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Judge Redden Sets River Process, Which Could Include Breaching by Washington Wheat Commission Wheat Life, November 2005

A strict and detailed course has been set forth by U.S. District Court Judge James A. Redden for NOAA Fisheries to follow in bringing forth a rewrite of the Biological Opinion--the map for operating the Columbia Basin hydro system salmon protection plan. On October 7, Judge Redden emphasized in his 13-page order, that he will not allow another loss of valuable time, referring both to past actions by NOAA Fisheries on previous biological opinions he deemed to be inadequate, as well as a lack of appropriations from the government for salmon recovery work.

As a result, the judge gave the Action Agencies one year, with the potential for an extension, to correct the legal flaws he identified in the last two biological opinions. Status reports are required every 90 days, beginning on January 2, 2006. The Action Agencies include the U.S. Army Corps of Engineers and the Bureau of Reclamation, which operate the dams, and the Bonneville Power Administration, which markets power generated by the Federal Columbia River Power system.

NOAA Fisheries is now also required to extend collaborations with the sovereign entities, including the states of Idaho, Montana, Oregon, and Washington, the Tribes (the Nez Perce, Umatilla, Yakima, Warm Springs, and Kootenai Tribes).

The Justice Department, however, considers the reporting plan illegal and considers mandatory collaboration a process that ignores Congress' vested authority to prepare biological opinions only in NOAA Fisheries, and the Unites States Fish and Wildlife Service. The judge disagreed. The Department also contends that the Endangered Species Act does not include any provision for public participation as part of the consultation process.

Dam breaching is essentially back onto the table for consideration. The Judge noted that NOAA and the Action Agencies must "be aware of the possibility of breaching the four dams on the lower Snake River, if all else fails." However, he noted, "The cooperation of the political branches (i.e. money) may mean such an action will be unnecessary. If it must be considered, an extension might be required to study its impact and to prepare for its implementation. This should be incentive enough to all those who oppose breaching the dams to make sure this remand succeeds."