By Michael C. Blumm – Jeffrey Bain Faculty Scholar and professor of
law at Lewis & Clark Law School
March 19, 2021

More than 40 years ago Congress passed what seemed like a meaningful commitment to restoring the Columbia and Snake River salmon runs that had been devastated by the vast system of federal dams.

Unfortunately, the Northwest Power Act failed to give the interstate council it created sufficient authority to substantially change dam operations.

The upshot: decades of legal uncertainty for utilities across our
region, and salmon runs that have continued to fall toward extinction.

For most of the last 30 years, the operation of these dams has been
overseen by federal judges. Although they have consistently ruled in
favor of salmon and have ordered relief like spilling more water over
dams to facilitate salmon passage, these are just stop-gap measures.

More court oversight appears to be on the way: fishing and
conservation groups, the State of Oregon, and others like the Nez
Perce Tribe are back in court challenging the most recent federal dam
plan because the agencies that operate the dams have shown they are
incapable of implementing the kind of major dam overhaul to restore
salmon the courts have called for repeatedly over the last three
decades.

This time, the plaintiffs are almost certain to ask the courts for a
significant increase in the amount of water spilled over the dams, and
some may ask for reservoirs to be drawn down during critical salmon
migration months to reduce lethal (and illegal) water temperatures and
speed baby salmon migrating to the ocean.

If they succeed, the effects on other river users would be much more
significant than in the past. And succeed they may, since the Supreme
Court has made it clear for 40 years that the law requires protecting
endangered species “whatever the cost.”

But it doesn’t have to be this way.

In fact, we have an alternative to continuing the cycle of litigation:
Congressman Mike Simpson (R-Idaho) has proposed a comprehensive
package of infrastructure investments for the region that would
simultaneously address energy, agriculture, and salmon challenges. His
proposal includes funding to remove the four lower Snake River dams,
which scientists have identified as the single biggest step to restore
healthy and abundant salmon runs in the Snake River basin.

As important, his concept would invest more in commodity
transportation and irrigation for farming and shipping businesses, as
well as clean energy to power our region for decades to come.

This is a bold proposal that seeks to bring the region together for a
prosperous future, with the surety utilities and businesses have
lacked.

But it is only a framework. It needs other leaders to develop it into
legislation that will pass Congress.

That must happen now — while the Biden administration is planning a
major national infrastructure investment push, and Washington and
Oregon have members of Congress in key leadership positions.

These leaders, working together, can develop and pass the kind of
visionary legislation that would secure healthy salmon for the
Northwest economy, support the region’s important agriculture sector,
and develop and fortify a clean energy future. In doing so, we would
also be living up to our legal and moral obligations to Tribes
throughout the region whose livelihoods, health, and culture depend on
abundant, harvestable salmon.

If these leaders think inaction or additional study is the way to go,
they should ask themselves: how will their inaction look if the courts
in a few months order higher levels of spill that drive up utility
rates, or order reservoirs operated at lower levels that limit river
navigation or irrigation?

Will they be hailed as effective leaders, or be called to account for
missing the best opportunity in decades to end the cycle of litigation
over salmon and dams?

We have a rare opportunity to put the Northwest and salmon on a path
to a more secure and resilient future. The time to act is now.