Beyond the parity promise: struggling to save Columbia Basin salmon in the mid-1990s.

• Author: Blumm, Michael C.
• Position: Symposium on Northwest Water Law

1. INTRODUCTION II. AN OVERVIEW OF MAINSTEM RESTORATION MEASURES

   A. Inriver Migration: Flows, Drawdowns, and Spills

   B. Out-of-River Migration: Barging and Trucking III. JUDICIAL REJECTION OF SALMON RESTORATION PLANS

   A. Establishing the Parity Promise

   B. Listing Salmon Under the Endangered Species Act

   C. Idaho Department of Fish & Game v. National Marine

   Fisheries Service: Rejecting the Status Quo

   D. Northwest Resource Information Center v. Northwest

   Power Planning Council: Reviving the Parity Promise IV. Responding to the Courts: The Competing Salmon

   RESTORATION PLANS

   A. The 1994 Amendments to the Columbia Basin Fish and

   Wildlife Program

   1. River Flows

   2. Reservoir Drawdowns

   3. Spills

   4. Water Purchases

   5. Transportation

   6. Hatchery Production

   7. Summary

      B. The 1994-98 NMFS Biological Opinion

   1. River Flows

   2. Reservoir Drawdowns

   3. Spills

   4. Water Purchases

   5. Transportation

   6. NMFS's Recovery Plan and BPA's System Operation

      Review

      C. The Tribal Anadromous Restoration Plan

   1. River Flows

   2. Reservoir Drawdowns

   3. Spills

   4. Transportation

   5. Hatchery Production

   6. Summary

      D. Comparing the Three Salmon Restoration Plans

   1. River Flows

   2. Reservoir Drawdowns and Spills

   3. Transportation V. FAILING TO IMPLEMENT THE NMFS BIOLOGICAL OPINION IN 1995

      A. Flow Augmentation Measures

   1. Spring Flows in the Snake

   2. Spring Flows in the Columbia

   3. Summer Flows in the Snake

   4. Summer Flows in the Columbia

   5. Water Supplies for Fish Flows

      1. Water from the Upper Columbia Reservoirs

      2. Water from the Snake Reservoirs

      B. Spill Measures

      C. Reservoir Drawdowns VI. IMPOSING A FISH AND WILDLIFE "BUDGET," RESTRUCTURING RIVER

      Governance, and Improving Salmon Science

      A. BPA's Financial Crisis

      B. New Industrial Power Contracts and the "Stranded Costs"

      Issue

      C. The Fish and Wildlife "Budget" and the Concept of

      Foregone Hydropower Revenues

      D. Fish and Wildlife Governance

      E. Improving the Science of Salmon Restoration

   1. The Report of the Independent Scientific Group

   2. Senator Gorton's Science Rider VII. CONCLUSION: THE BURDEN OF UNCERTAINTY AND SALMON RESTORATION

1. INTRODUCTION

   In 1980, the Northwest Power Act ordered "parity" between salmon protection and hydroelectric generation in the operation of the Federal Columbia River Power System (FCRPS).(1) A decade and a half later, salmon restoration efforts under the 1980 statute were eclipsed by the directives of the Endangered Species Act (ESA).(2) By the mid-1990s, the saga of Columbia River salmon restoration began to resemble a morality play, as all three branches of the federal government, as well as the region's states and Indian tribes, were actively involved in suggesting, promulgating, critiquing, or litigating various salmon plans aimed at reversing the alarming declines suffered by the region's signature natural resource. While salmon restoration seemed to have clearly moved beyond the "parity promise" of the Northwest Power Act,(3) the attention seemed to do the salmon little good, as run sizes, particularly those of the endangered Snake River stocks, continued to plummet.(4)

   Two landmark judicial opinions called attention to the ineffectiveness of salmon restoration efforts in 1994. Both the Ninth Circuit and the federal district court of Oregon characterized the plans promulgated by the Northwest Power Planning Council (Council) under the Northwest Power Act and the National Marine Fisheries Service (NMFS) under the ESA as substantively inadequate. The Ninth Circuit faulted the Council's plan for failing to give proper deference to the views of fishery agencies and for adopting river flow measures advocate. by hydropower interests, despite what the court considered an "overwhelming consensus among [fishery] agencies and tribes in favor of significantly higher flows and more scientifically-based biological objectives."(5) The district court struck down NMFS's 1993 biological opinion (BiOp) on Columbia Basin hydroelectric operations because it was "too heavily geared towards a status quo that has allowed all forms of river activity to proceed in a deficit situation," resulting in "relatively small steps, minor improvements and adjustments--when the situation literally cries out for a major overhaul."(6) This unusual judicial impatience with state and federal restoration plans followed widespread claims that the plans relied too heavily on artificial transport of juvenile salmon by barge and truck, instead of restructuring the hydroelectric system to make the river a safer environment for migrating salmon.(7)

   In part, the apparent ineffectiveness of restoration efforts was due simply to the fact that the plans are new, and the salmon life cycle is long. Even successful plans will take at least four or five years, and no doubt longer, to bear fruit. This inherent time lag makes meaningful evaluation of remedial measures impossible in the short run, and difficult over the long run.(8) The lack of feedback as to what is and is not working helped to spawn considerable intergovernmental disagreement about the path salmon restoration ought to take.

   Many of the disagreements occasioned by the scientific uncertainty were encapsulated in the governmental responses to the 1994 court decisions. First, in late 1994, the Council revised its Columbia Basin Fish and Wildlife Program, calling for keeping juvenile salmon in the river, not barging or trucking them, except in extremely low river flows.(9) For the first time, the Council called for significant drawdowns of mainstem reservoirs to increase flow velocities to speed salmon migration.(10) Second, less than three months later, in early 1995, NMFS released a revised BiOp, to comply with the ESA, which did not call for reservoir drawdowns, postponing a decision on them pending further study.(11) Instead, NMFS prescribed de tailed changes to hydroelectric project operation to provide increased flows without drawdowns.(12) Because the new BiOp continued heavy reliance on barging and trucking juvenile salmon, it prompted another lawsuit from environmentalists.(13) Finally, in mid-1995, a coalition of Columbia Basin Indian tribes with treaty fishing rights released their own salmon restoration plan.(14) The tribal plan resembled the Council's, in that its premise was reliance on inriver transport of juvenile salmon, and it endorsed reservoir drawdowns.(15) However, the tribal plan was more aggressive than the Council's program in calling for the use of hatchery supplementation, a reflection of the tribes' greater faith in the efficacy of artificial production. This in turn may be a product of the fact that the tribal goal, restoring salmon to historic levels of abundance,(16) is more ambitious than the Council's goal of doubling run sizes without the loss of biological diversity.(17)

   During 1995, hydroelectric operators claimed to implement the NMFS BiOp,(18) since only that plan was thought to possess binding authority.(19) However, an examination of actual 1995 hydroelectric operations reveals that the operations departed substantially from the NMFS BiOp.(20) These departures also became the subject of a court challenge.(21)

   1995 also witnessed considerable congressional activity related to salmon restoration. The most prominent legislative proposal was one that would have waived federal environmental laws and imposed a "cost cap" on federal expenditures for Columbia Basin fish and wildlife measures.(22) This was the product of an effort to safeguard the financial viability of the Bonneville Power Administration (BPA), the region's federal electric power wholesaler,(23) which has the burden of paying most of the cost of salmon recovery.(24) Congress eventually decided against waiving environmental laws and imposing a legislative cost cap after federal and regional negotiators brokered an agreement in which federal agencies agreed to establish a six-year "budget" that will have many of the same effects as the proposed cost cap, but which includes a contingency fund to cover unanticipated costs and waives no environmental laws.(25) Disagreements over the details of the budget prevented the signing of a memorandum of agreement codifying the publicized budget for nearly a year, during which the budget was transformed into two budgets, one covering BPA's out-of-pocket expenditures on fish and wildlife measures, the other covering changes in hydroelectric operations to benefit fish migration.(26) Although it chose not to cap fish and wildlife costs, Congress did instruct the Council to undertake a study of Columbia Basin fish and wildlife "governance" and make suggestions as to how fish and wildlife decision making in the Columbia Basin could be improved.(27)

   In 1996, Congress again waded into salmon recovery issues, when the Energy and Water Development Appropriations Act(28) amended the Northwest Power Act to establish a scientific review panel that would make recommendations on fish and wildlife measures funded by BPA.(29) Although this provision, known as the Gorton Science Rider, largely duplicated an interagency agreement signed earlier in 1996 between NMFS and the Council,(30) the amendment might be interpreted to change the criteria by which fish and wildlife measures are judged and perhaps to effectively overturn the deference to fishery agencies and tribes required by the Ninth circuit.(31)

   Underlying all of this legislative, administrative, and judicial activity lay fundamental uncertainties in the science of salmon restoration. In recent years, a number of scientific reports have issued conflicting opinions as to the efficacy of transporting juvenile salmon by barge and truck versus inriver migration, the level of river flows necessary to optimize inriver migration, and the appropriateness of reservoir drawdowns.(32) This scientific uncertainty has allowed proponents and opponents of barge and truck transport, increased flows, and reservoir drawdowns to argue that their preferred approach was scientifically supported, while contending that the...