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It’s Déjà Vu All Over Again: Federal District Court in Oregon Rejects 2014 Columbia River Biological Opinion

June 14, 2016

It is always somewhat surprising – though it shouldn’t be by now – when a District Court throws out a biological opinion on which more than a few federal agencies and technical teams have worked, in collaboration, for years to create. Once again, the United States District Court for the District of Oregon rejected the latest Biological Opinion (BiOp) prepared by the National Oceanic and Atmospheric Administration (NOAA) for the operation of the Federal Columbia River Power System (FCRPS). Federal District Judge Michael Simon pulled no punches in his evisceration of the 2014 NOAA Fisheries Supplemental Biological Opinion. His lengthy opinion this May in National Wildlife Federation v. National Marine Fisheries Service,[1] demanded that NOAA Fisheries and federal action agencies consider more creative and aggressive approaches to saving and restoring salmonid species in the Columbia River.[2] He urged them to avoid going down “the same well-worn and legally insufficient path” of previous recovery plans over the past two decades, and prepare yet another biological opinion not later than March 1, 2018, together with an Environmental Impact Statement (EIS) that complies with the National Environmental Policy Act (NEPA).[3]

Background

The challenge, of course, is a mighty one. The Columbia River is the natural hatchery and migration corridor of at least 13 species or populations of salmon and steelhead (salmonids) which are now listed as threatened or endangered under the Endangered Species Act (ESA)[4]. In the modern era, that corridor has become an obstacle course for salmonids, navigating through hydroelectric dams, powerhouses and reservoirs. Since the first ESA listing of Snake River sockeye in 1991, NOAA Fisheries (then known as the National Marine Fisheries Service or NMFS) has issued seven separate biological opinions: 1992; 1993 (concluding that the operations of the FCRPS would not jeopardize the listed species, but rejected by U.S. District Judge Malcolm Marsh); 2000 (finding jeopardy and superseding previous BiOps, but rejected by U.S. District Judge James Redden); 2004, 2008, and 2010 Supplemental BiOp (all rejected by Judge Redden); and 2014 Supplemental BiOp (now rejected by Judge Simon).[5]

The amount of time, energy, and resources devoted not only to the production of these biological opinions but also to their challenges is enormous. One may well ask, what is it about the case that makes getting a workable biological opinion seem nearly impossible? Why does compliance with the ESA, and now NEPA, seem for all practical purposes to be out of reach for these federal agencies? Part of the answer may lie in the sheer scope of the project: the 1,200 miles of the Snake and Columbia rivers flow through one Canadian province and seven Pacific Northwest states, and through a network of hydropower dams that supply low cost reliable and renewable energy to the region and beyond. It is an immensely complex system. Making it survivable for the 13 listed species of salmonids is only part of the problem. While the vast majority of salmonid mortality appears to come from its time in the ocean, the spawning reaches in the Northwest River system are essential to its recovery. Over the years since that first NMFS biological opinion, the law has evolved to include far more emphasis on recovery. It is not enough just to not kill fish; there must be a means for their recovery. Moreover, and perhaps more fundamentally, the “elephant in the room” – which is no longer an elephant – has always been whether the FCRPS hydropower system, no matter how it is tweaked, modified, or operationally reconfigured, is ultimately incompatible with the survival and recovery of the species. Can we have dams and fish too? The clear overriding message of Simon’s opinion is that the agencies must come to grips with that fundamental question.

Judge Simon excerpted passages from District Court BiOp opinions seventeen years apart to rail against agency sluggishness in dealing with this question. This from Judge Marsh’s 1994 opinion:

[The] process is seriously, “significantly,” flawed because it is too heavily geared towards a status quo that has allowed all forms of river activity to proceed in a deficit situation – that is, relatively small steps, minor improvements and adjustments – when the situation literally cries out for a major overhaul. Instead of looking for what can be done to protect the species from jeopardy, NMFS and the action agencies have narrowly focused their attention on what the establishment is capable of handling with minimal disruption.[6]

And this excerpt, referring to Judge Redden’s 2011 opinion:

Judge Redden expressly ordered: No later than January 1, 2014, NOAA Fisheries shall produce a new biological opinion that reevaluates the efficacy of the RPAs [Reasonable and Prudent Alternatives] in avoiding jeopardy, 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.[7]

The emphatic message from Judge Simon was that NOAA fisheries must change its mindset and move from “minimal disruption” and “small steps” to “more aggressive action,” if that is necessary to achieve survival and recovery of the species.[8] This article reviews key themes of his opinion to understand what Judge Simon perceived as insufficient in the 2014 Supplemental BiOp, to define what a more aggressive path forward might look like.

The NEPA challenge

If plaintiffs wanted to find an additional vehicle to force consideration of dam removal, they may have succeeded by attaching a NEPA challenge to the attack on the 2014 Supplemental Biological Opinion. The BiOp has 73 RPAs that the action agencies – the U.S. Army Corps of Engineers and the U.S. Bureau of Reclamation – must comply with in order to avoid jeopardy. Plaintiffs asserted that a NEPA evaluation of alternatives must occur with respect to each and every one of those RPAs. Judge Simon relied on a recent Ninth Circuit case to support his conclusion that Plaintiffs were correct, even though in all of its decades of Columbia River BiOp litigation, no plaintiff had ever raised a NEPA claim as part of the challenge to a biological opinion.[9] This angle would allow a kind of escape from the strict, statutory confines of the ESA’s biological opinion and permit free investigation of options for saving and restoring fish populations that have never been seriously considered before in past BiOp analyses of the FCRPS:

It is this combination of the need of the consulting agency under the Endangered Species Act (here, NOAA Fisheries) to address and cure the continuing deficiencies in its biological opinions, including the 2014 BiOp under review, and the opportunity presented by requirement under the National Environmental Policy Act that the federal action agencies (here, the Corps and BOR) prepare a comprehensive environmental impact statement that evaluates a broad range of alternatives that may finally break the decades-long cycle of court-invalidated biological opinions that identify essentially the same narrow approach to the critical task of saving these dangerously imperiled species. The federal consulting and action agencies must do what Congress has directed them to do.[10] [Emphasis added.]

Judge Simon held that an Environmental Impact Statement (EIS) was indeed required by NEPA in this case and that it would allow consideration of a broader range of alternatives than had previously been undertaken, for example, dam breaching, bypassing, or removal:

Congress enacted the National Environmental Policy Act to ensure a process in which all reasonable alternatives are given a “hard look” and all necessary information is provided to the public. In addition, a central purpose of an environmental impact statement is “to force the consideration of environmental impacts in the decisionmaking process.” For example, the option of breaching, bypassing, or even removing a dam may be considered more financially prudent and environmentally effective than spending hundreds of millions of dollars more on uncertain habitat restoration and other alternative actions.[11] [Emphasis added.]

The Judge emphasized that the alternatives analysis could and should include those which are outside of the lead agency’s jurisdiction, and would of necessity require Congressional authorization. “Alternatives that are outside the scope of what Congress has approved or funded must still be evaluated in the EIS if they are reasonable, because the EIS may serve as the basis for modifying the Congressional approval or funding in light of NEPA’s goals and policies.”[12]

The implications for the next round of NOAA Fisheries BiOp of combining a comprehensive EIS which would include evaluation of environmental impacts of alternative scenarios, with a fresh biological opinion, are dramatic and will no doubt present formidable challenges to the NOAA Fisheries and the action agencies.

Key ESA Holdings

We focus here on three important elements in the ESA analyses in Judge Simon’s opinion: the metric used in determining whether a salmonid species is on the path to recovery; whether NOAA Fisheries' habitat mitigation measures were reasonably certain to occur; and climate change.

NOAA Fisheries’ “Trending toward Recovery” Standard

Judge Simon heavily faulted NOAA Fisheries for concluding that their RPAs would not jeopardize the listed species’ likelihood of recovery if the species was “trending toward recovery.”[13] This, according to NOAA, would be the case if the population growth rate were anything greater than 1.0. A 1.0 growth rate means that the population is replacing itself – neither increasing nor declining. “Such a standard, however, does not take into account whether a population is already at a precariously low level of abundance.”[14] The District Court felt that such a standard would not likely assure the recovery of an already, appreciably diminished population. There was no connection in the BiOp between this metric and existing abundance levels and a timeframe needed to achieve those levels, “even roughly.”[15]

Uncertain Habitat Projects and Benefits

As with the 2008 BiOp, the Court found some of the action agency commitments to habitat improvement project too uncertain to be relied upon for the purposes of this biological opinion.[16] The uncertainty lay not only in whether the projects would be actually and reliably be completed, but also in whether the advertised benefits from those projects would be realized within projected time frames. In his review, the Judge laid out the “layers of uncertainty” entailed in predicting benefits from habitat improvement. It is uncertain, according to the Judge,

  • how much improvement to habitat quality each project will provide;
  • whether habitat quality improvements will translate into improvements in survival and overall condition during the portion of the fish’s life cycle in that habitat; and,
  • whether habitat improvements will correlate to improvements in survival over the full life cycle of the fish, resulting in greater numbers of fish returning to spawn.[17]

After considerable technical discussion, the Court found defects in NOAA Fisheries’ analyses in the BiOp at each level, including notable failures to provide a room for error in cases where exact outcomes were projected. Despite NOAA Fisheries’ repeated assertions that its habitat improvement projects will be completed, that they will meet adequate survival improvement standards, and its pleas to the Court to defer to its expertise, the Court held that the level of uncertainty was too great:

The flaws in the 2014 BiOp with respect to habitat improvement projects are not that NOAA Fisheries relied on habitat mitigation efforts to avoid jeopardy, but that some of the habitat projects relied on are not reasonably certain to occur and that NOAA Fisheries relied on habitat mitigation projects achieving the exact amount of extremely uncertain survival benefits required to avoid jeopardy. The Court shares Judge Redden’s previously-expressed concern that “[i]f NOAA Fisheries cannot rely on benefits from habitat improvement simply because they cannot conclusively quantify those benefits, they have no incentive to continue to fund these vital habitat improvements.” [Citation omitted.] The ESA, however, tips the scale toward listed species and requires that the risk that mitigation will not be achieved be placed on the project.[18]

Climate Change

The Court found that NOAA Fisheries’ analyses of the effects of climate change were incomplete and inadequate. It was unimpressed with NOAA Fisheries’ reliance upon rather dated and general climate change information in the 2008 BiOp. NOAA Fisheries, in the Court’s view, had information that climate change could undermine or eliminate the effectiveness of some of the BiOp’s habitat mitigation efforts “but it does not appear to have considered or analyzed that information.”[19]

The best available information indicates that climate change will have a significant negative effect on the listed populations of endangered or threatened species. Climate change implications that are likely to have harmful effects on certain of the listed species include: warmer stream temperatures; warmer ocean temperatures; contracting ocean habitat; contracting inland habitat; degradation of estuary habitat; reduced spring and summer stream flows with increased peak river flows; large-scale ecological changes, such as increasing insect infestations and fires affecting forested lands; increased rain with decreased snow; diminishing snow-packs; increased flood flows; and increased susceptibility to fish pathogens and parasitic organisms that are generally not injurious to their host until the fish becomes thermally stressed. Even a single year with detrimental climate conditions can have a devastating effect on the listed salmonids.[20]

The Court stated that NOAA Fisheries did not consider whether the RPA’s effectiveness would be diminished by climate change effects.[21] In a gradually warming world, would the BiOp’s mitigation requirements aimed at recovering salmonid species still be as effective as predicted? The Court did not know because, in its view, NOAA Fisheries dropped the ball: “In considering how the jeopardy metrics apply in the future, NOAA Fisheries assumed recent climate conditions would remain the same and did not engage in any analysis as to whether the survival benefits attributed to habitat actions would be diminished by the future effects of climate change.”[22]

The Court also faulted NOAA Fisheries’ conclusion that deteriorating ocean conditions “would not make a difference during the BiOp period,”[23] and its inadequate analysis of climate change effects on freshwater salmonid life stages, as well.[24] While Defendants vainly argued that some climate change science is still speculative, the Court was unmoved. To Defendants’ claim that NOAA Fisheries need not consider future climate effects because they are too uncertain, Judge Simon stated that “uncertainty does not excuse NOAA Fisheries from conducting an analysis using the best available science regarding climate change and its effects.”[25]

Conclusion

Judge Simons’ lengthy, detailed, and technical opinion will be carefully studied by NOAA Fisheries and the action agencies in order to try, once again, to craft an opinion that, once and for all, may pass muster with the Federal court. The twist here is that it must be accompanied by a NEPA analysis broadly investigating all reasonable alternatives for saving and recovering salmonids in the Columbia-Snake River basin. The clear admonition from the Court is for the action entities to think boldly and consider even drastic alternatives that might create a more realistic likelihood for survival and recovery, such as dam breaching, bypass, and/or removal. This will be a challenge because that analysis is supposed to include even potential, undoubtedly highly controversial actions outside of the jurisdiction of the agencies that would ultimately require future congressional approval.

For more information, contact Douglas MacDougal, or members of our Water Resources, Energy, or Litigation practice groups.

[1] No. 3:01-CV-00640-SI, 2016 WL 2353647 (D. Or. May 4, 2016) (herein referred to as the "Judge Simon Opinion").

[2] The action agency Defendants in the case were the U.S. Army Corps of Engineers and the U.S. Bureau of Reclamation.

[3] 42 U.S.C. §§ 4321 et seq.

[4] 16 U.S.C. §§ 1531 et seq.

[5] See generally Judge Simon Opinion at 2-4.

[6] Judge Simon Opinion at 2 & 7, citing Idaho Dept. of Fish & Game v. NMFS, 850 F. Supp. 886, 900 (D. Or. 1994), with emphasis added by Judge Simon.

[7] Judge Simon Opinion at 3, citing Nat’l Wildlife Fed. v. Nat’l Marine Fisheries Serv., 839 F. Supp. 2d 1117, 1131 (D. Or. 2011), with emphasis added by Judge Simon. See 50 CFR §402.2 for the definition of “reasonable and prudent alternatives,” abbreviated as “RPAs”.

[8] Judge Simon stated: “For more than 20 years, however, the federal agencies have ignored these admonishments and have continued to focus essentially on the same approach to saving the listed species — hydro-mitigation efforts that minimize the effect on hydropower generation operations with a predominant focus on habitat restoration. These efforts have already cost billions of dollars, yet they are failing. Many populations of the listed species continue to be in a perilous state.” Judge Simon Opinion at 7.

[9]The Court relied upon the recent case of San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 602, 640-42 (9th Cir. 2014). Judge Simon Opinion, at 4, note 21. “In Jewell, the Ninth Circuit held clearly and explicitly, for the first time, that action agencies adopting an ROD [Record of Decision] implementing a biological opinion generally must prepare an EIS. Jewell, 747 F.3d at 640-42.” Judge Simon Opinion at 4. The Judge also noted, “An environmental impact statement provides the public with an opportunity to comment and also requires the action agencies to consider all reasonable alternatives, regardless of whether there currently is a funding source or whether any particular alternative is reasonably likely to occur.” Judge Simon Opinion at 4.

Defendants argued that “because there have been decades of litigation involving various BiOps relating to the FCRPS and Plaintiffs have never before raised a NEPA claim, Plaintiffs have waived their right now to assert their NEPA claim.” The Court found this argument “unavailing.” Judge Simon Opinion at 53.

[10] Judge Simon Opinion at 4.

[11] Judge Simon Opinion at 62. Judge Simon was careful not to state what the NEPA analysis must conclude, but his conviction that dam breaching/removal must at least be comprehensively considered was evident in passages like this in several places in the opinion: “Although the Court is not predetermining any specific aspect of what a compliant NEPA analysis would look like in this case, it may well require consideration of the reasonable alternative of breaching, bypassing, or removing one or more of the four Lower Snake River Dams. This is an action that NOAA Fisheries and the Action Agencies have done their utmost to avoid considering for decades. Judge Redden repeatedly and strenuously encouraged the government to at least study the costs, benefits, and feasibility of such action, to no avail.” Judge Simon Opinion at 60.

[12] Judge Simon Opinion at 60-61.

[13] Judge Simon Opinion at 4.

[14] Id.

[15] Judge Simon Opinion at 5. The judge noted that the goal could be satisfied "with only infinitesimally small growth, despite populations that are already dangerously low in abundance…" Id.

[16] Citing Judge Redden’s language in that BiOp, the court reiterated:

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.”[NMFS III, 524 F.3d at 935–36] (finding agency’s “sincere general commitment to future improvements” inadequate to support no jeopardy conclusion). Mitigation measures supporting a biological opinion’s no jeopardy conclusion must be “reasonably specific, certain to occur, and capable of implementation; they must be subject to deadlines or otherwise-enforceable obligations; and most important, they must address the threats to the species in a way that satisfies the jeopardy and adverse modification standards.” Ctr. for Biological Diversity v. Rumsfeld, 198 F.Supp.2d 1139, 1152 (D.Ariz.2002) (citing Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir.1987)).

Judge Simon Opinion at 28. The reference to NMFS III is to Nat’l Wildlife Fed. v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 924 (9th Cir.2008).

[17] See Judge Simon Opinion at 30.

[18] Judge Simon Opinion at 37.

[19] Judge Simon Opinion at 6.

[20] Id.

[21] Judge Simon Opinion at 40.

[22] Id.

[23] Judge Simon Opinion at 42.

[24] Id.

[25] Judge Simon Opinion at 43. "The ESA, however does not require scientific certainty." Id.

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