Saving Snake River water and salmon simultaneously: the biological, economic, and legal case for breaching the lower Snake River dams, lowering John Day Reservoir, and restoring natural river flows.

• Author: Blumm, Michael C.

1. INTRODUCTION

   The plight of the Snake River salmon runs has become one of the late twentieth century's foremost environmental issues.(1) The Snake River is the largest tributary of the Columbia River, and the Snake Basin, including tributaries such as Idaho's famed Salmon River, once contained the most productive salmon spawning areas in the Columbia Basin.(2) All Snake River salmon must traverse the lower 140 miles of the Snake River in eastern Washington. Unfortunately, the lower Snake, the gateway to all of Idaho's prime salmon habitat, is no longer a free-flowing river but is instead a series of reservoirs formed by four federal dams constructed and operated by the U.S. Army Corps of Engineers (Corps).(3) These Snake River dams, together with four additional Corps dams on the lower Columbia, all part of the federal Columbia River Power System, pose substantial hurdles to both upstream and downstream migrating salmon and have destroyed important spawning grounds. Although there are other causes for the decline of Snake River salmon,(4) the principal factor leading to the decline and subsequent listing of the runs under the protection of the Endangered Species Act (ESA) was the construction and operation of these dams.(5)

   We believe that as long as the Snake River salmon runs continue their plunge toward extinction, federal agencies, downstream economic and environmental interests, and Indian tribes with treaty-reserved fishing rights will continue to exert substantial pressure on upper Snake River Basin reservoir operators to release large amounts of water to augment fish flows in the lower Snake and Columbia Rivers.(6) Release of large amounts of water stored in upper Snake River reservoirs could substantially affect Idaho farmers who rely on this water for irrigation, as well as the state's primary electric utility, Idaho Power Company, which relies on this water to generate hydropower. The region must weigh these impacts against those of the only other serious option for recovering the decimated Snake River fish runs--dam breaching and reservoir drawdowns. Mounting biological evidence indicates that breaching the four lower Snake dams and drawing down John Day Reservoir (on the Columbia River) offers a far better likelihood of recovering Idaho's salmon.(7) Moreover, this strategy would allow Idaho to continue to make use of Snake River Basin water for agriculture and power, thereby strengthening its economy. For these reasons, we contend that this alternative makes the most scientific, economic, and political sense for the state of Idaho, the Pacific Northwest, and the nation.

   Even before Snake River salmon were listed under the ESA in the 1990s,(8) the Northwest states had implemented a restoration program under the terms of the Northwest Power Act.(9) Despite the expenditure of considerable sums of money,(10) however, the states' restoration program was unable to reverse the decline of Snake River salmon, a fact that the chairman of the interstate agency charged with implementing the program, the Northwest Power Planning Council (Council), recognized on the eve of the ESA listings.(11) The ESA listings led to the institution of what amounts to an interim federal recovery plan for Snake River salmon, which has governed dam operations since 1992.(12) Despite the ESA's reputation as an economically insensitive, preservation-at-all-costs statute,(13) in the section 7 biological opinion that today governs federal dam operations, the National Marine Fisheries Service (NMFS) authorized dam-related salmon mortality of up to eighty-six percent of juvenile sockeye and spring/summer chinook and up to ninety-nine percent of juvenile fall chinook.(14) Although NMFS recognized the need for "major modifications" to the dams,(15) no significant changes have yet occurred. Instead, the current centerpiece of federal agencies' interim salmon restoration efforts continues to be a program of barging and trucking juvenile fish around the dams, a technique that has failed to survive scientific scrutiny.(16) Not surprisingly, federal restoration attempts show no signs of recovering the listed salmon species.(17)

   Recognizing the inadequacy of current measures, NMFS has promised to issue a new road map for reconfiguring the hydrosystem to allow for salmon recovery in late 1999, when its current biological opinion on Columbia Basin hydroelectric operations expires.(18) One idea that has gained prominence is permanent reservoir drawdowns--breaching the earthen portions of several dams--to allow restoration of natural river flows.(19)

   In 1995, the Indian tribes of the Nez Perce, Umatilla, Warm Springs, and Yakama reservation, which possess treaty fishing rights to Columbia Basin salmon, released their own restoration plan.(20) The tribal plan included long-term permanent drawdowns of the four lower Snake reservoirs and the John Day Reservoir on the lower Columbia to achieve natural river flows.(21) A year later, in 1996, the Council's group of independent scientists issued a report that lent support to the tribes' emphasis on natural river flows by calling for the re-establishment of what the report termed "normative river conditions."(22) The scientists' most prominent recommendation was to restore river habitat by permanently lowering two large reservoirs on the lower Columbia, John Day and McNary, in order to revitalize drowned alluvial reaches and re-establish salmon spawning.(23) The scientists also suggested that lowering the Snake River reservoirs to re-establish natural river flows would be consistent with the report's normative river concept.(24)

   Predictably, the discussions concerning drawing down lower Snake River reservoirs to achieve natural river flows generated a wave of political reaction. No Northwest politician endorsed the proposal, and several reacted with hostility, rather than carefully examining it.(25) Senator Slade Gorton (R-Wa.) even sponsored an appropriations rider that would prevent any changes in the operation of Columbia Basin dams absent congressional approval.(26) Yet these dams are hardly the linchpin of the regional economy--the lower Snake River dams were authorized as makework projects,(27) and they provide no flood control and only marginal hydropower, navigation, and irrigation benefits.(28) Moreover, economic analyses indicate that the overall benefits of drawdowns would substantially outweigh their costs, especially for the state of Idaho.(29) Without reservoir drawdowns on the lower Snake, pressure to draft upstream Idaho reservoirs to facilitate salmon migration is likely to increase, either to satisfy the requirements of the ESA, the Northwest Power Act, the Clean Water Act, or Indian treaty rights.(30) The alternative to breaching the lower Snake River dams thus appears to be drafting substantial amounts of water from upper Snake River reservoirs, with potentially adverse effects on irrigated agriculture, power generation, and resident fish.(31)

   Idaho could avoid the adverse economic consequences associated with contributing increasing amounts of water stored in Idaho reservoirs if natural river flows were restored by breaching the lower Snake River dams(32) and drawing down John Day Reservoir.(33) Reservoir drawdowns and natural river flows could therefore save both Snake River water and salmon. The Idaho Department of Fish and Game (IDFG) recently concluded that a drawdown to natural river flows "is the best biological choice for recovering [Snake River salmon]."(34) Permanent natural river drawdowns also could form the basis for settling substantial Indian water right claims that the Nez Perce Tribe and the federal government are litigating in Idaho's long-running Snake River Basin Adjudication,(35) as well as satisfy the bulk of Idaho's ESA obligations for Snake River salmon.(36)

   This Article makes the case for breaching the lower Snake River dams and drawing down John Day Reservoir to restore natural river flows. Part II provides background on the condition of Snake River salmon, explaining the reasons for their decline and subsequent listing under the ESA, and the recovery options available to NMFS in its 1999 decision. Part III explains the scientific evidence supporting natural river drawdowns. Part IV discusses the economic feasibility of permanent natural river drawdowns because the opponents of such drawdowns have claimed that the economic costs are prohibitive. The reports discussed in Part IV suggest that these costs are in fact affordable. Part V supplies an overview of the legal obligations to protect, restore, and rebuild Snake River salmon, focusing on the ESA, the Northwest Power Act, the Federal Power Act, the Clean Water Act, the Pacific Salmon Treaty, Indian treaty rights, and the federal trust responsibility to the Indian tribes. Part V also discusses how natural river drawdowns may be authorized. The article concludes, in Part VI, that breaching the lower Snake River dams and lowering John Day Reservoir to produce more natural river flows would be the most scientifically sound, cost effective means of restoring the Snake River salmon runs and would also best protect Idaho's economic interests.

2. THE CONDITION OF SNAKE RIVER SALMON AND THE STATUS OF RECOVERY EFFORTS

   Once the mainstay of the Columbia Basin salmon runs, all of the Snake River salmon are now either extinct or threatened with extinction.(37) Snake River coho were declared extinct in 1986.(38) Sockeye were listed as endangered under the Endangered Species Act (ESA) in 1991 and continue to teeter on the brink of extinction, with few or no adults returning each year.(39) Chinook were listed as threatened in 1992, and steelhead in 1997.(40) Formerly the most important spawning area for fall chinook in the Columbia Basin through the 1950s with nearly 30,000 spawners,(41) the Snake River runs now average around 900 fish.(42) Snake River spring and summer chinook historically made up nearly...