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Irrigators Head for the Turbines with Dam Lawsuit by Patrick McGann Lewiston Tribune, November 28, 2003

It is probably not a smart move for upper Snake River irrigators to sue to maintain their level of water use. Although it is business as usual -- suit, countersuit, threat and bluster are not the way to win their case.

One of the arguments irrigators are using is that they are too far removed from the endangered fish for their water use to be considered a primary factor in the operation of the dams. That argument won't fly.

Federal courts have already shown no inhibitions about hiking their authority all the way to headwaters. The irrigators will be forced to make a systemwide argument to show how far-flung factors -- ocean conditions, offshore harvest, operation of other dams -- are just as much relevant to fish survival as flow rates. They will have to argue against themselves.

Dams hurt anadromous fish runs. That cannot be disputed. The question is whether specific dams can be operated in a way that minimize the harm they do to endangered species, and whether those measures are enough to satisfy the Endangered Species Act.

That is the question that will eventually be settled in court, regardless of who brings the suit; so who will have the burden of proof?

The solution du jour -- focused on passage -- is increased flow rates. Irrigators are calling it a failed experiment on one hand and a crowning success on the other. Salmon and steelhead runs are robust -- at the moment -- and therefore, irrigators say, increased flow rates aren't necessary.

The environmentalists' argument is Kabuki theater. They are convinced that dams can not be operated in a way that satisfies the ESA. They argue that flow rates are high enough to help hatchery fish but not high enough to help wild fish. So they argue for more and more water, higher and higher flow rates, like a rook chasing a king, until they can checkmate into breaching. Environmentalists are convinced it is not the flow rates but the dams themselves that are the problem.

And that's why the upstream water users may be blundering by becoming a plaintiff. They will be forced into proving what can't be proved, that higher flow rates will not improve the lot of wild fish.

What must be proved to save the dams is that the dams can be operated in a way that is compliant with the ESA.

Trying to force the issue by suit -- that human cost in loss of irrigation, shipping and electricity generation trumps the loss of fish species -- is a losing gambit. It's safer to bet on wetter weather.