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Close, but No Cigar: More Work Needed on Salmon and the Columbia Hydro System

By Svend A. Brandt-Erichsen
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.

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