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Judge Hears Salmon-recovery Case by Rukmini Callimachi, Associated Press Seattle Post-Intelligencer, April 28, 2005

Who pays for harm from dams at issue

PORTLAND - The federal government and conservationists government argued in court Wednesday over whether the feds are responsible for the threatened and endangered salmon that die making their way past hydroelectric dams on the Columbia and Snake rivers.

A coalition of environmentalists, sports fishermen and American Indian tribes argued that the latest federal program for operating the dams under the Endangered Species Act treats the manmade structures as part of the landscape and fails to take responsibility for irreparable harm to the fish.

In their rebuttal in U.S. District Court in Portland, the U.S. Justice Department argued that the federal agencies which control the 14 dams dissecting the Columbia and Snake Rivers cannot be held responsible for the existence of the dams, which predate the passage of the Endangered Species Act.

They can only be held responsible for the extra mortality caused by how the dams are operated, not the mortality based on the existence of the dams, said attorney Fred Disheroon, representing NOAA Fisheries, the federal agency responsible for restoring salmon runs in danger of extinction.

"The statute applies to those things you can stop. You cannot stop operating the hydrosystem. You have to operate it in some way," he said.

At the end of the nearly eight-hour long hearing, U.S. District Judge James Redden said he intended to issue his decision in early May, adding: "It is not an easy decision to make - and I hope I make the right one."

Under the Endangered Species Act, NOAA Fisheries must decide whether the federally operated dams jeopardize the survival of 12 threatened and endangered salmon runs, and if they do, propose ways to overcome the harm. The review is known as a biological opinion.

In May 2003, Redden ruled that the biological opinion issued in 2000 was illegal because the federal government could not guarantee that habitat enhancements and upgrades to hatchery and dam operations would be done.

The latest biological opinion set a new course for salmon recovery by doing away with the idea of restoring the rivers to a more natural condition, and taking the new stance that the dams are part of the ecosystem and cannot be removed.

The states of Oregon and Washington intervened on the side of conservationists, and the state of Idaho came in on the side of the government. Conservationists have maintained that removing the four dams on the lower Snake is the best course for salmon recovery.

The lawsuit calls for the biological opinion to be deemed illegal, and for more water to be spilled over the dams to help juvenile salmon migrating downstream, rather than being run through turbines for power.

At the crux of the debate is a disagreement over the purpose of the Endangered Species Act.

Lawyers for NOAA Fisheries argued the Endangered Species Act does not require the federal agencies to consider the harm done to salmon by the existence of the dams.

"The dams are in the baseline," said Robert Lohn, Northwest regional administrator of NOAA Fisheries.

In creating its biological opinion, he said the agencies took that as a given. The new analysis - a departure from the government's 2000 biological opinion - considers only the harm dam operations cause to salmon, but not the harm caused by the dams just being there.

"Instead of moving the ball toward the goalpost, they're moving the goalpost toward the ball - it's a shortcut," said Todd True, an attorney for Earthjustice, which represents the National Wildlife Federation, the lead plaintiff in the lawsuit challenging the biological opinion.

The current biological opinion proposes spending $6 billion on improvements to the hydroelectric system over the next 10 years, including adding special weirs to help juvenile salmon bypass turbines and swim over the dams.

The hearing came as spring chinook returns to the Columbia have fallen far below expectations, with scientists at a loss to explain why. Last week, the Columbia River Compact halted sport and commercial fishing for salmon in the river due to the low returns.

Scientists had predicted that more than 200,000 chinook salmon would return to the Bonneville Dam east of Portland. But as of Sunday, only 11,607 had been counted.