The need for a smolt travel time objective in the Columbia River Basin fish and wildlife program to protect and restore the Northwest's imperiled salmon runs.

• Author: Ogan, John
• Position: Endangered Species Act at Twenty-One: Issues of Reauthorization

1. INTRODUCTION

   The Columbia River Basin once produced the greatest salmon runs on earth. The average annual run historically ranged between 10 and 16 million fish.(1) Salmon returning to the Columbia traveled upstream nearly one thousand miles to spawn in Idaho waters a full mile above sea level. But this awesome yearly migration no longer sustains the native peoples of the region, or defines the character of the Northwest. It is a mere memory. Now several of the once magnificent Idaho salmon runs teeter on the brink of extinction.(2)

   Several factors have contributed to the demise of the Columbia Basin salmon. Overharvesting, habitat degradation from logging and mining, and irrigation withdrawals are partly responsible.(3) However, the most lethal mechanism affecting the salmon continues to be the hydroelectric system operating on the Columbia and Snake Rivers. This system has been blamed for a full fifty percent of the reduction in the run size.(4) The dams have changed the Columbia and Snake Rivers from free-flowing waterways to a series of deep reservoirs. Hydroelectric development in the Columbia Basin inundated spawning areas, altered water temperature and chemistry, and produced abundant predators. The construction and operation of the hydroelectric system have made the Columbia and Snake Rivers a hostile environment for anadromous fish.(5)

   Recognition of the dire status of the Columbia Basin's salmon runs is not a recent event. The National Marine Fisheries Service and U.S. Fish and Wildlife Service considered listing Columbia Basin salmon for protection under the Endangered Species Act(6) as early as 1978.(7) During the biological status review conducted by the agencies, one of the factors identified as a cause for the decline of the salmon populations was the "inadequacy of existing regulatory mechanisms"(8) to remedy the impacts that hydrosystem development and operation had on the Basin's salmon runs.(9) However, before the agencies' status review concluded, Congress passed the Northwest Power Planning and Conservation Act,(10) which created the Northwest Power Planning Council,(11) and directed it to develop a program to "protect, mitigate, and enhance" the fish and wildlife resources of the Columbia Basin. Believing that the newly mandated fish and wildlife program targeted the particular problems affecting Columbia Basin salmon, and recognizing that the ESA is a law of last resort, the agencies suspended the ESA listing process.(12)

   The hydroelectric system has always been operated by federal agencies(13) to maximize power production and profit.(14) This is so even though Congress has repeatedly directed the agencies to consider and minimize the effects of the hydrosystem operation on anadromous fish.(15) Agency resistance to change(16) and the prospect that certain anadromous stocks would be listed as threatened or endangered were major reasons Congress passed the Northwest Power Act.(17) The Northwest Power Act, through its fish and wildlife program, aimed to put fish on an equal footing(18) with hydropower in the Columbia Basin. Unfortunately, thirteen years later, several Snake River salmon stocks have been listed as threatened or endangered under the Endangered Species Act,(19) the Council's program has proved to be biologically inadequate, and equality for the salmon in hydrosystem operations is yet to be achieved.

   The greatest shortcoming of the Council's fish and wildlife program is its failure to call for the hydroelectric operators to provide sufficient river flows to propel smolts downriver to the ocean within biologically dictated deadlines. Presently, the smolts languish in the still reservoirs, where an enormous population of predators encouraged by the hydrosystem backwaters preys on them.(20) The smolts also die from diseases fostered by the artificial reservoir environment,(21) and because of the time it takes to reach the estuary they simply lose the urge to migrate.(22) The journey to the ocean that once took 22 days can now take up to 50.(23) Every day spent in this hostile environment compounds the mortalities, and reduces the number of adult fish that will return to perpetuate the species.

   Even though nearly every fishery management agency with jurisdiction over Columbia Basin fisheries recommended establishing smolt travel time objectives in the fish and wildlife program,(24) the Council refused to do so in its 1991 program amendments.(25) Ignoring sound biology,(26) the Council refused to incorporate biologically justified travel time objectives as recommended by the fishery managers, claiming a "lack of consensus" on the relationship between increased flow velocities and decreased smolt travel times.(27)

   Given the virtual unanimity among fishery management agencies, it appears that the Council is seeking a consensus among the expert fishery management agencies and other non-fishery interests on the biological merit of including a travel time objective.(28) Such a requirement violates the Northwest Power Act's substantive mandates to "complement" the activities of the fishery management agencies, give "due weight to the recommendations, expertise and legal rights and responsibilities" of the fishery management agencies, and to take action on the basis of the "best available scientific knowledge."(29)

   This paper calls for the Council to defer to the biological expertise of regional fishery experts, as required by the Act,(30) and to adopt smolt travel time objectives. Section II discusses the Northwest Power Act, its call to put salmon on equal footing with hydropower, and its directive to the Council to construct a biologically justified basin-wide salmon restoration program. Section III reviews the Council's performance under the Act, focusing on the flow/travel time issue. Section IV discusses the regional fishery agency and tribal recommendations for increased flows to reduce travel times, and especially the recommendation to include travel time objectives in the 1991 program amendments. Section V examines the Council's refusal to incorporate the fishery managers' recommendations, arguing that its refusal violates the Northwest Power Act. Section VI concludes that the Council must incorporate travel time objectives to comply with the Northwest Power Act and, most importantly, to save the threatened and endangered and other salmon runs of the Columbia Basin, especially those of the Snake River in danger of extinction.

3. THE NORTHWEST POWER ACT & THE FISH AND WILDLIFE PROGRAM: NO MORE SECONDARY STATUS FOR COLUMBIA BASIN SALMON

   In 1980, Congress enacted the Pacific Northwest Power Planning and Conservation Act.(31) Congress recognized the "history, problems, and opportunities" presented by development in the Columbia Basin, and called for prompt development of "a program to protect, mitigate and enhance [its] fish and wildlife" resources.(32) The Act demanded "equitable treatment for ... fish and wildlife [on par] with the other purposes for which [the hydrosystem] is operated."(33)

   1. The Northwest Power Act

      One of the purposes of the Northwest Power Act is to "protect, mitigate, and enhance the fish and wildlife ... of the Columbia River and its tributaries, particularly anadromous fish which are of significant importance to the social and economic well-being of the Pacific Northwest and the Nation .... "(34) The Act directs the Administrator of the Bonneville Power Administration (BPA) and other federal agencies responsible for managing, operating, and regulating the hydrosystem to exercise their responsibilities in a manner that provides "equitable treatment" for fish and wildlife.(35) The legislative history of the Act clearly states that this requirement is meant to elevate fisheries protection to the status given hydropower generation. The "equitable treatment" mandate of the Act(36) aims to "place fish and wildlife on a par with ... other purposes and provide a means by which [the agencies] will act to protect, mitigate, and enhance fish and wildlife."(37) Congressman Dingell stated: "It is clearly intended that no longer will fish and wildlife be given a secondary status by the Bonneville Power Administration or other Federal agencies."(38)

      The provisions of the Act that expressly contemplate lost power revenue at the expense of fisheries offer additional proof that Ashery protection, mitigation, and enhancement is to enjoy equal status with power production. The Act provides that "[m]onetary costs and electric power losses resulting from the implementation of the [fish and wildlife] program shall be allocated by the [BPA] Administrator. . . ."(39) Similarly, if federal agencies impose conditions on non-federal dams, "the resulting monetary costs and power losses shall be borne by the Administrator . . . "(40) Legislative history related to these provisions indicates that "[s]ome power losses, with resultant loss in revenues, may be inevitable at times if fish and wildlife objectives are to be achieved.(41) The Act's provisions and legislative history show that Congress recognized that the federal manager's operation of the Columbia Basin hydrosystem unacceptably damaged the Basin's fish and wildlife resources; from the very genesis of the Act, Congress envisioned lost power and lost revenue as a necessary consequences

      of restoring the Basin's salmon resources. Such statements indicate Congress recognized that significant changes in hydrosystem operation were required.

   2. The Columbia Basin Fish and Wildlife Program

      The Northwest Power Planning Council was envisioned as a means to put anadromous fish protection, enhancement, and mitigation on a par with power generation in the Basin.(42) Because Congress understood that the Council would not possess fish and wildlife management expertise, it directed the Council to request program recommendations from the region's state fish and wildlife agencies and Indian tribes.(43) Congress instructed the...