Groups Clash in Court Over
by Gosia Wozniacka
The groups in court clashed over which standard of recovery should be used to measure success.
The federal government argued it can't cause additional risks or harm to the fish, and it has met that standard.
PORTLAND, Ore. (AP) -- Federal authorities defended their latest plan for mitigating damage to salmon and steelhead imperiled by hydroelectric dams in the Columbia River Basin.
In oral arguments in U.S. District Court on Tuesday, the government argued its approach is resulting in more salmon surviving at dams, juvenile fish migrating faster to the ocean and record numbers of fish returning to restored habitat.
But conservation and fishing groups, Oregon and the Nez Perce tribe, which challenged the plan in court, said it's deeply flawed. They said it won't lead to the recovery of wild fish populations, because many have not achieved the promised benefits and are barely hanging on. Most of the returning fish were artificially bred in hatcheries.
Thirteen species of salmon and steelhead are listed as endangered or threatened under the Endangered Species Act in the Columbia River Basin.
The plan's various iterations have been litigated in court for more than two decades. The most recent plan -- known as the biological opinion -- was issued in 2008 to cover a 10-year period through 2018, and a supplemental plan was added in 2010. It was struck down in court in 2011 for depending too much on habitat improvements whose benefits are unknown. The plan's latest version was issued in January 2014.
The groups in court clashed over which standard of recovery should be used to measure success. The federal government argued it can't cause additional risks or harm to the fish, and it has met that standard.
The plan, said federal attorney Michael Eitel, isn't a plan for recovery. Rather, it asks whether fish will be "trending toward recovery." This means one year's returns must outnumber the previous year's, regardless of whether that eventually leads to recovery or when.
But the plaintiffs argued the government has set the bar too low. They said because energy-producing dams are the main cause of fish mortality, the plan must do more to protect and recover them.
"A growing species is not the same as a recovered species," said Todd True, an attorney with Earthjustice who represents environmental groups in the court case.
What's missing from the plan, said True, is a definition of what constitutes recovery and when approximately it will be achieved.
True criticized the uncertainty of habitat restoration, which is the plan's main tool to improve fish survival; other plan components include reducing the effects of hatcheries on wild fish and keeping predators at bay, as well as improving fish passage at the dams.
Plaintiffs said habitat can't compensate for harm done in the "migratory corridor" where dams harm fish. Even where habitat has been restored, many fish populations don't replace themselves, said Stephanie Parent, the lawyer representing Oregon.
Plaintiffs also said the government has not analyzed the effects of climate change and isn't taking any actions to mitigate for them. As a result, said Earthjustice attorney Steve Mashuda, it's hard to know how much climate change's effect could "erode or negate the predicted benefits" of government's actions to help salmon.
Eitel, the government lawyer, said the magnitude and timing of climate change are poorly understood and its effects on species vary, so additional actions were not planned to offset its effect.
Critics also said the current plan rolls back some of the spill ordered by U.S. District Judge James Redden 10 years ago. In 2011, Redden, who has since retired and stepped off the case, asked the government to consider whether removal of the four lower Snake River dams might be necessary -- an action environmentalists have long called for, in addition to increased spill.
The government says breaching dams isn't needed. Lorri Bodi, the Bonneville Power Administration's vice president of fish and wildlife, said it has not ignored the hydro system's effects -- it has invested over $1 billion in improvements such as weirs and other types of fish passage, improving survival.
Judge Michael Simon, who took over the case from Redden, did not indicate when he would rule.
No matter what Simon decides, the current management plan will be in place just for another three years. Soon, the government will need to start discussing another biological opinion that would be put in place in 2018.
Judge: Salmon-killing Dams Should Go by John McManus, unEarthed, 4/26/12
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