Doc Hastings Launches a New Effort
by Daniel Jack Chasan
A GOP bill goes before a congressional subcommittee headed by a representative who believes dam-removal
proponents seek higher gas prices and reduced lifestyles. The dams-versus-salmon dispute heats up again.
"Save Our Dams" read irrigation farmers' signs outside a Pasco hearing of the House Natural Resources Committee on Aug. 15. The committee chair, central Washington Congressman Doc Hastings, held the hearing on a bill -- christened the Saving Our Dams and New Hydropower Development and Jobs Act -- that would make it a whole lot harder to recover salmon populations in the Columbia River system and potentially a lot of other places. No one expects the bill to pass; Hastings' own press release described it as "a starting point" for discussion.
Hastings said at the hearing, though, as Annette Cary reported in the Tri-City Herald, that he had introduced the bill "to take back the offensive on saving dams."
Hastings' bill would, among other things, prohibit any federal money from being spent on removing, partially removing, or studying the removal of any dam in the United States that generates hydropower or on any dam removal mitigation or restoration measures without explicit approval from Congress. Spilling water over the dams to let young salmon make their way downstream in the spring -- which the federal courts have required for years -- would be forbidden if any federal agency decided that spill would do any harm to any listed species. Earthjustice attorney Steve Mashuda explains that this provision "would allow the [Bureau of Reclamation] or the [U.S. Army Corps of Engineers] to basically veto spill.") The Bonneville Power Administration would have to estimate all direct and indirect fish and wildlife protection costs on its wholesale power customers’ monthly bills.
Last year U.S. District Judge James Redden tossed the National Marine Fishery Service's biological opinion ( BiOp) for operation of the federal Columbia River system hydro dams, giving the feds until Jan. 1, 2014 to come up with a better one. (This was strike four for the feds' efforts to get a biological opinion through the courts.) Redden -- who has since retired and won't rule on the government's next attempt -- had already made it clear that he wanted a BiOp to at least set up a contingency plan for dam breaching. He had 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."
Around the time Redden remanded the BiOp to the feds for another try, the Western Division of the American Fisheries Society passed a reolution stating 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." Consequently, "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."
That, of course, is not what people who depend on the dams and locks to provide cheap barge transportation all the way from Lewiston, Idaho, to the Pacific Ocean want to hear. The feds have just started to let the parties to the long-running BiOp litigation know what they're thinking about the next iteration. Nothing much has happened yet. There is a sense that not much about the parties' attitudes has changed. Some people find that frustrating. "You can't keep saying 'we don't want parties to litigate' while at the same time refusing to talk with them," Mashuda says. One can say that so far, the strategy pursued by the feds, and by the states and tribes that support them, hasn't worked, because NMFS has lost repeatedly in court. On the other hand, one can say its has worked just fine, because they've just kept on doing what they want to do.
Actually, while the courts have shot down one biological opinion after another, and Hastings and his allies use rhetoric that suggest we can still go back to 1937, even federal agencies have somewhat different expectations. Mashuda has mixed feelings about that. "Every time I hear Bonnevile taking credit for spill, my first reaction is one of simmering rage," he says. "But on some level, coopting that message [about the value of spilling water over the dams as juvenile fish make their way downstream every spring] is a sign that they've come to realize that [dealing with] this issue as [they did] in the '80s and '90s is no longer possible." But the evolution of attitudes is a slow process. "My big concern," Mashuda says, "is that it could be 40 more years. I think the fish are telling us that we don't have that much time."
Several years ago, Judge Redden told the parties much the same thing. "Federal defendants have spent the better part of the last decade treading water and avoiding their obligations under the Endangered Species Act," Redden wrote in a letter to the attorneys. "Only recently have they begun to commit the kind of financial and political capital necessary to save these threatened and endangered species, some of which are on the brink of extinction. We simply cannot afford to waste another decade."
One-third of a decade has passed since he wrote that, and nearly one-half of a decade will be gone before the government delivers the next BiOp. If history is any guide, the new BiOp will initiate no immediate action, just another tedious round of litigation. Still, the lack of agreement doesn't mean no one has been busy. Earthjustice's Mashuda says his group has been talking to any willing listerner about resolution of the larger issues. "I wish," he says, "I could tell you that these efforts have borne some fruit but . . . that has not been the case."
He suggests that the wheat growers who ship grain down the river by barge are basically on board with dam breaching -- if they can ship grain some other way at the same price, which basically means if Congress will come up with the money to, for example, upgrade the rail and highway systems, and create new intakes for municipal, industrial and agricultural users of a lower river. Mashuda says there's a need for Congress to help; "not to help [devise] so much as just bless things like transportation" alternatives. Of course, he concedes, Congress would have to "bless them with money."
Joseph Bogaard of Save Our Wild Salmon points out that, in addition to scuttling much chance of compromise on the Snake, the Hastings bill would undercut the kind of collaboration among agencies, tribes, environmental groups, and economic interests that has led to Elwha Dam removal and is leading to an agreement among irrigation interests, tribes, and some environmental groups in the Yakima Basin.
To be fair, not everyone applauds those collaborations. Some environmentalists condemn the Yakima agreement (which won't have any practical effect without federal funding that is far from a sure thing). At the Pasco hearing, U.S. Rep. Tom McClintock, R-Calif., who chairs the House Subcommittee on Water and Power made it clear that he considers the agreement that may lead to demolition of four dams on the Klamath River an assault on the underpinnings of modern life. (McClintock, whose district includes Auburn, Truckee and South Lake Tahoe, evidently feels beset by a variety of foes. If you look at his website, you'll find that "[t]he Supreme Court decision [upholding most of Obamacare[ has much more dire implications for our nation and its cherished freedoms than merely affirming the government takeover of our health care.") McClintock said that a "radical and retrograde ideology has seized our public policy" and is intent on tearing down "four perfectly good hydroelectric dams capable of producing clean and inexpensive electricity for 150,000 homes" in the Klamath Valley. And it's not just the Klamath Valley.
Presumably, McClintock feels the same way about efforts to breach dams on the lower Snake. McClintock sees the future sought by proponents of dam-breaching or removal as "one of increasingly severe government-induced shortages, higher and higher electricity and water rates, skyrocketing grocery prices and spreading food shortages, massive taxpayer subsidies to politically well-connected and favored industries, and a permanently declining quality of life for our families who will be required to stretch and ration every drop of water and every watt of electricity in their bleak and dimly lit homes -- homes in which gravel replaces green lawns and the toilets constantly back up."
The Hastings bill wouldn't get the fate of the Columbia River hydro system out of the courts. Federal courts have ruled repeatedly that BPA must spill water over the dams to comply with the Endangered Species Act. For the same reason, courts may require at least a contingency plan to breach the dams. If Congress couldn't decide to spend money on a dam-breaching study -- and what are the chances that Congress could do so in a timely manner -- or if say, the Bureau of Reclamation decided that spill water harmed some listed species, the Hastings language would set up a conflict of laws.
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