April 23rd, 2009
By Daniel Jack Chasan
The courts, which have rejected plans for Columbia River dams for decades, finally have a good governmental partner. But plenty of legal snarls remain, along with issues relating to climate change.
Last month, the same Obama administration that won't defend its predecessor's spotted owl recovery plan went into federal court and defended its predecessor's biological opinion on operation of the Columbia River system dams. That BiOp found — predictably — that by improving habitat in the tributaries and estuaries, modifying dam operations a bit, and continuing to barge salmon around the dams, the government could operate its dam system without jeopardizing the recovery of listed salmon stocks.
Inevitably, salmon advocates sued. The case is currently before U.S. District Judge James Redden, who has been hearing motions and arguments about Columbia River salmon and dams for years. Redden and other federal judges have already tossed out three biological opinions since the first Columbia River system salmon population — Snake River sockeye — was listed in 1991. A fourth opinion was explicitly short-term. None has been approved.
The latest BiOp may also wind up in the trash. But Redden has made it clear that he doesn't want the cycle to begin all over again. In a February letter to attorneys on both sides, he said pointedly, “I have no desire to remand this biological opinion for yet another round of consultation. The revolving door of consultation and litigation does little to help endangered salmon and steelhead.” If this BiOp proves defective, too, he'll want the two sides to work something out.
That's “going to take a willing partner on the other side,” says Earthjustice attorney Steve Mashuda, who is handling the Columbia River dam litigation. Mashuda is optimistic. He figures that the Obama administration's decision to defend the BiOp doesn't signal a commitment to Bush salmon policies, but rather reflects a lot of empty offices at the National Oceanic and Atmospheric Administration. (The Fish and Wildlife Service, which is responsible for the spotted owl plan, has filled a lot more vacancies than NOAA, which is responsible for salmon.) Mashuda says Obama's choice of Oregon State University marine ecologist Jane Lubchenko to run NOAA is “a good thing,” and once lower-level jobs are filled, “I hope and expect” that the agency will take a new approach toward the Columbia River and its dams.
At the very least, the change of administration provides the best chance in a long time to find a solution. Judge Redden sent the Clinton administration’s 2000 biological opinion back to the National Marine Fisheries Service because the measures it proposed to mitigate damage to wild salmon runs weren’t “reasonably certain” to occur. That remand called basically for a little tweaking. Instead, the Bush administration came up with an unprecedented new theory: the big dams had become part of the environmental baseline, so the government didn’t have to consider their effects on wild salmon. Redden rejected that reasoning. The 9th Circuit sustained his ruling.
The current BiOp is less of a stretcher, but it too seems unlikely to survive Redden's scrutiny. In his letter to the attorneys before last month's oral argument, the judge asked about a number of questionable assertions — not least the novel idea that dam operations would not jeopardize the recovery of a listed population if the population was “tending toward recovery.” Redden noted that the Endangered Species Act's “regulations define jeopardy as an action that 'reduce[s] appreciably the likelihood of both survival and recovery of a listed species ....' Federal Defendants contend that a species avoids jeopardy if it is 'trending toward recovery,' or is in position for 'eventual progress towards recovery.' Neither of those terms appear[s] in the regulation, and Federal Defendants make no attempt to determine what actual recovery means.”
The feds also oversold both the likelihood and likely impact of habitat improvements in the river's estuary and tributaries. “They estimate that implementation of estuary habitat actions will cost $500 million over the next 25 years,” Redden noted. “Yet, Federal Defendants and the Bonneville Power Administration are committed to only $5.5 million per year for the next 10 years, and much of that funding requires Congressional approval. Additionally, many of the proposed estuary habitat actions rely on private and third-party actions. How can these actions be characterized as reasonably certain to occur?”
Funding aside, the whole estuary scheme seemed implausible: "In March 2008, the Independent Scientific Advisory Board (ISAB) concluded that the Estuary Recovery Module ('the Module) 'does not meet ISAB standards as a scientific document.' ISAB criticized the Module's lack of critical scientific review and the lack of scientific support for many of its optimistic assumptions.”
Upstream, since “Federal Defendants are unable to identify specific habitat actions beyond 2009, how can they rationally rely on benefits from such actions in reaching a 'no jeopardy' conclusion?”
And how can they rationally conclude that whatever may or may not be adequate now will be adequate in a Columbia Basin with a warmer climate? Mashuda says a number of studies suggest that what must be done now to help salmon populations recover will in the future only be enough to hold the line. The BiOp discusses climate change but its focus is short-term (the next 10 years) and it proposes nothing tailored specifically to helping fish survive in a warmer Columbia Basin.
Yet the projections suggest that those effects may be catastrophic for some fish populations. The University of Washington's Climate Impacts Group reports: “Rising stream temperatures will likely reduce the quality and extent of freshwater salmon habitat. The duration of periods that cause thermal stress and migration barriers to salmon is projected to at least double . . . and perhaps quadruple . . . by the 2080s for most analyzed streams and lakes. The greatest increases in thermal stress would occur in the Interior Columbia River Basin and the Lake Washington Ship Canal.”
By and large, water will stay coolest at the highest elevations and latitudes. For Columbia River system salmon stocks, the higher latitudes lie in British Columbia. The higher elevations lie in the wilderness of central Idaho. Salmon aren't going to reach B.C. ever again unless someone breaches Grand Coulee. That leaves Idaho, from which salmon must run the full gauntlet of lower Snake River dams. “That's very much on our minds,” Mashuda says.
The BiOp steadfastly avoided any consideration of breaching the lower Snake River dams. Redden found this questionable. “What will the Federal Defendants do if their proposed habitat mitigation actions do not result in the anticipated benefits?” he asked. “Why not include a contingency plan in the biological opinion, similar to the 2000 BiOp? There, Federal Defendants committed to seeking Congressional authority to breach the lower Snake River dams if the mitigation plans failed. The ESA requires federal agencies to avoid any irreversible or irretrievable commitment of resources that may foreclose any future reasonable and prudent alternative. To ensure that dam breaching retains the potential to be an effective mitigation measure (i. e., that there will be listed fish in the river that benefit), why not begin analyzing the scientific and technical feasibility of such an option now?”
On the other hand, Redden was definitely not making a plea for breaching. "I don't know if breaching the dams is the solution," he told the parties; "I hope it's never done."
Redden has, however, issued an order — agreed to by both sides — to spill more water over the dams this spring in order to help young salmon make their way down the river. This marks the fourth year of court-ordered spring spill. Assuming he grants another order, it will be the fifth year of spill in the summer.
Salmon advocates think the spills are working. The government credits ocean conditions, rather than court-ordered spills or other freshwater improvements, for relatively high salmon returns to the Columbia. Mashuda doesn't buy that. He points to a February letter from Michele de Hart, manager of the Portland-based Fish Passage Center. “There is no doubt that ocean conditions are important, but this does not reduce the importance of migration conditions and fish survival in-river,” de Hart wrote. “The NOAA conclusion that attributes the 2008 high return of sockeye salmon to marine/estuary conditions while discounting the effect of higher in-river survival, lower proportion transported and improved in-river conditions, is flawed because it fails to recognize that fish must reach the ocean/estuary alive to benefit from good ocean conditions. Even the best ocean conditions will not resurrect dead fish.”
Giving all the credit to the ocean has had practical consequences. If freshwater conditions don't have much influence, why make economic sacrifices to improve them? Some changes of dam operation proposed in the current BiOp “are actually modifications that go to the fish's detriment,” Mashuda says. “For all the minor modifications to the dams that the agencies tout — and they really are minor if you're looking at it from the fish's perspective — the fact is that at the same time they've cut back on measures, like spill and flow, that we know to be effective. ”
Mashuda also points south to the Sacramento River. Salmon from the Sacramento and Columbia “all experienced the same ocean,” he says. Yet Sacramento River chinook populations have crashed spectacularly, and commercial chinook fishing has consequently been shut down from the Sacramento north through much of Oregon for the second straight year. “The Pacific Fishery Management Council . . . estimated that only 66,286 adult salmon returned to the Sacramento River to spawn,” Jane Kay reported in the San Francisco Chronicle. “Six years ago, the peak return was 13 times higher.”
Ocean conditions weren't kind to Sacramento River fall chinook, but neither were the people who manage California's water flows. In addition to warm ocean waters in 2005 and 2006, Kay wrote, “in 2004 and 2005, the years the chinook were born and traveled to the ocean, the federal Central Valley Project and the State Water Project exported record amounts of Sacramento-San Joaquin River Delta water to urban and agricultural customers throughout the state, documents show.”
There's no real connection between Sacramento River chinook and their more northerly cousins, but it's hard not to find parallels. “We look to the Sacramento as the cautionary tale of what you don't want to happen on the Columbia,” Mashuda says.
Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues. You can reach him in care of firstname.lastname@example.org.
View this story online at: http://crosscut.com/2009/04/23/federal/18967/
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