The Endangered Species Act, the Federal Columbia River Power System, and the National Marine Fisheries Service.

• Author: Eames, Mark A.
• Position: Colloquium: Who Runs the River?

1. INTRODUCTION

   "Who runs the River? The Columbia River ... and the Courts' is the question posed for this conference. The more fundamental question, however, is, "How is the river to be run?" Legal standards are at the center of the implementation of the statutory programs and the recent court decisions concerning how the river is run.

   The National Marine Fisheries Service (NMFS) is one agency faced with applying the legal standards that decide how the Columbia River system ought to be run. NMFS implements the Endangered Species Act of 1973 (ESA)(1) for the conservation of Snake River salmon with the ultimate goal of recovering them to be sufficiently self-sustaining that they no longer require protection under the ESA. In particular, NMFS must apply the ESA's standards when advising the various operating agencies(2) of the Federal Columbia River Power System (FCRPS), a system including eight dams and reservoirs on the lower Columbia and Snake Rivers through which these endangered fish must migrate for their survival.

   In this presentation, I will review how NMFS's application of ESA standards to the FCRPS has evolved since the salmon were first protected under the ESA in 1991. In 1993, NMFS was challenged in Idaho Department of Fisk & Game v. National Marine Fisheries Service, and NMFS's implementation of the ESA standards invalidated by U.S. District Judge Malcolm Marsh.(3) This case demonstrates that the question of how the river is to be run is subject to divergent interpretations of the controlling ESA standards with a significant range of operational results for both fish and river system users.

   NMFS is one of many governmental entities in this region that influence, in a variety of contexts, how the river is run. NMFS is one of five federal agencies under the umbrella of the National Oceanic and Atmospheric Administration (NOAA), within the U.S. Department of Commerce. In addition to its ESA responsibilities, NMFS has other roles relevant to all anadromous fish stocks of the Columbia River Basin. Jurisdiction for the protection of the nation's fish and wildlife resources is delegated to two federal agencies. NMFS has jurisdiction over marine living resources, including anadromous fish throughout their salt and fresh water range, and the U.S. Fish and Wildlife Service (FWS) has lead responsibility for all other species of fish and wildlife in the Basin that are within federal jurisdiction.

   In addition to administering the ESA for listed species, NMFS provides advice concerning the needs of fish at federally operated or approved water projects. The Fish and Wildlife Coordination Act of 1976(4) requires federal agencies, including the U.S. Army Corps of Engineers and the Bureau of Reclamation, to consult with NMFS and the FWS before the project is authorized. For example, NMFS reviews applications for permits to dredge or fill wetlands and provides the permitting agency with an evaluation of the project's impact on anadromous fish and their habitat. Similarly, NMFS is one of the fishery agencies that provides recommendations to the Northwest Power Planning Council under the Northwest Power Act(5) on how the fishery resources should be protected and enhanced throughout the Columbia Basin. The Court of Appeals recently directed that a high degree of deference be given on fishery issues under the Northwest Power Act to NMFS and the other regional fishery agencies.(6)

   Further, the Federal Power Act (FPA)(7) requires applicants seeking licenses for hydroelectric projects from the Federal Energy Regulatory Commission (FERC) to consult with NMFS and other fish and wildlife agencies. Under the FPA, FERC must give special weight to NMFS fisheries recommendations,(8) and NMFS's prescriptions for fishways at such projects are mandatory license conditions.(9)

2. ESA IMPLEMENTATION

   NMFS performs a number of functions to implement the ESA for Snake River salmon. Under section 4,(10) NMFS determines whether species like the Snake River salmon should be listed for ESA protection and designates habitat critical for the listing. Also under that section, NMFS develops "recovery plans" that identify measures necessary for the survival, recovery, and de-listing of endangered and threatened species. Under section 7,(11) federal agencies must consult with NMFS concerning the effects of their activities on listed species and critical habitat. NMFS is also responsible for enforcing the prohibitions of section 9(12) of the ESA and for considering applications for section 10 permits that exempt nonfederal persons from section 9 liability.(13) Finally, NMFS carries out research programs designed to learn more about listed species and their requirements for survival and recovery.(14)

   The first consideration for implementing the ESA in each of these functions is the particular biology of the listed species. Pacific salmon pass through various life stages: from eggs laid in freshwater habitat, to juveniles that migrate to the ocean, to adults that return after two to five years in the ocean to spawn a new generation of salmon in the freshwater habitat of their origin. Each life stage has a different salmon mortality because of a variety of human activities and natural conditions. In addition to natural mortality, the level of salmon mortality in the egg-to-smolt life stage is affected by land management activities such as logging, livestock grazing, and mining. Morbility levels in the juvenile migrant stage are affected by the eight FCRPS dams and reservoirs through or around which salmon migrants must pass. These juvenile migrants compete for food and shelter with hatchery salmon that are released into the same river habitat and that often carry hatchery-bred disease. While in the ocean, salmon are subject to natural and human-caused factors, primarily fishing, that contribute to their mortality. Finally, on their return to upstream spawning habitats, the salmons' mortality rate is again affected, in part, by the hydroelectric system.

   In deciding to list each of the three Snake River salmon species for ESA protection, NMFS considered the various mortality causes since no single factor could be identified as the primary mortality agent.(15)

   After making these listing determinations, NMFS necessarily shifted its focus to individual federal agency actions and their likely effect on listed salmon. Section 7(a)(2) of the ESA is a...