Still crying out for a "major overhaul" after all these years - Salmon and another failed biological opinion on Columbia Basin hydroelectric operations.

Author:Blumm, Michael C.

For nearly four decades, national policy has been to restore Columbia Basin salmon devastated by the construction and operation of the Federal Columbia River Power System (FCRPS). In the 1980 Northwest Power Act, Congress declared that salmon restoration was a national priority and that it would be funded largely through federal hydropower sales. A basinwide plan approved by the Northwest states began the restoration effort in 1982, but since that plan did not focus on wild salmon restoration, it was soon eclipsed by federal biological opinions (BiOps) after the listing of several salmon species under the Endangered Species Act (ESA) in the early 1990s. There followed a seemingly endless series of court challenges to the adequacy of the BiOps, most of which succeeded.

Although we discuss all of the Columbia Basin ESA salmon court decisions over the last quarter-century, our focus is on the 2016 decision, a remarkable 149-page opinion that is a paragon of close judicial review. United States District Judge Michael H. Simon became the third consecutive federal judge to find the federal BiOp on FCRPS hydroelectric operations wanting, but he did so in much greater detail and scope than did his predecessors. The result was a judicial opinion that could produce substantial changes in the way the federal government approaches ESA compliance of the world's largest integrated hydroelectric system. Some of those changes were evident in an ensuing 2017 decision ordering increased spills of water at mainstem dams to facilitate downstream fish passage.

Like his predecessors, Judge Simon faulted the federal government for failing to ensure that the mitigation measures--which the FCRPS BiOp assumed would produce immediate, significant benefits--were actually "reasonably certain to occur." fn addition, among other shortcomings, he determined that the BiOp failed to 1) employ a proper methodology for evaluating species jeopardy in its BiOp; 2) account for the low abundance levels and declining recruits per spawning salmon without an adequate margin of safety; 3) rationally examine recovery of the listed species; 4) consider effects of climate change on the mitigation measures; and 5) prepare a programmatic environmental impact statement (EIS) on the cumulative effects of those measures and reasonable alternatives.

Implementation of Judge Simon's opinion, if carried out faithfully, could substantially improve prospects for the recovery of the thirteen ESA-listed salmon runs. The opinion also may establish important ESA precedent concerning the species jeopardy that BiOps are to avoid, the critical habitat that BiOps are supposed to protect, and the relationship between BiOp implementation and procedures necessary to satisfy the National Environmental Policy Act (NEPA). Concerning the latter, perhaps the most arresting aspect of the Simon opinion was the strong suggestion that the EIS the court ordered should include an evaluation of the alternative of breaching the four federal dams on the lower Snake River. However, perhaps more significant in terms of the forthcoming BiOp, the court was insistent that the burden of uncertainty no longer be shouldered by the listed species. Although a court may encourage the FCRPS agencies to consider dam breaching as a NEPA alternative, neither the agencies nor a court have authority to order dam breaching, a power that lies exclusively with Congress in the case of federal dams.

The 2017 injunction ordering increased spills beginning in 2018 promised the first substantive improvement in fish passage due to changed hydroelectric project operations since United States District Judge James A. Redden ordered spills over a dozen years earlier in 2005. This injunctive relief, which also included promised judicial scrutiny of large-scale expenditures at the lower Snake dams, is interim--pending completion of revised BiOp and the new EIS that Judge Simon ordered. But the injunction may reflect the fact that the longstanding federal effort to direct attention away from dam operations to offsite habitat creation and restoration and hatchery production has not entirely succeeded. If so, that is a good omen for the fate of imperiled Columbia Basin salmon.

  1. INTRODUCTION 289 II. THE 1993-2008 BIOLOGICAL OPINIONS: A HISTORY OF SHIFTING JEOPARDY STANDARDS 293 A. No Jeopardy Biological Opinions 295 B. Jeopardy Biological Opinions 296 III. THE 2014 BIOLOGICAL OPINION 302 A. The Flawed Jeopardy Standard 303 B. Using Habitat Mitigation to Offset Hydropower Losses 306 1. Survival Metrics 307 2. Estuary and Tributary Habitat Improvements 309 C. Effects of Climate Change on Mitigation Measures 312 D. Effects on Designated Critical Habitat 316 E. Requiring an En vironmental Impact Statement on Endangered Species Act Implementation 318 IV. THE 2017 SPILL DECISION 324 V. THE SIGNIFICANCE OF THE SIMON DECISION 326 VI. CONCLUSION 331 VII. POSTSCRIPT 332 APPENDIX 333 "[The 1993 Biological Opinion] is "seriously, 'significantly' flawed because it is too heavily geared toward a status quo that has allowed all forms of liver activity to proceed in a deficit situation--that is, relatively small steps, minor improvements and adjustments--when the situation literally cries out for a major overhaul." (1)


    In 2016, for the sixth time in just over two decades, the National Marine Fisheries Service (NMFS) failed to comply with the Endangered Species Act (2) (ESA) in its biological opinion (BiOp) on Federal Columbia River Power System (FCRPS) operations. (3) Columbia Basin dams are a principal reason for the listing of thirteen salmonid species for ESA protection, and NMFS has been trying to meet the requirements of the ESA for nearly a quarter-century, largely unsuccessfully. (4) Although the ESA experience with Columbia Basin salmon has been mostly futile in terms of restoring the listed salmon, (5) the listings have, ironically, materially affected federal implementation of the ESA. (6) There are many such ironies in the Columbia Basin salmon saga.

    The repeated failure of federal BiOps to satisfy the ESA has occurred under the watch of three separate federal district court judges: Malcolm F. Marsh, James A. Redden, and now Michael H. Simon,' and despite nearly $1 billion in fish habitat restoration funds offered by the region's federal power broker, the Bonneville Power Administration (BPA), to state and tribal governments to drop their legal opposition to the BiOps. (8) This effort succeeded only partially as the State of Washington and several tribes accepted the federal money; (9) but the State of Oregon and the Nez Perce Tribe did not, and they proceeded with the litigation, along with a number of environmental groups. (10)

    A hallmark of all recent FCRPS BiOps has been a federal effort to shift attention from the salmon mortalities caused by mainstem dams and their operation (which generate substantial hydropower revenues) to focus on so-called "off-site mitigation measures," mostly habitat restoration and hatchery production. (11) These off-site measures, which the BiOps assumed would produce immediate and considerable survival benefits, have failed to survive judicial review because most have not proved to be "reasonably certain to occur." (12) Judge Simon reiterated Judge Redden's repeated holdings on this issue in his 2016 decision. (13) And he went considerably farther, deciding that NMFS employed an improper jeopardy standard--"trending toward recovery"--that ignored the desperate current situation of Columbia Basin listed salmon. (14)

    Judge Simon also determined that the current BiOp failed to rationally evaluate recovery prospects or assess the effects of climate change on the mitigation measures NMFS claimed would avoid jeopardy. (15) Finally, he decided that implementation of these measures required preparation of a programmatic environmental impact statement (EIS), which he strongly suggested should include consideration of the alternative of breaching the lower Snake River dams. (16)

    The upshot of the 2016 decision was another remand to NMFS to produce a new BiOp that would satisfy the ESA. (17) But like his predecessors, Judge Simon did not enjoin ongoing FCRPS operations, a result that has not encouraged NMFS or the action agencies to comply with the ESA in the past. (18) Although there might not be a good alternative--since enjoining FCRPS operations is unrealistic (as judges have no power over streamflows and lack expertise concerning dam operations)--part of the reason for the repeated federal failure to comply with the ESA may be the lack of enforceable sanctions over an ongoing activity like hydropower operations. Perhaps there is some form of innovative injunctive relief that could require the involved federal agencies to begin to take the judicial opinions more seriously than they have over the last two decades. (19)

    Above all, Judge Simon's 2016 decision reflected an exacting approach to reviewing ESA implementation. Given the sorry history of Columbia Basin salmon restoration, this "hard look" review was a welcome development, perhaps attributable to the influence of numerous failures over time. (20) The long history of failure--following repeated, inaccuate government predictions (21)--must have influenced the reviewing judge. When "expert" agencies continuously fail to deliver on their promises over a long period of time, judicial deference to agency expertise should diminish. The Columbia Basin salmon saga may be a prime exhibit for this proposition.

    This Article assesses the latest--and perhaps most interesting--decision in the long-running Columbia Basin salmon-hydropower conflict. Part II discusses the relevant background, and there is a good deal of that necessary to understand the context of the 2016 decision and its significance. Part III explores Judge Simon's opinion finding the NMFS BiOp once again to be inadequate, examining his decisions on 1) the proper...

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