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Behind a Judge's Refusal to Go Along with Obama's River Plan by Daniel Jack Chasan Crosscut, August 3, 2011

The Obama administration has essentially adopted the Bush administration's position that everything is fine for fish on the Columbia
if it says so. A federal judge, who has lost patience, is demanding better planning, even if it requires dam removal.

Extra! Extra! Read all about it! The sun has risen in the east! And United States District Court Judge James Redden has tossed the Obama administration's (nee the Bush administration's) biological opinion for operation of the federal Columbia River dam system onto the scrap heap of history.

This is the third Columbia River biological opinion (BiOp) Redden has tossed, the fourth that has been rejected by the federal courts. He has been expressing his skepticism about and frustration with this BiOp for years. So, no one should be surprised that he has sent it back to NOAA Fisheries with instructions to come up with something better by 2014.

"Because [the current biological opinion] is based on unidentified mitigation measures that are not reasonably likely to occur," Redden wrote in his new decision, "I find NOAA Fisheries' 'no jeopardy' conclusion arbitrary and capricious, at least as it extends beyond 2013." The judge made it clear that the feds were attributing specific survival benefits to habitat improvements that had not even been identified. Not surprising, he wrote that he has continued "to have serious concerns about the specific numerical survival benefits NOAA Fisheries attributes to habitat mitigation."

And, although he was way too judicial to call it flim-flam, he had clearly lost patience with the feds' manipulation of "science" to reach politically determined ends. "Although the court may be required to defer to NOAA Fisheries' technical and scientific 'expertise' in predicting the benefits of habitat mitigation," he wrote, "the court is not required to defer to uncertain survival predictions that are based upon unidentified mitigation plans."

The court was also not required to reach some of the more fundamental questions that the plaintiffs had raised. The Bush administration had suggested that the government could comply with the Endangered Species Act if the listed salmon populations were "trending toward recovery." That could presumably mean one more fish per year. It was a concept foreign to statute or case law. When the Obama administration basically took the Bush BiOp as its own, Redden made it clear that the document was probably a loser. Among other things, he said, "I still have serious reservations about whether the 'trending toward recovery' standard complies with the Endangered Species Act, its implementing regulations, and the case law. Even if 'trending toward recovery' is a permissible interpretation . . . the conclusion that all 13 species are, in fact, on a 'trend toward recovery' is arbitrary and capricious."

The new ruling says that because the BiOp failed by relying on unidentified and uncertain habitat improvements, Redden didn't have to address "trending toward recovery." But he had already expressed his concern that the feds had "improperly rel[ied] on speculative, uncertain, and unidentified tributary and estuary habitat improvement actions" even though their "own scientists have concluded that many of the proposed estuary mitigation measures (and the assumed benefits) are unsupported by scientific literature."

"Even if 'trending toward recovery' is a permissible interpretation of the jeopardy regulation," Redden wrote the attorneys on both sides a couple of years ago, "the conclusion that all 13 species are, in fact, on a 'trend toward recovery' is arbitrary and capricious." Redden's reasons for considering it arbitrary and capricious included:

1. Federal Defendants improperly rely on speculative, uncertain, and unidentified tributary and estuary habitat improvement actions to find that threatened and endangered salmon;

2. Federal Defendants' own scientists have concluded that many of the proposed estuary mitigation measures (and the assumed benefits) are unsupported by scientific literature;

3. Federal Defendants assign implausible and arbitrary numerical survival improvements to tributary habitat actions, even though they have not identified specific habitat actions beyond 2009, and there is no scientific data to support those predictions.

Even if the feds successfully address his objections to their over-reliance on under-specified habitat improvements, they won't be out of the woods. There is still the dubious "trending toward recovery" standard. There is still the failure to deal seriously with the prospect of climate change. The latest version of the BiOp acknowledged climate change as an issue but promised little more than measurement of rising water temperatures. It certainly did not take the step that salmon advocates push as a necessity for recovery and Redden himself wanted as at least a contingency plan: breach the four lower Snake River dams.

With climate change, warming water ultimately means spawning streams in which salmon can't spawn. The water most likely to keep cool flows at high elevations. In the Columbia Basin, that means largely the already-protected Idaho tributaries of the Snake. This is an argument for breaching the dams that block passage between those tributaries and the ocean.

Defenders of the economic status quo along the Columbia are willing to pin exaggerated blame on anything but the four lower Snake River dams. Those defenders by and large have included Washington's United States senators and the administrations of George W. Bush and Barack Obama. Anti-dam forces, on the other hand, are reluctant to focus attention on anything but the dams. People who say that an unbiased look at the situation will point the finger squarely at the dams got a big boost recently when the Western Division of the American Fisheries Society passed a resolution that called for breaching the dams in order to save listed salmon populations, plus lampreys, and white sturgeon.

"[B]ased on the best scientific information available," the resolution states, "it is the position of the Western Division of the American Fisheries Society that the four lower Snake River dams and reservoirs are a significant threat to the continued existence of remaining Snake River salmon, steelhead, Pacific lamprey, and white sturgeon." The fishery experts go on to say that "if society-at-large wishes to restore Snake River salmon, steelhead, Pacific lamprey, and white sturgeon to sustainable, fishable levels, then a significant portion of the lower Snake River must be returned to a free-flowing condition by breaching the four lower Snake River dams."

This is not a new idea. The resolution notes that "past and recent scientific reviews, including those conducted as part of the Independent Scientific Advisory Review process, the collaborative and peer-reviewed Plan for Analyzing and Testing Hypotheses (PATH), the Fish and Wildlife Coordination Act report on the Corps of Engineers Lower Snake River Juvenile Salmon Migration Feasibility Study Environmental Impact Statement, the 2002 American Fisheries Society publication of the symposium titled Biology, Management, and Protection of North American Sturgeon, the 2005 American Fisheries Society Western Division Review of the Federal Columbia River Power System Biological Opinion, the 2010 American Fisheries Society Western Division Review of the Adaptive Management Implementation Plan, and the 2010 U.S. Fish and Wildlife Service Pacific Lamprey Draft Assessment and Template for Conservation, have all indicated that restoration of natural river conditions where the lower four Snake River dams occur has the highest likelihood of preserving and recovering salmon, steelhead, Pacific lamprey, and white sturgeon, and poses the least risk to their survival."

The Western Division of the American Fisheries Society has passed a resolution about the dams before. What's new? "A number of members let us know that it had been 10 years since the [last] resolution," says the organization's president-elect, Dave Ward. It "needed updating." Still, he says, a need to stay current may not have been the whole story: It was "probably not a coincidence that [passage of the resolution] happened during the period of litigation over the biological opinion."

Ward explains that his group hadn't actually identified the dams in question before, and hadn't extended its concern to sturgeon and lampreys. Also, the fisheries experts were in a position now to point out that things done over the past decade hadn't really worked. They said that "wild Snake River salmon and steelhead have continued to decline as a result of delayed mortality from the hydropower system, despite recent improvements in ocean productivity, passage and adult returns." And they noted that "the U.S. Fish and Wildlife Service Lower Snake River Compensation Plan Office, charged with compensating for salmon and steelhead losses associated with turbine mortality at the four lower Snake River dams, has concluded it cannot meet its salmon compensation objectives."

The fishery experts could acknowledged the recent rise in salmon returns, but warned people not to assume things are getting better. "[D]espite recent years of relatively large runs of some salmon and steelhead populations, and good flow and ocean conditions," they said, "it is prudent to expect a repeat of extended periods of smaller runs, and poor flow and ocean conditions, coupled with continued gradual warming of water temperatures."

They also argue that dam breaching wouldn't be all that draconian. They point out that "economic analyses have shown that river shippers pay only 9% of the total costs of maintaining and operating the lower Snake River navigation system (far exceeding subsidies for rail and highway freight transportation), and the remainder is subsidized by electric ratepayers and federal taxpayers." So it's really just a question of what the body politic decides to subsidize.

In addition, they say that "the power generation of the four lower Snake River dams has constituted an average of 4% of the Pacific Northwest power needs (mostly during spring runoff when it is least needed and most replaceable), while only producing about 1% of regional power needs during high demand periods." It's legitimate to ask whether, if global climate change is really the main threat facing Pacific salmon and all the rest of us, breaching four functioning hydropower dams is really the right thing to do (although some of the people asking that are a bit suspect). But the economic impact would be trivial. In 2009, Northwest Power and Conservation Council modelers found that breaching the dams would boost the average Northwestern ratepayer's bill by less than 1%.

Redden has already made it clear that breaching should be on the table, at least as a contingency. In his 2009 letter to the attorneys, he wrote that the "BiOp does not articulate a rational contingency plan for threatened and endangered species in the event that the proposed habitat improvements and other remedial actions fail to achieve the survival benefits necessary to avoid jeopardy." In case they do fail, Redden proposed "developing a . . . plan to study specific, alternative hydro actions, such as flow augmentation and/or reservoir drawdowns, as well as what it will take to breach the lower Snake River dams if all other measures fail."

Does Ward think the fishery group's resolution resolution on breaching will have much political impact? No, he's not delusional. Realistically, he says, "when agencies see this, they'll just ignore it." The big question is whether or not they'll basically ignore Redden pointed statements, too.