News analysis: Hopes and vague promises didn't fly with Bush administration courts, or even two years ago. But here we go again.
By Daniel Jack Chasan
January 27, 2014.
Will the fifth time be the charm? Probably not.
The federal government has just come out with a new biological opinion (BiOp) on how to conduct the operations of its Columbia River system dams. The feds have been issuing Columbia River BiOps since Bill Clinton sat — and did whatever else he did — in the White House. And for all that time, the federal courts have been slapping them down.
The newest version was unveiled on January 17. It looks remarkably similar to the last one, which was prepared by the administration of George W. Bush and repackaged with little substantive change by Obama officials. United States District Judge James Redden rejected that Bush-Obama hybrid document in 2011.
If history provides a guide, this new BiOp will soon be the target of litigation by conservation groups and it, too, will eventually be tossed out by the courts. “Unfortunately,” said Save Our Wild Salmon executive director Joseph Bogaard in a press release, "this latest blueprint is virtually indistinguishable from the plan rejected by the district court in 2011."
If, as they say, the definition of insanity is doing the same thing over again but expecting a different result, those people at the National Marine Fisheries Service (NMFS, aka NOAA Fisheries) must be a pretty wacky bunch. Or not. The feds have basically tried to preserve business as usual. Through two decades of court losses, they have largely managed to do so.
How did we get here? The background may be somewhat familiar, but worth recalling in what has become a court fight with a life cycle as predictable as that of the salmon. Here goes:
1. The Columbia River system drains a quarter-million square miles, an area roughly as large as France. The Columbia itself rises in British Columbia, 1,200 river miles from the Pacific, and is joined at the Tri Cities by its largest tributary, the Snake, which rises in Wyoming.
2. For millennia, the Columbia was the greatest chinook salmon river in the world. Up to 15 million wild salmon of all species made their way up the river to spawn.
3. Tribes all along the river caught, dried and ate the salmon.
4. Because it drops so far (roughly half a vertical mile) on its journey from the mountains to the sea, the Columbia has more hydroelectric potential than any other river in North America. From the 1930s to the 1970s, the federal government built a series of dams on the Columbia and its tributaries, including the Snake.
5. Those dams, known collectively as the Federal Columbia River Power System, still generate some 40 percent of the electricity used in the Northwest — some of it in Seattle and Bellevue — and enable tugs and barges to travel all the way to Idaho.
6. The dams blocked salmon passage to and from salt water. Some were built with fish ladders. Others weren't. Once the dams went in, the numbers of fish plummeted. This came as no great surprise.
7. Dams haven't been the salmon's only problems. Columbia River salmon runs were clearly being overfished by the late 1800s. Much of the river's estuary has been filled in. Spawning streams have been affected by farming, ranching and development. To increase survival rates, for many years the U.S. Army Corps of Engineers has trucked young salmon downstream around the dams. Federal, state and tribal hatcheries have pumped out many millions of fish. The river still supports only a fraction of its former runs.
8. Starting in 1991 with the red fish (sockeye) of Idaho's Redfish Lake, Columbia and Snake river salmon populations have been listed as threatened and endangered species.
9. Because of this, the federal government has had to issue biological opinions on whether or not operation of the dam system will jeopardize their recovery.
10. Four BiOps have already been rejected by federal courts.
No one has decided yet to sue over this version, but a bet in favor of litigation would seem less a gamble than an investment. As the newest act in this long-running drama plays out, though, there are some themes to remember.
Like its predecessor, this BiOp relies heavily on habitat improvements rather than changes in dam operation; the court may or may not be convinced that these improvements will really happen — or that they will produce the benefits that the federal agencies predict.
The easiest way to avoid making major changes in the status quo is by arguing that salmon will recover just fine if you do something else.
Historically, something else has primarily meant building and operating hatcheries that pump new fish into the river system. Now, virtually everyone concedes that traditional hatcheries don't really work. Cue habitat improvements.
There is no reasonable doubt that habitat in the Columbia Basin has changed in ways that are harmful to fish. There is also no reasonable doubt — certainly, there didn't seem to be much doubt in Judge Redden's mind — that the feds have used the promise of habitat improvement to avoid doing other things.
When Redden tossed the last BiOp, he said it was "based on unidentified mitigation measures that are not reasonably likely to occur." He also expressed "serious concerns about the specific numerical survival benefits NOAA Fisheries attributes to habitat mitigation."
The new BiOp relies heavily on habitat improvements, too. Some seem more likely to occur. But not all are well-defined, and attributing specific survival benefits to any of them is still pretty far-fetched. As Bogaard notes, it's hard to place specific numbers on the effects of habitat improvements that haven't yet been made.
The government still doesn't want to use the B word: It does not seriously contemplate breaching the four lower Snake River dams. Those dams were the last ones built — I've described them before as the caboose on the federal gravy train — and contribute relatively little to the regional power grid. Losing them wouldn't drive up electricity prices. They do, however, provide appreciable generating capacity. More important politically, they make it possible for Lewiston, Idaho to function as a deep-water port.
Fish advocates have long wanted to see those dams breached and have called for a hard-nosed balancing of their economic benefits against their environmental costs. The federal agencies haven't wanted to go there. Redden made it pretty clear he wanted breaching included as an option if other things failed. The BiOp merely says that if all else fails, the feds can launch a study to see how they should study the prospect of breaching.
The BiOp recommends spilling less water — water that is key to speeding young salmon downstream over the dams.
Nature designed young Columbia River system salmon to float downstream with spring floods. The pools of slack water created by the dams slow the river, extending the trip and creating dangerous conditions for young fish. Spilling water over the dams instead of running it through turbines speeds the young fish on their way. But water over the dam equals electricity foregone, so the BPA, which transmits and markets power from the dams, and public utilities, which rely on power from the dams, have wanted to minimize spill.
Of course, restoring wild fish populations isn't the only reason for which electrical sales are foregone. Water that floats barges through lock systems isn't generating any electricity either. Nor is water channeled into irrigation canals. And large amounts of power are used to pump water uphill from dam pools to those canals. Nevertheless, diverting water to help fish is always the issue.
Starting in 2006, the courts ordered the federal agencies to spill more water in the spring. Evidence suggests more fish survived. In 2010, the feds were about to propose reducing spring spill. Two different scientific groups hammered the proposal. The feds said never mind.
But that's not what they say in the new BiOp. There, they suggest less spill.
The feds' document suggests that what's already being done should enable salmon to do just fine with climate change.
Salmon spawn in cool water. Average temperatures in the Pacific Northwest are expected to rise. Some streams will become too warm for the fish. In a December report, the University of Washington's Climate Impacts Group predicted "challenges" for salmon by 2050. "Rising stream temperatures and altered streamflows will likely reduce the reproductive success of many Washington salmon populations," it said. "Relative to 20th century conditions, under a low-warming scenario, juvenile salmon growth rates by mid-21st century are projected to be lower in the Columbia Basin."
Protecting genetic diversity, so that some fish are more likely to withstand temperature changes, becomes key. So does protecting spawning areas at higher elevations, where temperatures will stay lower. The spawning streams in the mountains of Idaho are already protected within federal wilderness. But passage to and from those streams is blocked by eight dams, including the four on the lower Snake. Wild fish advocates argue that the threat of climate change raises the Idaho spawning streams to a new level of importance and should focus an even stronger spotlight on the Snake River dams. So far, the feds have shown no sign that they agree.
It is "remarkable to me how much science NOAA itself has done on climate change and how little is applied in this opinion," says Earthjustice attorney Steve Mashuda. The BiOp recites a lot of what is known, but "when it comes to actually doing something about [climate change], they don't lift a finger."
"This plan does nothing for climate change," Joseph Bogaard agrees. By saying that measures already being done to mitigate other threats to salmon will also mitigate the effects of higher temperatures, "they're effectively double-counting." As Mashuda puts it, there are "two threats, and they're using the same bullet on both of them. That just doesn't work."
The BiOp argues that the river already produces enough chinook for endangered Southern Resident Killer Whales.
Killer whales live all over he world. The orca pods that hang out in Puget Sound are distinct and therefore worthy of federal proetection because they don't interbreed with other groups, and they have their own culture: their own linguistic peculiarities, their own cuisine. Other killer whales eat sea mammals. Ours eat fish. They prefer salmon. In fact, like many of us, they prefer chinook salmon. Why? Presumably because chinook are bigger and fattier, and a killer whale doesn't have to catch as many — and therefore doesn't have to expend as much energy — to get a decent meal.
Recent research suggests that the killer whales may need nourishment badly in the spring, when huge chinook runs once swam back through their range to the Columbia. If we want to restore the orca population, we may have to (at least partially) restore those salmon runs. The BiOp suggests that current hatchery operation will more than compensate for chinook losses at the dams — ignoring the obvious fact that if you want more orcas, you need more orca food.
The logic of restoring chinook in order to restore orcas cropped up in NOAA Fisheries' own BiOp for operation of the Central Valley Project and California State Water Project. However, that reasoning doesn't seem to have crossed the California border.
This BiOp certainly hasn't embraced it. And the BiOp hasn't rejected the argument dreamed up by the Bush administration that federal agencies can comply with the Endangered Species Act if the endangered species in question is "trending toward recovery." Under the Endangered Species Act, the goal for any listed species must be recovery, not mere survival; "they didn't all die on our watch" doesn't cut it.
But what does the law really require? The Bush inspiration was that it didn't require much: Presumably if there's one more fish next year than this, even if full recovery requires thousands more, you comply with the law. This was justly ridiculed at the time, and Redden expressed his skepticism. “I still have serious reservations about whether the 'trending toward recovery' standard [that the Bush administration unveiled in this BiOp] complies with the Endangered Species Act, its implementing regulations, and the case law,” he wrote in 2009.
But Redden, who rejected the last three BiOps, didn't have to consider such theoretical issues in 2011. Because the last BiOp relied on empty promises about habitat restoration, he could strike it down without doing so. But Redden had clearly lost patience. The feds had had their three strikes in his court.
Faced with a fourth, Redden might very well have ordered significant changes in or taken partial control of river management. But Redden has retired. Will a new judge feel comfortable saying the government has used up its chances? Will a new judge give the government only one strike? Some observers doubt it — and are guessing that the feds doubt it, too.
Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues.
Fore more information: http://crosscut.com/2014/01/27/environment/118402/feds-latest-columbia-river-plan-chasan/