U.S. District Court Judge James A. Redden on Tuesday found wanting a federal plan to mitigate for hydro system impacts to Columbia-Snake river salmon and steelhead, but he gave the agency in charge 2 ½ years to determine whether its approach is legally and/or biologically valid.
“NOAA Fisheries concludes that through 2018, FCRPSD operations are not likely to jeopardize the continued existence of any listed species, based on measures to be implemented by Federal defendants to mitigate for the significant salmon mortality caused by the existence and operation of the hydroelectric power system,” Redden wrote in his Aug. 2 opinion and order regarding the validity of the agency’s Federal Columbia River Power System biological opinion.
“Federal Defendants have failed, however, to identify specific mitigation plans to be implemented beyond 2013,” the judge said. “Because the 2008/2010 BiOp’s no jeopardy conclusion is based on unidentified habitat mitigation measures, NOAA Fisheries’ opinion that the FCRPS operations after 2013 will not jeopardize listed species is arbitrary and capricious.”
“The ESA prohibits NOAA Fisheries from relying on the effects of uncertain and speculative actions that are not ‘reasonably certain to occur,’” Redden wrote.
The strategy in the BiOP’s “reasonable and prudent alternative” outlines actions within the hydro system and off-site, such as habitat restoration, that are aimed at improving the survival of 13 Columbia basin salmon and steelhead stocks that are protected under the Endangered Species Act. The BiOp, released in 2008 and updated in 2010, covers the 2008-2018 period.
The judge ordered a court-monitored remand with Jan. 1, 2014 due date for production of “a new biological opinion that reevaluates the efficacy of the RPAs in avoiding jeopardy, identifies reasonably specific mitigation plans for the life of the biological opinion, and considers whether more aggressive action, such as dam removal and/or additional flow augmentation and reservoir modifications are necessary to avoid jeopardy.”
Redden said that not only is post-2013 mitigation largely unidentified, but the benefits from current and future actions are also unknown.
“In other words, Federal Defendants do not know what exactly will be needed to avoid jeopardy beyond 2013, or whether those unknown actions are feasible and effective, but they promise to identify and implement something,” Redden wrote. “This is neither a reasonable, nor a prudent, course of action.”
“As practical matter, it may be difficult for Federal Defendants to develop a long-term biological opinion that relies only on mitigation measures that are reasonably certain to occur.”
Redden said that during the remand NOAA Fisheries must continue to collaborate with the states and tribes that are parties to the lawsuit for the “purpose of developing mitigation actions to be included in the proposed action and developing scientific and technical data to support any proposed mitigation.”
Meanwhile, the existing BiOp will prevail.
“The BiOp contains positive mitigation measures that provide adequate protection to the listed species through 2013.”
“Given Federal Defendants’ history of abruptly changing course, abandoning previous BiOps, and failing to follow through with their commitments to hydropower modifications proven to increase survival (such as spill), this court will retain jurisdiction over this matter to ensure that Federal Defendants develop and implement the mitigation measures required to avoid jeopardy,” the judge wrote.
“In light of the clear survival benefits associated with spill and Federal Defendants’ history of attempting to curtail spill without adequate justification, I order them to continue to spill in a manner consistent with this court’s annual spill orders,” Redden said. Dam spill operations to provide passage for fish have in recent years been dictated by court orders.
The remand “will allow NOAA Fisheries to ‘get out of the courtroom’ and get to work for the next two and a half years,” Redden said. “An extended remand period provides an incentive for NOAA Fisheries and the various Accord parties to further develop and implement their proposed habitat mitigation measures, and provides time to study whether these habitat improvement measures are likely to produce the predicted benefits.”
In 2008 the Bonneville Power Administration, the U.S. Army Corps of Engineers and the Bureau of Reclamation entered into 10-year agreements, called Accords, with Idaho, Montana, the Warm Spring, Umatilla, Yakima and Colville Tribes and with the Columbia River Inter-Tribal Fish Commission to fund $933 million on fish mitigation projects and in later struck a similar agreements with the Shoshone-Bannock Tribes and the state of Washington.
“We’re encouraged by the Court’s basic conclusion that the biological opinion should remain in place through the end of 2013, that it is providing ‘adequate protection for listed species’ and that we should tighten up on the habitat program beginning in 2014,” according to a joint statement issued Tuesday by NOAA Fisheries, BPA, the Corps and the Bureau. NOAA is charged by the ESA with assuring that federal actions avoid jeopardy to listed species. The Corps and Bureau operate the FCRPS hydro projects and BPA markets power generated in the Columbia-Snake power system.
The federal agencies engaged in official ESA “consultation” during the formation of the 2008 BiOp. That process included a court-ordered collaboration with Idaho, Montana, Oregon and Washington and tribes involved in long-running litigation regarding FCRPS BiOps. Redden struck down the 2001 and 2004 versions of the BiOp.
The 2008 BiOp was challenged in court by a coalition of fishing and conservation groups and the state of Oregon. They claimed that the BiOp improperly relies on future federal, state, tribal and private actions that are not reasonably certain to occur. The Nez Perce Tribe also lined up against the plaintiffs – NOAA Fisheries, the Corps and the Bureau.
The federal statement said the agencies were “disappointed that the Court has not agreed with all of our arguments.
“We’ll continue our efforts to provide protection for salmon and steelhead in the Basin and work toward their recovery.”
Justice Department attorneys, say the agencies, will review the order and opinion and determine whether or not to file an appeal.
The fishing and conservation groups hailed the decision as a “watershed moment for fishing and conservation groups, the state of Oregon, the Nez Perce Tribe, and the Spokane Tribe, all of which opposed the BiOp, in court” and resumed their push for dam breaching.
“In the wake of the worst recession the nation has experienced since the Great Depression, there’s a simple path forward that would create thousands of jobs for a small investment,” said Trip Van Noppen, president of Earthjustice, the public interest law firm that represented fishing and conservation groups in the case. “Taking out the four dams that strangle the lower Snake River would bring millions of dollars from restored salmon runs to communities from coastal California to Alaska and inland to Idaho.”
“Now is the time for the Obama Administration to walk the talk on real salmon solutions,” said Zeke Grader, executive director of Pacific Coast Federation of Fishermen’s Associations. “As this ruling highlights, the federal government has spent nearly 20 years spending enormous sums of money foolishly by doing all the wrong stuff. Facing the problem squarely, including potential removal of the four fish-killing dams on the lower Snake River, will create many thousands more jobs, revive the fishing industry, save billions of dollars for taxpayers, and lead in the development of clean, renewable, more efficient energy. What we need most now is for this administration to lead us to those solutions, not just bury its head in the sand in denial as has so often happened in the past."
U.S. Rep Doc Hastings, R-WA, took the opposite tack.
“A preliminary review of this ruling, however, reveals extremely alarming and unacceptable statements and actions by the Portland federal judge,” Hastings said. “Judge Redden has explicitly ordered federal agencies to consider dam removal. Not only is dam removal an extreme action that would be devastating to the Pacific Northwest’s economy and is not proven to recover fish, Judge Redden has zero authority to order the removal of dams and the agencies have no authority to breach dams. Only Congress can authorize removal of the Northwest’s federal dams and I can definitively state that this will not happen on my watch.
“With this ruling, Judge Redden has gone farther than ever before in substituting his decades as a lawyer for the combined wisdom of hundreds of biologists and scientists at the federal, state and tribal agencies that joined together to develop this broad, collaborative fish recovery plan,” Hastings said in a statement released Tuesday. “Despite broad, collaborative agreement on a recovery plan and years of record, or near record, fish returns, the Pacific Northwest is entrapped in a never-ending circle of litigation and judicial whim. At some point, reason and common sense need to prevail over an activist judge who is intent on keeping dam removal on the table and keeping this issue tied up in his courtroom for years.”
For documents and other information related to BiOp litigation go to www.salmonrecovery.gov