Avoiding dam breaching through offsite mitigation: NMFS's 2000 biological opinion on Columbia Basin hydroelectric operations.

• Author: Blumm, Michael C.
• Position: National Marine Fisheries Service

1. INTRODUCTION

   For the past two decades saving Columbia River salmon has been at the top of the Northwest's, if not the nation's, natural resource agenda. Beginning with the enactment of the Northwest Power Act in 1980, (1) and continuing with the promulgation of the Columbia Basin Fish and Wildlife Program in 1982, (2) the ratification of the Pacific Salmon Treaty in 1985, (3) and the Endangered Species Act (4) listings of the 1990s, (5) saving salmon became the focus of federal, state, and restoration efforts. Despite these efforts, wild salmon runs continue to decline. (6) The most controversial recent restoration effort was the promulgation by the National Marine Fisheries Service (NMFS) of a biological opinion (BiOp) in 2000 on five years of Columbia Basin hydroelectric operations and the release of an accompanying nonbinding salmon recovery plan by a federal interagency group known as the Federal Caucus. (7) The 2000 BiOp will govern Columbia Basin hydroelectric operations, the chief cause of Columbia Basin salmon mortalities, (8) during 2001 through 2005.

   An earlier BiOp on hydroelectric operation had been struck down in court because of its reliance on overly optimistic assumptions and its failure to consider the views of state and tribal biologists. (9) A revised BiOp survived judicial scrutiny, even though the reviewing court questioned NMFS's willingness to tolerate high risks of salmon extinction. (10) Preparation of the 2000 BiOp became especially controversial when a number of scientific studies indicated that the best means of restoring some of the most imperiled salmon, the Snake River runs, was breaching four federal dams on the lower Snake River. (11) Moreover, several economic studies suggested that breaching the four dams was economically affordable. (12)

   The 2000 BiOp on hydroelectric operations did not, however, endorse dam breaching. After an early draft of the BiOp suggested that NMFS would recommend breaching if specific performance standards were not achieved, (13) the final BiOp reversed course, maintaining the performance standards but not promising to recommend dam breaching if they were not met. (14) Since President George W. Bush campaigned specifically against dam breaching, (15) it is likely that whatever the BiOp said about dam breaching in the future may be academic during his presidency. Nevertheless, the BiOp's eschewing of the breaching option prompted lawsuits. (16)

   In order to avoid breaching the lower Snake dams, the 2000 BiOp not only adopted a series of performance standards for hydroelectric operations, it relied heavily on non-hydroelectric activities, such as improved hatchery operations and habitat protection and restoration, to conclude that the ensuing five years of the hydroelectric operations would not jeopardize the continued existence of listed salmon runs. (17) These measures, referred to by the BiOp as "offsite mitigation," (18) were promised in the accompanying nonbinding salmon recovery plan developed by a coalition of federal agencies. (19) In effect, the BiOp's justification for its "no jeopardy" conclusion was its link to this nonbinding plan, which was designed to affect agencies other than those controlling the operations of the federal hydroelectric system, the actions that triggered the BiOp. (20) Although this approach reflected an attempt to influence all aspects of the salmon life cycle, it deflected attention from salmon mortalities caused by hydroelectric operations. It also raised serious questions about whether a BiOp may lawfully assign responsibilities for avoiding jeopardy to agencies other than those whose proposed activities triggered ESA consultation requirements. (21)

   This Article analyzes the 2000 BiOp and the accompanying Federal Caucus plan. Part II considers the context in which the 2000 BiOp was promulgated, including widespread political opposition to the proposed breaching of the four federal dams on the Lower Snake River. Part III evaluates the BiOp itself, focusing on how NMFS managed to substitute hydroelectric performance standards and "offsite mitigation" for dam breaching and still produce a "no jeopardy" opinion. Part IV discusses the Federal Caucus plan, the success of which is critical to the BiOp's conclusions, and questions whether its promises will bear fruit. Part V evaluates the legal challenges to the 2000 BiOp and suggests that those challenges may succeed. The Article concludes that, even if the BiOp survives court challenges, the numerous uncertainties associated with its implementation make it an unlikely vehicle to restore imperiled Columbia Basin salmon runs. A salmon restoration plan more likely to succeed is that produced by the Columbia River tribes with treaty fishing rights, but that plan has been largely ignored or forgotten. (22) Consequently, it is hard to be optimistic that the promises made about salmon recovery in 2000 will reverse the past twenty years of failure.

2. THE CONTEXT

   This Part places the 2000 BiOp on Columbia Basin hydroelectric operations in context by first examining the relevant provisions of the Endangered Species Act (ESA). Then, it explains the previous BiOp on Columbia Basin operations and the ensuing calls for breaching the Lower Snake River dams.

   1. A Brief Overview of the Endangered Species Act

      All federal agencies have an affirmative duty to ensure that actions they fund, authorize, or carry out are not "likely to jeopardize the continued existence" of listed endangered or threatened species or destroy or adversely modify their critical habitat. (23) To fulfill this obligation, a federal agency must consult with either NMFS or the United States Fish and Wildlife Service (FWS) concerning any proposed action that may affect a listed species or its habitat. (24) A biological opinion is the ultimate product of this consultation, in which the consulting agencies conclude whether a proposed action is likely to "jeopardize the continued existence" of a listed species or adversely modify or destroy its critical habitat. (25) The consulting agencies must use the best available commercial science in making jeopardy determinations. (26)

      If a consulting agency concludes that an action will likely cause jeopardy to the species or adverse modification to its critical habitat, the consulting agency must propose "reasonable and prudent alternatives" (RPAs) that will avoid jeopardy or adverse modification. (27) Jeopardy opinions are not legally binding on the action agencies; however, they carry significant weight with reviewing courts. (28) Thus, while action agencies are not required to abide by the consulting agencies' recommendations, their failure to do so will likely result in a court's conclusion that the action agency has violated its duty to avoid jeopardy to listed species. (29)

      In addition to avoiding jeopardy and adverse modification, all persons, including governmental agencies at all levels, are prohibited from "taking" endangered animals. (30) Despite this prohibition, government agencies may be excused from liability for taking listed species through an incidental take statement issued in conjunction with a "no-jeopardy" biological opinion. (31) Such a statement may include its own set of reasonable and prudent measures with which an agency must comply to minimize the impact of the allowed take. (32) The incidental take statement may cover any individual acting within its scope, even though the statement is issued specifically to the federal action agency. (33) Nonfederal agencies, private corporations, and individuals may also receive permission to incidentally take endangered animals by submitting a habitat conservation plan (HCP). (34) Based on the adequacy of the HCP and the findings specifically related to the proposed take, the consulting agency may issue an incidental take permit to nonfederal applicants. (35) For both federal and nonfederal actions, the underlying requirement is that incidental takings must avoid jeopardy to the listed species. (36)

   2. The Movement Toward Dam Removal

      NMFS's implementation of ESA protections through its various BiOps has not led to the recovery of listed salmon. Indeed, at the time NMFS issued its 1995 BiOp on the hydropower operations in the Columbia Basin, (37) only three stocks of salmon had been listed as endangered or threatened under the ESA. (38) Since 1995, NMFS has listed another nine species of Columbia Basin salmon as endangered or threatened. (39) Some critics have argued that these additional listings provide a strong indication, if not conclusive proof, that NMFS's BiOps have failed to stem the decline of salmon. (40)

      Even before NMFS issued its 1995 BiOp, however, salmon advocates had begun to call for dam breaching as the only sure way to restore salmon populations. (41) Cecil Andrus, the former governor of Idaho, first suggested that drawing down the four lower Snake River reservoirs in Idaho would improve juvenile salmon survival. (42) His suggestion was followed by a series of scientific reports that became progressively more adamant about the need to restore natural river flows and reduce reliance on artificial transportation. (43) The first plan to call for reservoir drawdowns and restricted artificial transportation was drafted by a coalition of state, federal, and tribal representatives. (44) The plan recommended drawing down the four lower Snake River reservoirs to "minimum operating pools" between April 15 and December 15 of each year and releasing water from upper basin reservoirs for flow augmentation. (45) The plan did not call for dam breaching; subsequent scientific reports, however, rapidly moved in that direction.

      In 1994, Indian treaty tribes and state and federal fish and wildlife agencies commissioned an independent scientific peer review to study the artificial transportation program. (46) The resulting report concluded that transportation would not halt the decline of listed salmon...