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Columbia-Snake River Irrigators want 'God Squad' Convened to Assess Basin Salmon Recovery by Bill Rudolph Columbia Basin Bulletin, April 25, 2014

The responsibility of Pacific Northwest electricity consumers to pay for a plan to restore threatened and endangered salmon runs has been stretched beyond reasonable limits, according to a letter sent this month asking that the governors of Idaho, Montana, Oregon and Washington demand a "God Squad" assessment of the situation.

The Endangered Species Committee, created as part of congressional amendments to the Endangered Species Act, can be called together to decide whether a federal agency, or agencies, can be exempted from responsibilities regarding the protection of listed species.

In the case of the letter sent April 7 to Gov. C.I. "Butch Otter, Idaho; John Kitzhaber, Oregon; Steve Bullock, Montana, and Jay Inslee of Washington by the Columbia-Snake River Irrigators Association, the species in question are 13 salmon and steelhead stocks.

God Squad intervention is needed to "halt excessive and unbridled litigation directed toward the region's electric power ratepayers," according to the letter signed by CSRIA President Ron Reimann and CSRIA board representative Darryll Olsen.

The CSRIA represents many of eastern Washington's most prominent farming operations, with its members irrigating about 250,000 acres of prime row crop, vineyard, and orchard lands. Irrigators absorb considerable electricity to, among other things, pump water to their crops.

"The Endangered Species Act has a remedy to end this nonsense, and it is a remedy that is consistent with sound resource protection policies and management," according to the CSRIA letter. "That remedy allows the state governors the statutory right to demand that and Endangered Species Act Committee be convened.

"The Committee has power to exempt further river 'mitigation' from the Act, and to finalize 'reasonable mitigation and enhancement measures' once and for all. The governors should end this perverse litigation cycle."

The request by the CRSIA was prompted by the March 24 filing of a 60-day notice of intent to sue the Bonneville Power Administration that alleges the power marketing agency violated the ESA with the signing of a record of decision adopting a fish protection strategy approved early this year by NOAA Fisheries. The ESA BiOp outlines hydro system, habitat, harvest and hatchery measures NOAA Fisheries believes necessary to avoid jeopardizing protected fish.

The 60-day notice was filed by Earthjustice for the Federation of Fly Fishers, Sierra Club, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Idaho Rivers United and the Northwest Sportfishing Industry Association.

(See CBB, April 4, 2014, "Fishing/Conservation Groups File Sue Notice On Challenging Salmon BiOp In Ninth Circuit")

Frustrated after many years of participation, at times, in challenges to prior Federal Columbia River Power System biological opinions, the CSRIA decided intervention was needed.

According to the CSRIA, "environmentalists" in ongoing claims say that BPA, the U.S. Army Corps of Engineers, the Bureau of Reclamation and NOAA Fisheries have not done enough to avoid jeopardizing 13 listed salmon and steelhead stocks as a result of the operation of federal hydro projects in the Columbia and Snake river systems.

The listings, and litigation challenging the adequacy of restoration plans, have driven up costs, according to the CSRIA.

A large share of those costs are covered by BPA, which markets power generated in the region's federal hydro system and is obligated under the Northwest Power Act to mitigate for impacts to fish and wildlife. The Corps and Bureau operate the dams, and NOAA Fisheries has among its charges protecting listed stocks.

Olsen said that fish and wildlife investments -- ground restoration activities, dam operational changes, revenue generating opportunities foregone in order to accommodate fish passage and improve survival -- now represent about 30 percent of BPA costs.

"It's our view that it shouldn't go up," Olsen said of fish and wildlife costs that have been as high as $900 million. "That's enough money."

The CSRIA sees the God Squad as a potential "tool" to hold the financial line.

Federal agencies have no motivation now "to do anything but ask for more money," Olsen said.

The 1978 amendment to the ESA attempted to "retain the basic integrity of the ESA, while introducing some flexibility which will permit exemptions from the Act's stringent requirements."

The amendments established rules for a God Squad -- a committee composed of seven Cabinet-level members: The administrators of the Environmental Protection Agency and the National Oceanic and Atmospheric Administration, the chairman of the Council of Economic Advisers, a representative of the state in question, the Secretary of Agriculture, the Secretary of the Army and the Secretary of the Interior.

The committee has the authority to allow the extinction by exempting a federal agency from Section 7 requirements. To exempt a species, five of the seven members must vote in favor of the exemption.

The following conditions must be met for a species to be considered for exemption:

• there must be no reasonable alternative to the agencies action;
• the benefits of the action must outweigh the benefits of an alternative action where the species is conserved;
• the action is of regional or national importance;
• neither the federal agency or the exemption applicant made irreversible commitment to the resources.

ESA Section 7(e) creates and describes the committee. Section 7(g) that describes the exemption process. And 7(g)(1) says who may apply for an exemption.

(g) APPLICATION FOR EXEMPTION AND REPORT TO THE COMMITTEE.-
"(1) A Federal agency, the Governor of the State in which an agency action will occur, if any, or a permit or license applicant may apply to the Secretary for an exemption for an agency action of such agency if, after consultation under subsection (a)(2), the Secretary's opinion under subsection (b) indicates that the agency action would violate subsection (a)(2). An application for an exemption shall be considered initially by the Secretary in the manner provided for in this subsection, and shall be considered by the Committee for a final determination under subsection (h) after a report is made pursuant to paragraph (5). The applicant for an exemption shall be referred to as the "exemption applicant" in this section."

"Regardless, extreme environmental elements will relentlessly embroil the region in litigation -- seizing household income -- so long as the last rate payer stands."

The God Squad was convened during the battles in the Pacific Northwest over the Northern Spotted Owl in the late 1980s and early 1990s.

Under the Bush Administration, the Bureau of Land Management filed for an exemption from Section 7 of the ESA, that would allow logging in areas where a federal judge had ordered a halt to timber sales. The God Squad voted 5-2 to allow an ESA exemption for some of the timber sales.

But when the Clinton Administration took office the BLM's exemption request was withdrawn. Instead the administration set up a Forest Ecosystem Management Assessment Team, which led to an agreement in which 10 million acres of old growth forest were protected, while allowing limited logging.

Related Pages:
Fishing Groups Intend to Sue BPA over BiOp in 9th Circuit by Bill Rudolph, NW Fishletter, 4/3/14
Endangered Species Act United States Legislature, 1973