Final Columbia River EIS Considers Breaching Four Lower Snake River Dams

Federal agencies recently issued a Final Environmental Impact Statement offering their first comprehensive analysis in 25 years of the effects of operating the Columbia River System’s 14 federal hydropower projects (“CRSO FEIS”) pursuant to the National Environmental Policy Act (“NEPA”). Prepared in conjunction with Biological Opinions evaluating System operations for compliance with the Endangered Species Act (“ESA”), a principal focus of the CRSO FEIS is how a panoply of various measures and six alternative overall strategies would affect salmon and steelhead listed under that Act.

The CRSO FEIS is noteworthy in large measure because it represents the first time that federal agencies have formally considered an alternative providing for breaching the four Lower Snake River dams that constitute an integral part of the System. The co-lead agencies (the U.S. Army Corps of Engineers, Bureau of Reclamation, and Bonneville Power Administration) considered this dam-breaching alternative primarily in response to the federal district court opinion[1] in which Judge Simon held that the agencies’ previous NEPA analyses of System operations were either outdated or too narrow in scope, and strongly intimated in dictum that any future NEPA analysis that did not address such an alternative in detail would fail to satisfy that statute’s requirement to consider a reasonable range of alternatives. The Preferred Alternative identified in the CRSO FEIS for the most part tracks the flexible spill strategy the agencies have followed during the remand period following the court’s 2016 ruling, but their detailed consideration of the Lower Snake dam-breaching alternative nevertheless represents a significant milestone. It systematically and expressly articulates the essential trade-offs between fish conservation and hydropower generation, reliability, and flexibility that in many respects lie at the heart of the public debate over breaching these dams – a debate that has been raging for decades.

Given the immensity of the CRSO FEIS – the main body of which is nearly 2500 pages and, along with its 24 appendices, runs to nearly 12,000 pages – this article summarizes some of its major features ahead of the agencies’ release of a final decision that is expected by the end of the month, and offers a few insights on how a prospective Biden Administration, if elected, might tackle these issues moving forward, particularly in light of the analysis in the new FEIS.

Importance of Modeling to Projecting Effects to Listed Fish Species

The CRSO FEIS breaks down its analysis of effects into 17 categories of natural resources, values, and interests, from Hydrology and Hydraulics to Indian Trust Assets and Tribal Perspectives and Interests. As referenced above, its main focus is the 13 salmon and steelhead species listed under the ESA. The trade-offs reflected in the FEIS largely focus on taking steps to benefit those species vis-à-vis hydropower generation and operations to serve other ends (such as supporting the use of other renewable energy sources that are variable such as solar and wind).

In addressing effects to listed fish species, the co-lead agencies relied heavily on the use of models. This follows in large measure because of the multitude of biotic and abiotic factors and variables that affect the health, distribution, and abundance of species affected by the System at their various life stages. Modeling seeks to account for this complexity by relying on generally observed trends to project, at least in relative terms, how modifying one or more features of System operations might be expected to influence fish viability metrics over time. Unlike inquiries that proceed on the basis of the classic scientific method involving the testing of a discrete hypothesis that can be replicated under tightly controlled conditions and seek to keep all but the independent variable constant, however, using a model to make projections about effects on the life and persistence of species in the natural world is a considerably different exercise. In that light, the CRSO FEIS used multiple models that produced quite different results regarding expected projected benefits to fish species from potential System actions such as increased spill and dam removal, and based its projections of likely effects on a consideration of all such results.

Multi-faceted & Multi-layered Purpose & Need Statement

NEPA’s implementing regulations provide that an EIS must include a “Purpose and Need” statement that, as its name implies, “briefly specif[ies] the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.”[2] The Purpose and Need Statement is critically important to the scope of any NEPA analysis because it is the filter used to determine which alternatives are worthy of full-blown, detailed consideration.

In addressing the System’s primary purposes, the CRSO FEIS looks to the statutory authority under which the Congress directed the Corps and Bureau to construct, operate, and maintain its 14 projects, comprising dams and associated reservoirs across four states (Oregon, Washington, Idaho, and Montana). The FEIS broadly articulates these purposes as flood control, navigation, hydropower production, irrigation, fish and wildlife conservation, recreation, municipal and industrial water supply, and water quality, from which it extrapolates a longer list of 13 more specific purposes. The overarching need to which the co-lead agencies state they are responding is “reviewing and updating the management of the System, including evaluating measures to avoid, offset, or minimize impacts to resources affected by the management of the System.” The FEIS also cites the need to respond to the rulings and observations of the court in NWF v. NMFS.

The co-lead agencies then took a further step to identify eight principal objectives deriving from the Purpose and Need Statement to be achieved in formulating a strategy for future System operations designed to comply with the ESA, even though such a procedural measure is not prescribed by NEPA’s implementing regulations. These objectives then formed the primary criteria against which each of the different action alternatives were evaluated in the FEIS.

Range of Alternatives

The alternatives section in an EIS was long referred to as its “heart” in NEPA’s implementing regulations.[3] In approaching this element for purposes of the CRSO FEIS, the co-lead agencies utilized a systematic process outlined in a 300-page appendix. This process ultimately led to the selection of six alternatives for in-depth consideration, five of which are characterized as Multiple-Objective (“MO”) alternatives, including one identified as “Preferred,” as well as a “No Action” alternative that by regulation is required to be analyzed in every NEPA document. Each of the MO alternatives in turn consist of a series of measures categorized as either Structural, which involve a physical change to one or more of the 14 System projects, such as installation or modification of a feature in a dam’s spillway or fish ladder; or Operational, which involve a change in how water is stored or released at projects, or prescribe methods for transporting juvenile fish making their way downstream to the ocean around one or more projects.

Because operating the System is a quintessential ongoing action, the CRSO FEIS defines the “No Action” alternative as those operations and other measures in effect or planned when preparation of the document commenced in September 2016. The five action alternatives analyzed in detail can be described in shorthand terms as follows:

• Using a Block Spill Design to provide additional benefits to listed fish species (MO1);

• Prioritizing hydropower production and flexibility to prioritize reducing Greenhouse Gas emissions and to rely mostly on structural and transportation measures to benefit fish (MO2);

• Breaching the four lower Snake River Dams per the Court’s strong admonition that such an alternative be considered in detail in the CRSO FEIS (MO3);

• Maximizing spill for the benefit of ESA-listed salmonids (MO4); and

• The Preferred Alternative, based on a flexible spill strategy designed to allow for adjusting operations to allow for achieving the best balance among the System’s many purposes and objectives based on the dynamic circumstances in real time, as further explicated below.

Dam-Breaching Alternative

Because it has never before been considered in detail, and given the intense public interest in and strongly held views on – both pro and con – breaching the four Lower Snake River dams, a few additional remarks about how the CRSO FEIS analyzes MO3 are in order. First, the FEIS explains that new authorizing legislation and appropriations would be required to implement MO3 given that System projects were built and are operated pursuant to statutory direction. As the court noted in strongly urging consideration of the alternative in NWF v. NMFS, however, the version of NEPA’s implementing regulations under which the CRSO FEIS was prepared provide that reasonable alternatives do not need to be “within the jurisdiction of the lead agency.”[4]

Second, the CRSO FEIS reveals, as was widely expected, that its modeling showed the greatest predicted potential benefits for listed Snake River salmon and steelhead from MO3 among the alternatives considered in detail, but goes on to describe that it would not allow operation of the Lower Snake River dams to fully serve their other congressionally authorized purposes of navigation, hydropower, recreation, and water supply. More specifically, the FEIS explains that MO3 would not satisfy the objective of ensuing a reliable and economic power supply for the Pacific Northwest, due in large measure to the reduction in hydropower generation that would result from breaching the dams as well as the loss of storage capabilities that greatly enhance the System’s flexibility to readily supply load as needed to help avoid the risk of power shortages.

The “Preferred Alternative”

The CRSO FEIS describes the Preferred Alternative as the one reflecting the best “balance” between the central trade-off presented in operating the System, which is managing the water that flows through it in a manner designed to benefit listed species by, among other things, increasing spill at its multiple dams, while at the same time avoiding unduly undermining the System’s other main objectives, including most directly hydropower generation, reliability, and flexibility. The chief premise on which the Preferred Alternative seeks to achieve this balance is a flexible operations strategy that calls for spilling more water for fish passage when hydropower generation is less valuable and spilling less water when it is more valuable. This approach relies heavily on adaptive management and builds on the Flexible Spill Agreement worked out in response to the injunction the court entered following its ruling on the merits in which it ordered the co-lead agencies to seek consensus with the other parties on a plan to provide for increased spill at System projects so as to benefit listed fish species in the specific context of the features and purposes of each project and in light of the other objectives the System is designed to serve.

Principal Implications & Prospective Next Steps

As explained above, the CRSO FEIS evaluates five action alternatives in detail, including for the first time one that would provide for breaching the four Lower Snake River dams, which, as the Court itself openly acknowledged in NWF v. NMFS, it has been trying to get the co-lead agencies to consider adopting for decades. 184 F. Supp. 3d at 942 (describing the alternative as one the federal agencies under various administrations “have done their utmost to avoid considering for decades,” notwithstanding the Court’s having “repeatedly and strenuously encouraged the government to at least study the costs, benefits, and feasibility of such action, to no avail”).

At the same time, it is almost certain the co-lead agencies will go ahead and eventually adopt the Preferred Alternative in their Record of Decision scheduled for issuance by September 30, 2020. This follows for two main reasons. First, the Preferred Alternative forms the basis of the “No Jeopardy” Biological Opinions both NOAA Fisheries and FWS issued (included as Appendices to the CSRO FEIS), and thus confirm the consulting agencies’ position that the Preferred Alternative complies with the co-lead agencies’ substantive ESA duties. Second, as has been conclusively established since the Supreme Court’s opinion in Strycker’s Bay Neighborhd. Council v. Karlen, 444 U.S. 223 (1980), NEPA’s mandates are procedural in nature only, and merely require federal agencies to consider environmental effects, not give them priority.

Looking a little further ahead, it seems unlikely that a prospective Democratic Administration would come to a different result with respect to potentially preferring or adopting an alternative that would breach the four Lower Snake River dams. As an initial matter, as referenced above, the proposal is one the court has been unsuccessfully attempting to get the United States to seriously consider for decades now under Administrations of both parties. Indeed, the court previously rejected multiple Biological Opinions issued during the Obama Administration in which Joe Biden served as Vice-President. See NWF v. NMFS, 184 F. Supp. 3d 861 (2014 Biological Opinion); 839 F. Supp. 2d 1117 (D. Or. 2011)(2010 Amended Biological Opinion). In addition, as explained above, dam breaching would require affirmative congressional authorization and funding to implement, and thus, it would also almost assuredly require a major shift in the composition of the Congress to the effect that Democrats would need not only to retain control of the U.S. House of Representatives and obtain an effective majority of 50 seats in the U.S. Senate to take control of that chamber as well (given that a Democratic Vice-President could vote to break any ties), but would instead need at least 60 Senate seats (presuming a straight party-line vote in sync with a new Administration) given the Senate’s three-fifths rule governing cloture.[5]  

Nevertheless, the detailed consideration of the dam-breaching alternative can be expected to have major repercussions in both the upcoming litigation that is almost certainly to ensue upon the agencies’ imminently expected final decision as well as on the decades-long debate in the region over the future of hydropower. In the most immediate sense, it makes it considerably more likely the co-lead agencies will be able to prevail on the NEPA claims that will almost inevitably be pursued to challenge that decision, given that they have now done what the court openly acknowledged it has been urging them to do in multiple previous rounds of litigation over System operations, namely to explicitly consider breaching the Lower Snake River dams.

On a broader scale, such consideration lays the analytical groundwork for potential later consideration of a determination to breach one or more of the four Lower Snake River dams. It does so in large measure by systematically laying out the economic costs and other trade-offs associated with such a policy decision. That is, the comprehensive analysis in the CRSO FEIS of the array of likely effects from breaching those dams provides a concrete, explicit rendering of both how that measure would mitigate those dams’ undeniable long-standing impacts on listed fish species, while at the same time undermining certain other purposes of the System on which the region has come to depend since its completion. Bringing these trade-offs into even starker relief in the current political milieu are the facts that hydropower is renewable, carbon-free, and well-suited to support and complement other forms of renewable energy that are variable and non-dispatchable such as solar and wind. Finally, simply talking about dam breaching on the Lower Snake elevates the political discussion around its feasibility, as the “genie is out of the bottle” for such a prospect. Only time will tell whether analysis will ultimately lead to adoption.

For more information on this topic, please contact Stephen Odell. 

[1] National Wildlife Fed’n v. National Marine Fisheries Serv., 184 F. Supp. 3d 861 (D. Or. 2016)(“NWF v. NMFS”)

[2] The new version of NEPA implementing regulations that went into effect as of Sept. 14, 2020, retains a similar, but slightly varied, formulation of this duty. 85 Fed. Reg. 43,304, 43,365 (July 16, 2020)(40 C.F.R. § 1502.13).

[3] This characterization is not carried forward in the new version of regulations effective as of Sept. 14, 2020. 85 Fed. Reg. 43,304, 43,365 (July 16, 2020)(40 C.F.R. § 1502.14).

[4] This is a provision that, again, was not carried forward in the new version of the NEPA implementing rules that went into effect on Sept. 14, 2020. 85 Fed. Reg. 43,304, 43,365 (July 16, 2020)(40 C.F.R. § 1502.14).

[5] STANDING RULES OF THE SENATE, S. DOC. NO. 113-18, SENATE RULE XXII.2.