Practiced at the art of deception: the failure of Columbia Basin salmon recovery under the Endangered Species Act.

• Author: Blumm, Michael C.

1. INTRODUCTION II. THE RELATIONSHIP BETWEEN HYDROPOWER AND SALMON A. The Legal Framework: The Northwest Power Act and the Endangered Species Act. B. Current Status of the Columbia River Basin's Listed Salmon Runs 1. Snake River Runs 2. Columbia River Runs 3. Willamette Paver Runs 4. The Outlook C. A Lethal River: Juvenile Migration 1. Out-of-River Migration: The Juvenile Transport Program 2. In-River Migration: Of a Faster Paver, Spills, and Dam Breaching a. A Faster River b. Spill c. Dam Breaching III. A COMPARATIVE ANALYSIS OF THE HYDROPOWER BIOPS--1992 THROUGH 2000: A HISTORY OF FORM OVER FUNCTION A. 1992 and 1993 Biological Opinions: Foreshadowing the Future B. The 1995 BiOp: Elaborate Maintenance of the In-River Status Quo 1. The Jeopardy Analysis 2. The Reasonable and Prudent Alternative 3. 1995 BiOp Litigation C. The 2000 BiOp: More Status Quo (with Offsite Mitigation Promises) 1. The Jeopardy Analysis 2. The Reasonable and Prudent Alternative a. Performance Standards, Planning and Review b. Hydropower Operation Mitigation c. Offsite Mitigation 3. Judicial Rejection of the 2000 Biological Opinion IV. THE BRIEF RISE AND FALL OF THE BPA/CORPS PROPOSAL TO CURTAIL SUMMER SPILL A. The 2004 Proposal to Curtail Summer Spill B. The District Court's Spill Decision V. THE 2004 BIOP--NOAA'S NEW ANALYTICAL FRAMEWORK: A NOVEL WAY OF MAINTAINING THE STATUS QUO A. 2000 BiOp on Remand: Making It ESA Compliant? B. NOAA's New Analytical Framework Designed to A void Jeopardy VI. JUDICIAL REJECTION OF THE 2004 BIOP A. Requiring a "Reasonable Rationale "for Agency Departures from Past Practices B. The Four Fatal Flaws in the 2004 BiOp 1. Segregating "Non-Discretionary" Operations from the Proposed Action 2. The Comparative vs. Aggregative Approaches to Jeopardy. 3. Flawed Critical Habitat Determinations 4. NOAA's Omission of Recovery from the Jeopardy Analysis VII. THE AFTERMATH OF NWF v. NMFS III: JUDGE REDDEN "RUNS THE RIVER"? A. Injunctive Relief: "Splitting the Baby". B. Shooting the Messenger. The Dismantling of the Fish Passage Center. C. Judge Redden's Remand: Must the Court Run the River? VIII. CONCLUSION I. INTRODUCTION

   For at least a quarter century, national policy has been to restore the Columbia Basin's salmon rims. (1) Once the world's largest, the Columbia's salmon runs were decimated first by over-fishing and later by water project development, which transformed the basin into the largest interconnected hydroelectric system in the world and created a seaport in Idaho, some 465 miles inland. (2)

   After unsuccessfully experimenting with massive reliance on hatcheries to substitute for salmon habitat lost to water project development, (3) Congress ordered modifications in the operations of Columbia Basin dams in an innovative 1980 statute, the Northwest Power Act. (4) Although the drafters of that statute were quite optimistic that those operational changes and other modifications to the dams would reverse the salmon's decline, (5) the measures instituted under the 1980 statute were unable to prevent the listing of several salmon species under the Endangered Species Act (ESA) in the early 1990s. (6)

   The ESA era ushered in by the listings began with great anxiety among the electricity, navigation, and other river-dependent industries that so-called draconian ESA measures would elevate salmon protection over hydropower generation or barge transport of agricultural goods. But over a dozen years after the initial listings, the issuance of several biological opinions (BiOps)--designed to avoid jeopardy to listed salmon--produced no such reallocation of Columbia Basin hydrosystem priorities.

   Actually, a good case can be made that the salmon listings have done much more to demonstrate the economic sensitivity of ESA implementation than to restore salmon spawning in the Columbia Basin. (7) This surprising result has been reinforced by developments in the twenty-first century. Notably, during the 2001 West Coast electricity crisis, hydrosystem (8) operators completely abandoned salmon-protective operations. (9) In fact, the Bush Administration's entire approach to Columbia Basin salmon has been dominated by deception. For example, when a federal judge rejected a Clinton Administration BiOp on hydrosystem operations in 2003 because its provisions were not "reasonably certain" to be implemented, (10) the Bush Administration seized the opportunity to completely revise the standards BiOps must satisfy under the ESA. (11) The result produced a new BiOp in late 2004, in which the Bush Administration attempted to reverse an earlier conclusion that Columbia Basin hydrosystem operations jeopardized listed salmon runs--a brazen attempt to ratify the operational status quo for at least five additional years. (12)

   This attempt to repudiate the need for changed dam operations followed on the heels of the hydrosystem operators' efforts to effectively abandon improvements in river migration conditions for salmon during the summer of 2004. (13) Both of the attempts to eliminate hydrosystem operations benefiting salmon failed to survive judicial scrutiny, however. Consequently, the reviewing court rejected the spill proposal and the 2004 BiOp, and during both the 2005 and 2006 salmon migration seasons ordered spills of water at a number of Columbia Basin dams in order to facilitate salmon passage, spills the dam operators attempted to eliminate. (14) As of this writing, with the district court willing to assume an active role in Columbia Basin operations, with appeals of that court's decisions pending before the Ninth Circuit, and with no reversal of the decline in spawning salmon populations in sight, the situation seems especially precarious. A Ninth Circuit reversal of the district court's decisions, or a change of heart by the district court, could effectively restore the status quo ante, which would enable the federal agencies operating and regulating the Columbia Basin hydrosystem to resume their practice of deceiving the public into thinking that they were making a meaningful attempt to restore spawning salmon populations, when in fact they were doing no such thing.

   This Article examines these and other recent developments in the Columbia Basin salmon saga, focusing on the deceptive proposals by the hydrosystem operators and the National Oceanic and Atmospheric Administration (NOAA), (15) the agency charged with ESA implementation, as well as the recent revival of active and skeptical judicial review. Part II begins by explaining the complex relationship between the Columbia Basin's hydropower and its salmon. Part HI compares the BiOps NOAA prepared on Columbia Basin hydrosystem operations through 2000, including the litigation they engendered. Part IV considers the 2004 proposal to terminate salmon spills and the court decision that prevented it. Part V discusses the Bush Administration's 2004 BiOp, which would have redefined the key concept of "jeopardy" in such a way as to eliminate the need to take meaningful remedial action, while Part VI examines its judicial rejection. Part VII explores some of the events since the district court struck down the 2004 BiOp, including the court's injunctions and the attempted dismantling of an agency which reported on the success of the relief the court ordered. The Article concludes that while the ESA has proved to be no more capable of reversing the decline of Columbia Basin salmon than did the Northwest Power Act, the advent of judicial skepticism offers some hope for more than mere paper promises about Columbia Basin salmon restoration in the future.

2. THE RELATIONSHIP BETWEEN HYDROPOWER AND SALMON

   Between the 1930s and the 1970s, hydropower development reconstructed the mighty flows of the Columbia River and its principal tributary, the Snake River. (16) By the middle of the 1970s, the completion of the four dams on the Lower Snake River--Ice Harbor, Lower Monumental, Little Goose, and Lower Granite--created a series of deep, slackwater pools that transformed Lewiston, Idaho into a deepwater port. (17)

   In the rush to develop the Columbia Basin, the federal government did not entirely ignore the plight of salmon, however. (18) In 1945, when Congress authorized the McNary Dam--in the same statute that sanctioned the Lower Snake Dams it pledged that "adequate provision shall be made for the protection of anadromous fishes by affording them free access to their natural spawning grounds." (19) Despite this directive suggesting that salmon conservation was a federal priority, hydropower operations have always remained the dominant use of the rivers in the Columbia Basin, (20) even though in 1980 Congress passed the Northwest Power Act (NPA), which called for "parity" between salmon conservation and hydropower production. (21) A dozen years after enactment of the NPA, the listing of salmon under the ESA eclipsed the NPA as the primary tool for salmon conservation. The ESA did not, however, stem the decline of the Columbia Basin salmon populations--largely because NOAA has continued to preserve the hydropower status quo over the survival and recovery needs of salmon. (22) This section examines the relationship between hydropower and salmon in the Columbia Basin, first by tracing the evolution of Columbia Basin salmon law, then by examining the current sorry state of the salmon runs and their perilous migration corridor.

   1. The Legal Framework: The Northwest Power Act and the Endangered Species Act

      Congress first expressed concern about the potential effects of Columbia River hydropower operations on salmon as long ago as 1937, when it enacted the Bonneville Power Act. (23) But it was not until the passage of the NPA in 1980 that Congress seriously attempted to protect and restore the Columbia Basin's salmon runs. The NPA directed the Northwest Power Planning Council (Council) to create a program to "protect, mitigate, and enhance" damaged salmon runs "to the extent affected by...