Federal Government and Dam Operators must take real and accountable action to protect salmon
Columbia Riverkeeper and allies prevailed in court to ensure that the federal government and dam operators take real and accountable action to protect threatened salmon. The court ruled that the federal government’s latest plans to prevent salmon from going extinct are uncertain and that the government’s approach “is neither cautious nor rational.” Riverkeeper’s Brett VandenHeuvel celebrated the victory and called for immediate action: “Our wild salmon are going extinct. Instead of making excuses, our federal government and all the stakeholders need to take action to address this very serious problem. This includes verifiable habitat improvements, reducing toxic pollution, and making real changes to dams that are killing salmon."
Riverkeeper joined the National Wildlife Federation and conservation and fishing groups, which were skillfully represented by Earthjustice. The court agreed with us that "federal Defendants have not implemented the habitat actions necessary to avoid jeopardy. More importantly, there is no indication that they will be able to identify and implement the actions necessary to catch up." This is the third time that the federal government's Columbia River salmon recovery plans have been rejected as arbitrary and capricious.
An immediate consequence of this victory will be more water spilled over the dams, which is important for salmon survival. The victory also forces the federal government to develop a new "biological opinion" that includes specific mitigation plans, funding for those plans, and "considers whether more aggressive action, such as dam removal and/or additional flow augmentation and reservoir modifications are necessary to avoid jeopardy." Riverkeeper and partners will continue this longstanding fight for salmon survival. The consequences to the Pacific Northwest are too great to fail.
Federal judge shoots down plan for Columbia River Basin dams and salmon for third time
Published: Tuesday, August 02, 2011, 8:20 PM, Updated: Wednesday, August 03, 2011, 9:08 AM
By Scott Learn, The Oregonian
Photo: Jamie Francis, The Oregonian. Biologists with the Columbia River Estuary Study Taskforce net juvenile salmon at the Fort Columbia Tidal Wetland Restoration Project near the mouth of the river, which restored approximately 96 acres of wetlands. U.S. District Judge James Redden on Tuesday rejected the federal government's latest plan to operate hydropower dams in the Columbia River basin without jeopardizing salmon. His ruling says the government has failed to identify specific habitat improvement plans beyond 2013 to protect salmon and steelhead listed under the Endangered Species Act.
For a third time, U.S. District Court Judge James Redden rejected the federal government's plan to operate hydropower dams in the Columbia River basin without jeopardizing salmon.
Redden's ruling, handed down Tuesday afternoon, says the plan provides "adequate protection" through 2013. But it's still "arbitrary and capricious" because it failed to identify habitat improvements after 2013 to protect salmon and steelhead listed under the Endangered Species Act.
The plan is designed to compensate for the dams' damage to seven runs of listed wild salmon and steelhead originating above Bonneville Dam, the first in the system.
Redden's decision sends the exhaustive, 10-year "biological opinion" back to federal agencies for a revamp once again, this time with a focus on specific habitat improvements from 2014 to 2018.
The current plan stays in place through 2013, the judge said, though he's requiring more spill over dams to benefit fish than the government favored. More spill means less power generated in dam turbines.
In the meantime, Redden said, the court will retain jurisdiction of the case given the government's "history of abruptly changing course, abandoning previous (biological opinions), and failing to follow through with their commitments to hydropower modifications proven to increase survival."
The ruling is a victory for environmental and fishing groups, the state of Oregon and the Nez Perce tribe, which opposed the plan. It could put more focus on controversial measures other than habitat improvements, including removal of four federal dams on the lower Snake River.
Redden ordered the National Oceanic and Atmospheric Administration's Fisheries Service, the agency responsible for the biological opinion, to submit a new one no later than Jan. 1, 2014. The plan should specifically consider whether "more aggressive action," including leaving more water in streams, reservoir drawdowns and -- most controversially -- dam removals, are necessary.
Photo: Bruce Ely, The Oregonian. Seven-month-old sockeye salmon raised at Oxbow Fish Hatchery in Cascade Locks.
"We're delighted," said Steve Mashuda, an Earthjustice attorney who represented conservation groups in the case. "We need to use the next two years to figure out a new approach, with every stakeholder in the region at the table."
Or the decision could mean that the federal agencies involved -- NOAA, the Bonneville Power Administration and the U.S. Army Corps of Engineers -- simply have to shore up their habitat improvement plans beyond 2013.
Will Stelle, NOAA's Northwest regional director, said he thinks adding more detail to future habitat projects will satisfy the judge. Redden endorsed the plan through 2013, Stelle noted, and his conclusions about habitat were "totally understandable."
"He ordered us to tighten up on the habitat program after 2013, and that's fine," Stelle said. "We were intending to do it anyway."
Still, Redden's words set off alarm bells among dam supporters.
U.S. Rep. Doc Hastings, R-Wash., chairman of the House natural resources committee, said in a statement that the ruling included "extremely alarming and unacceptable statements and actions by the Portland federal judge." The decision covers operations of 14 federal dams in Oregon, Washington, Montana and Idaho.
Hastings objected in particular to Redden raising dam removal, "an extreme action that would be devastating to the Pacific Northwest's economy and is not proven to recover fish."
The latest court battle began in 2001, when the National Wildlife Federation, fishing and conservation groups, tribes and Oregon sued, alleging that the federal government wasn't doing enough to save imperiled fish.
In the latest plan, the government pledged to ramp up spending on fish passage at dams and on habitat improvements -- such as adding streamside plants, opening up tidal wetlands and decreasing water withdrawals.
Bonneville Power, which markets power from the dams, promised to spend at least $45 million a year on habitat upgrades through 2017.
Accords with five Northwest tribes added hundreds of millions more for habitat improvements for a decade in exchange for the tribes backing out of the suit. Redden encouraged that collaboration, and many supporters of the plan were hoping it would help end the court case.
"This is the most scientifically sound and vetted and collaborative and frankly, expensive, biological opinion that we're aware of," said Terry Flores, executive director of Northwest River Partners, whose members include utilities, ports and farmers. "It seems as though the judge is letting the perfect get in the way of the very, very good."
The government's plan leans heavily on habitat improvements to bolster wild runs, going so far as to make precise predictions of improvements of populations in individual streams as a result of habitat projects.
But habitat benefits are notoriously difficult to predict given the complexity of the salmon's journey from native rivers to the ocean and back.
And initial reports indicate the government is behind on planned habitat improvements, though it has pledged to catch up by 2013.
Redden called the lack of scientific support of NOAA's predictions "troubling."
He also said the government agencies didn't spell out what habitat improvements it would undertake from 2014 to 2018, when the 10-year plan ends.
"Federal defendants do not know what exactly will be needed to avoid jeopardy (of wild fish runs) 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."
In a statement, the federal agencies said they will decided whether to appeal the ruling "at a later date."
The decision comes as the numbers of salmon and steelhead returning to the Columbia have surged since 2001, helped by fishing limits and favorable ocean conditions.
Returns -- mostly hatchery fish -- hit post-dam-building highs for much of the past decade at Bonneville Dam, the first on an upstream journey that can run over eight dams and more than 900 miles.
But key runs of wild fish remain perilously low -- and well below minimum benchmarks for removing them from the endangered species list.
Oregon Gov. John Kitzhaber said in a statement that the region needs to work to identify measures the move salmon toward recovery, "rather than being placed in jeopardy by our hydropower system."
Oregon had argued that wild fish populations remained too shaky to rely primarily on habitat improvements. Redden's decision confirms that, said Ed Bowles, fish division director for the Oregon Department of Fish and Wildlife.
"This decision really gives us a window of opportunity now to get this right," Bowles said, "both from a legal basis and a scientific basis."
-- Scott Learn
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