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Eternal Dam Nation

by Daniel Jack Chasan
Crosscut, November 26, 2007

The life cycle of Columbia River salmon might be endangered, but not so the cycle of litigation over how to save the fish. The feds so far have refused to consider breaching dams in the vast river system, while federal judges are rejecting as insufficient all other measures to help fish pass through. We seem to be years from resolution.

(EPA photo) Ice Harbor Dam on the Lower Snake River near Pasco, Washington Those who do not remember the past, in George Santayana's famous phrase, are condemned to repeat it. Santayana's saying reflects a touchingly optimistic view of the human condition: It implies that those who do remember won't repeat.

But life doesn't always work that way. Sometimes, those who remember the past keep repeating it anyway. Look at the long history of wrangling over the Columbia River system's wild salmon: The federal government crafts a biological opinion about the dam system's effect on fish that dances around the subject of breaching the dams to save the fish. Environmentalists sue. The federal courts tell the government to try again. As the U.S. Ninth Circuit Court of Appeals observed in April [72K PDF], federal dam operations "have been the subject of perpetual litigation [ever] since the fishes in question were first listed [as endangered species] in the early 1990s." Everyone remembers this pattern. But the feds keep reinitiating it.

Federal courts have already tossed out three biological opinions since Snake River sockeye were listed as endangered, in 1991. (A fourth "bi-op" was explicitly short-term.) The latest repetition, released by the National Oceanic and Atmospheric Administration (NOAA) a few weeks ago, comes in response to U.S. District Judge James Redden's 2005 ruling that the previous bi-op - issued right after the presidential election of 2004 - violated federal law. Redden told NOAA's National Marine Fisheries Service (NMFS) to try again.

This version is less obviously creative than the one Redden shot down two years ago. The judge had sent the Clinton administration's previous effort back to the agency because the measures it proposed to reduce damage to wild salmon runs weren't reasonably certain to occur. The judge called for a little tweaking. Instead of tweaking the old bi-op, the Bush administration started from scratch and came up with an unprecedented new theory: The big dams had become part of the environmental baseline, so the government didn't have to consider their effects on wild salmon. Redden rejected that reasoning. The Ninth Circuit sustained his ruling.

NMFS had also reasoned that it could consider only the survival, not the recovery, of wild salmon populations. That theory didn't pass judicial muster, either. So there is this new plan.

This time, there are no obvious intellectual surprises. Earthjustice attorney Todd True argues that the latest bi-op is actually more creative than its predecessors because it pretends that the same old failed attempts to save salmon will somehow produce different results. "They are measuring things in a way that is designed to get the answers they want," True says.

The feds say they will improve habitat in the tributaries and estuaries, which would be nice but probably insufficient, even combined with somewhat improved fish passage over dams and a continuing war on predators. A recent study [484K PDF] by Phaedra Budy of the U.S. Geological Survey and Howard Schaller of the U.S. Fish and Wildlife Service has found that improving habitat in tributaries can't keep more than a handful of salmon populations from going extinct. Budy and Schaller found that improving tributary habitat would suffice for only four of the 32 salmon populations they studied. Their article says: "A recovery strategy for these salmon that relies largely on tributary restoration to mitigate for known mortality imposed at other life stages (e.g., migration through hydropower dams) is risky with a low probability of success."

Federal agencies will continue to rely heavily on barging or trucking young salmon downstream around the dams. Environmentalists will continue to point out that decades of barging and trucking have failed to keep wild salmon runs from the brink of extinction. They say that one of the few bright spots in the recent history of Columbia and Snake river salmon has been the increased survival rate attributable to heavier water flows ordered by the U.S. District Court for 2005 and 2006.

"If this is the action the Bush administration is going to go forward with," True says, "it will cause the extinction of some of these salmon stocks. The only way to do that legally is to seek and obtain an exemption from the God Squad." Under the Endangered Species Act, a cabinet-level Endangered Species Committee can decide whether the economic costs of saving a species outweigh the environmental benefits. The committee can grant an exemption only if the proposed action has regional or national significance, there are "no reasonable and prudent alternatives," and "the benefits of [the] action clearly outweigh the benefits of alternative courses of action."

True says the administration has in effect been granting itself an exemption through the back door. "I would be delighted to see them try to go through the front door," he says. He doesn't think they could meet the burden of proving no "reasonable and prudent alternatives." The Northwest Power Planning and Conservation Council foresees an energy surplus for the next five to 10 years, and the council's current power plan says the region could capture 2,800 megawatts through cost-effective conservation by 2025. True refers to a 2002 Tellus Institute study commissioned by the Northwest Energy Coalition that indicated the region could capture more than 12,000 megawatts through cost-effective conservation and non-hydro renewables by 2020.

A skeptic might dismiss this as green wishful thinking, but if it didn't contain a large grain of truth, why hasn't the Bush administration - or one of its two immediate predecessors - gone to the God Squad? Presumably, even when you throw in the benefits of a lock system that makes Lewiston, Idaho, a deep-water port, the economic arguments look less than compelling.

Clearly, a lot of people have big stakes in the status quo. But federal law comes down squarely on the side of the fish. To save the fish - and comply with the law - we'll have to change our whole approach to the problem, True suggests. Government won't do that voluntarily. Ultimately, government may not have a choice - just as, ultimately, it didn't have a choice about saving old-growth forests for the northern spotted owl and a host of other critters. "The courts can help us catalyze that kind of change," he says.

Meantime, we're stuck with the basic political impasse: Environmentalists will settle for nothing less than breaching dams on the lower Snake. Neither the feds nor the state of Washington will willingly consider breaching. Everything else is largely a sideshow.

So what comes next? If history is any guide, federal courts will toss the new biological opinion out, too. But not quite yet: The final version isn't due until next year. Environmental groups will sue. The District Court will take a while to rule. Then the loser will appeal. The Ninth Circuit will take a while to hear the appeal. This all could take at least a year. The Bush administration may well leave office before the courts call for biological opinion number six. Then, it will be someone else's turn.

Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues.
Eternal Dam Nation
Crosscut, November 26, 2007

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