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 NOAA Fisheries 2½ years to correct “a reliance on mitigation measures that are unidentified and not reasonably certain to occur.”
“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.”
“As noted, I continue to have serious reservations about NOAA Fisheries’ habitat mitigation plans for the remainder of this BiOp,” Redden wrote. “Everyone agrees that habitat improvement is vital to recovery and may lead to increased fish survival, but the lack of scientific support for NOAA Fisheries’ specific survival predictions is troubling.
“Although the BiOp concludes that these specific survival improvements are necessary to avoid jeopardy, NOAA Fisheries’ own scientists, the independent scientists who reviewed the 2008 BiOp, and the Independent Scientific Advisory Board (“ISAB”) have expressed skepticism about whether those benefits will be realized,” Redden said.
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.”
The judge said that during the remand NOAA Fisheries must file with the court the federal agencies’ annual implementation reports detailing the progress of the RPA.
“No later than January 1, 2014, NOAA Fisheries shall produce a new or supplemental BiOp that corrects this BiOp’s reliance on mitigation measures that are unidentified, and not reasonably certain to occur.”
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.
Oregon’s Gov. John Kitzhaber said the state would “work actively with the region’s key stakeholders to identify measures that will assure the Pacific Northwest’s iconic salmon are moving toward recovery rather than being placed in jeopardy by our hydro system.”
The court-ordered remand and assigned tasks link up relatively well with the BiOp’s directives to evaluate implementation progress, benefits gained from habitat restoration and other measures and the status of the fish at various points throughout the term of the BiOp.
The “Comprehensive Review” referred to by Redden in his Tuesday order is due in June 2013. Another is due in June 2016. The reviews are intended to be rollups of annual reviews of BiOp implementation progress and assessments of the biological gains, or lack thereof, that are achieved. That information will inform “adaptive management” aimed at improving the strategy’s success.
The ongoing collaboration between federal agencies, states and tribes is designed to “be responsive to what the findings are in the 2013 review,” BPA’s Sarah McNary said.
“He’s put this challenge back at us” to find what actions bring the best, certifiable, benefits, McNary said. “The good news is that we’ve got the expert panel system ready to go.” The federal agency will next year convene an expert panel to evaluate the work done so far, and its effectiveness, and recommend what work needs to be done in the future. The panels will include federal, state and tribal experts, including people engaged in on-the-ground implementation of habitat restoration and monitoring.
As directed by the BiOp, the comprehensive reviews are intended to steer any needed course corrections. A 2010-2013 implementation plan is guiding work currently. A new multi-year implementation plan will be developed to outline needed future work.
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 this week 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.”
New technologies and improvements that have been made at the dams called for in the BiOp have indeed lifted salmon survival, as have operational changes and favorable ocean conditions, according to Terry Flores, executive director of Northwest RiverPartners, an alliance of farmers, utilities, ports and businesses “that support salmon actions based in sound science.” RiverPartners intervened in the lawsuit in support of the federal defendants.
She said the salmon plan was developed in an unprecedented, multi-year collaboration with Northwest state and tribal sovereigns, and commits up to $1 billion dollars each year to salmon protection actions. That work is largely paid for by Northwest families and businesses through their electric bills. BPA adjusts the rates it charges for its costs for fish and wildlife mitigation.
“The salmon plan represents one of the most ambitious – and expensive – plans to protect species anywhere in the world and it is high time we had the opportunity to throw all our collective weight behind its implementation to help our protected salmon” Flores said. “Northwest families and businesses who foot the bill for these measures through their power rates are doing more than their share to keep protected salmon from harm.”
She said RiverPartners will continue to work closely with the coalition of three Northwest states -- Idaho, Montana and Washington, -- tribes and the federal agencies as implementation of the salmon plan moves forward.
Flores noted that only Congress has the ability to authorize dam breaching, not the court, and said public opinion remains opposed to it.
“While anti-dam groups try to twist the judge’s remand ruling into some sort of call for removal of the Snake River dams, that is less likely than it has ever been,” Flores said. The public views removal of those dams as an extreme solution by an enormous margin with 74 percent opposed, based on opinion polling conducted by DHM Research in Portland, Oregon in April 2011, she said.
“In fact, Northwest citizen opposition to Snake dam removal has only grown, based on over five years of public opinion data,” she said.
For documents and other information related to BiOp litigation go to www.salmonrecovery.gov