition of businesses, clean energy advocates, fishermen, and conservation organizations filed suit against the Bush administration’s 2008 salmon plan, which governs how federal dams on the Columbia and Snake rivers should be operated to comply with Endangered Species Act (ESA) requirements for the 13 listed salmon and steelhead populations in the Columbia-Snake River Basin. The plaintiffs argued that the salmon plan (a Biological Opinion, or BiOp) violates the ESA by lowering that law’s standard of protection for imperiled species and by ignoring the best available salmon science. After hearing the case, the judge sent a guidance letter on May 18, 2009, indicating that the court shared many of the plaintiffs’ concerns. The Obama administration asked for additional time to review the Bush plan in order to develop its own position. The judge agreed and gave the administration until September 15, 2009 to make its determination.
On that date, the Obama administration informed the Judge that instead of making the changes necessary to bring the plan into compliance with science and the law, it was merely repackaging the 2008 plan with a so-called Adaptive Management Implementation Plan (AMIP). The AMIP incorporates previously announced estuary habitat work, scientifically inadequate triggers set at levels designed to detect only catastrophic salmon declines, and vague contingency actions and studies to take place only if triggered by a catastrophic decline. Again, after discussion, the judge offered the administration one final chance to get the plan right. But, on May 20, 2010, the Obama administration simply produced the same plan – the 2008 Bush administration BiOp, plus the AMIP – with a new name, the 2010 BiOp. This 2010 plan — like Bush’s plan — rolls back important in-river salmon protections put in place by the federal court. The 2010 Obama salmon plan is almost indistinguishable from the 2008 Bush plan.1
For an administration that has publicly vowed to look “for ways to improve [the ESA], not weaken it[;]” to restore science to its “rightful” place in federal policy; and to ensure transparency in its processes, this decision evinced none of those principles.2
Instead, the 2010 Obama salmon plan has been condemned by fisheries biologists, could actually roll back ESA protection standards for listed species, and was put together behind closed doors with no public input.
Perhaps more shocking is that documents obtained through the court about the Obama review of the salmon plan indicate that the administration’s claim of scientific support is to put it charitably, significantly overstated. Although the administration has thus far released barely one-half of the documents it has identified as relevant to the development of this plan, the documents we do have suggest that both NOAA reviewers and the Western Division of the American Fisheries Society (WDAFS) had very serious concerns with the 2008 BiOp. Simply put, these documents reveal that this administration – notwithstanding its statements to the contrary – is allowing science to be politicized instead of using it to inform and support their decisions.
The Record of Scientific Concerns
The record is replete with opposition to the 2008 Bush salmon plan and these newly released documents further bolster that clear scientific position. In January 2009, Native American treaty tribes, three of which have since been silenced by a Bush administration deal, filed over 600 pages of scientific reasons why the 2008 plan was both illegal and counter to the science.3 U.S. Fish and Wildlife biologists also filed extensive comments in opposition.4 The State of Oregon, the Oregon Chapter of the American Fisheries Society, and the WDAFS all also found major scientific flaws in this plan.5 More recently, the WDAFS called the Obama plan “inadequate for ensuring the protection of threatened and endangered salmon and steelhead in the Columbia River Basin,” and said that the plan, rather than protecting these imperiled species, seems to “support the 2008 Biological Opinion and defend the status quo.”6 Strikingly, a NOAA reviewer agreed with this assessment, but NOAA did not act on these concerns.7
NOAA’s own so-called “independent reviewers” and other federal biologists offered similar and additional concerns. For instance, in a quick summary to others at the Department of Commerce, Jennifer Costanza, from the Department of Commerce’s Legislative Affairs office, writes that the reviewers noted "their lack of confidence that the RPAs [Reasonable and Prudent Alternatives] could accomplish what was hoped…. They noted that the assumptions regarding hatchery and habitat effects in the RPAs may not be justified… They noted that the BiOp did not fully consider climate, land and water use stress on the system because they were considered as a static baseline rather than as a part of the projections . . . "8 NOAA’s own reviewers called the AMIP “not reasonable,” stated that its analysis is “seat-of-the-pants,” and supported concerns raised by the WDAFS in its review.9 When it released the 2010 BiOp, NOAA had this information and also understood that it had failed to heed this advice.
Below are more examples of scientific statements made to NOAA urging them to take a different course. NOAA disregarded them all.
Before agreeing to adopt the Bush 2008 salmon plan, the Obama administration convened two closed-door meetings with scientists. The first set of these meetings happened in the Northwest in May 2009. Although the administration allowed some sovereigns to be present, the administration did NOT allow any public observers and no official notes from that session have been released. A Washington Senator’s office urged NOAA to ignore the public and only meet with sovereigns while in the region, and the administration complied. Jamie Shimek, Office of Senator Murray, email (May 13, 2009)(recommending that Northwest visits be “discreet and avoid any open public meetings . . “).
In July 2009, NOAA held another secret, closed-door session in Washington, DC. This session lasted for 2 days. The administration allowed no public participation or review of this meeting.
General Science Disregarded
NOAA received comments and concerns from federal biologists, from their own so-called “independent scientists,” and from outside experts that it blatantly disregarded. Here are a few examples of general, but serious, flaws identified by these scientists:
Dr. Kim Kratz, a U.S Bureau of Reclamation biologist, emailed other NOAA employees that the independent scientists “recommended ADDITIONAL actions to increase the certainty of the BiOp. Relying on existing actions does not do that… [T]he scientists identified that a lack of projects…would be a fatal flaw.” Dr. Kim Kratz, BOR, Email (Aug. 3, 2009)(emphasis in the original). Dr. Kratz also observed that: “I do no [sic] see much in the way of Adaptive Management in what is being proposed, just more process. Process without integration does little to reduce uncertainty. Nothing appears to be focusing on how to better integrate what is in [sic] currently in the biop, in addition to the additional actions, in order to address the scientists’ concerns about the underlying uncertainty.”
NOAA’s own reviewers identified serious flaws in the underlying plan. The limited information we do have from these meetings shows that the reviewers were “less optimistic than the authors of the Biop [sic] that the RPA [i.e., actions in the plan] will achieve the gains estimated by the Biop [sic].” The reviewers highlighted a “lack of supporting data” for the heavy emphasis on habitat actions alone and found that the plan had a “great deal of uncertainty” surrounding the survival expectations. Rich Zabel, NOAA, E-mail re: “notes” with “meeting notes, July 8 09” (July 13, 2009).
The Western Division of the American Fisheries Society (WDAFS) also found fatal flaws:
• “Thus, it appears that there is undue emphasis on more monitoring and modeling than on implementing beneficial actions. A logical assumption therefore is that the primary output will be merely that declines are more accurately documented.” Western Division, American Fisheries Society; Review of the 2009 Adaptive Management Implementation Plan for the 2008 Biological Opinion Regarding the Federal Columbia River Power System (February 2010)[hereinafter WDAFS Review] at 3.
• “It appears that the PATH conclusions, its collaborative weight-of-evidence hypothesis testing framework, and its decision analysis have been dropped by NOAA Fisheries without scientific justification.” WDAFS Review at 5.
• “The focus of the AMIP is protection of the hydrosystem status quo.” WDAFS Review at 12.
The comments of the WDAFS were readily supported by one of NOAA’s own reviewers:
• “ I think that the WDAFS is correct in perceiving the AMIP is designed to support the 2008 BiOp and to defend the status quo over protecting threatened and endangered salmon and steelhead in the Columbia-Snake basin. Nate Mantua, Univ. of Washington, “Comments on AMIP reviews provided by Martin/Chapman and the WDAFS” (April 22, 2010) at 2.
• I agree that the AMIP appears to place more emphasis on expanded monitoring and modeling than on implementing beneficial actions. I also agree with the point they raise about proposed rapid response actions to be taken in response to significant declines. Specifically, if NOAA is confident that it has already identified actions that can ‘immediately improve fish survival’ and ‘provide immediate survival benefits’, those actions should be implemented immediately rather than waiting for a steep decline in a population’s or ESU’s status. Id.
Climate Change Overlooked
Jennifer Costanza, a Secretary of Commerce staffperson, wrote this to others at Commerce after the listening in on the July meeting with NOAA reviewers: “They noted that the BiOp did not fully consider climate, land and water use stress on the system because they were considered as a static baseline rather than as a part of the projections…” Jennifer Costanza, Dept. of Commerce, email re: “Notes from FCRPS Science Review Report Out” (July 10, 2009).
Dam Removal & Lower Snake River Salmon Protection Tortureous
Although strongly encouraged to seriously consider lower Snake River dam removal and to develop a plan for Snake River species that rear and spawn in wilderness, NOAA ignored this expert advice:
• “One specific topic that comes to mind and I haven’t really heard a good answer for, is what are we going to do if SR [Snake River] S/S [Spring/ Summer] Chinook trend downward, or a ‘trigger’ is met? I don’t think we have a plan at all in place for these stocks that are largely in wilderness.” John Ferguson, NOAA, email (July 17, 2009).
• WDAFS noted that "[b]oth PATH and CRI indicate that dam breaching has the greatest potential for recovering Snake River salmon and steelhead[,]” and then went on to say, ". . .dam breaching is the key to Snake River salmon rehabilitation." WDAFS Review at 14.
• A NOAA reviewer told the agency, “I’m surprised that a ‘science driven study of breaching Snake River Dams’ is listed as a long-term contingency action only to be implemented after a significant decline in Snake River salmon status. Massive declines in the status of multiple Snake River populations have already happened, and such a study will surely take years to complete. It seems to me that carrying out scientific and economic studies of Snake River Dam breaching should be carried out now to better inform stakeholders and decision-makers of the costs and benefits of such actions.” Nate Mantua, Univ. of Washington, “AMIP Review” (April 22, 2010)[hereinafter Mantua AMIP Review] at 4.
Triggers Are “Not Reasonable”
The triggers NOAA adopted in the final plan received a lot of negative attention:
• NOAA’s reviewers call the triggers “not reasonable” and say the triggers as set out “mask a lot.” Independent scientist comments on draft FCRPS BiOp Adaptive Management Plan issue papers and trigger documents (August 7-8, 2009).
• “I am concerned that using this as the historical baseline [1980 to present] sets a very low bar . . . .” Mantua AMIP Review at 3.
• "The AMIP repeatedly states that rapid response actions will be quickly implemented if pre-defined biological triggers are met....Our review of Appendix 5: Rapid Response Actions left us with different conclusions. First, that prompt implementation of actions to deliver survival benefits is generally not specific or certain to occur. Second, most actions listed would have likely occurred even if the AMIP did not exist." WDAFS Review at 8.
• “I suggest that a suite of factors should be considered along with some number or index of returning adults. . . . For example, considering only the 4-year rolling average and the 90 and 80 percentile as originally suggested, those low numbers of adults occurred back in the early 1990s when populations were so low that listing of some ESUs was warranted.” Stephen Grabowski, BOR, email to Kathryn Puckett, BOR, (Aug. 12, 2009).
• "Should be developed for major population groups (MPG), maybe even populations, and not just ESUs. Actions that cause decline or redress will usually be at MPG level not ESU; IF idea is to be proactive, not just reactive." “Independent scientist comments on draft FCRPS BiOp Adaptive Management Plan issue papers and trigger documents” (August 7-8, 2009). WDAFS describes this as "a serious shortcoming." WDAFS Review at page 10.
 A side-by-side comparison of the two plans is available upon request.
 See, e.g., President Barack Obama’s Inaugural Address, January 21, 2009, http://www.whitehouse.gov/the_press_office/President_Barack_Obamas_Inaugural_Address/ (stating, “We'll restore science to its rightful place, and wield technology's wonders to raise health care's quality and lower its cost.”); Remarks of the President to Commemorate the 160th Anniversary of the Department of Interior, March 3, 2009, http://www.whitehouse.gov/the_press_office/Remarks-of-the-President-to-Commemorate-the-160th-Anniversary-of-the-Department-of-Interior/, (stating “Finally, today I've signed a memorandum that will help restore the scientific process to its rightful place at the heart of the Endangered Species Act, a process undermined by past administrations. (Applause.) . . . For more than three decades, the Endangered Species Act has successfully protected our nation's most threatened wildlife, and we should be looking for ways to improve it -- not weaken it.); and Remarks by the President at the National Academy of Sciences Annual Meeting, April 27, 2009, http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-at-the-National-Academy-of-Sciences-Annual-Meeting/ (stating, “Under my administration, the days of science taking a back seat to ideology are over. (Applause.) Our progress as a nation –- and our values as a nation –- are rooted in free and open inquiry. To undermine scientific integrity is to undermine our democracy. . . . I want to be sure that facts are driving scientific decisions — and not the other way around.”). See, also, http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment/ (stating ““[m]y Administration is committed to creating an unprecedented level of openness in Government. . . . Government should be transparent. Transparency promotes accountability and provides information for citizens about what their Government is doing.”).
 Columbia River Inter-Tribal Fish Commission Comments on the 2008 BiOp (January 4, 2009) (available upon request).
 USFWS biologists were so concerned with the NOAA approach that they developed their own model to correct the major flaws they found in NOAA’s work. Various comment letters from USFWS available upon request.
 Letter from the Oregon Chapter of the American Fisheries Society to Judge James Redden (Oct. 8, 2009) (expressing concerns with both the BiOp and the AMIP); Letter from the Western Division of the American Fisheries Society to Dr. Jane Lubchenco, NOAA Administrator (May 4, 2009) (weighing in with support for dam removal).
 Western Division, American Fisheries Society; Review of the 2009 Adaptive Management Implementation Plan for the 2008 Biological Opinion Regarding the Federal Columbia River Power System (February 2010) at 2.
 Nate Mantua, Univ. of Washington; “AMIP Review” (April 22, 2010); Nate Mantua, Univ. of Washington; “Comments on AMIP reviews provided by Martin/Chapman and the WDAFS” (April 22, 2010).
 E-mail from Jennifer Costanza, Dept. of Commerce, to various Commerce staff re: “Notes from FCRPS Science Review Report Out” (July 10, 2009).
 “Independent scientist comments on draft FCRPS BiOp Adaptive Management Plan issue papers and trigger documents” (August 7- 8, 2009).